ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before me upon Petitioners' request for a contested case hearing. Petitioners challenge Respondent South
Carolina Department of Health and Environmental Control (DHEC or Department), Office of Ocean and Coastal Resource
Management's (OCRM) issuance of a critical area permit, pursuant to 23A S.C. Code Ann. Regs. 30-12 (Supp. 1998), and
DHEC's issuance of a water quality certification, pursuant to § 401 (Section 401) of the Clean Water Act, 33 U.S.C. §
1341, to Respondent Dominion Trust, LLC (Dominion Trust). The critical area permit and water quality certification
authorize the fill of approximately 0.165 acres of tidelands and the construction of a bridge on and adjacent to the marshes
of Williams Creek at Heritage Shores Development, Cherry Grove, North Myrtle Beach in Horry County, South Carolina.
Jurisdiction over this contested case matter is granted to the Administrative Law Judge Division by S.C. Code Ann. §§ 48-39-150, 1-23-600(B) and 1-23-310 et seq. (1986 & Supp. 1998).
After notice to the parties, a hearing was conducted on November 15-17, 1999 at the Administrative Law Judge Division.
At the conclusion of the hearing, counsel for Petitioners moved, without objection from opposing counsel, for this tribunal
to make a site visit to the subject property. After careful consideration of the evidence already submitted, I find that a site
visit is unnecessary.
In addition to the evidence and arguments at the hearing, counsel submitted post-hearing briefs on the issues in this case.
This tribunal received the last brief from counsel on March 10, 2000. Upon review of the relevant facts and applicable law
in this matter, and upon consideration of the post-hearing briefs submitted by the parties, I find and conclude that the critical
area permit and the water quality certification must be denied.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this case, and taking into
account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the
evidence.
Respondent Dominion Trust(1) applied to OCRM and the U.S. Army Corps of Engineers for permits to fill approximately
0.5 acres of tidelands and to construct a 1000' by 28' bridge on and adjacent to Williams Creek at the Heritage Shores
development in North Myrtle Beach, South Carolina.(2) The purpose of the proposed project is to establish access to the
upland areas of Heritage Shores for the development of a residential subdivision. Dominion Trust indicated in its permit
application that twenty-nine (29) highland lots are available in the development for the construction of single-family
residences.
The area in which Heritage Shores is located originally consisted of all marshland until the late 1960s, when a private
developer's massive dredge and fill operation created high ground. The development was surrounded by water on all sides.
Later, a public bridge was constructed to provide access from the mainland to Heritage Shores.
Since the creation of the Heritage Shores development, the property has been in the gradual process of being reclaimed by
marsh. The property has subsided or eroded such that marsh is now interspersed throughout, separating the northeast
portion from the remainder of Heritage Shores. Currently, the northeast portion of Heritage Shores is surrounded by
Williams Creek, North East canal, and areas of marsh. At low tide, there is no appreciable amount of water in these marsh
areas. While there is some water in these marsh areas during high tide, these areas can still be traversed by foot during that
time.
During review of the Dominion Trust application, neither OCRM nor DHEC adequately considered the feasible alternatives
to the proposed project. OCRM did not engage in any specific analysis to define all possible alternatives. Further, DHEC's
"alternatives analysis" with respect to the fill consisted merely of relying on unsupported statements submitted by the
applicant, such as: "[i]t is not economically feasible to bridge the entire platted street in the subdivision[,]" "[t]he selected
alternative avoids wetlands to the maximum extent practicable[,]" and "the issues of avoidance, minimization and
mitigation have been examined in the formulation of the proposed plan. Wetlands have been avoided to the maximum
extent practicable." The applicant referenced only one alternative, which involved bridging at a different location and
dredging for the placement of utilities. The applicant submitted no technical, economic, or other information to support its
statement that there are no feasible alternatives to the project. Further, there is nothing in the evidence to show that OCRM
and DHEC evaluated any alternatives to the project, other than that of reducing the amount of proposed fill.
On the other hand, Petitioners established at the hearing that there are feasible alternatives to the project which may have
less of an environmental impact. These alternatives include accessing portions of the development through existing high
ground, facilitating development of the northeast portion of Heritage Shores through a timber bridge without vehicle access,
and constructing a dock and barging materials to the site.
OCRM and DHEC also failed to require Dominion Trust to submit all information necessary for an analysis of the long-range cumulative effects of the project prior to issuing the permit and Section 401 certification. Instead of requiring the
applicant to submit a stormwater management plan and dock master plan for the proposed development prior to a decision
on the permit and certification, OCRM and DHEC made the submission of these plans a special condition to the permit and
certification. Further, the development plan submitted by the applicant consists of a 1969 plat. Since 1969, the landscape
of the development has changed considerably.
