SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before me upon Petitioner's request for a contested case hearing to challenge Respondent South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management's (OCRM) issuance of permit number OCRM-98-196-I to LandTech, LLC (LandTech). The permit allows LandTech to construct a concrete bridge 1430 feet long and 33 feet wide, with a center height of 11.5 feet above mean sea level, from high ground owned by LandTech to a 30-acre island located at the confluence of Toomer Creek and the Wando River in Charleston County, South Carolina. The purpose of the bridge is to allow access to the island for residential development of 33 lots. The bridge would be constructed over "critical area" as defined in S.C. Code Ann. § 48-39-10(j) (1976). The permit issued by OCRM also included the approval of a Dock Master Plan (DMP) for the island. The Petitioners have appealed OCRM's approval of the DMP as well.

The Petitioners objected to the issuance of the permit and filed a request with the Administrative Law Judge Division for an adjudicatory contested case hearing. The Petitioners allege that the permit, as issued, violates the provisions of (1) S.C. Code Ann. §§ 48-39-20(d), (e) and (f); 48-39-30(a), (b) and (d); 48-39-150(a), (b) and (c); and (2) S.C. Code Ann. Regs. 30-12; Regs. 30-11(b) and (c); and various provisions of the South Carolina Coastal Management Program document.

A hearing was conducted before me in this matter on December 6, 7, and 8, 1999 at the Charleston County Courthouse in Charleston, South Carolina.

For the reasons that follow, the permit is granted.

SUMMARY OF THE EVIDENCE

A. Background Facts

The island which is the focus of this appeal is located in Charleston, South Carolina, at the confluence of Toomer Creek and the upper Wando River and contains 29.74 acres of highland. The island has had different names over the years but is currently called Park Island. LandTech, the owner of the island, purchased the island and 1650 acres of high ground in Mt. Pleasant, South Carolina located between Highways 17 and 41 and bounded on the northwest by Toomer Creek, Darrell Creek, and the Wando River. LandTech purchased the property in December, 1996 for $5,500,000.00 from Georgia Pacific. Georgia Pacific had, in the 1980's, begun development of a 4500-acre tract, known as Dunes West, under a planned development district concept after the annexation of the property into the Town of Mt. Pleasant. The 1650 acres purchased by LandTech was part of the original Dunes West planned development district which included Park Island. Under the PDD zoning which was in place at the time LandTech purchased the property and at the time of trial, Park Island could have been developed with an overall density of over 200 homes.

LandTech is currently in the process of developing its property with a mixed use of commercial and residential development. In aid of the development of the overall tract called Park West, LandTech engaged in wetland master planning, dock master planning, and has conducted the necessary archaeological surveys of the 1650 acres, including Park Island, in order to get the necessary environmental and regulatory permits to develop its property. The permit application for the bridge to Park Island is a part of the overall development plan for the entire Park West tract.

The property across Toomer Creek from Park West was developed by Georgia Pacific as part of its original Dunes West development and consists of expensive single-family residential lots and homes. Downstream from Dunes West and Park Island is the Highway 41 bridge which crosses the Wando River and links Charleston County with Berkeley County. This bridge is a two-lane drawbridge which seldom, if ever, opens. Immediately downstream of the drawbridge is a commercial facility known as Detyens Shipyard. Upstream of Dunes West and Park Island the Wando River gets progressively shallower and narrower and ultimately terminates in the Francis Marion National Forest. The Wando River is a true tidal estuary with very little infusion of fresh water. Toomer Creek divides Dunes West from Park West and is a small tributary of the Wando.

B. Permit at Issue

The permit at issue allows LandTech to build a bridge from its high ground extending some 1430 feet across critical area which consists of a large mudflat interspersed with stands of spartina marsh to connect to Park Island. The bridge will be 33 feet wide with an elevation at its center of 11.5 mean sea level (msl) tapering to 10 msl on both ends, and will be approximately 2100 feet east of the center of Toomer Creek. The bridge will have a stormwater management system on it designed to capture the first inch and a half of stormwater which will be piped to both the mainland and the island; the water from the bridge will then run through a Storm Cepter system and be deposited in stormwater management ponds. The bridge has also been designed to carry both water to the island and sewage from the island to tie into LandTech's sewer lines on the high ground. As part of the permit application, LandTech was required to submit a conceptual stormwater management plan for the island, a dock master plan, and a development plan. The dock master plan identifies 30 dock corridors from the 33 lots. Three of the docks in the dock corridors, if individual permits are granted, will be restricted to crabbing docks and three will be restricted to joint use docks.

Park Island is undeveloped. It is covered with a mature maritime forest. The island has approximately 29 acres of high ground above the OCRM critical line. It is surrounded by marshes and mud flats to the south and east. It is bounded by Toomer Creek on the west and by the Wando River on the north.

C. Summary of the Testimony:

The petitioners presented testimony of eight witnesses: Phillip Dustan, George Nelson, Beth Keyserling-Kramer, Patrick Tomlin, Jan Maize, Joel Ford, Loren Coen, and Nancy Vincent.

Beth Keyserling-Kramer lives at 3845 Colonel Vanderhorst Circle in Dunes West and her property fronts on Toomer Creek across from the location of the proposed bridge to Park Island. She and her husband bought the property, which was improved with a house, in March of 1988 for $510,000. She has a dock from her property into Toomer Creek, approximately 600 feet long. She and her family use Toomer Creek to fish, crab and shrimp, and she kayaks in the area. According to Mrs. Keyserling-Kramer, the waters of Toomer Creek are clean and her neighbors who own houses with docks and have boats are prudent in the use of their boats in the creek and have caused no problems. She testified that she was concerned that the permitting of a bridge to Park Island would set a precedent of bridges to other islands which she did not think should be developed. She also expressed a general concern about stormwater management on the island and a concern about the destruction of marsh grass from the construction of the bridge and docks which may be built on Park Island. She further testified that marsh grass currently grew under her dock and that her lot had a very small natural buffer between the edge of her lawn and the marsh.

Jan Maize and her husband live at 3861 Colonel Vanderhorst Circle in Dunes West. They bought their lot in 1995 and in 1998 built a house and a dock and have $500,000 invested in their property. She testified that Toomer Creek is teeming with life including shrimp, crabs and fish. She and her husband fish and crab from their dock. They own a 14-foot boat. She testified that the neighbors on both sides of her have lots with docks. She also testified that she and her neighbors were able to motor around Park Island on a high tide in a small john boat leaving from Toomer Creek, crossing the mudflat behind the island, and ultimately reaching the Wando River. She acknowledged that there was no water between Park Island and the mainland on low tide and that the area was generally a mudflat. She expressed concern that the bridge to Park Island would hurt the marsh between Park Island and the mainland and that it would be precedent-setting, aiding the development of other islands. She believes that single-family residential lots should have a good size buffer between the edge of the lawn and the critical areas. She also testified that she and her husband had taken their boat under the Highway 41 bridge and had no problem getting under the bridge, but did not know how high the Park Island bridge was going to be nor how far apart the pilings were going to be spaced.

Joel Ford is the Director of Planning and Development for the Town of Mt. Pleasant and has held that position since January of 1979. As part of his job he oversees the planning functions of the town which include zoning, planned development, impact assessment, annexations, and subdivision design regulations. He testified that the LandTech property was originally part of Dunes West, a 4500-acre planned development of Georgia Pacific which was annexed into the Town of Mt. Pleasant shortly after Hurricane Hugo. Mr. Ford testified that Park Island was part of the original planned development district and that this zoning designation was still applicable. He testified that under the planned development district the zoning classification for Dunes West, 5281 units were allowed. He testified that under the Town of Mt. Pleasant's zoning ordinance 2.25 units an acre is considered low density. Mr. Ford also testified that the Town of Mt. Pleasant assesses the size of a development by whether an impact statement is required. The town requires an impact assessment for any development over ten acres or having more than 50 dwelling units. He further testified that as part of the development of its overall tract, LandTech has donated 105 acres to the Charleston County School District for the erection of schools on its property and has donated 59 acres of its property to the town for public recreation purposes. He testified that LandTech was also providing the town with a half an acre of highland which the town would then grade down to create saltwater marsh as mitigation for a public boat ramp project which the town had undertaken on Shem Creek. Lastly, Mr. Ford testified that the Town of Mt. Pleasant had no objection to the bridge permit.

George Nelson is a computer technician who works for Phillip Dustan in his research laboratory at the College of Charleston. His work principally involves computer analysis of aerial photographs. He is self-taught. Mr. Nelson took a copy of LandTech's approved dock master plan of Park Island and rubber-sheeted it over an aerial photograph of the island which was digitized in 1989. Mr. Nelson testified that he believed that some of the dock corridors shown on the approved dock master plan were in excess of 1000 feet, but agreed that the determination of whether a dock could be built within any of the corridors shown on the dock master plan was ultimately left up to OCRM after a survey was completed and a permit application was actually filed.

Nancy Vinson is employed by the South Carolina Coastal Conservation League (SCCL) and holds the title as water quality program director. Part of her job is to review all permit applications for critical area permits and certifications in the coastal zone of South Carolina. In her opinion, the permit will lead to inappropriate development. Ms. Vinson testified that her organization opposed the issuance of the permit because, she believed, that 33 lots on the island was too many, that the stormwater management on the island was inadequate, and that the bridge to the island and the docks which might be built would shade and kill marsh grass leading to severe environmental damage. She testified that the SCCL believed that buffers should be a minimum of 100 feet regardless of any other stormwater management practices which might be implemented. She acknowledged that requiring hundred-foot buffers in the coastal zone was a legislative function of the South Carolina General Assembly, but that her organization had not sought to have legislation introduced to achieve this end.

Mrs. Vinson also testified that she believed that the bridge as permitted would cause the destruction of marsh grass under the bridge based upon her belief that shading from a James Island bridge killed marsh grass under the bridge. She testified that during her one visit to Toomer Creek in June of 1998, she visited a dock on Toomer Creek which was surrounded by marsh grass and that she found Toomer Creek to be a very healthy, productive ecosystem, notwithstanding the fact that the Dunes West side of Toomer Creek had been developed since 1991. Lastly, Ms. Vinson testified that the SCCL had appealed every bridge permit in the coastal zone of South Carolina with one exception. This exception was a bridge 360 feet long, 15 feet wide, going across a pristine spartina marsh to a 15-acre island in Selkirk Plantation. The purpose of the bridge was for the development of the 15-acre island. One of the SCCL's board members and a major contributor to the organization was a principal in the development of Selkirk Plantation. Ms. Vinson provided no testimony about the SCCL, its structure or the membership, nor how the organization or its individual members would be affected by the bridge.

