Kiawah Development Partners v. South Carolina Department of Health & Environmental Control ( 2014 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Kiawah Development Partners, II, Respondent,
v.
South Carolina Department of Health and Environmental
Control, Appellant,
and
South Carolina Coastal Conservation League, Appellant,
v.
South Carolina Department of Health and Environmental
Control and Kiawah Development Partners, II, of whom
South Carolina Department of Health and Environmental
Control is Appellant, and Kiawah Development Partners,
II is Respondent.
Appellate Case No. 2010-155629
Appeal from the Administrative Law Court
Ralph K. Anderson, III, Administrative Law Judge
Opinion No. 27065
Heard June 5, 2013 – Refiled December 10, 2014
REVERSED AND REMANDED
Jacquelyn Sue Dickman, of Columbia, Bradley D.
Churdar, of Charleston, Amy E. Armstrong, of the South
Carolina Environmental Law Project, of Pawleys Island,
and Robert T. Bockman, of Columbia, for Appellants.
G. Trenholm Walker, of Pratt-Thomas Walker, PA, and
Gedney M. Howe, III, of Gedney M. Howe III, PA, both
of Charleston, for Respondent.
Attorney General Alan M. Wilson, Chief Deputy
Attorney General John W. McIntosh, Solicitor General
Robert D. Cook, and Assistant Attorney General T.
Parkin Hunter, and C. Mitchell Brown and A. Mattison
Bogan, both of Nelson Mullins Riley & Scarborough,
LLP, all of Columbia, for Amicus Curiae, Savannah
River Maritime Commission.
Frank S. Holleman, of the Southern Environmental Law
Center, of Chapel Hill, NC, and J. Wesley Earnhardt,
Michael P. Addis, and Margaret B. Hoppin, all of
Cravath, Swaine & Moore, LLP, of New York, for
Amicus Curiae, The South Carolina Nature-Based
Tourism Association.
Jordan R. Israel, of Washington, D.C., for Amicus
Curiae, Inlet Cove Homeowners Association, Kayak
Charleston, LLC, South Carolina Paddlesports Industry
Association, and Friends of the Kiawah River.
James B. Richardson, Jr., of Columbia, for Amicus
Curiae, South Carolina Manufacturer's Alliance.
Michael Robert Hitchcock, of Columbia, for Intervenors.
JUSTICE HEARN: Our State's tidelands are a precious public resource
held in trust for the people of South Carolina. While the tidelands are a finite
resource, a bevy of competing environmental, economic, and social uses seek to
lay claim to them. The legislative branch has made the policy decisions as to how
those uses should be balanced in order to maximize the benefit to the people of
South Carolina and enacted statutes and delegated to executive agencies the power
to promulgate regulations to fulfill those policy decisions. The task falls to the
courts to ensure that those statutes and regulations are correctly applied in carrying
out that policy.
At issue here is the correct application of those statutes and regulations to an
invaluable—in environmental, economic, and social terms—stretch of tidelands
located on the edge of a spit of land along the South Carolina coast. A landowner
and real estate developer seeks a permit to construct a bulkhead and revetment
stretching 2,783 feet in length and 40 feet in width over the State's tidelands,
thereby permanently altering 111,320 square feet or over 2.5 acres of pristine
tidelands. The landowner seeks to halt ongoing erosion along that stretch of
tidelands in order to facilitate a residential development on the adjacent highland
area. DHEC denied the majority of the requested permit and granted a small
portion to protect an existing county park. An administrative law court (ALC)
disagreed and found a permit should be granted for the entire structure, and this
appeal followed. We conclude the ALC committed several errors of law and
therefore, we reverse and remand.
FACTUAL/PROCEDURAL BACKGROUND
Kiawah Island is a barrier island approximately one mile wide and stretching
approximately ten miles along South Carolina's coast. At the island's eastern end it
is separated from Folly Beach by Stono Inlet where the Stono River empties into
the Atlantic Ocean. The Island is separated from John's Island and the mainland to
the north by the Kiawah River. At the island's western end, the Kiawah River turns
to the south and travels along the Island's western edge. From the western tip of
the Island, Captain Sam's Spit extends along the coast in a southwesterly direction
towards Seabrook Island. The Spit consists of a narrow "neck" where it extends
away from the Island and then grows into a large, bulbous end. At the point at
which the Kiawah River meets the Spit where it extends from the end of the Island,
the Kiawah River turns to the west, wraps around the bulb of the Spit, and then
turns to the south. There the River passes through Captain Sam's Inlet between the
Spit and Seabrook Island and empties into the Atlantic Ocean.