Additionally, DHEC did not adequately consider the cumulative impacts associated with the proposed project. DHEC
employee Mark Giffin admitted that he did not evaluate the cumulative impacts of the project, although he was aware of the
purpose of the project and the applicant's plan to construct residences. Mr. Giffin was responsible for reviewing and
assessing applications for Section 401 water quality certifications. Interestingly, two interested federal agencies -- the
United States Department of Commerce, National Marine Fisheries Service and the United States Department of the
Interior, Fish and Wildlife Service -- expressed a desire to examine additional information regarding reasonably foreseeable
development plans such as plans for docks, piers, bulkheading, and any intended navigational improvements such as
dredging.(3) (See Petitioners' Exhibits 42 and 43).(4)
On March 4, 1999, OCRM and DHEC granted the critical area permit and water quality certification with modifications and
special conditions (P/N 98-ID-368-P).(5) OCRM modified the project to delete all fill (with the exception of fill in those
areas designated as fill section 1, a 709-square-foot section of section 2, and section 11), and to allow access to be gained by
bridging. The special conditions include, but are not limited to, the submission of a stormwater management plan for the
bridge and accessed upland and a dock master plan for the accessed upland lots prior to bridge construction. Following
issuance of the permit, Petitioners timely requested a contested case hearing.
DISCUSSION AND CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law, the following.
Subject Matter Jurisdiction
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). 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).
Burden of Proof
In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative of an issue. 29 AM. JUR.2d
Evidence § 127 (1994); 2 AM. JUR.2d Administrative Law § 360 (1994); Alex Sanders, ET AL., South Carolina Trial
Handbook § 9:3 Party with Burden, Civil Cases (1999). In the present case, Petitioners claim that OCRM's
issuance of the permit and certification (permit number 98-1D-368-P) violated Regulations 30-11, 30-12(F), 30-12(N), and 61-101; therefore, Petitioners assert the affirmative in the present case. Accordingly,
Petitioners must prove, by a preponderance of the evidence, that OCRM's issuance of the permit and
certification violated Regulations 30-11, 30-12(F), 30-12(N), and 61-101. See Anonymous v. State Board of
Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998) (standard of proof in administrative proceedings is the
preponderance of the evidence).(6)
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).
Expert Testimony
According to Rule 702, SCRE, "[i]f scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify thereto in the form of opinion or
otherwise." An expert is granted wide latitude in determining the basis of his or her opinion. Where an
expert's testimony is based upon facts sufficient to form an opinion, the trier of fact must weigh its probative
value. Small v. Pioneer Machinery, Inc., 329 S.C. 448, 494 S.E.2d 835 (Ct. App. 1997). The trier of fact is not
compelled to accept an expert's testimony, but may give it the weight he determines it deserves. Florence
County Dep't of Social Services v. Ward, 310 S.C. 69, 425 S.E.2d 61 (Ct. App. 1992). Further, the trier of fact
may accept the testimony of one expert over another. S.C. Cable Tel. Ass'n. v. Southern Bell, 308 S.C. 216,
417 S.E.2d 586 (1992).
Alteration of a Critical Area
Section 48-39-50 authorizes DHEC to promulgate regulations to carry out the provisions of Chapter 39 of
Title 48 of the Code. S.C. Code Ann. § 48-39-50 (Supp. 1998). OCRM is the subdivision within DHEC charged
with implementing the state's coastal zone policies and issuing permits in coastal zone areas. OCRM's
predecessor (the South Carolina Coastal Council) promulgated Regulations 30-1 through 30-20 as the
applicable regulations governing the management, development, and protection of the "critical areas" of
the coastal zone of the State. 23A S.C. Code Ann. Regs. 30-1 to -20 (1976 & Supp. 1998). 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).
The proposed fill and bridging in the instant case is located in and over tidelands, as defined in the Coastal
Zone Management Act and OCRM regulations. See S.C. Code Ann. § 48-39-10(G) (Supp. 1998); 23A S.C. Code
Ann. Regs. 30-1(C)(12) (Supp. 1998). Tidelands are considered critical areas under the Coastal Zone
Management Act. S.C. Code Ann. § 48-39-10(J) (Supp. 1998).
Any person wishing to alter a critical area must obtain a permit from OCRM. 23A S.C. Code Ann. Regs. 30-2(B) (Supp. 1998). In determining whether a permit application is approved or denied, OCRM shall base its
determination on the individual merits of each application and the policies specified in §§ 48-39-20 and 48-39-30, applying the ten general guidelines contained in § 48-39-150(A). S.C. Code Ann. § 48-39-150(A) (Supp. 1998).
Petitioners challenge the issuance of (1) the critical area permit and (2) the Section 401 water certification
on several grounds, which are addressed in turn as outlined below.
