SC Administrative Law Court Decisions

STATEMENT OF THE CASE

The above-captioned matter is before this tribunal upon the request of Petitioner Ralph Black for a contested case hearing. Petitioner challenges the decision of Respondent South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (Department or OCRM), to deny his application for an amendment to his current permit authorizing the construction of a private, recreational dock at 2814 Jasper Boulevard on Sullivan’s Island in Charleston County, South Carolina. In particular, Petitioner seeks authorization to bridge one, smaller unnamed tributary of Conch Creek, to which his dock is currently permitted and which he contends is unnavigable, and to extend his dock to a second, larger unnamed tributary of Conch Creek. OCRM denied the requested permit amendment, finding that the first tributary is, in fact, a navigable waterway and that, as such, the tributary may not be bridged by Petitioner’s dock. After timely notice to the parties, a hearing of this matter was held on May 4, 2004, at the Administrative Law Court in Columbia, South Carolina. Based upon the evidence and arguments presented at the hearing and upon the applicable law, I find that OCRM’s denial of Petitioner’s proposed amendment to his dock permit must be sustained.

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:

1.Petitioner Ralph Black owns the property located at 2814 Jasper Boulevard on Sullivan’s Island in Charleston County, South Carolina, and has resided at the property for approximately four years. The property is bounded on the front by Jasper Boulevard and on the sides by adjacent residential lots. To the rear, the property abuts an expanse of tidal marshland adjoining Conch Creek, a waterway located on the north side of Sullivan’s Island. The marshland immediately behind Petitioner’s property is crossed by two unnamed tributaries of Conch Creek. The tributary nearest the property is the smaller of the two tributaries, both in width and depth, and it flows into the farther, larger tributary, which reaches Conch Creek. The portion of the smaller creek that connects it to the larger tributary was originally created to facilitate stormwater drainage, and a stormwater drainpipe continues to deposit stormwater into the smaller creek where it turns and begins to run toward the larger tributary. This smaller tributary runs behind five other properties on Jasper Boulevard in addition to Petitioner’s property. Currently, there are no docks extending from these properties to the larger tributary, and only one of these properties has a dock extending into the smaller tributary.

2.In April 2001, Petitioner submitted a permit application to the Department for the construction of a private, recreational dock from his property on Jasper Boulevard to the second, larger unnamed tributary of Conch Creek. The dock, as proposed, would have consisted of a 4' by 720' walkway leading to a 5' by 10' fixed pierhead with a single-pile boatlift. On June 14, 2001, OCRM issued a permit to Petitioner for the construction of a private dock from his property. However, rather than grant Petitioner’s request in its entirety, the Department imposed special conditions upon the permit that, among other things, prohibited the construction of a boatlift on the dock, restricted the length of the dock’s walkway to 230', and required the dock to extend only to the first creek from the highground of Petitioner’s property. The limitation of Petitioner’s dock to the first tributary is consistent with OCRM’s treatment of other dock permitting requests made by Petitioner’s neighbors: the Department has, at various times, denied the requests of four neighboring property owners to construct docks bridging the smaller tributary for access to the larger tributary.

3.Petitioner began construction of a dock under his 2001 permit, starting with the walkway, but ceased construction of the walkway just short of reaching the first, smaller creek when he began to have reservations about the navigability of the creek. Because of these concerns and certain amendments to OCRM’s dock permitting regulations, Petitioner applied to OCRM in August 2002 for an amendment to the permit that would restore the dock to its original 720' length and allow the dock to access the larger creek by bridging the smaller creek. By a letter dated September 15, 2003, the Department denied Petitioner’s request for a permit amendment based upon its findings that the smaller tributary is a navigable creek and that, as such, the smaller creek may not be bridged by Petitioner’s dock under the relevant permitting regulations. Petitioner now seeks review of that denial before this tribunal.