Fig. 1: Captain Sam's Spit
At the present time, where the Spit meets the larger island and Kiawah River
turns to travel along the Spit—the neck—the Spit is approximately 450 feet wide
measured from the critical line on the River side to the mean high water line on the
Atlantic Ocean side. At its widest part the Spit has a high ground width of more
than 1,600 feet. The Spit has a number of high dune ridges running its entire
length, and, on the river side of the bulbous end, a young and growing maritime
forest. When the tide recedes in the River, a soft, sandy beach is exposed on the
Spit along the area where the River bends. The portion of the Island at the western
end immediately upriver of the Spit's neck is occupied by a Charleston County
park which the County leases from Kiawah Development Partners, II, Inc.
(Kiawah). The Spit's neck and the adjacent area where the county park is located
are eroding. At points along the bend in the river, a vertical escarpment as high as
ten to twelve feet exists. While a portion of the river side of the Spit is eroding, on
the ocean side the Spit has steadily accreted over the past several decades.
While the River side of the Spit is experiencing erosion, the Spit as a whole
is growing. The ocean side of the Spit has steadily accreted sand for the past sixty
years and at present the accretion is occurring at a faster rate than the rate of
erosion on the River side. Over the past three hundred years, however, at least
twice a version of the Spit has formed, followed by the breach of the Spit's neck,
and the disappearance of the Spit. The present Spit began to reform around 1949.
In 1988, Kiawah purchased the Island including the Spit; the same year the
Town of Kiawah Island was incorporated. Prior to 1999, there was no building
setback line on the Spit and therefore the Spit could not be developed.1
Accordingly, in 1994, the Town and Kiawah entered into a development agreement
which limited the uses of the Spit to green space and parkland and thereby
prohibited development of the Spit. In 1999, due to continued accretion on the
ocean side of the Spit and the Spit's resulting growth, the State established a
setback line on the Spit thereby permitting development on the Spit landward of
the setback line. In 2005, the Town and Kiawah entered into a new development
agreement which permits development of up to fifty home sites and two
community docks on the Spit.
In order to facilitate development of the Spit, Kiawah hired an engineering
firm to design an erosion control structure to stop the erosion occurring along the
bend in the Kiawah River. The firm recommended the combination of an
articulated concrete block mat2 and a bulkhead and prepared a permit application
on Kiawah's behalf. The application sought approval from the South Carolina
Department of Health and Environmental Control (DHEC) to construct a
combination bulkhead and articulated concrete block revetment beginning at the
1
Section 48-39-280(B) of the South Carolina Code (2008) requires DHEC to
establish a "setback line . . . landward of the baseline a distance which is forty
times the average annual erosion rate or not less than twenty feet from the baseline
. . . ." At that time, the width of the Spit was not sufficient for the creation of a
setback line.
2
An articulated concrete block is a rectangular block of concrete with a hole in the
middle, and an articulated concrete block mat is a mat of those blocks linked
together.
county park and extending for 2,783 feet along the Spit around the bend in the
River.3 The mat would extend a width of forty feet from the bulkhead down into
the River and would cover the entire beach.
DHEC staff issued a permit to Kiawah but only for construction of a
bulkhead and revetment to extend 270 feet along the shoreline adjacent to the
county park. It denied the remainder of the requested 2,783 feet of bulkhead and
revetment. The staff found the structure would "affect the ability of the inlet and
the beach/dune system to migrate, as it has been known to do in the recent past."
They also found the structure and the proposed development that the structure
would facilitate would "have long-range and cumulative effects on [sensitive areas]
and on the general character of the area." The staff found the proposed structure
would contravene Section 48-39-150(A)(6) of the South Carolina Code (2008) due
to its effect on rare and endangered species. The staff found Regulation 30-11 of
the South Carolina Code of Regulations (2011) implicated because the structure
would "prevent the normal shoreline migration and the cycle of creation and
subsequent in-fill of a tidal inlet" and because the development the structure would
facilitate would "have a significant impact on the general character of the area."