Patrick Tomlin is one of the principals in LandTech, the owner and developer of Park West. Mr. Tomlin testified that when his company took title to the property from Georgia Pacific it was zoned, and still is zoned, under a planned development district within the Town of Mt. Pleasant. He testified that Park Island is zoned R-3 by the Town of Mt. Pleasant which would allow it to be developed with five or six units to the acre. Mr. Tomlin testified that in the permit application as originally filed LandTech sought a bridge some 1900 feet long and 40 feet wide to access Park Island for the development of 66 lots. He further testified that the permit application was modified after the public hearings to attempt to satisfy the concerns raised at those public hearings as well as some concerns expressed by OCRM. He testified that his company agreed to donate a 12-acre parcel of property for a nature and science center on the headwaters of the marsh of Darrell Creek in order to help satisfy the public need requirement contained in Regs. 30-12(n). He further testified that at the time the permit application was originally submitted his company did not believe that Park Island was a small island. Lastly, Mr. Tomlin testified that the estimate to construct the bridge as presently permitted is approximately $2.8 to $3 million.

Phillip Dustan is a professor at the University of Charleston in the biology department and has a Ph.D. in ecology. His primary work in the field of marine ecology has been associated with coral reefs and their primary productivity. Dr. Dustan participated in the Charleston Harbor Project in a study to determine the impact of long-standing urbanization on water quality in tidal creeks. As part of that study he examined James Island Creek which bisects a substantial portion of James Island before entering the Charleston Harbor and Toomer Creek. The study comparing the two found that during periods of and after rainfall events there was an oxygen sag in both creeks. The study indicated that the oxygen sag in James Island Creek was greater than in Toomer Creek and he drew the conclusion that this was the result of unmanaged stormwater runoff from the highly urbanized James Island Creek area. Dr. Dustan testified that he did not believe that the stormwater management plan for Park Island was adequate. He based his opinion largely on his contention that lawns are impervious surfaces similar to paved streets and roof tops and that the stormwater management calculations submitted by LandTech to OCRM failed to take this into account. Dr. Dustan also was of the opinion that the bridge and any docks which are built from Park Island will cause complete and utter destruction of all the marsh grass under the bridge and the docks causing fragmentation harmful to the environment. Dr. Dustan was of the opinion that north-south orientation of the proposed bridge to Park Island would decrease the amount and intensity of sunlight which was able to reach under the bridge reducing the amount of available sunlight by 95-97% and, in addition, the bridge would cast a shadow both from the east and the west which would kill marsh grass on both sides of the bridge. Dr. Dustan was of the opinion that building docks on Park Island would lead to increased predation of shrimp, crabs and fish in Toomer Creek and the Wando because it would give predators, such as birds, platforms to hunt from. He was also concerned that building docks on Park Island would lead to increased human predation of resources as well. Lastly, Dr. Dustan was of the opinion that the development of Park Island would disturb the ecological balance of Toomer Creek because lawn clippings from mowed lawns would find their way into the creek and alter the ecosystem.

Dr. Dustan acknowledged that he had not been to Toomer Creek in five or six years and had no idea of the extent of the development which had taken place on the Dunes West side. He had no idea of whether the biology of the creek had changed at all from his original study of Toomer Creek as part of the Charleston Harbor Project. Dr. Dustan was unaware of the size of the buffers, if any, which were on the lots on the Dunes West side of Toomer Creek or whether any of the marsh grass under the docks in Dunes West on Toomer Creek had been destroyed. He acknowledged that his opinion as to the shading effect from docks was based upon a student study of one dock at Dixie Plantation, but was unaware of the height of the dock or its width. Dr. Dustan is not aware of any marsh problems associated from stormwater management or docks in other subdivisions in Mt. Pleasant including Molasses Creek, Hobcaw Creek, the Old Town of Mt. Pleasant, Darrell Creek, or Paradise Island in the Wando River. Dr. Dustan was also unaware of any creek in Charleston, in Beaufort, Colleton, Jasper or Horry Counties, where lawn clippings had resulted in ecological damage to water quality.

Lastly, Dr. Dustan testified that he had never prepared a stormwater management submittal, had never reviewed the regulations dealing with stormwater management in South Carolina, had no familiarity with computer models which are used in stormwater management calculations, nor with any regulatory stormwater management requirements of the State of South Carolina.

Loren Coen is employed by the South Carolina Department of Natural Resources (SCDNR) as a biologist in the Marine Resource Research Institute. Dr. Coen has a Ph.D. in marine ecology and marine biology and his work with SCDNR is primarily devoted to shellfish, including oysters. Dr. Coen testified that SCDNR does field surveys of oyster resources in the state and that these surveys are part of SCDNR's resource management of oysters. Dr. Coen testified that the oyster resources in the Wando River in front of Park Island are important from an ecological and habitat standpoint, but have no commercial or recreational significance because this area of the Wando River has been restricted by DHEC so that the oysters cannot be directly harvested for human consumption. Dr. Coen also acknowledged that he was aware that the stormwater management plan for Park Island met the South Carolina requirements for shellfish harvesting and those were the only standards that the State of South Carolina currently has. Dr. Coen acknowledged that the bridge would have no impact on the oyster resources in the Wando River.

OCRM presented three witnesses: Richard Chinnis, Joe Fersner, and Steven Brooks.

Richard Chinnis is the OCRM's director of permitting and certification and at the time of his review of the Park Island bridge permit application was the director of permitting in the critical area of the state's coastal zone. Mr. Chinnis testified that LandTech's bridge permit application was reviewed by himself as well as members of his staff, including Mark Caldwell, Curtis Joyner and Steve Brooks. Mr. Chinnis testified that OCRM made the decision to process LandTech's Park Island permit application under the requirements of R. 30-12N regulating access to small islands instead of R. 30-12F which deals with transportation projects, both public and private. Mr. Chinnis testified that the requirements of R. 30-12N, outside of marina specific projects standards, are the most restrictive standards in OCRM's critical area permitting regulations. Mr. Chinnis testified that under R. 30-12F, it would not have been necessary for LandTech to have demonstrated public need because the regulation has no requirement that public need be shown. Additionally, Mr. Chinnis testified that LandTech would not have been required to submit a dock master plan nor a full-blown conceptual stormwater management plan with engineering calculations and, accordingly, LandTech was required to meet a higher regulatory standard.

Mr. Chinnis testified that none of the state and federal resource agencies, namely, the Environmental Protection Agency, the National Marine Fishery Service, the United States Fish and Wildlife Service, nor the South Carolina DNR, had any objection to the proposed bridge. Mr. Chinnis further testified that none of the recommendations contained in the Charleston Harbor Project had been formulated into either rules or regulations of either OCRM or the State of South Carolina and that the recommendations were still being studied.

Mr. Chinnis acknowledged that OCRM had no definition for "small island" and that only one other permit involving an island the size of Park Island had been processed using standards set forth in R. 30-12N. Mr. Chinnis also testified that OCRM, and before that the South Carolina Coastal Council, had encouraged bridging as a means of access through critical areas, having found that filling of the marsh for causeways created a lot of environmental problems. Mr. Chinnis testified that following submittal of the original permit application and the public hearings, he and his staff had meetings with LandTech representatives in an attempt to address public criticism of the original application. These meetings culminated in a revised permit application which reduced the size and the length of the bridge and added additional environmental safeguards to the bridge and to the island itself. Specifically, the bridge was moved some 500 feet to the east putting it approximately 2100 feet from the middle of Toomer Creek. The length of the bridge was shortened from 1900 feet to 1430 feet, it was raised by a foot and a half in the middle, it was narrowed to 33 feet, stormwater management was added to the bridge, and LandTech agreed to provide intensive stormwater management for Park Island which included an average 50-foot buffer around the entire island. The number of lots on the island was reduced from 66 to 33. A dock master plan was approved for the island creating 30 dock corridors, three of which are limited to crabbing docks in the rear of the island, and three of which require joint-use docks. The stormwater management added to the bridge is designed to capture the first inch and a half of rainfall, pipe it from the bridge through a Storm Cepter system which separate oil and grease from the water before it is deposited in retention ponds; such a system exceeds any regulatory requirement currently in existence. Mr. Chinnis testified that under OCRM policies stormwater management is not required unless there are 30,000 vehicle trips a day across a bridge.

Mr. Chinnis testified that insofar as the buffers on the island were concerned, neither the OCRM nor the State of South Carolina has any regulatory requirement to require or enforce buffers around critical area. The OCRM has in the past looked upon creation of buffers around a critical area as an element of public need in small island access. Mr. Chinnis testified that the height of the bridge exceeded OCRM's regulatory requirement by a foot and that neither he nor any member of his staff envisioned any problems as a result of shading. Mr. Chinnis further testified that in his judgment the bridge would not impose any impediment to navigation since the area behind the island is largely an unvegetated mudflat that is only inundated at high tide. Additionally, because the bridge will be some six feet above mean high water, he determined that it would have more than sufficient clearance for kayaks, john boats, and other small type of water craft which might be navigating in the area on a high tide. Mr. Chinnis testified that the conceptual stormwater management plan for the island exceeded the current South Carolina regulations dealing with stormwater management.

Mr. Chinnis also testified that he and his staff concluded that there was no other feasible alternative access to the island. Because of the restrictions imposed by the Highway 41 bridge downstream and the shallowness of the river upstream, bringing in construction materials by barge was not feasible. Mr. Chinnis was aware Daufuskie Island and Dewees Island have been developed without bridges, but he testified that these two islands were fundamentally different. First, both are true barrier islands and building a bridge to either Dewees Island of Daufuskie Island would have been impractical in the first instance. Secondly, both Dewees Island and Daufuskie Island have commercial docks and deep water access which allow offloading of construction materials for residential construction and both have their own marina and ferry service, none of which is available to Park Island. Accordingly, Chinnis and his staff concluded that access by water for the development of the island was simply not feasible.

