SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before this tribunal pursuant to S.C. Code Ann. § 48-39-150(D) (Supp. 1998) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 1998). Petitioner requested a contested case hearing to challenge one of the special conditions placed on the dock permit (P/N OCRM-99-198-B) issued to him on June 24, 1999 by the South Carolina Department of Health and Environmental Control (DHEC), Office of Ocean and Coastal Resource Management (OCRM). The special condition at issue requires that Petitioner terminate the dock at the creek located on lot 4B, rather than constructing the dock across the creek. After notice to the parties, a hearing on the merits was conducted on February 29, 2000. Based upon the following Findings of Fact and Conclusions of Law, this tribunal finds that Petitioner's challenge must fail.

FINDINGS OF FACT

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

Petitioner was issued a permit (P/N OCRM-99-198-B) to construct a private dock in the critical area at 1301 Fifteen Mile Landing, Lot 4B, located in Awendaw, Charleston County. Lot 4B consists of approximately 3 acres. This lot was created when Petitioner subdivided his original 7-acre lot into Lots 4A and 4B. In 1985, Petitioner had constructed a dock on what is now designated Lot 4A that "bridges" a portion of the creek in question.

The Petitioner proposed to construct a 4' by 580' walkway with handrails, leading to a 10' by 15' fixed pierhead. Also, he proposed to construct an 8' by 10' floating dock leading from the right side of the pierhead.

OCRM issued Petitioner a permit with the following conditions:

(1) Petitioner must delete the floating dock from his construction plan;

(2) The pierhead must be reduced to 5' by 10' from 10' by 15';

(3) The dock must terminate at the creek on Lot 4B; and

(4) The dock must have handrails, as outlined in the Southern Building Code.

Petitioner challenges Special Condition #3, which precludes him from constructing his dock across the creek.

The creek in question is approximately 10-feet wide at its widest point and is navigable at

high tide by canoe or johnboat. Also, Intervenor Ann Limehouse, an adjacent property owner, has utilized the creek for canoeing. Placement of a dock over the creek would impede or block her access.

CONCLUSIONS OF LAW AND ANALYSIS

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

A. Jurisdiction

The Administrative Law Judge Division has subject matter jurisdiction in this matter pursuant to S.C. Code Ann. § 48-39-150 (Supp. 1998) and the Administrative Procedures Act, S.C. Code Ann. §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1998), specifically, § 1-23-600(B) (Supp. 1998).

B. Statutory Scheme

Under S.C. Code Ann. §§ 48-39-50(G) and (V) (Supp. 1998), DHEC, through OCRM, is charged with denying or approving permits for proposed activities within the coastal zone. Further, § 48-39-50(E) authorizes DHEC to promulgate regulations to carry out the provisions of Chapter 39 of Title 48 of the 1976 Code. In this regard, the Coastal Council (the predecessor agency to OCRM) promulgated 23A S.C. Code Ann. Regs. 30-1 through 30-20 (1976 & Supp. 1998), which are currently administered by OCRM in governing the management, development and protection of the coastal zone.

C. 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 (1994). Petitioner is the party asserting the affirmative in this case; therefore, Petitioner must prove by a preponderance of the evidence that OCRM erred in issuing the permit with the Special Condition that precludes Petitioner from constructing a dock across the creek. See Anonymous v. State Bd. of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998) (standard of proof in an administrative proceeding is the preponderance of the evidence).⁽¹⁾

D. Navigable Waters

Any person wishing to alter a critical area⁽²⁾ must obtain a permit from OCRM. See S.C. Code Ann. § 48-39-130(C) (Supp. 1998); 23A S.C. Code Ann. Regs. 30-2(B) (Supp. 1998). There are ten general considerations to assess the impact of a project in a critical area. See S.C. Code Ann. § 48-39-150(A) (Supp. 1998); 23A S.C. Code Ann. Regs. 30-11(B) (Supp. 1998).

One of these considerations is the extent to which the proposed activity would harmfully obstruct the natural flow of navigable water. S.C. Code Ann. § 48-39-150(A)(2) (Supp. 1998); 23A S.C. Code Ann. Regs. 30-11(B)(2) (Supp. 1998). Furthermore, Reg. 30-12(A)(2)(n) provides:

Docks must extend to the first navigable creek with a defined channel as evidenced by a significant change in grade with the surrounding marsh. Such creeks cannot be bridged in order to obtain access to deeper water. . .

23A S.C. Code Ann. Regs. 30-12(A)(2)(n) (emphasis added).