Kiawah and the South Carolina Coastal Conservation League (League) both
requested a final review conference before the DHEC Board, and the Board denied
the request for a final review conference. Kiawah then requested a contested case
hearing before the ALC challenging DHEC's denial of the remainder of the permit.
The League also filed a request for a contested case hearing challenging DHEC's
decision to authorize the 270 feet of bulkhead and revetment adjacent to the county
park. The ALC held a contested case hearing at which the parties presented
witnesses and exhibits in support of their positions.
The ALC ruled in favor of Kiawah, granting the permit for the full 2,783
feet of bulkhead and revetment, but modifying the requested permit in several
ways. In so concluding, the ALC found the structure would not contravene any of
the applicable statutes and regulations asserted by DHEC and the League. As to
3
The County previously submitted its own permit request for an erosion control
structure to extend only along the shoreline adjacent to the county park. Kiawah
convinced the County to withdraw that permit application and allow it to submit
the permit application at issue here to cover both the land leased to the County for
the park and the larger extent of the Spit.
section 48-39-150, the ALC found its provisions satisfied because "there are no
significant negative impacts" from the structure. Specifically, the ALC found
"neither the bulkhead/revetment nor the potential limited residential development
will result in any significant harm to the public resources or marine or other plant
or animal life, nor significantly impair public access to critical areas." The ALC
also found: "the project will clearly reduce and likely stop erosion rather than
precipitate any erosion" and "[t]he elimination of that erosion will further provide
an economic benefit to [Kiawah]" whereas the "erosion has no positive benefit for
anyone."
The ALC found DHEC misconstrued its powers under regulation 30-
11(C)(1) by interpreting the regulation as allowing it to consider a proposed
structure's impacts outside the critical area. The ALC interpreted regulation 30-
11(C)(1) as only permitting DHEC to consider impacts within the critical area.
The ALC concluded there would be no material adverse effects from the structure
and added: "Even though consideration of the effects of the upland is beyond the
purview of the regulation, the Court concludes that there was no evidence adduced
that the residential development would have any material adverse effects on the
upland."
Considering whether the structure would contravene Regulation 30-12(C) of
the South Carolina Code of Regulations (2011) because it would adversely affect
public access, the ALC found that "the use of the bank by the public is limited" and
that the effect on public access "is not substantial." Accordingly, the ALC
concluded:
[A]lthough public access to the riverbank at low tide may be affected
on a very limited basis, Regulation 30-12(C) specifically allows some
adverse effect where the "upland is being lost due to tidally induced
erosion." Clearly, [Kiawah's] upland is being lost due to tidally
induced erosion, and there is no feasible alternative that will stabilize
this eroding riverbank. Additionally, although the [revetment]
degrades the public uses of the shoreline where the mat is approved, it
does not eliminate all public access.
Finally, the ALC also found the structure complies with regulation 30-
11(C)(2), the public trust doctrine, and the Coastal Zone Management Plan.
Accordingly, the ALC approved the permit issued by DHEC but deleted from the
permit the limitation of the structure to 270 feet, thereby permitting the entire
2,783 feet of bulkhead and revetment as requested by Kiawah. The ALC also
modified the permit by inserting the following special conditions in order to reduce
the structure's size and minimize its impacts:
1. Provided:
(i) that care is used in the installation of the requested erosion control
structure near its eastern end, adjacent to Beachwalker Park, to avoid
covering marsh grass, where practical, unless necessary to prevent
significant highland erosion;
(ii) that, for the portion of the proposed erosion control structure to be
located west of survey point "F" on [Kiawah's] Exhibit 77, a bulkhead
shall not be used where the vertical face of the escarpment is less than
24 inches;
(iii) that, for this same western section of the proposed erosion control
structure, the [revetment] shall be no greater than eight . . . feet in
width; and,
(iv) that [Kiawah] shall submit final construction plans to [DHEC]
consistent with the permit requested, as modified and approved by the
[ALC's order], before commencing initial construction of the erosion
control structure, and, after initial construction, prior to commencing
construction of any necessary extensions of the [revetment] (or
bulkhead to the extent herein authorized but not originally
constructed) authorized by this permit.