Critical Area Permit
Ownership of property
Petitioners challenge the adequacy of Dominion Trust's permit application. Specifically, Petitioners
contend that the applicant did not submit a certified deed indicating ownership of the property on which the
proposal is to be executed, pursuant to S.C. Code Ann. § 48-39-140(B) and S.C. Code Ann. Regs. 30-2(B)(4).
Regulation 30-2(B)(4) virtually mirrors § 48-39-140(B) and states, in pertinent part:
The following minimum information shall ordinarily be required before a permit application is considered
complete:
. . . (4) A certified copy of the deed, lease or other instrument under which the applicant claims title,
possession or permission from the owner of the property to carry out the proposal[.]
S.C. Code Ann. Regs. 30-2(B)(4) (emphasis added).
In the instant case, the applicant submitted to OCRM a contract of sale it entered for the property in
question from the putative owner, C.D. Nixon. Mr. Nixon obtained this putative ownership in 1969 through a
quit-claim deed executed by the South Carolina Budget and Control Board and signed by Governor Robert
M. McNair. I find that the applicant's submission meets the minimum regulatory requirements. Further, the
regulations provide for any person claiming ownership of critical area (the property in question was created
by the filling of critical area) to file a court action pursuant to S.C. Code Ann. § 48-39-220 (Supp. 1998). S.C.
Code Ann. Regs. 30-2(I)(3) (Supp. 1998). Any issues involving a claim of ownership must be pursued in the
appropriate forum.
Access to small islands
In determining whether to issue a critical area permit, OCRM considered two regulations in this case: the
general guidelines applicable to all permits in critical areas, 23A S.C. Code Ann. Regs. 30-11 (Supp. 1998), and
the regulation regarding transportation, 23A S.C. Code Ann. Regs. 30-12(F) (Supp. 1998). Petitioners argue
that OCRM should have evaluated the proposed project under the regulation governing access to small
islands, 23A S.C. Code Ann. Regs. 30-12(N) (Supp. 1998), instead of the transportation regulation, 23A S.C.
Code Ann. Regs. 30-12(F) (Supp. 1998). Petitioners also argue that the project fails to satisfy the criteria
under either the regulation governing access to small islands or the transportation regulation.
In deciding whether the proposed project should be evaluated under Regulation 30-12(N), it is necessary to
determine whether the area to which the proposed project will provide access, the northeast portion of
Heritage Shores, is an island. OCRM did not consider the subject area to be an island when it evaluated the
proposed project. Petitioners assert, however, that the subject area is an island. Therefore, Petitioners
carry the burden of proof on this issue.
The term "island" is not defined in the OCRM regulations or in the Coastal Zone Management Act.
Nevertheless, an "island" is defined by other sources as "a piece or body of land surrounded by water." 78 Am. Jur.2d
Waters § 436 (1975); see also Black's Law Dictionary 835 (7th ed. 1999) (an island is "a tract of land surrounded by
water but smaller than a continent; [especially], land that is continually surrounded by water and not submerged except
during abnormal circumstances."); American Heritage College Dictionary 720 (3d ed. 1993) (an island is "a land mass,
[especially] one smaller than a continent, entirely surrounded by water"). "Surround" means to "extend on all sides of
simultaneously; encircle; to enclose or confine on all sides." American Heritage College Dictionary 1367 (3d ed. 1993).
As discussed below, I find that Petitioners have failed to show by a preponderance of the evidence that the northeast portion
of Heritage Shores is a body of land surrounded by water.
The evidence shows that all of the Heritage Shores development was completely high ground subsequent to the original
developer's massive dredge and fill operation in the late 1960s. The whole development was high ground surrounded by
water on all sides, and thus was an island. Later, a public bridge was constructed to provide access from the mainland to
Heritage Shores. Since the creation of the Heritage Shores development, the land mass constituting the development has
subsided or eroded such that marsh is now interspersed throughout, separating the northeast portion from the remainder of
Heritage Shores. Currently, the northeast portion of Heritage Shores is surrounded by Williams Creek, North East canal,
and areas of marsh where there once was high ground.(7) The marsh is relatively dry at low tide and can be traversed by
foot, even during a typical high tide. The term "marsh" is defined as "a tract of soft, wet land usually characterized by
monocotyledons (as grasses or cattails)." Merriam Webster's Collegiate Dictionary 713 (10th ed. 1993) (emphasis added).
Based on the evidence presented and the available criteria, I find that the northeast portion of Heritage Shores is not
surrounded by water. Therefore, the property does not constitute an island, and Regulation 30-12(N) does not apply to the
proposed project.