4.The tributary of Conch Creek that Petitioner wishes to bridge with his dock is a small, but not inconsequential, tidal creek. At its mouth, where it connects with the larger tributary, the creek is approximately 9' in width and exhibits a change in grade with the surrounding marsh grass of about 6". The creek then widens and deepens, reaching a width between 10' and 12' and a change in grade between 19" to 26" where the stormwater pipe drains into the creek. Throughout its main body, the creek’s width generally ranges between 8' and 14' wide and its change in grade generally varies between depths of just under 12" to depths of about 23". At the point where Petitioner’s dock, as permitted, would have met the creek, the tributary is approximately 13'-wide and exhibits a change in grade of roughly 23". It is only where the creek begins to taper off into the marsh upstream from Petitioner’s property that it consistently measures less than 6' in width and less than 6" in its change in grade with the surrounding marsh grass. The functional size of the creek is also limited in certain places by vegetation, particularly near the mouth of the creek, by several oyster beds scattered throughout the creek, and by some silting near the stormwater drainpipe.

5.While the creek in question is not a large creek, it is a navigable waterway. Petitioner and two neighboring property owners testified that navigation in the creek was difficult at all tides and basically impossible at low tide. Nevertheless, one of the neighbors, Jose Biasoechea, testified that he was able to navigate the creek in his 16' center-console Hydrosport boat at high tide, albeit with some difficulty, and Petitioner testified that he had navigated the creek up to and beyond the proposed location of his dock in a 13' Boston Whaler boat at high tide, after a first attempt to navigate the creek at mid-tide was unsuccessful. In his deposition, Petitioner’s surveyor, Mr. Dawley, described navigating the creek in a 16' johnboat with a 25-horsepower motor for approximately two hours at or near high tide while conducting his survey of the creek. Two OCRM employees also described their experiences navigating in the tributary. Bill Eiser, an OCRM oceanographer and permitting project manager, testified that, in conducting a site visit on Petitioner’s amendment application, he was able to navigate in the creek in a 15' canoe at mid tide. Tess Rogers, an OCRM critical area permit coordinator who had accompanied Mr. Eiser on his site visit, attested to the navigability of the creek on that occasion and further described recreationally navigating the creek in a 16' johnboat several times between 1998 and 2002. As established by this testimony, the creek at issue has the capacity for valuable recreational floatage at mid and high tides.

6.In sum, the small tributary in question is the first navigable creek to the rear of Petitioner’s property that has a defined channel as evidenced by a significant change in grade with the surrounding marsh.

CONCLUSIONS OF LAW

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

The central question in this case is whether the first tidal creek behind Petitioner’s property is a navigable waterway. The Department denied Petitioner’s request for a permit amendment allowing him to bridge that creek, under 23A S.C. Code Ann. Regs. 30-12(A)(2)(n) (Supp. 2003), because “[t]he ability to navigate [the creek] exists in this instance from mid to high tide so a crossing is not warranted and it is not in OCRM’s charge to guarantee deep water access at all stages of the tide cycle.” Resp’t Ex. #9, at 1. Petitioner, on the other hand, contends that the creek is not navigable in any significant sense and that it may, therefore, be crossed by his dock consistent with Regulation 30-12(A)(2)(n). Based upon the evidence presented regarding the navigability of the creek in question and upon South Carolina water law, I find that the creek immediately behind Petitioner’s property is a navigable waterway and that, as such, the Department properly denied Petitioner’s request to bridge the creek.

Regulation 30-12(A)(2) sets forth a number of permitting standards applicable to the construction of private docks. See 23A S.C. Code Ann. Regs. 30-12(A)(2) (Supp. 2003). Among these standards is a provision, found at subsection (n), that generally prohibits docks from bridging navigable waterways. That section provides:

Docks must generally extend to the first navigable creek, within extensions of upland property lines or corridor lines, that has a defined channel as evidenced by a significant change of grade with the surrounding marsh; or having an established history of navigational access or use. A creek with an established history of navigational use may also be considered as navigable. Such creeks cannot be bridged in order to obtain access to deeper water. . . . In exceptional cases, the Department may allow an open water channel to be bridged if current access is limited by other man[-]made or natural restrictions or if site-specific conditions warrant such a crossing.