DHEC and the League moved for reconsideration and the ALC denied their
motions. DHEC and the League then appealed to this Court.
ISSUES PRESENTED
I. Did the ALC err in finding the bulkhead and revetment would not
contravene the Coastal Zone Management Act?
II. Did the ALC err in finding the bulkhead and revetment would not
contravene regulation 30-11?
III. Did the ALC err in finding the bulkhead and revetment would not
contravene regulation 30-12(C)?
STANDARD OF REVIEW
In an appeal from an ALC decision, the Administrative Procedures Act
provides the appropriate standard of review. S.C. Code Ann. § 1-23-610(B) (Supp.
2012). This Court confines its analysis of an ALC decision to whether it 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 an abuse of
discretion or clearly unwarranted exercise of discretion.
Id. In determining whether the ALC's decision was supported by substantial
evidence, the Court need only find, looking at the entire record on appeal, evidence
from which reasonable minds could reach the same conclusion as the ALC. Hill v.
S.C. Dep't of Health & Envtl. Control, 389 S.C. 1, 9–10, 698 S.E.2d 612, 617
(2010). However, the Court may reverse the decision of the ALC where it is in
violation of a statutory provision or it is affected by an error of law. Alltel
Commc'ns, Inc. v. S.C. Dep't of Revenue, 399 S.C. 313, 316, 731 S.E.2d 869, 870-
71.
LAW/ANALYSIS
Before delving into the particular grounds for appeal, we need acknowledge
that the basic premise undergirding our analysis must be the public trust doctrine
which provides that those lands below the high water line are owned by the State
and held in trust for the benefit of the public. Estate of Tenney v. S.C. Dep't of
Health & Envtl. Control, 393 S.C. 100, 106, 712 S.E.2d 395, 398 (2011) ("Under
the public trust doctrine, the State holds presumptive title to tidal land below the
high water mark to be held in trust for the benefit of all people of South
Carolina."). While all citizens may use and enjoy these lands subject to the State's
control, no citizen has an inherent right to take possession of or alter these lands.4
Accordingly, the public's interest must be the lodestar which guides our legal
analysis in regards to the State's tidelands. Recognizing that permitting alteration
of the tidelands may be in the public's interest in limited circumstances, the State
enacted statutes and promulgated regulations which generally prohibit alterations
to the tidelands except when the public interest requires otherwise. See The
Coastal Zone Management Act (CZMA), Title 48, Chapter 39 of the South
Carolina Code (2008 & Supp. 2012); Chapter 30 of the South Carolina Code of
Regulations (2011); The Coastal Zone Management Program (CZMP), South
Carolina Department of Health and Environmental Control,
http://www.scdhec.gov/environment/ocrm/czmp.htm. However, simply because
the State permits alterations in limited circumstances does not change the fact that
altering tidelands remains the exception to the rule. The State, through the General
Assembly, has adopted the policy that the public interest is usually best served by
preserving tidelands in their natural state. See S.C. Code Ann. §§ 48-39-20 to -30
(2008).
I. THE COASTAL ZONE MANAGEMENT ACT
We hold the ALC erred as a matter of law in finding the proposed bulkhead
and revetment comply with the requirements of the CZMA. Pursuant to Section
48-39-150 of the South Carolina Code (2008 & Supp. 2012), in determining
whether to grant or deny a permit to alter the critical area, DHEC must find the
project complies with the policies set forth in sections 48-39-20 and 48-39-30, as
well as with ten "general considerations" set forth in section 48-39-150.
Specifically, section 48-39-30(D) provides:
Critical areas shall be used to provide the combination of uses which
will insure [sic] the maximum benefit to the people, but not
necessarily a combination of uses which will generate measurable
maximum dollar benefits. As such, the use of a critical area for one or
4
Of course, an exception to the rule exists for citizens who have ownership of
tidelands based on a grant from the sovereign. See Hobonny Club, Inc. v.
McEachern, 272 S.C. 392, 396, 252 S.E.2d 133, 135–36 (1979).
a combination of like uses to the exclusion of some or all other uses
shall be consistent with the purposes of this chapter.