With regard to public need, Mr. Chinnis testified that OCRM had no definition for "public need". In his consideration of public need he took into consideration the voluntary buffer around Park Island, and took into account the 12-acre parcel on the mainland which LandTech was donating for a public educational type facility, the tract on the mainland that had been set aside for public recreational usage and schools, and the half acre of high ground which LandTech was providing the Town of Mt. Pleasant as mitigation. Taken together, Chinnis testified that LandTech had gone to greater lengths than any other bridge applicant in attempting to satisfy OCRM's public need requirement. Additionally, Chinnis testified that in the Selkirk Plantation bridge permit, which the South Carolina Coastal Conservation League found to be appropriate and satisfactory, public need was satisfied because of pre-existing conservation easements on the property and there was no additional demonstration of public need for that bridge permit application. In summary, Mr. Chinnis testified that the bridge permit application met and surpassed all of the criteria required under R. 30-12N.

Joseph Fersner is employed by the OCRM as a licensed professional engineer, with a Ph.D. in water resources civil engineering. He is responsible for reviewing and issuing stormwater management permits in the coastal zone of South Carolina. Dr. Fersner reviewed the conceptual stormwater management plan for the bridge as well as Park Island and concluded, based upon the submittals, that LandTech would meet all the stormwater management regulatory requirements of the Stormwater Management Sediment Reduction Act and its attendant regulations. Specifically, Dr. Fersner testified that the stormwater management retention ponds proposed for the island were adequate, would retain all the stormwater generated by the proposed roads on the island as well as the stormwater which will reach the island from the bridge, and further that the retention ponds in conjunction with an average 50-foot buffer should capture and treat the first inch and a half of rain from the island which contains the vast majority of any pollutant which may exist. Additionally, Dr. Fersner testified that treatment of the stormwater from the bridge exceeds any current regulatory requirement of the State of South Carolina. Dr. Fersner also testified that lawns are not considered to be impervious surfaces in stormwater management calculations. Lastly, Dr. Fersner testified that while South Carolina has absolutely no regulatory requirement for buffers around critical areas, he and his staff have been attempting to get permit applicants to agree to establish buffers anywhere from 10 to 30 feet since research with which he is familiar found a 30-foot buffer adequate for water quality purposes.

Steven Brooks is a biologist employed by OCRM and has inspected critical area resources around Park Island along Toomer Creek and the Wando River. Mr. Brooks testified that the area behind Park Island over which the bridge is designed to cross is a mudflat area with some spartina alterniflora in the lower portions transitioning into a high marsh area of black needle rush. Mr. Brooks testified that he is of the opinion that the area behind Park Island is a portion of the overall upper Wando estuarine system rather than a complete system within itself and that the system in this area comprises hundreds of acres. Mr. Brooks further testified that while some productivity of the mudflat and the adjacent marsh area will be lost as a result of the driving of 200 pilings to support the bridge, most of the pilings will be driven in the mudflat area and the impact will be negligible. Mr. Brooks testified that the shading from the bridge will be negligible and that he has not found any shading problem under a bridge that has adequate clearance. He testified that the Park Island bridge is going to be built a foot higher than OCRM regulations require, that the area under the bridge will get adequate sunlight and that the bridge will have no effect on the productivity of the mudflat. Mr. Brooks further testified that in his opinion the buffer around Park Island is above and beyond what is necessary to protect the adjacent marsh from stormwater runoff and actually provides more protection than is needed. Lastly, Mr. Brooks testified that, based upon his experience, he does not anticipate there will be any adverse affects from additional boat traffic in Toomer Creek resulting from docks being placed within the approved dock corridors on Park Island.

LandTech, L.L.C. presented five witnesses: David Stevens, John Manzi, Philippe Ross, Ivan Chou, and Heyward Robinson.

David Stevens is a licensed professional engineer in the State of South Carolina who owns CSE Engineering, a general civil engineering company which concentrates on infrastructure work. Stevens has provided engineering services to LandTech. Mr. Stevens testified that the bridge was redesigned after the public hearing and the review of public comments and the redesign involved moving the bridge 500 feet to the east, shortening its length and reducing the width of the bridge from 40 feet to 33 feet. Stevens testified that 33 feet was the minimum width that could safely accommodate two lanes of traffic, a bike path, and pedestrian access. Stevens further testified that the bridge is designed to carry water and sewer to and from Park Island and that it was redesigned to handle stormwater management. The stormwater redesign involved elevating the bridge in its center to 11.5 feet and crowning the bridge in the middle so that a 12-inch pipe would be able to carry the first inch and a half of stormwater from the bridge to a Storm Ceptor system on both the

mainland and the island where the water will be discharged into retention ponds. The Storm Ceptor system is designed to separate oil and grease from water and has a proven track record.

Mr. Stevens also testified that the stormwater retention ponds on the island are designed to handle all the impervious runoff from the roads. He calculated that after development the amount of impervious surface on the island will be 17.8%, which includes roads, driveways, patios, decks and roofs on 33 houses. This calculation excludes lawns which are considered, insofar as stormwater management is concerned, to be pervious. Mr. Stevens also testified that the stormwater management for Park Island exceeded the stormwater management that was required for the balance of LandTech's 1650 acres. On the upland portion of Park West which borders either Toomer Creek or Darrell Creek, the buffers along the critical area vary in width between 10 and 30 feet. This was required by OCRM as part of its stormwater management plan for the mainland.

Mr. Stevens further testified that he performed a mathematical calculation to determine the amount of sunlight that would be available under the bridge after its construction. While a portion of the area under the bridge will be shaded during various times of the day, sunlight will get under the entire bridge everyday.

Heyward Robinson is a private environmental consultant who has been working with LandTech since 1998 and has been involved with the various environmental and regulatory permits which LandTech has sought to develop its property. Robinson has been primarily responsible for the bridge permit to Park Island. LandTech agreed to pay Mr. Robinson a bonus of $30,000 if he succeeded in obtaining a permit from OCRM for the bridge. Mr. Robinson has been paid $20,000 of this bonus. Mr. Robinson's understanding is that he will be paid the remaining $10,000 once LandTech has "a permit it can use."

Prior to setting up his own consulting firm, Robinson, who has a degree in biology, worked for the South Carolina Coastal Council as its staff biologist. He started with the South Carolina Coastal Council in 1977 and was responsible for reviewing all critical area permits in the coastal zone from 1977 until 1991, when he became the director of the Charleston Harbor Project for OCRM. The Charleston Harbor Project was funded by the National Oceanographic and Atmospheric Administration and was designed to study the Charleston Harbor to assess the ecological health of the Charleston Harbor and to try to predict what effects increased industrialization and urbanization might have on the harbor and to make recommendations to various local units of government with a view toward protecting water quality in the harbor. The Charleston Harbor Project employed a number of scientists to study various aspects of the harbor and to assist in making recommendations for long-range planning. Initially, it was necessary, according to Robinson, to get some baseline information concerning the health of the harbor, and nutrient loading was the area of focus. The indicator which was used was inorganic nitrogen. Based upon the study of the Charleston Harbor area including the harbor itself and the Wando, Ashley and Cooper Rivers, it was found that 78% of the nitrogen entering the Charleston Harbor watershed came from point source discharges. Thirteen percent of the nitrogen came from air disposition, and 9% came from non-point source discharges such as stormwater runoff.

Robinson testified that the buffer study done as part of the Charleston Harbor Project by Dr. McCutcheon, used grass strips as stormwater buffers as opposed to natural vegetation. It was the use of the grass strips that led to the recommendation that a 30 to 50-foot buffer was adequate for stormwater management control purposes around critical areas.

The Charleston Harbor Project resulted in a number of reports and studies, but none so far have been the basis of new regulations or local ordinances.

Mr. Robinson testified that at the time he submitted the bridge permit application to OCRM, it was his belief that the permit application was going to be considered under R. 30-12F. He did not believe at the time Park Island was a small island within the meaning of R. 30-12N. Following the comments generated at the public hearing and the concerns expressed by both the public and members of OCRM, Robinson was involved in making the modifications to the bridge permit application.

Mr. Robinson testified he did not believe that shading from the bridge was going to have any significant environmental impact. He testified that shading will have some effect on the grass so that it might not be quite as tall as unshaded grass but that the effect would be minimal. His opinion was based upon his experience with the South Carolina Coastal Council and the OCRM as well as visual observation of a number of bridges in and around the Charleston area.

Ivan Chou is employed by Applied Technology and Management, a coastal engineering and environmental consulting firm. Mr. Chou has a Master's Degree in coastal and oceanographic engineering. He is a licensed civil engineer in the States of Florida, Georgia, North Carolina and South Carolina. Mr. Chou performed a limited hydrological analysis of Toomer Creek and the upper Wando near Park Island. As part of his analysis Chou took depth readings in Toomer Creek and the Wando River, dissolved oxygen and salinity levels in both areas and temperature readings. Based upon his study he found the dissolved oxygen level in Toomer Creek from its confluence with the Wando to a point where the creek became very narrow and shallow was high, ranging from 6.2 parts per million (ppm) to 5.7 ppm. He testified that the state water quality standard is 5 ppm. Mr. Chou also testified that the tidal range in Toomer Creek is 6.4 feet. Mr. Chou calculated the tidal prism for Toomer Creek and found it to be approximately 600 acres. Mr. Chou testified that on a daily tidal cycle 400 million gallons of water flow in and out of Toomer Creek. He found that the water quality in Toomer Creek was good. Mr. Chou also concluded that the bridge to Park Island would have insignificant effect on the hydrologics and hydrology of the Toomer Creek area.