Transportation regulation
Regulation 30-12(F) sets forth the specific standards for transportation projects. Included in this regulation is the
requirement that the "location and design of public and private transportation projects must avoid the critical areas to the
maximum extent feasible." 23A S.C. Code Ann. Regs. 30-12(F)(2)(b) (Supp. 1998) (emphasis added). Further, "[w]here
coastal waters and tidelands cannot be avoided, bridging rather than filling of these areas will be required to the maximum
extent feasible." Id. (emphasis added). In light of these requirements, OCRM has a duty to identify and consider carefully
all feasible alternatives to the proposed project. In the present case, OCRM only considered the alternative of reducing the
amount of fill proposed by the applicant. The terms "feasible" and "feasible alternative" are defined in OCRM Regulation
30-1(C)(6) (Supp. 1998) as follows:
As used within these rules and regulations (e.g., 'unless no feasible alternative exists'), feasibility is determined by the
Department with respect to individual project proposals. 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.
S.C. Code Ann. Regs. 30-1(C)(6) (emphasis added).(8) Reasonableness is built into the definition of feasibility.
Consequently, in this case, if the testimony establishes that an alternative is feasible, it is, by definition, reasonable.
Case law in this jurisdiction illustrates that OCRM is required to consider feasible alternatives to a proposed project in a
critical area. For example, the South Carolina Court of Appeals has addressed a situation where an applicant proposed to
construct a restaurant in a critical area. 330 Concord Street Neighborhood Ass'n v. Campsen, 309 S.C. 514, 424 S.E.2d 538
(Ct. App. 1992) (applying analogous regulations that prohibit issuance of a permit where there is a "feasible" alternative to
a proposed "nonwater dependent structure" in a critical area). In Campsen, the Court of Appeals upheld the issuance of a
permit to construct a restaurant because the evidence supported that the Coastal Council (predecessor to OCRM) had
adequately considered the specific alternatives to the proposed project. Id. at 541. In that case, expert testimony revealed
that OCRM had considered different restaurant floor plans, service access issues, setback restrictions, off-street parking in
the city, loss of parking spaces by moving the restaurant, and economic viability of a smaller restaurant. Id.
Case law in other jurisdictions provides guidance on what constitutes an adequate feasibility analysis in the case of a bridge
project. As analogy, § 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f), prohibits projects that
use "publicly owned lands" unless, among other things, "there is no feasible and prudent alternative. " In construing § 4(f),
a district court in Citizens for the Scenic Severn River Bridge, Inc. v. Skinner, 802 F. Supp. 1325, 1335 (D. Md. 1991),
found an adequate consideration of alternatives where there was an "extensive identification of the wetlands in the area, the
expected impacts and mitigation plans," as well as consideration of a "no build" and other alternatives. Likewise, a district
court in Coalition for Responsible Regional Development v. Coleman, 430 F. Supp. 13, 16-17 (S.D. W. Va. 1976),
addressed § 4(f) and found that there was "an adequate consideration of alternatives to the bridge project," including a
careful consideration of five alternate locations and impacts such as takings of public lands, economic burdens, traffic, land
usage, vehicular pollution, and other environmental impacts. See Eigenbrod v. Somers Conservation Comm'n, No. CV 90
0044987S, 1991 WL 121679 (Conn. Super. Ct. June 21, 1991) (applying Connecticut regulations that require a review of
alternatives that enhance environmental quality or have less detrimental impact, including "no action," postponing action
pending further study, different actions and different locations).
In the present case, the proposed project is a bridge and the purpose of the bridge is to establish access to the upland areas of
Heritage Shores for development of a residential subdivision. According to Petitioners' expert, there are feasible
alternatives to accessing the upland areas of Heritage Shores which should preclude issuance of critical area permit # 98-1D-368-P. Specifically, Petitioners' expert, Stephen Strickland, testified that some portions of Heritage Shores could be
accessed through existing high ground and that development of the northeast portion of Heritage Shores could be facilitated
with a timber bridge without vehicle access. (Tr. at 159, l. 13-19). Mr. Strickland also noted the alternative of foregoing
the building of a bridge and, instead, barging materials to the site. (Tr. at 159, l. 19-22). Even OCRM's expert, Mark
Caldwell, admitted that it would be feasible to develop the northeast portion of Heritage Shores by constructing a dock and
barging materials to the subject property. (Tr. at 475, l. 19 - 476, l. 3). Mr. Strickland further testified that these feasible
alternatives may have less adverse impact to water quality and coastal resources, depending on the manner in which they are
implemented. (Tr. at 159, l.3 - 160, l.5). Since these feasible alternatives could potentially have less impact on the critical
area, there is reason to believe that the proposed bridge does not "avoid the critical areas to the maximum extent feasible."
23A S.C. Code Ann. Regs. 30-12(F)(2)(b) (Supp. 1998) (emphasis added).
Importantly, the applicant offered no evidence to the contrary concerning the feasibility of these alternatives. The
information provided in the permit application consisted of unsupported statements such as "[t]he selected alternative
avoids wetlands to the maximum extent practicable[,]" and "the issues of avoidance, minimization and mitigation have been
examined in the formulation of the proposed plan. Wetlands have been avoided to the maximum extent practicable." The
applicant specifically referenced only one other alternative, which involved bridging at a different location and dredging for
placement of utilities. Accordingly, the record developed and the language of Regulation 30-12.F(2)(b) constrains me to
deny the critical area permit, as OCRM did not fulfill its duty to consider adequately the feasible alternatives to the
proposed bridge.