While section 48-39-30(D), as applied through section 48-39-150, explicitly
requires that tidelands be used in a way that provides maximum public benefit, the
ALC made no findings of any public benefit that would result from the bulkhead
and revetment. Quite to the contrary, it was clear that only the developer, not the
public, would benefit from the construction of this enormous bulkhead and
revetment.
The ALC found section 48-39-30(D)'s public benefit requirement satisfied
through the financial benefit to be realized by Kiawah. In our view, the ALC's
analysis of this issue represents a basic misinterpretation of the term "the people"
in section 48-39-30(D) because it failed to identify any benefit flowing to the
public at large, instead stating only that "elimination of [the] erosion will further
provide an economic benefit to [Kiawah]." Kiawah is not synonymous with "the
people." When that term is correctly construed, any benefit to Kiawah is irrelevant
to whether section 48-39-30(D) is satisfied. "The people," as used here, is a term
meaning the citizens of a particular jurisdiction. That interpretation derives from
the commonly understood definition of "the people" as "[t]he mass of ordinary
persons; the populace." The American Heritage Dictionary 919 (2d College ed.
1982). Additionally, the use of the article "the" before "people" indicates that "the
people" is a single, unified thing. See Centex Int'l, Inc. v. S.C. Dep't of Revenue,
406 S.C. 132, 142, 750 S.E.2d 65, 70 (2013) ("The word 'the' is a word of
limitation—a word used before nouns, with a specifying or particularizing effect,
opposed to the indefinite or generalizing force of 'a' or 'an.'" (quoting People v.
Enlow, 310 P.2d 539, 546 (Colo. 1957))). Reading the provision in light of the
public trust doctrine—the legal bedrock upon which the statute rests—bolsters the
conclusion that "the people" should be construed as the public at large rather than a
single developer. The public trust doctrine provides that tidelands are to be held in
trust for the benefit of "all people of South Carolina." Estate of Tenney, 393 S.C.
at 106, 712 S.E.2d at 398 (emphasis added). To allow the benefits to a private
developer to override the interests of the people of South Carolina undermines the
statute and defeats the very purpose of the public trust doctrine. Thus, only those
benefits which inure to the public as a whole may satisfy section 48-39-30(D).5
Compounding this error is the fact that the ALC wrongly found that "[t]his
erosion has no positive benefit for anyone."6 To the contrary, undisputed evidence
presented before the ALC established that the accretion of a spit followed by the
erosion of the neck of the spit and the formation of a new inlet is a natural process
that has occurred repeatedly at Captain Sam's Inlet for centuries. In fact, as
recently as the 1940s, the spit had breached and did not exist. The legislature
codified in the CZMA its finding that in South Carolina there is an "urgent need to
protect and to give high priority to natural systems in the coastal zone." S.C. Code
Ann. § 48-39-20(F). Thus, the CZMA provides that it is to the public's benefit to
protect natural processes like the cyclical erosion, breach, and accretion process of
the spit. This is borne out by the evidence that the repetitive accretion of Captain
Sam's Spit, followed by the erosion of the neck of the spit served as the supply of
sand for Seabrook Island to the southwest. As recognized by the General
Assembly, there is often great value in allowing nature to take its course, rather
than having our coast become an armored, artificial landscape. See id.; Meg
Caldwell & Craig Holt Seagall, No Day at the Beach: Sea Level Rise, Ecosystem
Loss, and Public Access Along the California Coast, 34 Ecology L.Q. 533, 539–40
(2007) (explaining why "[a] fortified coast comes with major financial, social, and
ecological costs"). For those reasons, the ALC erred in finding section 48-39-
30(D)'s public benefit requirement satisfied.
II. REGULATION 30-11
In determining whether to grant a permit for alteration of a critical area,
regulation 30-11(C)(1) requires DHEC to consider: "The 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." DHEC has
5
Contrary to the dissent's characterization, we do not exclude the developer from
being included in "the people." Rather, our point is that the ALC erred in
considering only the benefits to the developer to the exclusion of the public as a
whole.
6
Similarly and also erroneously, the ALC held "the General Assembly specifically
recognized the need to protect upland from destruction from the natural process of
erosion on tidal rivers."
interpreted this regulation as requiring it to consider not only a proposed project's
impact on the critical area, but also the project's impacts on upland areas within the
larger coastal zone.
