South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Fishing Creek Property Owners vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Fishing Creek Property Owners

Respondent:
South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management

Intervenor:
Capt. Frederick B. Easton, USN (Ret.)
 
DOCKET NUMBER:
98-ALJ-07-0080-CC

APPEARANCES:
Christopher McG. Holmes
Attorney for Petitioners

John P. Kassebaum, II
Attorney for Respondent

Capt. Frederick B. Easton, USN (Ret.)
pro se Intervenor
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter is before this tribunal pursuant to S.C. Code Ann. § 48-39-150(D) (Supp. 1997) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 1997). Petitioners requested a contested case hearing to challenge the decision of the South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management (OCRM) which denied their application for a permit to install a dike embankment in Fishing Creek on Edisto Island. After notice to the parties, a hearing on the merits was conducted on October 13, 1998. For the following reasons, the permit is denied.



FINDINGS OF FACT

Having carefully considered all testimony and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. Notice of the date, time and place of the hearing was given to all parties.

2. Petitioners are owners of property located on the outside bend of an oxbow found on the upper portion of Fishing Creek on Edisto Island, South Carolina.

3. Intervenor Capt. Frederick B. Easton owns property fronting Fishing Creek upstream of the oxbow.

4. Approximately thirty to forty years ago, a shallow cut was made through the narrow portion of the marsh inside the oxbow. The cut has grown wider over the years, and is now approximately seventy-two feet wide and 200 feet long. The cut is now navigable at all stages of the tide.

5. During the past several years, the cut has been used by boaters to access the upper and lower portions of Fishing Creek.

6. In 1979, the oxbow was navigable at all stages of the tide, but the cut was navigable only at high tide.

7. Around the year 1993, there was a noticeable reduction in velocity of the water flow in the oxbow compared to that of previous years. Two years later, increasing sediment deposits caused shoaling to develop in the oxbow.

8. Currently the oxbow is not navigable at low tide due to shoaling.

9. Currently there is noticeable siltation in the oxbow and in the areas immediately upstream and downstream of the oxbow.

10. If the siltation in the oxbow continues as it has in the past few years, the oxbow will eventually lose all navigability.

11. On February 26, 1997, Petitioners applied to OCRM for a permit authorizing the construction and installation of a dike embankment across the cut through the narrow portion of the marsh inside the oxbow. The proposed embankment is to be constructed from either sheet piling or rip rap. The purpose of the project is to restore the quantity and velocity of the water flow through the oxbow to reduce siltation in and around the oxbow.

12. Notice of the application was provided to the adjoining property owners, including Intervenor Capt. Frederick B. Easton. Notice of the application was also published in The Post and Courier in Charleston, South Carolina on February 27, 1997.

13. Several upstream property owners, including Intervenor Capt. Easton, submitted to OCRM protest letters objecting to the application. These individuals expressed concern over the effect the project would have on their recreational access to the lower portion of the creek and the ocean, as well as the lack of a professional study to verify the causation of the siltation and the likelihood of the project's success.

14. OCRM provided notice to all interested State agencies pursuant to S.C. Code Ann. § 48-39-140(C) (Supp. 1997). The Department of Natural Resources originally objected to the project, but later withdrew its objection, provided certain conditions were met. No other agency objected to the proposed project.

15. OCRM determined that there would be no significant adverse environmental impacts as a result of the project, provided that best management practices would be implemented and that only clean earthen material would be used as backfill.

16. OCRM requested Petitioners to supplement their permit application with a professional engineering study to support the feasibility of the proposed project.

17. The approximate minimum cost of a professional engineering study would be $30,000.

18. Petitioners have not commissioned a professional engineering study to support their permit application.

19. Installation of a dike embankment in the cut would restrict public access to the upper and lower portions of Fishing Creek and to the ocean during low tide for an indeterminate amount of time.

20. On January 27, 1998, citing the resulting impediment to navigation and the lack of evidence that the project would be successful, OCRM denied the permit. (Respondent's Exhibit 1).

CONCLUSIONS OF LAW AND ANALYSIS

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

A. Jurisdiction

1. The Administrative Law Judge Division has subject matter jurisdiction pursuant to S.C. Code Ann. § 48-39-150(D) (Supp. 1997) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 1997).

B. Burden of Proof

2. In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative of an issue. 2 Am. Jur. 2d Administrative Law § 360 (1994); Alex Sanders, et al., South Carolina Trial Handbook § 9:3 Party With Burden, Civil Cases (1994). Petitioners are the parties asserting the affirmative in this case; therefore, they must prove by a preponderance of the evidence that they are entitled to the requested permit. The preponderance of the evidence "is evidence which is of the greater weight or more convincing than the evidence which is offered in opposition to it . . . ." Black's Law Dictionary 1182 (6th ed. 1990). "The preponderance of the evidence means such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in the mind the belief that what is sought to be proved is more likely true than not true." Sanders, supra, § 9:5 Quantum of Evidence in Civil Cases (1994), (citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955)).