John Manzi lives on Folly Island, South Carolina and has a Ph.D. in biological oceanography. In 1976 Dr. Manzi took a position with the South Carolina Wildlife and Marine Resources Department and worked there for 15 years as the senior marine scientist in charge of shellfish research. During that time he spent part of every week in the shellfish ground marshes along the entire coast of South Carolina. While he was employed with the Wildlife Department, Dr. Manzi was involved in a study which attempted to determine how the various activities of man impacted marine environments. Those activities included road construction, dock building, boat activity, marina development and commercial and recreational fishing. Dr. Manzi's primary responsibility while he worked for the Wildlife Department was with the state shellfish resources; later, he became involved in aquaculture research for the state. Dr. Manzi left the Wildlife Department in 1990 and became involved in a commercial aquaculture operation in South Carolina. This operation involved raising clams for the commercial market. Dr. Manzi testified that the company built a hatchery for the propagation of small clams in Sol Legare Creek adjacent to Highway 171 which is the road leading to Folly Beach. The hatchery operation was immediately adjacent to the bridge which crossed the creek. Dr. Manzi testified that water quality was of primary importance to the hatchery and nursery project since juvenile clams are very fragile and they were being raised in growing pens attached to a dock at the hatchery. Dr. Manzi testified that there were no stormwater management controls on the bridge over Sol Legare Creek and that direct stormwater runoff from the bridge and the adjacent roadway found its way into Sol Legare Creek. At no time while he was involved in the nursery operation did his company ever discover any water quality problems associated with the runoff from the road or the bridge, although they did extensive water quality testing. Dr. Manzi testified that Sol Legare Creek has a tidal prism similar to Toomer Creek. Dr. Manzi testified that the traffic across the bridge was from 11,000 to 13,000 cars a day.

Dr. Manzi also looked at the oyster resources in the Wando River adjacent to Park Island and found that the majority of the oysters that he found on the beds were dead and that this same condition was prevalent across the Wando River in a bed he examined. Dr. Manzi testified that his opinion was that the death of the oysters might be attributable to a disease called dermo although he could not be sure of that. He further testified that the upper Wando River near Park Island was about the limit of where you would expect to find oyster resources because of the tremendous swings in salinity and high summer temperatures. Dr. Manzi was of the opinion that the oyster resources in the Wando River in the vicinity of Park Island had little if any commercial or recreational utility, and he testified that the oyster beds in that area have been closed for as long as he could remember to either commercial or recreational harvesting.

Dr. Manzi testified that based upon his experience, docks, if properly constructed, have little if any impact on the growth of spartina alterniflora. Properly constructed, according to Dr. Manzi, meant that the dock needed to be at least a meter above the height of the marsh grass and be of a reasonable width. Dr. Manzi also testified that in his experience shading from bridges did not lead to the death or destruction of marsh grass under the bridges and that while initial bridge construction severely impacted the grass under a bridge, it recovered quickly. Dr. Manzi watched this process occur while the James Island Connector linking downtown Charleston and James Island was being constructed.

Lastly, Dr. Manzi performed a statistical analysis of the size of islands within the Wando watershed. The analysis was designed to show the relationship in a size frequency distribution of Park Island to the rest of the islands in the Wando River basin. Dr. Manzi found 141 islands within the Wando River basin, the smallest of which was .11 acres and the largest was 633 acres. Based upon his statistical analysis Dr. Manzi found that 80% of the islands in the Wando River basin were smaller than Park Island, which is 30 acres in size, and only 20% were the same size or larger.

Philippe Ross is currently the director of the Division of Environmental Science and Engineering for the Colorado School of Mines. In addition to his administrative duties he teaches courses in environmental design, data management and aquatic toxicology. Dr. Ross has a doctorate in biology which was primarily focused on aquatic biology. Dr. Ross testified that he worked for seven years for the State of Illinois as an aquatic toxicologist and from 1991 until 1997 was the head of the biology department at The Citadel. During that period of time he was involved with the OCRM in both the Charleston Harbor Project and a separate study to determine the impact of the newly constructed Isle of Palms Connector on the underlying and surrounding marsh and creek system.

The purpose of the Isle of Palms Connector study was to determine if chemical runoff from the roadway as a result of traffic on the bridge introduced toxicity into the sediments in the area below and on either side of the bridge. The Isle of Palms Connector study lasted for five years, and at the time the Isle of Palms Connector had been retrofitted with a stormwater management system consisting of a series of collection pans which captured the first half inch of runoff from the bridge. Dr. Ross testified that when the Isle of Palms Connector was first opened the average daily traffic count was in the neighborhood of 5,000 to 6,000 cars a day but had increased to 15,400 cars a day by 1997. Based upon the Connector study, Dr. Ross testified that there was no scientifically statistical significant different toxicity loading under and around the bridge when compared to the marsh not influenced by the bridge.

Dr. Ross was of the opinion that the stormwater management plan proposed for the Park Island bridge was superior to that which was currently in place on the Isle of Palms Connector and that it would be extremely unlikely that the bridge would cause any biological toxicity to the surrounding marsh or mudflat.

Dr. Ross was of the opinion that the stormwater management plan proposed for Park Island, particularly the 50-foot average natural buffer from the critical area, makes it unlikely that stormwater runoff from the island will have any effect on the adjacent marsh. His opinion was based on the amount of impervious surface on the island after the construction of 33 houses, paved roadways, driveways, patio and deck coverage, and parking apron. He opined that Park Island, after buildout, would have an impervious surface of 17.8%. Dr. Ross did not include lawns in his calculation because he stated that the Environmental Protection Agency does not consider a grass lawn as an impervious surface.

FINDINGS OF FACT

Having observed the witnesses and having closely passed upon their credibility, and having reviewed the exhibits presented at the hearing and having taken into consideration the burden of proof required of the parties, I make the following findings of fact by a preponderance of the evidence:

1. Notice of the date, time, place and nature of the hearing and notice of the respondent's bridge application was timely and promptly given to all parties.

2. Park Island, 29.74 acres located at the confluence of Toomer Creek and the Wando River, is separated from the mainland by a mudflat containing isolated stands of spartina alterniflora in the lower areas and black needle rush marsh close to the island and the mainland. The area behind the island goes dry at low tide and while it is possible to navigate behind the island on a high tide in a small john boat or kayak, there are no definable creeks behind the island which are navigable.

3. Park Island is a portion of a 1650-acre tract which LandTech acquired from Georgia Pacific in 1996. Georgia Pacific had developed a significant portion of its 4550 acres into a planned development district approved by the Town of Mt. Pleasant. This development is known as Dunes West. Park Island was included in the original planned development district, and was zoned, and is presently zoned, R-3 which would allow residential density on the island of approximately 210 units. The property purchased by LandTech fronts upon both Highway 17 North and Highway 41, and is bounded by Toomer Creek, the Wando River and Darrell Creek. The Dunes West side of Toomer Creek has been substantially developed with single-family residential homes and docks. Most of the individual petitioners live along Toomer Creek in Dunes West. Toomer Creek is a healthy, productive saltwater creek which has not suffered any environmental problems from the Dunes West development.

4. LandTech is currently in the process of developing its 1650-acre tract consonant with the planned development district zoning which allows it flexibility in a mixed-use development including commercial, residential, and multi-family. The bridge to and the development of Park Island is simply a portion of the overall development of the property which is known as "Park West."

5. In developing Park West, LandTech has received stormwater management permits from the OCRM, has engaged in wetland master planning, performed full archaeological surveys, and submitted dock master plans for the high ground portions of its property which border Toomer Creek.

6. As part of the overall development of Park West, LandTech applied to the OCRM Division of DHEC for a permit to construct a bridge to Park Island. The original permit application sought the construction of a concrete bridge 1900 feet long, 40 feet wide, and 10 feet high.

7. OCRM wrote a letter to LandTech on May 29, 1998, requiring it to submit its DMP and stormwater management plan for the island before it could take action on the request.

8. The bridge permit application generated significant public participation, and a public hearing was conducted on the application on July 7, 1998 and a continuation of that public hearing was held on July 9, 1998. A number of public comments were received by OCRM prior to, during and after the public hearing and concerns were expressed: (1) over the length, height and width of the bridge; (2) over the rapid growth occurring in that portion of Mt. Pleasant and the impact that growth would have on surrounding areas; (3) about the potential adverse environmental impacts from the bridge itself as well as the high ground development, e.g., effects on water quality, fin fish, shellfish, the marsh, etc., and (4) about aesthetic impacts resulting from the size and orientation of the bridge. There were also concerns from members of the public about the density of the development both at Park West itself and on Park Island. The original submittal to OCRM indicated that LandTech planned 66 lots for Park Island.

9. The parties have stipulated that notice of the bridge permit application was published in accord with statutory and regulatory requirements and that appropriate notice was given to adjoining property owners.

10. OCRM received a letter from the South Carolina Department of Natural Resources (SCDNR) withholding objection to the construction of the bridge if measures suggested by it were taken in its construction to minimize its effect on the critical area. SCDNR recommended the use of top-down construction methods. SCDNR did not assess or comment on the impacts from potential development of the island on "surrounding estuarine resources" although it has done so on other bridge applications.

11. The marshes, creeks, and other tidelands around Park Island are highly productive marine plant and animal habitat. These estuarine waters provide critical nursery habitat for finfish, shellfish, and micro-organisms. The marshes and tidal creeks furnish protection from predators for larval and young fish. The creeks, mud flats, and marsh grass (spartina alterniflora) provide critical food for these animals. The vegetative productivity of this area is not limited to spartina. Microalgae, phytoplankton, and other minute plants abound and contribute as much or more than the spartina. The Wando River is more pristine and has less "flushing" than the Ashley or Cooper Rivers.

12. Following the public hearing and in order to respond to public concerns as well as concerns expressed by OCRM, LandTech substantially modified its permit application. These modifications included moving the bridge 500 feet further away from Toomer Creek so that its present location is 2100 feet east of the middle of Toomer Creek; reducing the length of the bridge to 1430 feet; reducing the width of the bridge to 33 feet; increasing the height of the bridge to 11.5 feet at the center of the bridge; reducing the number of lots on Park Island to 33; adding a 50-foot average width buffer around Park Island; and submitting an amended dock master plan reflecting the reduction in lot density. The bridge would cross approximately 253 linear feet of freshwater wetlands and approximately 1154 linear feet of marshlands. Also, the bridge design was revised to add a "stormceptor" rainwater collection system for capturing and "treating" the first inch of rainwater.

13. At the time of the public hearing, LandTech had yet to submit the DMP or stormwater management plan previously requested by OCRM. Instead, LandTech obtained extensions of time from OCRM to fulfill OCRM's requirements. LandTech later submitted a revised DMP that was approved by OCRM on December 21, 1998. The DMP shows dock corridors for 33 lots. The 3 joint use docks are shared by adjoining lots in areas adjacent to the no-dock zones established by OCRM. All 33 lots would have a dock except for six lots which would be served by these three joint-use docks. The DMP for Park Island contains no community docks.

