Friday, August 01, 2014

SC Administrative Law Court Decisions

CAPTION:
Ripley Light Marina, Inc. vs. SCDHEC et al.

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Ripley Light Marina, Inc.

Respondent:
South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management, and Ripley Point Associates
 
DOCKET NUMBER:
97-ALJ-07-0170-CC

APPEARANCES:
Timothy Winslow, Esq., for Petitioner

John P. Kassebaum, II, Esq., for Respondent, OCRM

Gregg Pierce, Esq., for Respondent, Ripley Point Associates
 

ORDERS:

ORDER

I. Statement of the Case



Ripley Point Associates (Associates) filed an application on November 27, 1996 with the Office of Ocean and Coastal Resource Management (OCRM) for a permit for the placement of riprap and the construction of a dock along a canal leading to the Ashley River in Charleston, South Carolina. OCRM granted the permit, and Ripley Light Marina, Inc (Marina) gave notice of its opposition to the permit. Jurisdiction vests in the Administrative Law Judge Division (ALJD) under S.C. Code Ann. § 48-39-150 (Supp. 1996) and §§ 1-23-310 et seq. (Rev. 1987 & Supp. 1996). I find the permit must be granted.



II. Issues



Is a permit allowed for the placement of riprap and the construction of a dock along a canal leading to the Ashley River in Charleston, South Carolina?



III. Analysis



1. Positions of Parties:



Marina asserts the proposed construction and dock placement will create a hazard to navigation, will endanger the flora and fauna of the area, and will increase the sediment disturbance leading to a redistribution of dioxin in the water. OCRM and Associates disagree. They assert the dock will not be a hazard to navigation, no flora or fauna will be impacted, and the placement of the riprap will reduce disturbances of the sediments and reduce dioxin redistribution.



2. Findings of Fact:



I find, by a preponderance of the evidence, the following facts:



1. Associates filed an application on November 27, 1996 with OCRM for a permit for the placement of riprap and the construction of a dock along a canal leading to the Ashley River in Charleston, South Carolina.

2. On February 24, 1997, OCRM issued the permit with conditions.

3. The proposed structure was to originally consist of an "L" shaped dock with a 4' x 80' gangway and a 10' x 100' floating dock.

4. Associates propose to place 165 cubic yards (180 linear feet) of riprap and 305 cubic yards of fill for slope protection.

5. The permit will allow access to the water for a proposed commercial development.

6. On March 26, 1997, OCRM determined it would issue an amendment to authorize a change in the layout to a 12' wide by 24' long fixed pierhead constructed at the erosional escarpment and a 4' wide by 72' long gangway leading to the floating dock.

7. The amendment was made and a permit consistent with the amendment granted.

8. The proposed location of the project offers a width of approximately 170 feet in the waterway at the waterway's narrowest point (a point between the closest pile of the Marina and the northernmost edge of the proposed dock).

9. The 170 foot width will allow at least 40 feet between the requirements of the proposed dock and the entrance channel of the waterway.

10. A ten foot wide distance for the docking of a boat along the dock side leaves 30 feet of clearance remaining.

11. The permit prohibits the permanent mooring of boats.

12. Completion of the project will increase the number of boats entering and exiting the area.

13. The increased traffic will not present a hazard to traffic.

14. The channel size presents sufficient space for the project and for boats to navigate.

15. The construction process will have only a minimal impact upon the flora and fauna, and that impact is short term.

16. The operation of the facility will have no long term impact upon the wildlife and vegetation of the area.

17. The project will diminish sediment disturbance in the area.

18. The use of riprap will slow the water run-off from rain and will also prevent erosion.

19. The addition of fill material and riprap will not diminish the overall quality of the aquatic ecosystem.

20. The addition of fill material and riprap will improve the conditions along the shoreline.

3. Discussion



a. Introduction



Here, the dispute presents three challenges to the permit: hazard to navigation, endangerment to flora and fauna of the area, and increased sediment disturbance leading to a redistribution of dioxin in the water. None of these positions warrants denying the permit.



b. Analysis



DHEC is authorized to promulgate regulations to carry out its permit review duties. S.C. Code Ann § 48-39-50 (Supp. 1996). Once promulgated, OCRM must apply its formalized regulations. S.C. Code Ann. § 48-39-130(B) (Supp. 1996); Captain's Quarters Motor Inn, Inc. v. S.C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991), Reh'g denied Feb. 4, 1992. As a division of a state agency, if an applicable regulation imposes a mandatory duty, OCRM may not ignore that duty. Triska v. Dep't of Health and Envtl. Control, 292 S.C. 190, 355 S.E.2d 531 (1987). Rather, a failure to apply a mandatory regulation places a permit in jeopardy of being held invalid. See Concerned Citizens Comm. For Ashley River v. Coastal Council, 310 S.C. 267, 423 S.E.2d 134 (1992), Reh'g. denied Dec. 8, 1992. ("[w]ithout this requisite showing [of the S.C. Code Regs. 30-12 requirement of a demand for a marina, OCRM] has no legal ability to grant the permit.").