Cumulative effects
OCRM also failed to evaluate all information necessary to assess adequately all long-range cumulative effects of the
project. Regulation 30-11(C)(1) provides that:
In the fulfilling of its responsibility under . . . the [Coastal Zone Management] Act, [OCRM] must in part base its decisions
regarding permit applications on the policies specified in . . . the Act, and thus, be guided by . . . [t]he 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.
S.C. Code Ann. Regs. 30-11(C)(1) (emphasis added). Therefore, OCRM's consideration of all reasonably foreseeable
cumulative effects, in sufficient detail, is a prerequisite to issuance of a critical area permit. As such, this prerequisite
cannot be satisfied by incorporating the review of such cumulative effects into a condition of the permit, thereby denying
the opponents of the project an opportunity to a contested case hearing on all issues involved with the critical area permit.
In this case, OCRM issued the critical area permit without first reviewing a stormwater management plan for the bridge and
the Heritage Shores development. OCRM also failed to review a dock master plan or a completed and updated
development plan. Instead, OCRM made the submission of these plans merely a special condition to the critical area
permit.(9) Under these circumstances, Petitioners' engineering expert, Stephen Strickland, opined that it would be
impossible to evaluate the long-term effects of the project, as is required by Regulation 30-11(C)(1), without looking at a
stormwater management plan. Mr. Strickland persuasively testified that stormwater management of the Heritage Shores
development would be difficult, particularly with the ratio of road area to upland property available for a stormwater
system.
Consequently, I find and conclude that review of the above-referenced plans to determine the long-term cumulative effects
of the project is a prerequisite to issuance of the permit in this case. The regulations clearly favor a comprehensive
evaluation over a "piecemeal" approach. S.C. Code Ann. Regs. 30-11(C)(2). In the present case, submission of these plans
may not be made merely a condition to the permit. The issuance of a permit for development in the critical area without an
evaluation of the long-term effects of such development calls into question the adequacy of the whole evaluation of the
project. Further, issuance of a permit prior to submission of necessary plans raises possible concerns over the deprivation
of a project opponent's right to be heard at a meaningful time and in a meaningful manner on all issues pertaining to the
critical area permit.(10)
Regulation 30-11(C)(2) provides guidance on what is an opportunity to be heard "at a meaningful time and in a meaningful
manner" in this type of case:
[OCRM] must . . . be guided by . . . the extent to which the overall plans and designs of a project can be submitted together
and evaluated as a whole, rather than submitted piecemeal and in a fragmented fashion which limits comprehensive
evaluation.
23A S.C. Code Ann. Regs. 30-11(C)(2) (emphasis added). The importance of the requirements of Regulations 30-11(C)(1)
and (2) is highlighted by the desire of two interested federal agencies to examine additional information regarding
reasonably foreseeable development such as plans for docks and piers, bulkheading and any intended navigational
improvements such as dredging.
Therefore, without a sufficient record on the stormwater management plan, the dock master plan, and a complete and
updated development plan, this tribunal is constrained to deny the permit. A contested case hearing on a critical area permit
should encompass these factors pursuant to Regulations 30-11(C)(1) and (2) when raised as an issue by a party to the case.
Filling of wetlands
Even if the bridging were allowable in this case, I would find, nonetheless, that the fill permitted by OCRM is not
allowable. Notably, a policy that discourages the permanent filling of wetlands is expressed throughout the OCRM
regulations. See 23A S.C. Code Ann. Regs. 30-12(F)(2)(b) (Supp. 1998) ("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 of these areas will be required to the maximum extent feasible[.]"); 23A S.C.
Code Ann. Regs. 30-12(G)(1) (Supp. 1998) ("Dredging and filling in wetlands can always be expected to have adverse
environmental consequences; therefore, the Department discourages dredging and filling."); 23A S.C. Code Ann. Regs. 30-12(G)(2)(a) (Supp. 1998) ("The creation of commercial and residential lots strictly for private gain is not a legitimate
justification for the filling of wetlands. Permit applications for the filling of wetlands and submerged lands for these
purposes shall be denied, except for erosion control . . . or boat ramps. . . . All other dredge and fill activities not in the
public interest will be discouraged[.]"); 23A S.C. Code Ann. Regs. 30-12(N) (Supp. 1998) ("To prevent inappropriate
access to small islands, permanent filling for access is prohibited, except for the expansion of existing useable
causeways."); 23A S.C. Code Ann. Regs. 30-12(G)(2)(c) ("To the maximum extent feasible, dredging and filling activities
should be restricted in nursery areas and shellfish grounds . . . .").