3. The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See South Carolina Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). Furthermore, a trial judge, who observes a witness, is in the better position to judge the witness's demeanor and veracity and evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984).

4. Where an expert's testimony is based upon facts sufficient to form the basis for an opinion, the trier of fact must weigh its probative value. Small v. Pioneer Machinery, Inc., 329 S.C. 448, 494 S.E.2d 835 (Ct. App. 1997). The trier of fact is not compelled to accept an expert's testimony, but may give it the weight he determines it deserves. Florence County Dep't of Social Services v. Ward, 310 S.C. 69, 425 S.E.2d 61 (Ct. App. 1992).

C. OCRM statutes and regulations

5. The location of the proposed construction is in a "critical area," as defined in S.C. Code Ann. § 48-39-10(J) (Supp. 1997).

6. Any person wishing to alter a critical area must obtain a permit from OCRM. S.C. Code Ann. § 48-39-130(C) (Supp. 1997); 23A S.C. Code Ann. Regs. 30-2(B) (Supp. 1997).

7. South Carolina Code Ann. § 48-39-150(A) (Supp. 1997) and 23A S.C. Code Ann. Regs. 30-11(B) (Supp. 1997) set forth the ten general considerations to be used in assessing the impact of a project in a critical area. One of these considerations is the extent to which the activity would harmfully obstruct the natural flow of navigable water. S.C. Code Ann. § 48-39-150(A)(2) (Supp. 1997); 23A S.C. Code Ann. Regs. 30-11(B)(2) (Supp. 1997).

8. In determining whether a permit for alteration of a critical area should be granted, it is necessary to consider the extent to which long-range, cumulative effects of the project may result, within the context of other possible development and the general character of the area. 23A S.C. Code Ann. Regs. 30-11(C)(1) (Supp. 1997).

9. A plan showing the manner or method by which the proposal shall be accomplished is required as part of the permit application. S.C. Code Ann. § 48-39-140(B)(2) (Supp. 1997).

D. Analysis

Because land between the usual high water mark and the usual low water mark on a tidal navigable watercourse is held by the State in trust for public purposes, extensive public trust lands exist in the coastal areas. State v. Hardee, 259 S.C. 535, 193 S.E.2d 497 (1972). In deciding when coastal public trust land may be used for private purposes, OCRM is charged with the implicit duty to administer the public trust lands consistent with applicable law. See S.C. Code Ann. § 48-39-10 et seq. (Supp. 1997); Illinois Central R. Co. v. Illinois, 146 U.S. 387 (1892).

The balancing of the public interest against the private interest includes considering the policies specified in S.C. Code Ann. §§ 48-39-20 and 48-39-30, and applying the ten general considerations of § 48-39-150 (Supp. 1997). If it is then determined that the proposed activity would substantially impair the public interest in public trust lands and waters and there is no overriding public interest present, the permit for the proposed activity must be denied. See Sierra Club v. Kiawah Resort Associates, 318 S.C. 119, 456 S.E.2d 397 (1995) ("[T]he relevant inquiry is whether the [proposed activity would] substantially impair the public interest in public trust lands and waters"); State ex rel. Medlock v. South Carolina Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986) ("Although we recognize the potential benefit of an aquaculture industry to South Carolina, we cannot find sufficient evidence of an overriding public interest which would justify removing 660 acres from the Santee Estuarine System and destroying fifty acres of marshland").

In the present case, Petitioners seek to block a navigable cut in an effort to restore the previous flow pattern of Fishing Creek through the oxbow which their properties front. They argue that the embankment will restore the previous flow through the oxbow within two months, and that, in the meantime, navigation of Fishing Creek will be impeded only during low tide, as boaters can travel through the oxbow during high tide instead of the cut. Contrarily, OCRM argues that it does not have the authority to issue a permit which allows the blockage of any navigable waterway and that the cut is a navigable waterway unto itself.

One of the ten general considerations set forth in S.C. Code Ann. § 48-39-150 in assessing the impact of a project in a critical area is the extent to which the proposed activity would harmfully obstruct the natural flow of navigable water. The rights of the public in navigable waters originated in common law. See State ex rel. Lyon v. Columbia Water Power Co., 82 S.C. 181, 63 S.E. 884 (1909). The South Carolina Constitution preserves the common law rights of the public in navigable water: "All navigable waters shall forever remain public highways free to the citizens of the State and the United States . . . ." S.C. Const. Art. XIV, § 4 (1976). Further, S.C. Code Ann. § 49-1-10 (Rev. 1987) provides that

[a]ll streams which have been rendered or can be rendered capable of being navigated by rafts of lumber or timber by the removal of accidental obstructions and all navigable watercourses and cuts are hereby declared navigable streams and such streams shall be common highways and forever free, as well to the inhabitants of this State as to citizens of the United States . . . . If any person shall obstruct any such stream . . . such person shall be guilty of a nuisance and such obstruction may be abated as other public nuisances are by law.

(emphasis added).