The ALC rejected DHEC's interpretation, concluding
[T]he pertinent inquiry is the cumulative impacts of the project within
the critical area, not the impact of future development on the high
ground outside the critical area. In other words, the area for which
[DHEC] has regulatory authority is the critical area, not the high
ground outside the critical area.
In reaching this conclusion, the ALC erred by failing to give deference to
DHEC's interpretation of its regulation. Interpreting and applying statutes and
regulations administered by an agency is a two-step process. First, a court must
determine whether the language of a statute or regulation directly speaks to the
issue. If so, the court must utilize the clear meaning of the statute or regulation.
See Brown v. Bi-Lo, Inc., 354 S.C. 436, 440, 581 S.E.2d 836, 838 (2003) ("We
recognize the Court generally gives deference to an administrative agency's
interpretation of an applicable statute or its own regulation. Nevertheless, where,
as here, the plain language of the statute is contrary to the agency's interpretation,
the Court will reject the agency's interpretation." (citations omitted)); Brown v.
S.C. Dep't of Health & Envtl. Control, 348 S.C. 507, 515, 560 S.E.2d 410, 414
(2002) ("Where the terms of the statute are clear, the court must apply those terms
according to their literal meaning."). If the statute or regulation "is silent or
ambiguous with respect to the specific issue," the court then must give deference to
the agency's interpretation of the statute or regulation, assuming the interpretation
is worthy of deference. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 843 (1984); see also Brown v. Bi-Lo, 354 S.C. at 440, 581 S.E.2d at
838. 7
7
In Chevron, the landmark administrative law case, the United States Supreme
Court summarized the two-step process as:
When a court reviews an agency's construction of the statute which it
administers, it is confronted with two questions. First, always, is the
question whether Congress has directly spoken to the precise question
at issue. If the intent of Congress is clear, that is the end of the matter,
The language of regulation 30-11(C)(1) is ambiguous in terms of the scope
of the "area" DHEC may consider in making permitting decisions. Therefore, the
ALC should have proceeded to the second step and determined whether DHEC's
interpretation is entitled to deference.
Advancing to the second step, we must first consider the scope of South
Carolina's deference doctrine. In this State, the doctrine can be traced back to
Read Phosphate Co. v. South Carolina Tax Commission, 169 S.C. 314, 168 S.E.
722 (1933), where this Court adopted the deference doctrine from United States
Supreme Court precedent, stating: "'The construction given to a statute by those
charged with the duty of exercising it is always entitled to the most respectful
consideration, and ought not to be overruled without cogent reasons.'" Id. at 330,
168 S.E. at 728 (quoting United States v. Moore, 95 U.S. 760, 763 (1877)). The
Court, again relying on federal case law, stated the rationale for the rule as: "'The
officers concerned are usually able men, and masters of the subject. Not
unfrequently they are the draftsmen of the laws they are . . . called upon to
interpret.'" Id. (quoting Moore, 95 U.S. at 763). Thus, we give deference to
agencies both because they have been entrusted with administering their statutes
and regulations and because they have unique skill and expertise in administering
those statutes and regulations.
for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress. If, however, the court
determines Congress has not directly addressed the precise question at
issue, the court does not simply impose its own construction on the
statute, as would be necessary in the absence of an administrative
interpretation. Rather, if the statute is silent or ambiguous with
respect to the specific issue, the question for the court is whether the
agency's answer is based on a permissible construction of the statute.
Id. at 842–43; see also Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414
(1945) (holding that "if the meaning of the words used [in a regulation] is in
doubt," "a court must necessarily look to the administrative construction of the
regulation," and the agency's interpretation of its own regulation "becomes of
controlling weight unless it is plainly erroneous or inconsistent with the
regulation").