14. If individual docks were constructed in all the dock corridors in the DMP approved by OCRM, the total length of the docks would exceed 3 miles. Approximately 5 of the dock corridors would require docks in excess of 1,000 feet.

15. The proposed new location of the bridge would cross an area adjacent to the mainland that was designated as a protected buffer area by the United States Army Corps of Engineers under the freshwater wetland permit issued to Dunes West Joint Venture. OCRM assented to the modification of this fresh water wetland permit to allow the construction of the bridge.

16. OCRM issued its permit for the bridge on February 2, 1999, based on the revised application. It permits a bridge of a total length of approximately 1,430 feet and a width of 33 feet. One of the permit's special conditions is that the development plan have a maximum of 33 lots on the island (Special Condition 3).

17. The Petitioners timely appealed the permit and requested a contested case hearing. The Petitioner South Carolina Coastal Conservation League is a non-profit organization of approximately 4000 members dedicated to protecting cultural and natural resources in South Carolina. Petitioner Coastal Conservation Association - South Carolina is a non-profit organization that promotes the protection of marine animal and plant life and other resources on the coast. Most of the individual Petitioners own property in Dunes West on Toomer Creek near the island.

18. During the permit application process no objections to the permit were lodged by the Town of Mt. Pleasant, the Environmental Protection Agency, the National Marine Fisheries Service, the U.S. Fish and Wildlife Service, or the South Carolina Department of Natural Resources. All of these agencies received copies of the permit application.

19. The bridge had always been designed to carry both water and sewer to and from the island, and the requirement that LandTech submit a DMP, a stormwater management plan, and make a demonstration of public need stemmed from OCRM's decision to treat the bridge permit application as one involving access to a small island under R. 30-12N instead of treating the permit application as a transportation project under R. 30-12F. The review requirements and criteria for a bridge permit under R. 30-12N are the second most stringent in coastal zone permitting being surpassed only by the requirements imposed by regulation on the permitting of an open water marina. Had OCRM considered the permit application under R. 30-12F, which it could have done, LandTech would not have been required to address either public need, provide engineered stormwater management calculations, or provide a dock master plan.

20. There is no definition in OCRM's regulations of "small island". Thus, decisions are made on a case-by-case basis. A previous permit application involving an island roughly the same size as Park Island known as Charlotte Island in Beaufort County had been evaluated by OCRM under the small island criteria but this was the first and only time OCRM had imposed those criteria on an island of 30 acres.⁽¹⁾ A statistical analysis of islands in the Wando River basin places Park Island in the large island category since 80% of the islands in the basin are smaller than 30 acres. Mt. Pleasant requires an impact assessment for any development within its jurisdiction in excess of ten acres. Obviously, the town does not consider Park Island as a "small" development.

21. S.C. Code Ann. Regs. 30-12F is related to transportation projects in the coastal zone and recognizes there is often a strong public need for such projects. Subsection (2)(B) of the regulation provides: "The location and design of public and private transportation projects must avoid the critical areas to the maximum extent feasible. Where coastal waters and tidelands cannot be avoided, bridging rather than filling these areas will be required to the maximum extent feasible;" Subsection (D) provides: "To the maximum extent feasible, transportation structures must be designed so as not to alter the natural waterflow and circulation regimes or create excessive shoaling or erosion. Where applicable, adequate clearance for commercial and pleasure craft must be provided;" Subsection (E) provides: "Where feasible, maximum care should be taken to prevent the direct drainage of runoff water from transportation routes and associated facilities from entering adjacent water bodies;" and subsection (I) provides: "The department will require applicants for transportation project permits to consider the accommodation of other public utilities and facilities design, thus avoiding unnecessary future alterations such as that caused by the laying of cables or transmission lines in wetlands adjacent to the existing roadway." LandTech's bridge permit application clearly meets all of the specific criteria applicable to that permit under R. 30-12F. There is simply no credible evidence to the contrary.

22. The requirements of R. 30-12N are far more comprehensive and stringent than those of R. 30-12F. In relevant parts, R. 30-12N provides:

To prevent inappropriate access to small islands, permanent filling for access is prohibited, except for the expansion of existing usable causeways. Bridging will be considered upon:

• Distance of bridging required;
• Type of bridging and dimensions of bridging requested;
• Configuration of shoreline;
• Size of the island, including highland and critical area;
• Existence of feasible alternatives;
• Public need;
• Impact on protected resources;
• The ability of owner to tie into existing sewer or meet SCDHEC's

standards for septic tanks;

• Impact upon value set forth in 48-39-20(e);
• The island is subject to stormwater and management policies set forth in the program document;
• The owner must provide a dock master plan, and a development plan. Mitigation will be required for any filled place in the critical area for widening of causeways."

13. Length, Type, and Dimensions of the Bridge. [30-12(N)(1), (2)] In order to access Park Island it is necessary to build a bridge to it. Originally the bridge was going to be 1900 feet long, but LandTech reduced the length of the bridge to 1430 feet, which is the shortest distance between the mainland and the island. There have been several applications for bridges of similar length for which OCRM has granted a permit. In Burgess & S.C. Coastal Conservation League v. SCDHEC-OCRM & Dominion Trust, LLC, Docket No. 99-ALJ-07-0167-CC, OCRM granted a permit for a bridge of over 1,000 feet. ⁽²⁾ In another situation, OCRM granted a permit for a bridge to a much smaller island than Park Island, with a bridge length of approximately 900 feet. That issuance was affirmed by this court. Pamela Bartenfield et al. v. SCDHEC-OCRM & Michael T. Casa, Docket No. 98-ALJ-07-0689-CC. I find that the distance of bridging required was appropriately considered by OCRM.

24. The proposed bridge has always been a concrete structure and concrete itself has little or no environmental impact. The evidence indicates that concrete is no less environmentally safe than wood, and concrete is more durable, requiring less maintenance than wood. Originally the bridge would have spanned 1900 feet, would have been 40 feet wide, and ten feet above mean sea level (MSL). During the permitting process the dimensions of the bridge were changed so that as permitted the bridge will be 1430 feet long, resulting in less pile bents, the width of the bridge has been reduced from 40 feet to 33 feet, the minimum needed for access and safety, ⁽³⁾ and the height of the bridge has been raised to 11.5 feet, MSL, in the middle of the bridge and is ten feet, MSL, on each end. The elevation of the bridge will be at least five feet above mean high water. This height is within OCRM guidelines, which require that level in order to reduce impacts such as shading. OCRM gave appropriate consideration to the type of bridging and dimensions of bridging requested and the changes made will lessen impacts on the environment.

25. Configuration and Size of the Island.[30-12(N)(3),(4)] Viewed from above the shoreline of Park Island as it faces the mainland, its configuration is roughly in the shape of a boomerang; its center is the narrowest and it widens out to the east and the west. On the Wando River side of the island the marsh is predominantly spartina alterniflora before it ends in water, and on the mainland side of the island there is black needle rush close to the mainland and to the island itself, with a mudflat with limited spartina alterniflora between the two. The orientation of the bridge will be north to south, but west of the existing Dunes West development. This places the bridge parallel to Dunes West, shortens the length of the bridge and moves it farther from the residents of Dunes West. Even though the bridge will be parallel to the Dunes West development on the other side of Toomer Creek, it will be located approximately 2100 feet away from the center of Toomer Creek and should pose little or no visual impact or aesthetic problem to the residents of Dunes West. In fact, none of the witnesses from Dunes West complained about visual impacts in their testimony. OCRM correctly reviewed the configuration of shoreline as required in R. 30-12N.

26. Regs. 30-12(4) requires a consideration of the size of the island. OCRM has interpreted this requirement to require consideration of the amount of high ground in proportion to the amount of critical area. The island contains 29.74 acres of high ground with no freshwater wetlands. There were no isolated areas of critical area or freshwater wetlands. The bridge to the island will span 1430 feet of critical area, however, environmental impact from the bridge will be negligible. The bridge will facilitate the development of 33 lots on the island. The fact that the island is predominantly high ground and suitable for development supports the issuance of a bridge. OCRM gave the size of the island just consideration.

27. Feasible Alternative Access [30-12(N)(5)]. The terms "feasible" and "feasible alternative" are defined in OCRM Regulation 30-1(C)(6) (Supp. 1998) as follows:

The Department with respect to individual project proposals determines feasibility. Feasibility in each case is based on the best available information, including, but not limited to, technical input from relevant agencies with expertise in the subject area, and consideration of factors of environmental, economic, social, legal and technological suitability of the proposed activity and its alternatives. Use of this word includes, but is not limited to, the concept of reasonableness and likelihood of success in achieving the project goal or purpose. "Feasible alternatives" applies both to locations or sites and to methods of design or construction, and includes a "no action" alternative.

There is no feasible alternative access to the island which would allow it to be developed. While there was some general testimony concerning the development of Daufuskie Island and Dewees Island which do not have bridges, it is clear that these two islands are fundamentally different from Park Island. First, both islands are true barrier islands which are substantially larger than Park Island and it would be difficult, if not impossible, to build bridges to the two islands. Secondly, and equally importantly, both Daufuskie and Dewees have deep water access which allowed for the construction of commercial-type pier facilities on both islands so that construction equipment can be offloaded, and both islands have their own ferry service and their own marinas. However, the Wando River in the vicinity of Park Island is reasonably shallow, the Highway 41 bridge downstream effectively blocks the river upstream from large boats, such as barges, which would be necessary to bring construction material to the island, and it is simply not feasible to attempt to access this island for the construction of single-family residential houses by any means other than a bridge. There was no credible evidence as to how sewage from the island or water to the island would be handled without a bridge.

OCRM concluded that it would not be feasible to access Park Island in another way.⁽⁴⁾ It would be possible to access the island by a dock; however, given the density of development and the number of homes to be built, it would not be a feasible alternative. OCRM correctly concluded that there was no feasible alternative access.