In determining whether a waterway is navigable, the true test to be applied is whether a stream inherently and by its nature has the capacity for valuable floatage, irrespective of the fact of actual use or the extent of such use. State ex rel. Medlock v. South Carolina Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986). The requirement for valuable floatage is satisfied even where the sole use of the waterways is by pleasure boats. Id. Moreover, an artificial waterway that is navigable is entitled to just as much protection under the laws of this State as a waterway having its origins in nature. See State ex rel. Medlock v. South Carolina Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986); State ex rel. Lyon v. Columbia Water Power Co., 82 S.C. 181, 63 S.E. 884 (1909); Hughes v. Nelson, 303 S.C. 102, 399 S.E.2d 24 (Ct. App. 1990). In Medlock, the protected canals and ditches were originally dug by rice planters and over the years they had become navigable and were used by the public. The Court stated that these passageways had become the functional equivalent of natural streams. Medlock, 346 S.E.2d at 718.

Although the State's authority to allow obstruction of a navigable waterway is limited by the South Carolina Constitution and S.C. Code Ann. § 49-1-10, such authority does exist and is properly exercised when justified by an overriding public interest. See Manigault v. Springs, 26 S.Ct. 127 (1905) (holding that South Carolina constitutional provision protecting navigable waters does not interfere with common law powers of the State over its navigable waters, including the sovereign right of the government to protect the general welfare of its citizens); State ex rel. Medlock v. South Carolina Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986) (implying that overriding public interest may authorize the blockage of a navigable waterway).(1) Hence, OCRM does have the authority to permit the blockage of a navigable waterway if such activity would promote an overriding public interest.

The evidence in the record demonstrates that the cut Petitioners seek to block is navigable. Also, the cut is a navigable waterway unto itself. S.C. Code Ann. § 49-1-10 (Rev. 1987); see also State ex rel. Lyon v. Columbia Water Power Co., 82 S.C. 181, 63 S.E. 884 (1909) (a canal constructed to improve navigation of a stream is navigable water). The fact that boaters can also travel through the oxbow as an alternative means of ingress and egress does not negate the navigability of the cut. Therefore, the dispositive question in this case is whether Petitioners have presented sufficient evidence of an overriding public interest to justify blockage of the cut. Petitioners assert that there is a public interest in restoring the oxbow's navigability during low tide and in preventing the oxbow from losing navigability during all stages of the tide. Petitioners, however, have failed to present sufficient evidence to support this assertion.

In determining whether an overriding public interest exists to justify impairment of the public interest in public trust lands, prudence dictates that OCRM should not permit the proposed activity to proceed without first obtaining supporting scientific data. The efficacy of the proposed activity should not be determined by a "wait and see" approach, but rather should be determined based on a scientific probability of success.

While Petitioners presented expert testimony in an attempt to support their permit application, this testimony was not based on sufficient factual evidence. Although Petitioners' expert, Irvin Kyzer, visited the site, he did not perform an engineering study to support his opinion on the cause of the siltation in the oxbow or the likelihood and timing of the proposed embankment's success. Kyzer's opinion that the blocking of the cut would restore the previous flow through the oxbow was qualified by his statement that he had no way of knowing how long it would take for the oxbow to be navigable at all tidal stages, and that it could take up to two years. Kyzer admitted that by conducting a professional engineering study it is possible to determine to a high degree of probability whether the project would work.

Kyzer also stated that for the previous flow to be restored to the oxbow within two months, dredging would be a necessary addition to the embankment.(2) Moreover, Kyzer admitted that the area immediately upstream from the oxbow possibly could suffer siltation problems as a result of blocking the cut. Finally, Kyzer admitted that the ebb tide in the creek could eventually create a new cut in the most narrow strip of the marsh near the existing cut. This admission raises doubts about the project's effectiveness as a permanent solution. Therefore, it would be contrary to the public interest to obstruct navigation through the cut and allow Petitioners to experiment with the oxbow, even for the six-month period Petitioners have suggested as a permit condition.

In conclusion, I find that the proposed embankment would substantially impair the public interest in public trust waters by completely obstructing a navigable cut. I further find that Petitioners have failed to present sufficient evidence of an overriding public interest justifying the obstruction. Without a professional engineering study, the permit application lacks critical support. Therefore, the permit must be denied.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that Petitioners' application for a permit to construct a dike embankment in Fishing Creek is denied.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

January 8, 1999

Columbia, South Carolina

1. See also 23 S.C. Code Ann. Regs. 19-450.1(A) (Supp. 1997) (permit from DHEC is required for construction or alteration activity in or over a navigable water or on lands or waters subject to a public navigational servitude under the South Carolina Constitution and the South Carolina Code of Laws or for any activity significantly affecting the flow of any navigable water); 23 S.C. Code Ann. Regs. 19-450.9(A) (Supp. 1997) (DHEC shall balance the extent and permanence of reasonably foreseeable benefits and detriments of the projected activity on navigable waters and determine whether the projected activity is consistent with the needs and welfare of the public).

2. Because dredging goes beyond the scope of the permit application, I do not address it as an issue in this case.


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