ORDERS:
ORDER AND DECISION
This matter comes before me upon petition for hearing on an application to the South
Carolina Department of Health and Environmental Control (hereinafter referred to as "DHEC")
for a navigable waters permit for an existing dock constructed on Lake Greenwood at 691 S.
Lake Forest Drive, Cross Hill, South Carolina. A hearing was held on April 20, 1995. The
permit is granted, without conditions.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Petitioner owns that lot with improvements on Lake Greenwood known as 691 S.
Lake Forest Drive, Cross Hill, South Carolina, (shown as Lots 10 and 21 on Petitioner's Exhibit
#3). Petitioner purchased the lot in 1978.
(2) Petitioner's lot is located on a narrow neck of a small "V" shaped cove which opens
northward onto the main body of water of Lake Greenwood.
(3) Petitioner's dock extends into Lake Greenwood from Petitioner's lot in such a
configuration as to be partially situated in the water between the adjacent landowners' property
boundaries (Petitioner's Exhibit #3).
(4) The only landowners affected by construction of Petitioner's dock are Petitioner,
adjacent landowner B.F. Reeves, and adjacent landowner Charles T. Boiter.
(5) Mr. Boiter (owner of Lot #9 on Petitioner's Exhibit #3) does not object to
Petitioner's dock as presently configured.
(6) At the time of Petitioner's purchase in 1978, a dock existed on the property extending
into Lake Greenwood, with a fixed walkway measuring approximately 4' x 20' walkway, leading
to a stationary dock measuring approximately 7' x 12'.
(7) The dock existing on Petitioner's lot in 1978, was constructed prior to 1976.
(8) In 1979, Petitioner repaired the existing dock and also bought and added a floating
dock to the end of the existing 7' x 12' stationary dock. The floating dock was "L" shaped, with
the larger and longer portion of the floating structure extending northward toward the main body
of Lake Greenwood.
(9) Petitioner did not obtain a permit for the floating dock, which was attached to the pre-existing stationary portion from 1978 to 1991. Petitioner was not given notice of any objection or
violation caused by the floating dock.
(10) In 1990, B.F. Reeves purchased the lot adjacent to Petitioner's lot to the east (shown
as Lot 22 on Petitioner's Exhibit #3).
(11) In 1991, the floating portion of Petitioner's dock was stolen.
(12) In 1992, Petitioner replaced the stolen floating dock with a new 34' x 3'8" fixed
walkway leading to a 12' x 12' stationary dock constructed and added on to the end of the existing
7' x 12' stationary dock.
(13) The portion added in 1992, extends northward from the point where it meets the
existing structure toward the main body of Lake Greenwood and extends no further than the
previous floating portion which it replaced.
(14) After purchase of Lot 22, B.F. Reeves built a retaining wall and stationary dock.
The retaining wall and fill dirt placed behind the wall altered the shoreline of Reeves' property so
that Petitioner's water access was decreased and the neck of the cove upon which both lots are
located was narrowed.
(15) B.F. Reeves obtained a permit for his new dock and retaining wall subsequent to
construction.
(16) The shortest distance between Petitioner's dock and B.F. Reeves' dock is
approximately 6' to 8'.
(17) Without an extension from the structure as it existed in 1978, Petitioner is unable to
moor a boat at his dock.
(18) Petitioner filed a permit application for construction in navigable waters with DHEC,
dated September 22, 1994, for a permit to cover his dock as constructed with additions
completed in March, 1992. The dock is configured and measures as follows: extending from
Petitioner's lot in a north-northeastern direction, a fixed walkway measuring 4' x 20'; attached to a
stationary dock measuring 7' x 12'; attached to a 34' x 3'8" walkway extending north; attached to
a 12' x 12' stationary dock.
(19) In response to Petitioner's permit application, DHEC gave Public Notice of the
application, dated November 1, 1994, to gain comments from interested persons.
(20) By letter from Barry W. Butler, Engineering Assistant, dated November 9, 1994,
(Respondent's Exhibit # 3) Greenwood County objected to permitting that portion of Petitioner's
dock added in 1992, and took the position that the 1992 additions should be removed.
Greenwood County otherwise had no objection to the permitting of the remaining portion of
Petitioner's dock.
(21) By Public Notice dated January 18, 1995, DHEC announced its proposed decision to
issue the Construction in Navigable Waters Permit to Petitioner with the following conditions
now in issue:
1. The applicant must remove the 34' x 3.8" [sic] walkway
and 12' x 12' floating [sic] dock. This decision is
based on:
A. Encroachment in the front of adjacent, riparian lands without the landowner's consent;
B. Objection from Greenwood County, the owner of
Lake Greenwood. Any objection from the lakeowner
precludes permit issuance.
(22) Petitioner's dock does not block or obstruct the flow of waters.
(23) Petitioner's access to and use of Lake Greenwood was adversely affected by the
adjacent landowner's (B.F. Reeves) construction of a dock and retaining wall, which narrowed the
distance of over water between Petitioner's dock and adjacent landowner's shoreline.
(24) Petitioner's dock, in its present form, is necessary to give Petitioner full and free
access to Lake Greenwood.
(25) Petitioner's dock is the most feasible means of affording Petitioner access to and use
of Lake Greenwood in light of the shallowness of the water at the location and the construction of
the adjacent landowner's (B.F. Reeves) retaining wall and dock,
(26) Navigation by the adjacent landowners and the general public is possible and not
unduly blocked or obstructed considering the totality of the circumstances.
(27) Petitioner's dock does not create any adverse impact on fish, wildlife, or water
quality.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:
(1) The Administrative Law Judge Division has subject matter jurisdiction in this action
pursuant to S.C. Code Ann. §§ 49-1-10, 1-23-600(B), and 1-23-310, et seq. (Rev. 1986 & Supp.
1994), and 23 S.C. Code Ann. Regs. 19-450 (Supp. 1994).
(2) Lake Greenwood is a navigable watercourse as defined by S.C. Code Ann. § 49-1-10
(Rev. 1987).
(3) Generally, a permit is required for any dredging, filling, construction or alteration
activity in, on, or over a navigable water subject to S.C. Code Ann. § 49-1-10 (Rev. 1987).
23 S.C. Code Ann. Regs. 19-450 (Supp. 1994) sets forth the application requirements for
issuance of a permit for construction on navigable waters.
(4) No permit is required for normal maintenance and repair of any structure completed
prior to December 31, 1976. 23 S.C. Code Ann. Regs. 19-450.3 (E), (F) and (G) (Supp. 1994).
Accordingly, that portion of Petitioner's dock existing prior to December 31, 1976, that being the
fixed walkway measuring approximately 4' x 20' walkway and attached a stationary dock
measuring approximately 7' x 12', is exempt from the permitting process.
(5) Construction activity on a navigable waterway undertaken subsequent to
December 31, 1976, for which a permit was required but not obtained is in violation of
23 S.C. Code Ann. Regs. 19-450 (Supp. 1994); however, a permit may be subsequently issued
through the application process for the completed construction activity.
(6) Petitioner's dock, as presently constructed and situated, is a feasible means of
providing free and equitable access to and use of Lake Greenwood for Petitioner and adjacent
landowners collectively, pursuant to 23 S.C. Code Ann. Regs. 19-450 (Supp. 1994).
(7) Issues raised in the proceedings but not specifically addressed in this Order are
deemed denied. ALJD Rule 29(B).
ORDER
IT IS THEREFORE ORDERED that DHEC issue to Petitioner the Construction in
Navigable Waters Permit applied for Petitioner, without conditions.
___________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
May ______, 1995
Columbia, South Carolina
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