23A S.C. Code Ann. Regs. 30-12(A)(2)(n) (Supp. 2003) (emphasis added). Therefore, under the plain terms of Regulation 30-12(A)(2)(n), a dock may not ordinarily be permitted to cross a tidal creek if that creek: (1) is navigable; and (2) its navigability is demonstrated by a defined channel with a significant change in grade from the surrounding marsh or an established history of navigational access or use. Id. In the instant matter, the tidal creek that Petitioner seeks to bridge meets these criteria, and thus may not be bridged in the absence of exceptional circumstances.

Navigable Waters

In South Carolina, “[n]avigable water is a public highway which the public is entitled to use for the purposes of travel either for business or pleasure.” State ex rel. Lyon v. Columbia Water Power Co., 82 S.C. 181, 189, 63 S.E. 884, 888 (1909). These rights of the public in navigable waters have their origins in the common law, see id. at 190, 63 S.E. at 889, and these common-law rights have been explicitly preserved both in the South Carolina Constitution and the South Carolina Code of Laws. See S.C. Const. Art. XIV, § 4 (“All navigable waters shall forever remain public highways free to the citizens of the State and the United States . . . .”); S.C. Code Ann. § 49-1-10 (1987) (“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 . . . .”). The public’s right to access navigable waterways is deeply rooted in South Carolina law.

In determining whether a waterway is navigable, “[t]he 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, 449, 346 S.E.2d 716, 719 (1986) (citing to Heyward v. Farmer’s Mining Co., 42 S.C. 138, 19 S.E. 963 (1894)) (emphasis in original). This “valuable floatage” need not be commercial floatage, but may include recreational uses of the stream by the general public for pleasure boating, hunting, and fishing, among other activities. Id. at 449-50, 346 S.E.2d at 719; see also Columbia Water Power Co., 82 S.C. at 189, 63 S.E. at 888 (“[T]here cannot be the least doubt that the public is as much entitled to be protected in its use for floating pleasure boats as for any other purpose.”). Accordingly, a relatively small stream may be considered a navigable waterway. See Hughes v. Nelson, 303 S.C. 102, 105, 399 S.E.2d 24, 25 (Ct. App. 1990) (“To be navigable, a waterway does not have to embrace commercial shipping lanes. It need not accommodate the Carnival Cruise Lines or be able to float the Love Boat.”). Further, in order to be considered navigable, the waterway in question need not be accessible at all times, but rather need only be accessible for navigation “at the ordinary stage of the water.” Id. at 102, 399 S.E.2d at 26 (quoting from Columbia Water Power Co.).

Beyond these general propositions regarding navigable waters, South Carolina courts have expounded further upon the navigability of tidal streams. While the South Carolina Supreme Court, over one hundred years ago, repudiated the common-law rule that streams affected by the ebb and flow of the tide are per se navigable over one hundred years ago, see State v. Pacific Guano Co., 22 S.C. 50 (1884), it has recently reiterated that, “under South Carolina law[,] tidal water is presumed navigable unless shown incapable of navigation in fact.” McQueen v. S.C. Coastal Council, 354 S.C. 142, 150 n.7, 580 S.E.2d 116, 120 n.7 (2003) (citing to Pacific Guano Co.) (emphasis in original). This position is in accord with that taken in other jurisdictions, see 65 C.J.S. Navigable Waters § 4, at 62 (2000) (“Irrespective of whether the tidal test of navigability is recognized or rejected, all tidewater is prima facie navigable.”), and is consonant with the principle that, unlike the land beneath other waterways, the land below tidal streams is held by the state in trust for use by the public. See Cape Romain Land & Improvement Co. v. Georgia-Carolina Canning Co., 148 S.C. 428, 438, 146 S.E. 434, 438 (1928) (“The title to land below the high-water mark on tidal navigable streams, under the well-settled rule, is in the State, not for purposes of sale, but to be held in trust for public purposes.”). Moreover, this presumption in favor of navigability provides helpful guidance in resolving the otherwise-unsolvable question of whether a tidal stream that is accessible at high tide but inaccessible at low tide should be considered navigable “at the ordinary stage of the water.”