In the instant case, Regulation 30-12(F)(2)(b) is directly applicable:
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 of these areas will be required
to the maximum extent feasible[.]
S.C. Code Ann. Regs. 30-12(F)(2)(b) (emphasis added).
In written materials submitted to OCRM, the applicant stated "[i]t is not economically feasible to bridge the entire platted
street in the subdivision." No other information, however, was presented by the applicant to support this statement. While
one of the developers testified that leaving out all fill and bridging the entire area would add a substantial economic burden,
the applicant presented no technical, economic, or other data to establish that this alternative would not be feasible.
Additionally, OCRM's expert witness, Mark Caldwell, testified that the filling of marsh to square off an area for a bridge
abutment is "standard practice." He admitted, however, that this information did not come from his own personal
knowledge. Mr. Caldwell admitted that there was nothing in the agency file which indicated that it would not be feasible to
cut back an area of high ground, rather than filling in marsh, to square it off for a bridge abutment. In any event, "standard
practice" does not automatically equate to the nonexistence of feasible alternatives. Therefore, even if all other regulatory
requirements for the bridging were met, leaving out all fill and bridging the entire area would be required under Regulation
30-12(F)(2)(b) in this case.
Section 401 Certification
Since the proposed project includes the filling of wetlands, the project requires a permit from the U.S. Army Corps of
Engineers under § 404 of the federal Clean Water Act. 33 U.S.C. § 1344. More specifically, § 404 prohibits the
unauthorized discharge of dredged or fill material into waters of the United States. Id. Further, Section 401 of the Clean
Water Act requires, as a prerequisite to obtaining this permit, that the applicant obtain certification from the State in which
the discharge will originate that any such discharge will comply with State water quality standards. 33 U.S.C. § 1341. As
it relates to state water quality standards, Regulation 61-101 sets forth the procedures and policies for implementing the
Section 401 certification requirements. See 25A S.C. Code Ann. Regs. 61-101 (Supp. 1998). Regulation 61-101(A)(2)
states that:
Any applicant for a Federal license or permit to conduct any activity which during construction or operation may result in
any discharge to navigable waters is required by Federal law to first obtain a certification from [DHEC].
25A S.C. Code Ann. Regs. 61-101(A)(2). Regulation 61-101 provides the criteria that DHEC must evaluate for an
applicant to obtain such a Section 401 certification. See 25A S.C. Code Ann. Regs. 61-101.
Under Regulation 61-101, in assessing water quality impacts from the proposed project, DHEC must address and evaluate
the following:
-- whether there are feasible alternatives to the activity. (25A S.C. Code Ann. Regs. 61-101.F(3)(b)).
-- all potential water quality impacts of the project, both direct and indirect, over the life of the project including:
(1) impact on existing and classified water uses;
(2) physical, chemical, and biological impacts, including cumulative impacts;
(3) the effect on circulation patterns and water movement;
(4) the cumulative impacts of the proposed activity and reasonably foreseeable similar activities of the applicant and others.
(25A S.C. Code Ann. Regs. 61-101.F(3)(c)).
Certification will be denied if there is a feasible alternative to the activity, which reduces adverse consequences on water
quality and classified uses. (25A S.C. Code Ann. Regs. 61-101.F(5)(b) (emphasis added)). Furthermore, certification will
not be issued unless the Department is assured appropriate and practical steps including stormwater management will be
taken to minimize adverse impacts on water quality and the aquatic ecosystem. (25A S.C. Code Ann. Regs. 61-101.F(6)
(emphasis added)).
DHEC's consideration of feasible alternatives under Regulation 61-101.F(3)(b)
Regulation 61-101.F(3)(b), cited above, requires DHEC to address and consider whether there are feasible alternatives to
the project before issuing a Section 401 certification. As discussed above, I find that the DHEC's consideration of feasible
alternatives to the project in this case was inadequate. Cf. Village of Los Ranchos de Albuquerque v. Marsh, 947 F.2d 955
(10th Cir. 1991), aff'd on reh'g, 956 F.2d 970 (10th Cir. 1992) (affirming decision to grant § 404 permit where Army Corp.
of Engineers "properly studied plausible alternatives"). The applicant submitted no technical or other information to
OCRM or DHEC to support its statement that there are no feasible alternatives to the proposed project.
Furthermore, DHEC employee Mark Giffin testified that to obtain water quality certification, the applicant must first
demonstrate avoidance and then mitigate "if they can't avoid the impact." (Tr. at 276, l. 10-15). Mr. Giffin also testified
that the feasibility analysis supplied by the applicant provided him with information regarding avoidance and minimization.
