SC Administrative Law Court Decisions

Concerned Boaters, the Petitioner, seeks review of a permit granted by the South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management ("OCRM"), to the City Marina Company. The permit authorizes the City Marina Company ("City Marina") to place mooring buoys in two mooring fields in the Ashley River. After notice to the parties, a contested case hearing was held on May 27, 1998 in Charleston. Any issues raised or presented in the proceedings or hearing of this case not specifically addressed in this Order are deemed denied. ALJD Rule 29(C).

The Petitioner essentially argues that the OCRM permit was improperly issued for the following reasons: (1) The permit represents an illegal gift of public resources to City Marina; (2) DHEC-OCRM's criteria for granting mooring permits are unwritten, arbitrary, capricious and violative of due process; and (3) City Marina has failed to comply with an earlier permit.

Petitioner argues that the permit represents an illegal gift of public resources, this issue was clearly addressed by the Division in an Order on Motion to Compel Discovery dated February 12, 1998. This Division is without jurisdiction to address those allegations that City Marina is receiving a gift of public property by being able to construct and install a mooring field within a federally designated area that allows public access for anchoring boats. Petitioner's argument is that City Marina derives financial benefit from charging a fee to allow moorage in an area set aside by the federal government for free anchorage. The propriety of such action is not within the purview of the Administrative Law Judge Division. The issue for consideration is whether the project meets the applicable requirements for issuance of a permit by DHEC-OCRM. Further, the permit at issue has already received the approval of the City of Charleston and the United States Army Corps of Engineers, the governmental entities controlling the public resources.

Petitioner also asserts that OCRM's decision to grant the permit was arbitrary, capricious or in violation of Petitioner's due process rights. OCRM did not exercise an arbitrary or capricious methodology for granting mooring permits in violation of the Petitioner's due process rights. In this case, OCRM applied the existing statutory and regulatory principles. Specifically, S.C. Code Ann. §§ 48-39-10 et seq. (1987 & Supp. 1997) and 23A S.C. Code Ann. Regs. 30-1 through 30-20 (1976 & Supp. 1997) provide guidance to govern the issuance of permits in the coastal zone. The Petitioner has not identified any specific provision that OCRM failed to adequately consider in granting the permit, nor has Petitioner shown that OCRM's action violated any of the applicable statutory or regulatory provisions. The General Assembly placed the authority to issue coastal zone permits with OCRM, which exercises significant discretion over issuing permits in the coastal zone. Consequently the Petitioner's difference of opinion on OCRM permitting decisions would not require the denial of a permit. As OCRM has exercised its duty within the procedural and substantive boundaries of its legislative mandate, the OCRM decision to issue the permit was proper.

Finally, Petitioner argues that City Marina failed to follow provisions in its Operations Manual, thereby violating permits issued by OCRM and therefore should not be issued this permit. OCRM conducts yearly inspections of City Marina. During those inspections minor violations were noted and corrected immediately. City Marina has never been cited by OCRM for any violation which has resulted in an enforcement action. The evidence demonstrates that City Marina follows the operations manual and complied with the permits issued by OCRM. When minor infractions have occurred, City Marina has taken immediate steps to correct the problem. There is no evidence of any disregard for the permits held by City Marina and no evidence that it would not adhere to any future permits issued. Thess allegations are not a basis to deny the permit sought by City Marina for the mooring fields.

I make the following Findings of Fact, taking into account the burden on the parties to establish their respective cases by a preponderance of the evidence and taking into consideration the credibility of the witnesses:

The City Marina Company operates the City Marina, located on the Ashley River, pursuant to a lease from the City of Charleston.

The marina can dock or moor over 260 vessels of various sizes.

City Marina employs an experienced person to operate the marina.

Concerned Boaters is a limited liability company formed to promote the rights and responsibilities of those who work, play, or live on the water. Arthur J. Hogan serves as president of Concerned Boaters.

Private vessels have anchored to the southeast of the City Marina and across the Ashley River from the City Marina, beyond the Ashley River's navigational channel. On occasion, vessels left unattended have had their anchors drag during inclement weather, causing the vessels to sink or damage other vessels.