28. Public Need [30-12(N)(6)]. Neither OCRM's critical area permitting regulations nor the Coastal Zone Management Act define "public need." ⁽⁵⁾ This omission has created a certain amount of confusion in addressing this issue in the consideration of bridge permits to small islands. The issue of public need was addressed during the permitting process and in the permit itself. LandTech has agreed to set aside 12 acres of high ground adjacent to Darrell Creek for the creation of a passive public recreation and educational center. While the 12 acres is not on the island itself, the bridge permit at issue is simply part of the development of LandTech's 1650 acres and should not be viewed in isolation from the overall development of Park West. ⁽⁶⁾ Additionally, LandTech has donated 0.5 acres of waterfront high ground which the Town of Mt. Pleasant will use to create ⁽⁷⁾ marsh as mitigation for a town project involving the rehabilitation of a public boat ramp. This has saved money for the taxpayers of Mt. Pleasant. Furthermore, LandTech has agreed to establish an average minimum 50-foot buffer around Park Island which will remain in an undisturbed natural vegetated state. It is undisputed that the State of South Carolina has no regulatory mechanism for requiring such buffers as part of its critical area or stormwater management permitting process. The experts for both the Petitioners and the Respondents agreed that such buffers are the most effective method of ameliorating or mitigating the water quality impacts of residential development next to sensitive waters. In its natural, vegetative state, the buffer functions as a filter of storm water pollutants and absorbs water as it flows off-site.

Lastly, while not directly associated with the bridge permit, LandTech has donated 105 acres of its property to the Charleston County School District for the erection of public schools and 59 acres have been given to the Town of Mt. Pleasant for public recreational purposes. The OCRM, in another permit for a bridge to a small island, OCRM P/N 99-195-E, which is in a development known as Selkirk Plantation, concluded that the public need requirement was satisfied by a preexisting conservation easement held by the Lowcountry Open Land Trust on a portion of the 800-acre tract. The South Carolina Coastal Conservation League apparently found this demonstration of public need to be satisfactory and supported the issuance of that bridge permit. The OCRM correctly found that the public need requirement had been satisfied.

29. Impact on Protected Resources [30-12(N)(7)]. While there will be some impacts on existing critical area resources from the construction of the bridge, these impacts will be negligible and will not lead to degradation of water quality or cause any significant lasting impact to critical area resources. There will be temporary impacts associated with actual construction of the bridge to the marsh and mudflat which the bridge spans, however, the resources under the bridge will quickly recover. Further, impacts will be minimized during the construction since LandTech must utilize "top-down" construction of the bridge, elevated work trusses or construction from floating barge mats.

30. The north-south orientation of the bridge, as well as its height, will allow sunlight under the bridge so that any shading from the bridge will have a minimal impact on the critical area habitat under the bridge. The bridge, at the proposed location, stretches out over land that is mostly dry at low tide, but inundated at high tide, with vegetation on the fringes of the area. In addition, the impact to productivity of the marsh area under the bridge will have no measurable effect on the marsh system in this area. Based upon the evidence presented at the hearing, it is manifest that the impact on protected resources from the shadow cast by this bridge, once constructed as permitted, will be insignificant.

31. The bridge will not interfere with current navigation in the area nor will it cause erosion, shoaling of channels, or the creation of stagnant water. The bridge will not adversely affect the production of fish, shrimp, oysters, crabs, or clams or any other marine life, wildlife, or other natural resources in the area, nor will it degrade the water quality in the area. Further, there are no areas of particular geographical significance or any outstanding cultural resources on Park Island.

32. Sewer Utilities [30-12(N)(8)]. It is uncontroverted that the bridge will carry both water and sewer to and from the island alleviating the need for either wells or septic tanks on the island. The development of small islands with septic tanks has in the past been a concern along the coast of South Carolina but is not an issue in this case. LandTech will utilize public water and public sewer systems.

33. Values in § 48-39-20 (E)(N)(9). S.C. Code Ann. §48-39-20(E)(Supp. 1997) sets forth the following:

Important ecological, cultural, natural, geological and scenic characteristics, industrial, economic and historic values are being irretrievable damaged or lost by ill-planned developments that threaten to destroy these values.

The bridge will not threaten, much less destroy, any important ecological, cultural, natural, geological scenic characteristics, nor will economic nor historical values be threatened by the bridge.

This is not an ill-planned development. In fact, this application is comprehensive is nature, and OCRM and the applicant have attempted to address all potential negative environmental impacts of both the bridge construction and the subdivision and development of the island.

34. Storm Water Management [30-12(N)(10)]. The bridge will be equipped with a state of the art stormwater management system which is designed to transfer the first inch and a half of stormwater runoff from the bridge to both the island and the mainland. This water will pass through Storm Ceptor systems which separate grease and oil from the stormwater before it is discharged into the designed retention ponds on both ends of the bridge. No other applicant for a bridge to a small island has designed a bridge in such a manner. The only other bridge in this state with a storm water system is the Isle of Palms connector bridge in Charleston County. The system incorporated into the design of the Isle of Palms connector is a much less sophisticated system than the one that LandTech has proposed. Given the fact that the average daily traffic count on the bridge is projected to be 300 vehicles, and further given the fact that OCRM does not require stormwater management on any bridge until the average daily traffic count is 30,000 vehicles a day, the compelling evidence is that there will be no problems associated with stormwater runoff from the bridge.

35. Park Island itself meets all of the requirements of OCRM with regard to stormwater management. In fact, the evidence demonstrates that it exceeds any and all requirements imposed by the state's stormwater management regulations. The only credible evidence is that the size and location of the proposed stormwater retention ponds on the island coupled with an average 50-foot wide naturally vegetated buffer, meets and exceeds the state's regulatory requirements for managing stormwater for the 33 houses and the roads which are proposed to be built on the island, and the total impervious surface of the island at build-out will be approximately 17.8%.

36. Dock Master Plan and a Development Plan with Mitigation for filling in critical areas [30-12(N)(11)]. Initially LandTech proposed as part of its submitted development plan the creation of 66 lots on the island. This number was reduced by half following the public hearing and public comment period, and the proposed development plan reviewed by OCRM in conjunction with the bridge permits shows a total of 33 lots. Under the Town of Mt. Pleasant's zoning ordinances which are applicable to Park Island, this is considered to be a low density development.

37. LandTech also submitted a dock master plan for the island which identified 30 dock corridors from the 33 lots. Virtually all lots are waterfront lots. Each lot has more than the minimum amount of water frontage required by OCRM regulations and is less than 1,000 feet from either the Wando River or Toomer Creek. The approved plan meets OCRM's criteria. Of the 30 dock corridors, three of the dock corridors in the rear of the island will be restricted to crabbing docks, and three of the dock corridors restricted to joint-use docks between the adjoining lot owners. However, there is no guarantee that a dock corridor on an approved dock master plan will result in the issuance of a dock permit for any of the lots from OCRM. Each dock permit application will be judged on its individual merits and must meet the specific criteria for single-family residential docks specified in R. 30-12A. By regulation OCRM looks favorably on community docks and joint-use docks as does this court. The Dock Master Plan is a planning tool used to aid OCRM in thoroughly reviewing all proposed impacts of a project .

38. The OCRM gave appropriate consideration to the 11 specific requirements under R. 30-12N in issuing the bridge permit under consideration and the permit satisfies all 11 requirements.

CONCLUSIONS OF LAW

Based on the foregoing Findings of Fact, and upon a careful study of the applicable statutes and regulations, I conclude the following as a matter of law:

1. The Administrative Law Judge Division has subject matter jurisdiction in this proceeding pursuant to S.C. Code Ann. §§ 1-23-600(B) and 1-23-310 et seq. (Rev. 1986 & Supp. 1998). Section 48-39-150 specifically authorizes the Administrative Law Judge Division to hear contested cases arising under Chapter 39 of Title 48 of the Code. S.C. Code Ann. § 48-39-150 (Supp. 1998).

2. As a state-wide administrative tribunal authorized to hear evidence and adjudicate contested case hearings, the Administrative Law Judge Division is the fact finder in this matter for purposes of administrative and judicial review. See Lindsey v. S.C. Tax Comm'n, 302 S.C. 504, 397 S.E.2d 95 (1990).

3. In weighing the evidence and deciding a contested case on the merits, the Administrative Law Judge must make findings of fact and conclusions of law by 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).

4. 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 Telephone and Telegraph 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 to 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).

5. OCRM is the subdivision within DHEC charged with implementing the State of South Carolina's coastal zone policies and issuing permits in coastal zone areas.

6. S.C. Code Ann. § 48-39-30 (Supp. 1998) sets out the policies governing the management, development and protection of the coastal zone areas. Additionally, S.C. Code Ann. § 48-39-50 (Supp. 1998) provides DHEC with the authority to promulgate regulations to carry out the provisions of Chapter 39 of Title 48 of the 1976 Code.

7. S.C. Code Ann. Regs. 30-1 et seq. (1976 & Supp. 1998) govern the management, development, and protection of the critical areas of the state coastal zone. The critical areas of the state include coastal waters, tidelands, beaches and the beach/dune system. S.C. Code Ann. § 48-39-10(J) (Supp. 1998). "Tidelands" mean "all areas which are at or below mean high tide and coastal wetlands, mudflats, and similar areas that are contiguous or adjacent to coastal waters. . . .Coastal wetlands include marshes, mudflats, and shallows and means those areas periodically inundated by saline waters. . . ." ; S.C. Code Ann. Regs. 30-1(C)(12).

8. S.C. Code Ann. §48-39-50 sets forth the general considerations and standards applying to all requests for construction activity in the critical area. These considerations and standards are repeated in S.C. Code Ann. Regs. 30-11(A) and (B). S.C. Code Ann. Regs. 30-11(C)(1) requires OCRM to consider the cumulative impacts of a project, not just the impact of the project itself:

C. Further Guidelines: In the fulfilling of its responsibility under Section 15(A) of the Act, the Department must in part base its decisions regarding permit applications on the policies specified in Sections 1 and 2 of the Act, and thus, be guided by the following:

(1) 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.

9. S.C. Code Ann. § 48-39-130(c) (Supp. 1998) requires a person or entity to obtain a permit for any alteration of the "critical area" of the coastal zone. In determining whether an application is approved or denied, OCRM bases its determination on the individual merits of each case, the policies specified in §§ 48-39-20 and 48-39-30, and the ten general guidelines contained in §48-39-150(A).