Again, the information provided by the applicant consisted of merely unsupported statements such as "[t]he selected
alternative avoids wetlands to the maximum extent practicable[,]" and "the issues of avoidance, minimization and
mitigation have been examined in the formulation of the proposed plan. Wetlands have been avoided to the maximum
extent practicable." The applicant specifically referenced only one other alternative, which involved bridging at a different
location and dredging for placement of utilities. Mr. Giffin evaluated no other alternatives on his own.
The evidence in the record clearly indicates that feasible alternatives to the proposed fill and bridging project exist for the
development of Heritage Shores which may have less of an environmental impact depending on how they are implemented.
Since there are feasible alternatives to the proposed project that may have less of an environmental impact, the Section 401
certification must be denied. See 25A S.C. Code Ann. Regs. 61-101.F(5)(b) (Supp. 1998) ("Certification will be denied if .
. . there is a feasible alternative to the activity, which reduces adverse consequences on water quality and classified
uses[.]").
DHEC's consideration of potential water quality impacts under Regulation 61-101.F(3)(c)
As a part of addressing and considering all potential water quality impacts under Regulation 61-101.F(3)(c), DHEC must
consider the cumulative impacts of the project before issuing a Section 401 certification. Cf. Village of Los Ranchos de
Albuquerque v. Marsh, 947 F.2d 955 (10th Cir. 1991), aff'd on reh'g, 956 F.2d 970 (10th Cir. 1992) (affirming decision to
grant § 404 permit where there were no significant secondary or cumulative impacts and agency adequately considered
noise level, air quality, and traffic and other potential impacts arising from proposed project). In this case, I find that
DHEC's consideration of cumulative impacts from the project was inadequate.
Mark Giffin testified that he did not consider the cumulative impacts of the project. He stated "[w]e have no way to
evaluate what those impacts would be. We can't speculate." (Tr. at 287, l. 11-12). I find this statement incredible in light
of Mr. Giffin's knowledge of the applicant's plans for the bridge and residential subdivision. There is no question that there
will be potential stormwater impacts on water quality, and these impacts must be specifically addressed by DHEC.(11) E.g.,
Sierra Club v. Kiawah Resort Assoc., 318 S.C. 119, 456 S.E.2d 397 (1995) (as part of § 401 certification, DHEC adequately
considered adverse impacts to water quality where it hypothesized that there would be two boats with malfunctioning heads
at each of the thirty-six permitted docks as a worst case scenario). Since DHEC did not consider the cumulative impacts, its
assessment of the water quality impacts of the project was incomplete. Therefore, Section 401 certification for this project
cannot be issued.
CONCLUSION
A careful study of the applicable regulations and a thorough review of all of the evidence presented in this case leads me to
the inescapable conclusion that the permit and certification must be denied. Without a requisite showing that
OCRM/DHEC adequately considered feasible alternatives and cumulative impacts, as the relevant regulations require,
OCRM/DHEC cannot grant the permit and Section 401 certification in this case. See Concerned Citizens Committee for
Ashley River v. S.C. Coastal Council, 310 S.C. 267, 423 S.E.2d 134 (1992) (addressing failure of DHEC to demonstrate
public demand for a marina, as required under Regulation 30-12).
In reaching a decision in this matter, I am constrained by the record of evidence as developed by the opposing parties and
by the applicable law as it is written. S.C. Code Ann. § 1-23-320(I) (Supp. 1998). This decision was rendered impartially,
as a judge "ought to live, an eagle's flight beyond the reach of fear or favor, praise or blame, profit or loss." WILLIAM S.
McFEELEY, FREDERICK DOUGLASS 318 (1991); Rule 501, S.C. App. Ct. R, Canon 3.
The final decision of an Administrative Law Judge in cases involving an agency that is governed by a board or commission
authorized to exercise the sovereignty of the state is initially appealed back to the board or commission of the agency from
which the case arose. S.C. Code Ann. § 1-23-610(A) (Supp. 1998). Hence, a party wishing to file an appeal must do so
with the agency from which the case originated. On appeal, the scope of review is limited as follows.
[t]he scope of review of final ALJ decisions is essentially identical to the scope of review established in section 1-23-380.
This scope of review applies to the circuit court or the applicable board or commission. Under S.C. Code Ann. § 1-23-610(D), the reviewing tribunal may affirm the decision or remand the case for further proceedings, or it may reverse or
modify the decision if the substantive rights of the petitioner have been prejudiced because the finding, conclusion, or
decision is:
a. in violation of constitutional or statutory provisions;
b. in excess of the statutory authority of the agency;
c. made upon unlawful procedure;
d. affected by other error of law;
e. clearly erroneous in view of the reliable, probative and substantial evidence
on the whole record; or
f. arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
JEAN H. TOAL, SHAHIN VAFAI & ROBERT A. MUCKENFUSS, APPELLATE PRACTICE IN SOUTH CAROLINA 56-57 (1999),
citing S.C. Code Ann. § 1-23-610(D) (Supp. 1998) (emphasis added).