As repeatedly stated in our decisions, our deference doctrine provides that
courts defer to an administrative agency's interpretations with respect to the
statutes entrusted to its administration or its own regulations "unless there is a
compelling reason to differ." S.C. Coastal Conservation League, 363 S.C. at 75,
610 S.E.2d at 486; see also, e.g., Barton v. S.C. Dep't of Prob., Parole & Pardon
Servs., 404 S.C. 395, 415, 745 S.E.2d 110, 121 (2013) (stating that an agency's
interpretation "will not be overruled absent compelling reasons" (quoting Dunton,
291 S.C. at 223, 353 S.E.2d at 133)); CFRE, LLC v. Greenville Cnty. Assessor, 395
S.C. 67, 77, 716 S.E.2d 877, 882 (2011) (same); Buist v. Huggins, 367 S.C. 268,
276, 625 S.E.2d 636, 640 (2006) (same); Brown v. S.C. Dep't of Health & Envtl.
Control, 348 S.C. at 515, 560 S.E.2d at 414 (same); Glover by Cauthen v. Suitt
Constr. Co., 318 S.C. 465, 469, 458 S.E.2d 535, 537 (1995) (same); Faile v. S.C.
Employment Sec. Comm'n, 267 S.C. 536, 540, 230 S.E.2d 219, 222 (1976) (stating
that an agency's interpretation will not be overruled "without cogent reasons");
Hadden v. S.C. Tax Comm'n, 183 S.C. 38, 48, 190 S.E 249, 253 (1937) (stating that
an agency's interpretation "will not be overruled without cogent reasons").
Accordingly, the deference doctrine properly stated provides that where an
agency charged with administering a statute or regulation has interpreted the
statute or regulation, courts, including the ALC, will defer to the agency's
interpretation absent compelling reasons. We defer to an agency interpretation
unless it is "arbitrary, capricious, or manifestly contrary to the statute." 8 Chevron,
467 U.S. at 844.
8
While we take this opportunity to clarify and distill our deference doctrine, we
have not changed the existing doctrine as evidenced by the plethora of decisions by
South Carolina courts applying the doctrine consistent with our understanding.
See, e.g., Jasper Cnty. Tax Assessor v. Westvaco Corp., 305 S.C. 346, 348, 409
S.E.2d 333, 334 (1991) ("We find Tax Commission's interpretation of § 12-43-
230(a) reasonable and conclude there is no compelling reason to overrule it.");
Captain's Quarters Motor Inn, Inc. v. S.C. Coastal Council, 306 S.C. 488, 490, 413
S.E.2d 13, 14 (1991) ("Moreover, we find Coastal Council's construction of the
statute reasonable and find no compelling reason to overrule it."); Howard v. Owen
Steel Co., 303 S.C. 304, 305, 400 S.E.2d 149, 149 (1991) (finding no compelling
reason to not defer to an agency's interpretation and accordingly, deferring to the
interpretation); Dunton, 291 S.C. at 223, 353 S.E.2d at 133 (finding "[t]he Circuit
Court's order cites no compelling reasons for rejecting the Board of Examiners'
Here, DHEC's interpretation is neither arbitrary, capricious, nor manifestly
contrary to the statute. To the contrary, DHEC's interpretation is reasonable and
consistent with its statutory authority. Under the CZMA, DHEC was required to
develop a comprehensive coastal zone management program—the CZMP—for the
coastal zone, and was given responsibility to enforce and administer the CZMP.
See S.C. Code Ann. § 48-39-80 (2008); Spectre, LLC v. S.C. Dep't of Health &
Envtl. Control, 386 S.C. 357, 688 S.E.2d 844 (2010). DHEC was also required by
statute to promulgate regulations to execute the CZMP. S.C. Code Ann. § 48-39-
80. Parts of the CZMA explicitly require DHEC to consider the larger coastal
zone. As previously discussed, section 48-39-150 requires DHEC to consider the
policies set forth in section 4-39-20 and those policies repeatedly refer to the
coastal zone. The CZMA also provides that the "basic state policy" behind the Act
is to "protect the quality of the coastal environment and to promote the economic
and social improvement of the coastal zone . . . ." S.C. Code Ann. § 48-39-30.