10. S.C. Code Ann. Regs. 30-12 sets forth project-specific criteria for proposed activity or construction in the critical area. These include docks (subsection A), transportation projects (subsection F), and access to small island (subsection N).

11. The State owns the property below the high water mark in public trust for its use, recreation, and preservation by and for all people in South Carolina. State v. Hardee, 259 S.C. 535, 193 S.E.2d 497 (1972); Hobonny Club, Inc. vs. McEachern, 272 S.C. 392, 252 S.E.2d 133 (1979). The State holds a significant interest in coastal zone management which may outweigh the interests of private landowners. See, e.g., McQueen v. South Carolina Coastal Council, 329 S.C.588, 496 S.E.2d 643 (Ct. App. 1998); Carter v. South Carolina Coastal Council, 281 S.C. 201, 314 S.E.2d 327(1984).

12. Other than a passing reference to a bridge permit in Beaufort County for Charlotte Island by an OCRM witness, the only evidence before this court with regard to the size of Park Island strongly indicates it is not a "small" island. A statistical analysis done by Dr. Manzi of the islands in the Wando River demonstrates that Park Island can only be classified as a large island. It is also noteworthy that the Town of Mt. Pleasant does not require an impact statement for any development less than ten acres. Since there is no definition in OCRM's regulations of "small island," there needs to be some standard to guide the OCRM in its application of its regulation dealing with bridges to islands. While the matter is not free from doubt, the evidence presented at the hearing strongly indicates that Park Island does not fall in the "small" island category. The appropriate regulations governing the bridge to this island are contained in R. 30-12F. Unquestionably, the LandTech application and submittals met all of the regulatory criteria of bridge access pursuant to R. 30-12F.

13. The permit application was processed by the OCRM under the regulatory requirements of R. 30-12N, and, accordingly, the court determines that it is advisable to consider whether the bridge permit meets these criteria. R. 30-12N states in pertinent part that, "[i]nappropriate development can affect the value set forth in Section 48-39-20(e) and the policies the department is required to implement pursuant Section 48-39-30. To prevent inappropriate access to small islands, permanent filling for access is prohibited...." It is the Petitioners' theory that the development of Park Island with 33 lots and 30 dock corridors is somehow inappropriate. During the hearing in this matter they attempted to justify this notion by trying to prove that the bridge and the development of the island would lead to environmental degradation of the surrounding marsh and would adversely effect Toomer Creek and the Wando River. The Petitioners failed to prove that either of these conditions were going to occur.

14. This island is in the Town of Mt. Pleasant which had no objection to the bridge or the development of the island. In fact, the Town of Mt. Pleasant has zoned the entire Park West tract, including Park Island, as PDD which would allow the development of Park Island with a density far greater than that which it has restricted itself to in its bridge permit. Clearly, the development of this island is not inappropriate under the current land use regulations and ordinances of the town. Likewise, the OCRM, in part, guided by the town's determination of appropriateness, concluded correctly that development of the island was appropriate.

15. Even though the Town of Mt. Pleasant and the OCRM consider development of the island appropriate, because the way R. 30-12N has been written it is necessary to review the other criteria under this regulation in light of the evidence produced at the trial. Under R. 30-12N, bridging will be considered based upon:

• Distance of bridging required;
• Type of bridging and dimensions of bridging requested;
• Configuration of shoreline;
• Size of the island, including high land and critical area;
• Existence of feasible alternatives;
• Public need;
• Impact on protected resources;
• The ability of owner to tie into existing sewer or meet SCDHEC's

standards for septic tanks;

• Impact upon value set forth in § 48-39-20(e);
• The island is subject to stormwater and management policies set forth in the program document;



• The owner must provide a dock master plan, and a development plan. Mitigation will be required for any fill placed in the critical area for widening of causeways.

16. Petitioners claim that OCRM did not follow the criteria of R. 30-12N in making a decision to issue the bridge permit in question. This court, however, is persuaded that OCRM did in fact consider each and every element of the regulation and that the bridge permit at issue satisfied each element. There was no credible evidence that the bridge was too long, that the type of the bridging and the dimensions of the bridging were inappropriate or that the bridge accessed the shoreline on the island in the wrong place. Petitioners claim that Regs. 30-12(A)(2)(l), limiting dock length to 1,000 feet, is relevant to their argument that this bridge is too long. I conclude that the legislature did not intend for this restriction to apply to bridges. There is no restriction on bridge length anywhere in OCRM's regulatory scheme. To the contrary, all the credible evidence proved that each of these requirements had been met.

Moreover, there was no evidence that the size of the island, including high land and critical area, prohibited building a bridge to the island, or that LandTech could not tie into existing sewer utilities. Likewise, there was no credible evidence that building a bridge to Park Island would have a negative impact upon the value set forth in § 48-39-20(e) which include ecological, cultural, natural, geological and scenic characteristics.

17. This court is also of the opinion and concludes that there is no feasible alternative access to this island which would warrant the denial of this bridge permit. Reliance is placed upon the position taken in Finding of Fact # 27.

18. While the petitioners presented some evidence that the bridge would have an impact on protective resources, I find and conclude that such impact will be negligible and of no greater significance than impacts which are normally associated with any critical area permit issued by the OCRM. I am, therefore, of the opinion and so conclude that the OCRM appropriately reviewed this provision and that the bridge permit as issued completely complies with this requirement.

19. While there was a great deal of testimony during the trial about stormwater management on Park Island and on the bridge itself, I am persuaded and conclude that the petitioners failed to present credible evidence that the stormwater management proposed for the island or the bridge is contrary to the state stormwater management regulations or the policies set forth in the OCRM program document. To the contrary, the respondents proved by clear and convincing evidence that South Carolina Stormwater Management Regulations and the policies of the OCRM program document had been met and in most instances exceeded.

20. I find and so conclude that the dock master plan and the development plan submitted to OCRM with this permit application met all of the current regulatory and technical criteria of OCRM as required by Regs. 30-12 N. However, this court further finds and concludes that the Dock Master Plan submitted by LandTech to OCRM was nothing more than a planning tool used to aid OCRM in thoroughly reviewing all the proposed impacts of the bridge project. It serves as no guarantee that any of the lots will be permitted for an individual dock.

The walkways for the planned docks from this small island would total over three miles in combined length. There are no community docks. There was no evidence that any community docks had been considered by LandTech, despite the policy of this State which encourages developers of subdivisions to use community docks. S.C. Code Ann. Regs. 30-12A(2)(h). From a thorough review of the drawings and maps of the developments and of the extended lot lines, it appears that every effort was made to maximize the number of docks including the manipulation of some lot lines near the OCRM critical line to adjust "dock corridors" (Pet. Exh. 30; Tr. 237-9). These lots would otherwise not be qualified for a dock if the lot boundary extending to the marsh had been continued in a straight line. Instead, the boundaries were slanted at an odd angle at the marsh edge to alter the corridor, which is an extension of the property line, so that those lots could have a dock. Regs. 30-12A.(2)(h) reads as follows: "Developers of subdivisions and multiple family dwellings are encouraged to develop joint-use or community docks when their plans are in the developmental stage." This court hopes that OCRM will revisit the dock master plan and consider the increase of volume of boat traffic this large number of docks would create. OCRM recognizes that high traffic of boats in small tidal creeks increases the turbidity of the water, causes erosion, and adversely affects fish. Boat traffic also causes erosion of marsh adjacent to the creek This court is concerned that more consideration was not given to these issues both by the developer and OCRM in this initial planning of this subdivision.

21. This court is of the opinion and concludes that the bridge permit application and the bridge permit issued by OCRM satisfied the public need criteria specified in R. 30-12N(6). There is no definition of "public need" in OCRM's critical area permitting regulations. This court is aware that this issue has arisen in other cases decided by the Administrative Law Judge Division involving the application of R. 30-12N. Judges of the Division have previously concluded that in assessing public need that we are to be guided by the concept that if a private interest is sufficiently combined with an activity that provides "benefit to the public," public need is satisfied.

The Court of Appeals has recognized that there is not a definition of "public need" in the regulations. Concord Street Neighborhood Assoc. v. Campsen, 309 S.C. 514, 424 S.E.2d. 538 (Ct. App. 1992). In evaluating whether a project satisfies the public need criterion, there must be evidence of a public need in light of the substantial evidence in the record. The Court explained: "Under the substantial evidence test, the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency's decision from being supported by substantial evidence." An administrative agency must be allowed to exercise discretion in granting or denying a permit. The Court stated that an economic benefit alone is not a sufficient showing of public need; however, a public need was present in that case because there were educational and recreational benefits associated with the project, as well as economic ones. Id.; see also Pamela Bartenfield, Margaret-Mary Madeux, and Seabrook Island POA v. SCDHEC (OCRM), and Michael T. Casa, 98-ALJ-07-0689-CC (7/22/99).

In Bill and Karen Peyton, et al. v. S.C. Dept. of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management, and Charles Ausburn, 98-ALJ.-07-0249-CC (2/17/2000), this Division addressed the public need requirement in the context of a private development: "Need is a relative term which varies, within reasonable limits, according to the circumstances to which it is applied." Id. at 8. The Final Order in that case emphasizes the fact that the Charlotte Island bridge did not require any public funds. "[I]f this project involved the expenditure of public funds, the determination of whether to issue this permit would be subject to greater scrutiny." It would be difficult to imagine a scenario in which there would be a public need for a project, if this Court accepts the definition of public need proposed by the Petitioners. Under their theory, only projects utilizing public funds that serve the public at large would meet the public need requirement. Since most bridges to small islands are private developments, this definition would lead to a ridiculous interpretation of Reg. 30-12 (N)(6).

In the instant case, "benefits to the public" are substantial. LandTech has agreed to donate 12 acres of high ground property fronting Darrell Creek for use as a passive recreation and educational facility for the general public at large. Additionally, it has provided a half an acre of valuable waterfront property to the Town of Mt. Pleasant to use as mitigation for a town project involving the rehabilitation of a public boat ramp.