In May, 1997, City Marina applied to OCRM for a permit to construct an 11.5 acre mooring field adjacent to and southeast of the City Marina and to place mooring buoys around the perimeter of the Ashley River Anchorage Number One Federally Designated Mooring Area, located directly across from the City Marina on the west bank of the Ashley River.

The 11.5 acre mooring field is located on property owned the City of Charleston and leased to City Marina. Ashley River Anchorage Number One Federally Designated Mooring Area is a public anchorage area designated by the U.S. Coast Guard to allow mooring of vessels.

The mooring fields will enable local and transient boaters to attach lines to buoys, thereby eliminating the risk of anchor dragging and prevent anchored boats from obstructing navigation along the Ashley River. In addition, the placement of mooring buoys around the federally designated area will outline the existing free mooring area to clarify its location and keep the channel free of anchored boats.

The project requires alteration of "critical area" within the Coastal Zone of the State.

Mooring vessels requires the captain of the vessel (or its owner) to be familiar with the vessel's location in the water and its proximity to other vessels to determine the length of line needed to properly anchor the vessel.

Lines of moored or anchored vessels may cross if swing and scope are not properly set.

Boaters should be familiar with the rules and regulations regarding pilotage.

There are no federal or state standards regarding a buoy system.

The project will utilize a helical screw anchor which employs a screw in steel pipe embedded in the river bottom. The helix screw is best able to withstand forces of a hurricane.

A permanent moor allows the least amount of movement of the vessel while tied.

OCRM received comment letters from the S.C. Department of Natural Resources, S.C. Ports Authority, S.C. Department of Commerce, Fisheries Service, U.S. Coast Guard, and DHEC Water Quality regulators.

The State Ports Authority declared that the proposed project or activity would not unreasonably interfere with commercial navigation and shipping.

The City of Charleston supports the project.

The designation of a mooring field and installation of mooring buoys requires a waterfront location.

The proposed activity will not harmfully obstruct the natural flow of navigable water.

The completed project poses no threat to shellfish in these waters and does not alter the quality of the natural environment.

There is no adverse impact to water quality in the Ashley River.

The activity will not cause erosion, shoaling of channels or creation of stagnant water.

The project will not significantly affect existing public access to tidal and submerged lands, navigable waters and beaches, or other recreational coastal resources.

The habitats for rare and endangered species of wildlife or irreplaceable historic and archeological sites of South Carolina's coastal zone will not be affected by the project.

Any adverse environmental impact that cannot be avoided by reasonable safeguards is minimal.

All feasible safeguards have been taken to avoid adverse environmental impact resulting from the project.

The proposed use will positively affect the value and enjoyment of adjacent owners.

The permit (97-1B-213-P) was issued to City Marina on October 22, 1997.

The United States Army Corps of Engineers approved the project (Permit No. 97-1B-213) for the federally designated area on December 15, 1997.

The Corps of Engineers permit allow the helix line for mooring to be identified by a buoy so the lines can be located. Placement of the helix screws underwater will be at a distance of 75 feet to eliminate or minimize overlap of swing lines.

Improvements to the City Marina and the federal anchorage will greatly benefit the public and create a safer environment than that which currently exists.

Inspections of the City Marina are conducted annually.

A sheen on the water can be caused by either a fuel spill or starting the engine on a boat.

City Marina has never been cited for causing a sheen. A sheen is not considered a major violation primarily because a sheen is not traceable to a specific source unless there is a major or significant fuel spill.

The Coast Guard has enforcement jurisdiction over any fuel spill.

On at least one occasion, City Marina did not have available absorbent pads for removing incidental spills during fueling operations.

Adequate bathroom facilities are provided to discourage any overboard discharge of sewerage from the boats.

City Marina has never been cited for any violations of its permits or operations manual. Any infractions observed by OCRM during its inspections were corrected on site immediately by City Marina.

Based upon the Findings of Fact, I conclude as a matter of law the following:

The Administrative Law Judge Division has contested case jurisdiction to hear this matter pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 1997), S.C. Code Ann. § 48-39-150 (Supp. 1997), and 23A S.C. Code Ann. Regs. 30-6(B) (Supp. 1997) ("Any person adversely affected by the Department staff's initial permitting application decision has the right to file a request for a contested case hearing before an administrative law judge").