Here, Petitioner seeks to bridge the creek with his dock to gain access to the Wando River. Petitioner argues that he bridged the creek on two occasions in the past with the dock that he constructed in 1985 on his adjacent lot, Lot 4A. Nonetheless, Reg. 30-12(A)(2)(n) clearly precludes the bridging of a creek to obtain access to deeper water. The fact that Petitioner has done this in the past does not authorize him or give him license to do the same in the present.

The rights of the public in navigable waters originated in common law. See State ex rel. Lyon v. Columbia Water Power Co., 82 S.C. 181, 63 S.E. 884 (1909). The South Carolina Constitution preserves the common law rights of the public in navigable water: "[a]ll navigable waters shall forever remain public highways free to the citizens of the State and the United States . . . ." S.C. Const. Art. XIV, § 4 (1976). Further, S.C. Code Ann. § 49-1-10 (Rev. 1987) provides that:

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

S.C. Code Ann. § 49-1-10.

Whether OCRM erred in imposing Special Condition #3 upon Petitioner's permit, which precludes Petitioner from constructing a dock over the creek,⁽³⁾ turns on whether the creek is navigable. In determining whether a waterway is navigable, the true test to be applied is whether a stream inherently and by its nature has the capacity for valuable floatage, irrespective of the fact of actual use or the extent of such use. State ex rel. Medlock v. S.C. Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986). The requirement for valuable floatage is satisfied even where the sole use of the waterways is by pleasure boats. Id. In Medlock, the protected canals and ditches were originally dug by rice planters and over the years they had become navigable and were used by the public. The Court stated that these passageways had become the functional equivalent of natural streams. Medlock, 346 S.E.2d at 718. In the case at hand, it is undisputed that floatage in small boats is possible in the creek.

Although the State's authority to allow the obstruction of a navigable waterway is limited by the South Carolina Constitution and S.C. Code Ann. § 49-1-10, the State has authority to allow such an obstruction when justified by an overriding public interest. See Manigault v. Springs, 26 S.Ct. 127 (1905) (holding that South Carolina constitutional provision protecting navigable waters does not interfere with common law powers of the State over its navigable waters, including the sovereign right of the government to protect the general welfare of its citizens); State ex rel. Medlock v. South Carolina Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986) (implying that overriding public interest may authorize the blockage of a navigable waterway).⁽⁴⁾ Hence, OCRM has the authority to permit the blockage of a navigable waterway if such activity would promote an overriding public interest.

The evidence in the record demonstrates that the creek Petitioner seeks to bridge is navigable. S.C. Code Ann. § 49-1-10 (Rev. 1987); see also State ex rel. Lyon v. Columbia Water Power Co., 82 S.C. 181, 63 S.E. 884 (1909) (a canal constructed to improve navigation of a stream is navigable water). Therefore, the next question in this case is whether Petitioner has presented sufficient evidence of an overriding public interest to justify blockage of the creek.

There is no evidence in the record that allowing Petitioner to bridge the creek would support an overriding public interest. See Sierra Club v. Kiawah Resort Ass'n, 318 S.C. 119, 456 S.E.2d 397 (1995) ("[T]he relevant inquiry is whether the [proposed activity would] substantially impair the public interest in public trust lands and waters."). On the contrary, such bridging would individually benefit Petitioner and impair the interests of his neighbor, Intervenor Ann Limehouse, as well as potentially those of the public at large.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that the issuance of the private dock-construction permit, P/N OCRM-99-198-B, with conditions be upheld.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

March 6, 2000

Columbia, South Carolina

1. The preponderance of the evidence "is evidence which is of the greater weight or more convincing than the evidence which is offered in opposition to it." BLACK'S LAW DICTIONARY 1182 (6th ed. 1990). "The preponderance of the evidence means such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in the mind the belief that what is sought to be proved is more likely true than not true." Sanders, supra, § 9:5 Quantum of Evidence in Civil Cases (1994), citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955).

2. The location of the proposed dock is in a "critical area," as defined in S.C. Code Ann. § 48-39-10(J) (Supp. 1998).

3. None of the parties question whether the tributary at issue meets the definition of a "creek," which is commonly defined as a "small stream, often [a] shallow or intermittent tributary to a river; a channel or stream running through a salt marsh." The American Heritage College Dictionary 325 (3d ed. 1993).

4. The Court of Appeals of South Carolina has stated that the test of navigability is "whether it is accessible at the ordinary stage of the water." See Hughes v. Nelson, 303 S.C. 102, 399 S.E.2d 24 (Ct. App. 1990) (addressing whether a privately dug canal constituted a public navigable water).