Moreover, LandTech set aside 164 acres for the use of Charleston County to build public schools and for the Town of Mt. Pleasant to construct recreational facilities. In the past OCRM has taken the position that this sort of activity meets its public need requirements. (See, OCRM P/N 99-195E, respondent's exhibit 4.) Lastly, LandTech has voluntarily agreed to establish substantial buffers around Park Island to additionally protect the island from possible problems caused by stormwater runoff from the island after development which obviously inures to the public benefit. Given all of these donations by LandTech it is manifest that they have met the public need requirement contained in R. 30-12N.

Standing

22. After the close of the evidence, LandTech moved for dismissal of the South Carolina Coastal Conservation League ("SCCCL"), one of the Petitioners, for lack of standing. It is the contention of LandTech that the SCCCL failed to introduce any evidence of a direct or particularized injury of an imminent nature which threatened the organization as a result of the bridge permit at issue. LandTech asserts that the interest of the SCCCL is nothing more or less than a general concern over "inappropriate development" that was and is shared by members of the general public at large. This, LandTech asserts, is not sufficient to confer standing. Citizens for Lee County v. Lee County, 308 S.C. 23, 416 S.E.2d 641, 645 (1992); Energy Research Foundation v. Waddell, 295 S.C. 100, 367 S.E.2d 419 (1998). LandTech did not raise this issue in its Prehearing Statement, nor at any time prior to the conclusion of the hearing. Consequently, the Petitioners were not given prior notice that this question would be raised and did not put up proof specifically directed to this issue. However, after full review of the record, LandTech's motion is denied based on the following findings and conclusions which are supported by the evidence and the applicable law:

(1) The SCCCL is a nonprofit public organization dedicated to protecting cultural and natural resources in South Carolina, promoting appropriate development, and preventing projects which would excessively damage South Carolina's natural resources. The SCCCL has between 3,000 and 4,000 members. The SCCCL's water quality program director, Nancy Vinson, testified on behalf of the SCCCL at the hearing.

(2). The SCCCL opposes the bridge application, development plan, and DMP of LandTech for this island because of their perceived negative effects on the surrounding natural resources.

(3). LandTech's Exhibit 9 is the newsletter of the SCCCL for Winter-Spring 1999, Vol. 9. A review of the newsletter discloses that the following individual Petitioners are members: Beth Keyserling-Kramer, James Wells, Joyce Wells, and Gerald Hazin.

(4). Ms. Keyserling-Kramer testified at the hearing that her property is on the Dunes West side of Toomer Creek near the island. She and the members of her family kayak and crab around the island in Toomer Creek, the Wando River, and the marsh. She testified to the peaceful nature of Toomer Creek and the abundance of shrimp, crabs, fish, and birds in these public trust tidelands next to the island where she kayaks and crabs. She stated that she observes fishermen and crabbers in the area. She testified that the water in Toomer Creek is clean and that she swims there. She opposes LandTech's bridge application, development plan, and DMP because of the detrimental effects she perceives will occur from the storm water runoff, the shading from the bridge and docks, the destruction of natural habitat, the increase in boat traffic on Toomer Creek, and the dangerous precedent in allowing a bridge and development of this magnitude on a small island.

(5). The Petitioners put forth evidence to support their contention that the bridge, DMP, and development of the island as planned by LandTech will most probably have a detrimental impact on the natural resources surrounding the island as feared by Ms. Keyserling-Kramer.

(6). S.C. Constitution, Art. 1, Sec. 22 specifies that "[n]o person shall be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard...and he shall have in all such instances the right to judicial review." This right includes the right to present evidence and cross-examine witnesses. Stono River Environmental Protection Association v. South Carolina Department of Health and Environmental Control, 305 S.C. 90, 406 S.E.2d 340 (1991).

(7). The General Assembly has established this contested case hearing as the due process hearing for "any person adversely affected" by OCRM's initial permitting decision. S. C. Reg. 30-6B.

(8). For purposes of an environmental organization's standing in this type of appeal, the Supreme Court of South Carolina has held that the "adverse effect of a specific decision of the Coastal Council [n/k/a OCRM] on their members' use and enjoyment of the fish and wildlife of the wetlands" is an injury-in-fact sufficient to confer standing. South Carolina Wildlife Federation v. South Carolina Coastal Council, 296 S.C. 187, 190, 371 S.E.2d 521, 523 (1988). See also Lennon v. South Carolina Coastal Council, 330 S.C. 414,416, 498 S.E.2d 906, 907 (Ct. App. 1998); Ogburn-Matthews v. Loblolly Partners, 332 S.C. 551, 565, 505 S.E.2d 598, 605 (Ct. App. 1998) (stating that the effect of an agency decision on an individual's "use and enjoyment of the wetland...[is] sufficient to provide standing"). All these cases involved a challenge to activities for which permits were sought but had yet to actually occur. The necessary injury-in-fact can be threatened immediate harm and need not have actually been inflicted for purposes of determining standing. See Carolina Alliance for Fair Employment v. SCDLLR, Opinion No. 3061 (Ct. App. Filed October 25, 1999) ("An organization has standing only if it alleges that it or its members will suffer an individualized injury; a mere interest in a problem is not enough").

(9). The record demonstrates that the cumulative effects of the proposed activities permitted by OCRM pose an immediate danger of direct injury-in-fact to Ms. Keyserling-Kramer, one of the members of SCCCL. This immediate threatened injury to a member satisfies the test for standing of a public interest group in an environmental case such as this under the standard adopted by our Supreme Court.

(10). LandTech argues that the SCCCL is not the object of governmental action or inaction, but seeks to challenge a permitting decision of the OCRM Division of DHEC as it applies to LandTech. It posits further that since the SCCCL is not the object of governmental action or inaction, it is required to make a far stronger showing that it has standing to challenge the governmental action in question. See, Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-562 (1992). It argues that the concerns of the SCCCL are nothing more or less than the concerns shared by general members of the public who commented on the permit application. However, the federal decisions relied upon by LandTech are based on the requirements for standing under Art. III of the United States Constitution, not the requirements under the South Carolina Constitution. Even so, the test for standing is essentially the same: it requires an assertion of direct adverse effect on the person challenging the conduct in question. After this matter was heard by the court, the Supreme Court of the United States decided Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., No. 98-822 (U.S. Sup. Ct. January 12, 2000). ⁽⁸⁾ In Friends of the Earth, the Court held that an environmental association has standing if its members would have standing to sue in their own right and the interests at stake are germane to the organization's purposes. The necessary injury-in-fact may be demonstrated by proof that an environmental group's members "use the affected area and are persons 'for whom the aesthetic and recreational values of the area will be lessened' by the challenged activity." Id. (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972) and citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63 (1992) for the principle that "the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purposes of standing"). In this case the testimony of Ms. Keyserling-Kramer combined with that of Dr. Dustan would also satisfy the federal standard for bestowing standing on an organization.

23. This court finds and concludes that Petitioner SCCCL has standing.

24. Any issues raised in the proceeding or hearing of this case, but not addressed in this Order are deemed denied. ALJD Rule 29(B). Further, the filing for a motion of reconsideration is not a requisite to any party filing a notice of appeal of this Order pursuant to SC Code Ann. § 1-23-600(A) and (D) (Supp. 1995). ALJD Rule 29(C).

ORDER

Based upon the above findings of fact and conclusions of law it is hereby:

ORDERED that the OCRM grant P/N OCRM-98-196-1 to LandTech, L.L.C. without modification, and it is further

ORDERED that the South Carolina Coastal Conservation League is a party to this action,

AND IT IS SO ORDERED.

___________________________________

Marvin F. Kittrell

Chief Judge

May 1, 2000

Columbia, South Carolina

1. See Bill & Karen Peyton, et al. v. SCDHEC-OCRM & Ausburn, Docket No. 98-ALJ-07-0249-CC. In that contested case appeal before the Hon. Ralph King Anderson, III, the court found that Charlotte Island, which contained 33 acres of high ground, was appropriately considered a "small" island.

2. However, the Hon. John D. Geathers denied the bridge application on appeal for various reasons, e.g.,feasibility of other alternatives to avoid the wetlands, bridging at other locations, the failure of OCRM to address the long-range cumulative effects of the project since no stormwater management plan for the bridge had been performed, and failure of OCRM to obtain a permit from the U. S. Army Corps of Engineers for the filling of wetlands.

3. Width of bridges is dictated by local government requirements, giving consideration to traffic volumes and safety issues. Charleston County requires a minimum bridge width of 32 feet.

4. There is precedence in the area for island developments without bridges. "Goat Island," behind the Isle of Palms, can only be accessed by water. Any bridge to Goat Island would be over the Atlantic Intracoastal Waterway, and would pose a navigational hazard to intracoastal navigation. Dewees Island, located just north of the Isle of Palms, is a development with multiple homesites. However, access to Dewees Island was restricted by agreement through recorded restrictive covenants. In addition, vehicle access would be by way of a bridge over Dewees Inlet. Such construction would be extremely difficult, if not impossible, given the dynamic nature of Dewees Inlet and the potential for navigational impacts.

5. There is a definition of "public interest" and the Administrative Law Judge Division has used this definition to clarify what constitutes a public need. See Sierra Club et al. v. SCDHEC-OCRM & Debordieu Colony Comm. Ass'n., Docket No. 96-ALJ-07-0516-CC (Admin. Law Judge Div. 1998); Bill & Karen Peyton, et al. v. SCDHEC-OCRM & Ausburn, Docket No. 98-ALJ-07-0249-CC (Admin. Law Judge Div. 2000).

6. It must be noted that 12 acres of undeveloped, undisturbed land would be extremely expensive if public funds were used in its acquisition. Here, LandTech acquired the acreage with its own funds and has donated it to the public.

7. A buffer is a dedicated strip of high ground, which is restricted from any alteration. Buffers are used as best management practices identified by regulators and conservation groups as the most effective method of ameliorating or mitigating the water quality impacts of residential development next to sensitive waters. In its natural, vegetative state, the buffer functions as a filter of storm water pollutants and absorbs water as it flows off-site.

8. This court notes its decision in Friends of the Earth, Inc. and Citizens Local Environmental Action Network, Inc. v. Laidlaw Environmental Services (TOC), Inc. and SCDHEC, Docket No. 94-ALJ-07-0157-CC, which involved earlier disputes between the parties to the U.S. Supreme Court case.