In a contested case proceeding, "the ALJ is not sitting in an appellate capacity and is not restricted to a review of the decision below. Instead, the proceeding before the ALJ is in the nature of a de novo hearing." Reliance Ins. Co. v. Smith, 327 S.C. 528, 489 S.E.2d 674, 677 (Ct. App. 1997).

In weighing the evidence and making a decision on the merits in a contested case, the proper standard of proof to be applied is a preponderance of the evidence. Anonymous (M-156-90) v. State Bd. of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998).

Findings of fact based upon a preponderance of the evidence are those supported by the greatest "weight, amount, credibility or truth" as reflected by the whole of the evidence before the court. Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225, 235 (1955).

The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992).

As "the party seeking the aid of the judicial process to advance its position," the Petitioner carries the burden of proof." Alex Sanders, Deborah Neese, and John S. Nichols, Trial Handbook for South Carolina Lawyers § 9:1 at 9-1 (1994). The burden of proof in the strict sense "denotes the duty of establishing the truth of a given proposition or issue by the quantum of evidence the law demands in the case in which the issue arises. . . ." Id.

The arbitrary and capricious standard serves as an appellate standard of review and does not apply in a contested case proceeding. See S.C. Code Ann. § 1-23-610(D)(f) (Supp. 1997); Deese v. South Carolina State Bd. of Dentistry, 286 S.C. 182, 184, 332 S.E.2d 539, 541 (Ct. App. 1985).

In any decision to grant or deny a coastal zone permit, OCRM exercises significant discretion. See 1 Am. Jur. 2d Administrative Law § 118 (1962). In exercising that discretion, OCRM must apply its statutory principles in a reasoned judgment supported by a rational basis; to do otherwise would produce an arbitrary decision. Cf. Deese v. State Bd. of Dentistry, 286 S.C. 182, 332 S.E.2d 539 (Ct. App. 1985).

S.C. Code Ann. § 48-39-130(C) requires a person to obtain a permit for any alteration of the "critical area" of the coastal zone.

S.C. Code Ann. §§ 48-39-10 et seq. (1987 & Supp. 1997) and 23A S.C. Code Ann. Regs. 30-1 through 30-20 (1976 & Supp. 1997) govern the issuance of permits in the coastal zone.

S.C. Code Ann. § 48-39-150 (Supp. 1997) and 23A S.C. Code Ann. Regs. 30-11 provides regulatory guidance for permitting in critical areas. OCRM is guided by ten general considerations for assess the impacts of projects to critical areas. Based upon these factors, the potential of adverse impacts of this project in the critical area was very minimal.

In addition to the ten general considerations, in determining whether a permit application is approved or denied, the department shall base its determination on the individual merits of each application the policies specified in Sections 48-39-20 and 48-39-30. S.C. Code Ann. § 48-39-150 (Supp. 1997).

These policies include protection of the environment and the preservation of the State's natural resources balanced against the development of the area for public and private interests.

OCRM properly concluded that the proposed project is not contrary to the State's policies and would benefit members of the public and protect navigation along the State's waters.

City Marina's failure to strictly comply with a previous permit does not represent a statutory or regulatory factor for consideration by the ALJD in evaluating the OCRM decision to grant the mooring permit. City Marina has not been cited for any violations by OCRM. Minor infractions have been corrected on site by City Marina during inspections.

"Procedural due process imposes constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." Mathews v. Eldridge, 424 U.S. 319, 332 (1976), quoted in Anonymous (M-156-90) v. State Bd. of Medical Examiners, 323 S.C. 260, 265, 473 S.E.2d 870, 872 (Ct. App. 1996), rev'd on other grounds, 329 S.C. 371, 496 S.E.2d 17 (1998).

The granting of the permit would not infringe upon any liberty or property interest of the Petitioners; therefore, their procedural due process rights are not affected.

OCRM complied with the statutory and regulatory requirements in issuing permit 97-1B-213-P to the City Marina Company on October 22, 1997.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED, that the application of The City Marina Company for a permit (97-1B-213-P) issued by OCRM on October 22, 1997 to place mooring buoys in two fields on the Ashley River is GRANTED.

AND IT IS SO ORDERED.

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ALISON RENEE LEE

Administrative Law Judge

February 17, 1999

Columbia, South Carolina.