In the case at hand, it is clear that the first tidal creek behind Petitioner’s property is a navigable waterway. As a tidal stream, the creek is presumed to be navigable, and the testimony presented at the hearing of this matter establishes that the creek is navigable in fact. For, while the creek is not navigable at all times and tides, and while it does not have the capacity to support commercial floatage, the creek may be navigated for recreational purposes at mid and high tides in boats ranging from canoes to 16' johnboats. Unquestionably, this navigation demonstrates that the creek has the capacity for valuable floatage at its ordinary stage. See, e.g., State v. Head, 330 S.C. 79, 90, 498 S.E.2d 389, 394 (Ct. App. 1997) (noting that the “relevant authorities have considered a waterway navigable in the appropriate case if a small sport fishing boat could negotiate it at its ordinary stage”). Further, given the creek’s capacity for valuable floatage, neither the infrequency of actual navigation in the creek nor the occasional obstruction of the mouth of the creek by marsh grass cause the creek to be deemed non-navigable. See Medlock, 289 S.C. at 449, 346 S.E.2d at 719 (holding that the test for navigability depends upon whether the stream has the capacity for valuable floatage, “irrespective of the fact of actual use or the extent of such use”); Head, 330 S.C. at 90, 498 S.E.2d at 394 (noting that “the existence of occasional natural obstructions to navigation . . . generally does not change the character of an otherwise navigable stream”). Under South Carolina water law, the smaller tidal creek immediately to the rear of Petitioner’s property is a navigable waterway.

Defined Channel

Regulation 30-12(A)(2)(n) only protects a creek from being bridged by a dock if its navigability is demonstrated by either “a defined channel as evidenced by a significant change of grade with the surrounding marsh” or by “an established history of navigational access or use.” Here, while the creek in question does not have an established history of navigational access or use, it does have a defined channel with a significant change in grade with the surrounding marsh. The creek in question is not a tidal mud flat that may only be skimmed across in a kayak at high tide, but is a true tidal creek with a defined creek bed. Even relying upon conservative measurements taken by Petitioner’s surveyor, the numbers indicate that the main body of the creek constitutes a well-defined channel that exhibits a significant change in grade with the surrounding marshland. Beyond the numerical data, the photographic evidence presented of the creek, including depictions of the creek both at high tide and at low tide and both from the creek level and from an aerial perspective, demonstrates that the creek in question is a waterway with a defined channel. Further, Bill Eiser, the OCRM employee who conducted the site visit on Petitioner’s amendment application and who wrote his master’s thesis on the distinction between channelized and non-channelized water flow, testified that he observed the channelized flow of water in the creek when he conducted the site visit. The first tidal creek behind Petitioner’s property is not only navigable, but that navigability is also evidenced by its well-defined channel with a significant change in grade from the surrounding marsh.

Exceptional Cases

While Regulation 30-12(A)(2)(n) generally prohibits the bridging of navigable creeks like that to the rear of Petitioner’s property, it does authorize the Department to allow docks to cross such creeks in “exceptional cases” where “current access is limited by other man[-]made or natural restrictions or if site-specific conditions warrant such a crossing.” In the case at hand, Petitioner has produced some evidence that navigation in the creek is difficult at certain times due to natural restrictions such as encroaching marsh grass and oyster beds. However, these restrictions upon navigation in the creek are restrictions common to many, if not most, tidal creeks, and do not, therefore, constitute an “exceptional case” that would warrant the crossing of a navigable waterway.

The tidal creek that Petitioner wishes to bridge with his dock is the first navigable creek behind his property with a defined channel as evidenced by a significant change of grade with the surrounding marsh. As such, Regulation 30-12(A)(2)(n) generally prohibits the bridging of that navigable creek. Further, Petitioner has not established that the creek in question presents an exceptional case that would warrant the bridging of the creek despite the general prohibition upon such crossings.

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above,

IT IS HEREBY ORDERED that the Department’s denial of Petitioner’s request for an amendment to his dock permit in order to bridge the first tidal creek behind his property at 2814 Jasper Boulevard on Sullivan’s Island in Charleston County, South Carolina, is SUSTAINED.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

July 8, 2004

Columbia, South Carolina