ORDER
IT IS THEREFORE ORDERED that the critical area permit and the Section 401 water quality certification (Permit 98-1D-368-P) are denied.
AND IT IS SO ORDERED.
_____________________________________
JOHN D. GEATHERS
Administrative Law Judge
March 30, 2000
Columbia, South Carolina
1. The applicant, Respondent Dominion Trust, had entered into a contract for the purchase of the property in question from
the putative owner, C.D. Nixon. Mr. Nixon obtained this putative ownership in 1969 through a quit-claim deed executed by
the South Carolina Budget and Control Board and signed by Governor Robert M. McNair.
2. Williams Creek is classified as Shellfish Harvesting Waters, and shellfish in the project area can only be harvested
during certain times of the year.
3. S.C. Code Ann. § 48-39-150(B) (Supp. 1998) requires OCRM to consider the views of interested agencies in its
evaluation of an application for a critical area permit.
4. While these exhibits were not admitted to establish the truth of the matter asserted therein, this tribunal may consider
them to the extent that they express a desire by the interested agencies for additional information and to the extent that
OCRM and DHEC had notice of their concerns about the cumulative impacts of the project. See Rule 801(c), S.C. R. Evid.
(SCRE) (definition of hearsay).
5. The critical area permit also serves as the Section 401 water quality certification for the associated Section 404 permit
issued by the U.S. Army Corps of Engineers. See 25A S.C. Code Ann. Regs. 61-101.A(8) (Supp. 1998).
6. The preponderance of the evidence means "[t]he greater weight of the evidence" or "superior evidentiary weight that,
though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind
to one side of the issue rather than the other." BLACK'S LAW DICTIONARY 1201 (7th ed. 1999).
7. The northeast portion of the development is entirely surrounded by "critical area," as that term is defined in the Coastal
Zone Management Act. See S.C. Code Ann. § 48-39-10(J) (Supp. 1998) ("'Critical area' means any of the following: (1)
coastal waters; (2) tidelands; (3) beaches; (4) beach/dune system . . . .").
8. The term "feasible" appears to incorporate the definition of "feasible alternatives." The arguments of the parties at the
hearing and in their post-trial briefs are consistent with this conclusion. See Brief of Petitioners at 42, ¶ 2 & 51, ¶ 1;
Memorandum of Respondent OCRM at 5, ¶ 11 ("This definition [of feasible] allows OCRM to consider economic
feasibility in their consideration of alternatives.").
Further, in at least two cases before the Administrative Law Judge Division, OCRM has asserted that the construction of a
bridge should not be permitted where there are feasible alternatives with less environmental impact. See Gerald C. Smith
and Felix A. Szczepanski v. S.C. Dep't of Health and Envt'l Control, Off. of Ocean and Coastal Resource Mgmt, Stancel E.
Kirkland, and Robert L. Wolfson, Doc. No. 99-ALJ-07-230-CC (1999); The Cusabo Company, LLC v. S.C. Dep't of Health
and Envt'l Control, Off. of Ocean and Coastal Resource Mgmt, Doc. No. 96-ALJ-07-0188-CC (1996).
9. The original development plan was designed in 1969; an updated development plan was not required as a condition to
the permit.
10. See S.C. Code Ann. § 48-39-150(D) (Supp. 1998); 23A S.C. Code Ann. Regs. 30-6.B (Supp. 1998); U.S. Const.
Amend. 14; S.C. Const. Art. 1 § 22 ("No 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[.]"); Armstrong v.
Manzo, 85 S. Ct. 1187 (1965) (The fundamental requirement of due process is the opportunity to be heard "at a meaningful
time and in a meaningful manner."); Ogburn-Matthews v. Loblolly Partners, 332 S.C. 551, 505 S.E.2d 598 (Ct. App. 1998)
("Clearly, contestants are entitled to an opportunity to be heard by the Agency; that is, to submit their position and their
comments for consideration by the Agency, with opportunity to respond to opposing views before a final determination is
made. This, in turn, requires notice that the Agency action is pending and access to the information which has been
submitted to the Agency for review."); cf. Mary Alice Brown v. State Board of Education, 301 S.C. 326, 391 S.E.2d 866
(1990) ("[T]he evidence used to prove the State's case must be disclosed to the individual so that he or she has an
opportunity to show it is untrue.").
11. Regulation 61-101.F(6) states that:
"Certification will not be issued unless the Department is assured appropriate and practical steps including stormwater
management will be taken to minimize adverse impacts on water quality and the aquatic ecosystem."
S.C. Code Ann. Regs. 61-101.F(6) (emphasis added). This regulation supports that a stormwater management plan should
be a prerequisite to issuance of a Section 401 water quality certification. Because DHEC has not reviewed a stormwater
management plan for the project, certification cannot be issued. |