Pursuant to its authority, DHEC promulgated regulatory guidelines which it uses in assessing the impact a proposed project will have upon a critical area. § 48-39-150(A) (Supp. 1996) and S.C. Code Regs. 30-11. In addition, DHEC issued specific regulatory standards for construction of docks and piers located in tidelands and coastal waters. Regs. 30-12(A) (Supp. 1996). Marina argues the regulations have not been properly applied.



1. Hazard to Navigation



DHEC must examine the extent to which a dock will unreasonably interfere with commercial navigation or impede navigation in general. Regs. 30-11(B)(2); 30-12(A)(2)(a). "Impede" means to obstruct, hinder, check or delay. Black's Law Dictionary 753 (6th ed. 1990). Here, the project proposed by Associates will not improperly impede or unreasonably interfere with navigation.



The waterway where the project will be located provides a width of approximately 170 feet at its narrowest point (a point between the closest pile of the Marina and the northernmost edge of the proposed dock). The most persuasive evidence confirms that such a width will allow at least 40 feet between the proposed dock and the entrance channel. Thus, even with a ten foot wide distance for the docking of a boat along the dock side, 30 feet of clearance still remains, and, thus, the dock will not interfere with the channel. In addition the permit is restricted to prohibit the permanent mooring of boats. Further, while the number of boats entering and exiting the area may increase, no persuasive evidence supports a conclusion the new facility will be present a hazard to traffic since the size of the channel presents a sufficient space for boats to adequately navigate without danger. Accordingly, granting the permit will not unreasonably interfere or impede navigation.



2. Endangerment to Flora and Fauna



DHEC is required to evaluate the proposed project's impact upon the marine life and wildlife in the area. Regs. 30-11(B)(3) (Supp. 1996). The evidence does not support an endangerment to flora or fauna. The construction process will have only a minimal impact upon the flora and fauna and even then only in the short term. The operation of the facility itself will have no long term impact upon the wildlife and vegetation of the area.



3. Increased Sediment Disturbance



DHEC must evaluate the extent of any adverse environmental impact upon the area. Regs. 30-11(B)(8). No adverse impact upon the environment by sediment disturbance is present in this case. The testimony of the engineering firm used as a consultant by Associates explains that the sediment disturbance will actually be diminished by the project. The use of riprap will slow the water run-off from rain and will prevent erosion. DHEC's inspections of the site concluded that the fill material and riprap will not change the quality of the aquatic ecosystem and will in fact improve the conditions along the shoreline. These positive benefits will lessen the likelihood of disturbing the sediments in the area. Accordingly, the permit will not present an adverse impact upon the environment due to sediment disturbance.

4. Conclusions of Law



Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:



1. Besides statutory considerations, OCRM evaluates permit applications based upon formalized regulations. S.C. Code Ann. § 48-39-130(B) (Supp. 1996); Captain's Quarters Motor Inn, Inc. v. S.C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991), Reh'g denied Feb. 4, 1992.

2. Mandatory criteria of valid regulations must be applied since a state agency cannot disregard its own regulations. See Triska v. Dep't of Health and Envtl. Control, 292 S.C. 190, 355 S.E.2d 531 (1987).

3. If OCRM fails to apply a mandatory regulation, any resulting permit is subject to being declared invalid. See Concerned Citizens Comm. For Ashley River v. Coastal Council, 310 S.C. 267, 423 S.E.2d 134 (1992), Reh'g. denied Dec. 8, 1992.

4. Pursuant to its authority, DHEC promulgated regulatory guidelines which it uses in assessing the impact a proposed project will have upon a critical area. § 48-39-150(A); Regs. 30-11 (1976 & Supp. 1996).

5. DHEC issued specific regulatory standards for construction of docks and piers located in tidelands and coastal waters. Regs. 30-12(A) (Supp. 1996).

6. DHEC must examine the extent to which a dock will unreasonably interfere with commercial navigation or impede navigation in general. Regs. 30-11(B)(2); 30-12(A)(2)(a).

7. "Impede" means to obstruct, hinder, check or delay. Black's Law Dictionary 753 (6th ed. 1990).

8. The project proposed by Associates will not improperly impede or unreasonably interfere with navigation.

9. DHEC is required to evaluate the proposed project's impact upon the marine life and wildlife in the area. Regs. 30-11(B)(3) (Supp. 1996).

10. The project does not endanger flora or fauna and the facility will have no long term impact upon the wildlife and vegetation of the area.

11. DHEC must evaluate the project's adverse environmental impact upon the area. Regs. 30-11(B)(8).

12. The permit will not present an adverse impact upon the environment due to sediment disturbance.

13. A decision to issue the permit is proper.





IV. ORDER



Based upon the foregoing Findings of Fact and Conclusions of Law, the following ORDER is issued:



OCRM is ordered to grant the request by Ripley Point Associates for a permit allowing the placement of riprap and the construction of a dock along a canal leading to the Ashley River in Charleston, South Carolina.



AND IT IS SO ORDERED.





__________________________________

RAY N. STEVENS

Administrative Law Judge



This 25th day of September, 1997

Columbia, South Carolina