Therefore, DHEC's interpretation is sound because it cannot be expected to protect
interpretation of these statutes . . . .," and thus, holding "the Circuit Court erred in
rejecting the Board of Examiners' interpretation . . . ."); Faile, 267 S.C. at 540, 230
S.E.2d at 221–22 (finding no cogent reason to not give deference to an agency's
interpretation and accordingly, deferring to the interpretation); Barton v. Higgs,
372 S.C. 109, 118, 641 S.E.2d 39, 44 (Ct. App. 2007) (after finding that the
agency's interpretation did not conflict with the literal meaning of the statute,
concluding there was no compelling reason to not defer, and thus, giving deference
to the agency's interpretation); Comm'rs of Pub. Works v. S.C. Dep't of Health &
Envtl. Control, 372 S.C. 351, 361, 641 S.E.2d 763, 768 (Ct. App. 2006) ("We find
the statute is ambiguous and, therefore, defer to the Board's interpretation. . . . We
find no compelling reasons to overrule the Board's interpretation as it is neither
arbitrary nor capricious, and does not constitute an abuse of discretion."); Koenig v.
S.C. Dep't of Pub. Safety, 325 S.C. 400, 405, 480 S.E.2d 98, 100 (Ct. App. 1996)
(deferring to agency's interpretation after concluding it was "reasonable"); Ruocco
v. S.C. State Bd. of Registration for Prof'l Eng'rs & Land Surveyors, 314 S.C. 111,
115, 441 S.E.2d 829, 831 (Ct. App. 1994) (finding "no compelling reason to reject
the Board's interpretation of the statute" and thus, deferring to the Board's
interpretation). Therefore, contrary to the dissent's charge, our view does not
"fundamentally undermine" any longstanding approach and is instead faithful to
our precedent.
the coastal zone as instructed by the General Assembly if it cannot consider how
projects within the critical area may affect the broader coastal zone. 9
Additionally, the ALC in part based the rejection of DHEC's interpretation
on the premise that to accept it would improperly permit DHEC to "trump local
zoning and development agreements" and control the uses of upland areas. This
too was erroneous. No party has ever asserted that regulation 30-11 gives DHEC
such powers, nor could the regulation confer upon DHEC such powers. DHEC's
role under regulation 30-11 is limited solely to consideration of upland impacts.
Regulation 30-11 does not give DHEC any power to prohibit upland development;
rather, DHEC only has the power to grant or deny a permit for a project in the
critical area, and that decision may be based in part on the upland impacts that
would result from the project. Accordingly, the ALC erred in failing to give
deference to DHEC's interpretation and construing regulation 30-11(C)(1) as not
permitting consideration of upland impacts.
In an apparent attempt to insulate its holding from error, the ALC presented
an alternative holding in which it purported to consider upland impacts. However,
that consideration was fundamentally flawed. Accordingly, the error was not
harmless and requires reversal.
The ALC summarily concluded there would be no upland impacts flowing
from the construction of the revetment and bulkhead.10 This conclusion is plainly
9
Moreover, DHEC has consistently interpreted its regulatory power as limited to
the critical area but requiring consideration of the larger coastal zone. The CZMP
provides:
Two types of management authority are granted in two specific areas
of the State. [DHEC] has direct control through a permit program
over critical areas . . . . Direct permitting authority is specifically
limited to these critical areas. Indirect management authority of
coastal resources is granted to [DHEC] in . . . the coastal zone.
South Carolina Coastal Zone Management Program, II-2 (1972), available at
http://www.scdhec.gov/environment/ocrm/czmp.htm.
10
The ALC's alternative holding as to uplands impact consisted only of the
following:
contradicted by the evidence presented. Uncontroverted evidence was introduced
of Kiawah's intent to build homes on Captain Sam's Spit following the construction
of the proposed bulkhead and revetment. Thus, the upland area of the spit is to be
transformed from a completely natural area into a residential development. While
the ALC found the development would be "sensitively planned," that finding does
not obviate the error intrinsic in the ALC's decision—that there would be no
impact on the upland here.
Thus, not only did the ALC err in holding that regulation 30-11 did not
permit consideration of upland impacts, its alternative holding whereby it
purported to consider upland impacts was also erroneous and reversal is required.
Additionally, in this instance, the potential residential development
will not have deleterious impacts even if the Court were to consider
the effects of potential residential development. [DHEC's Office of
Ocean and Coastal Resource Management (OCRM)] and [the League]
do not challenge [Kiawah's] history of environmentally sensitive
development methods, permit adherence record, or any of the specific
strategies, methods, and approaches that [Kiawah] will use in its
limited residential development of Captain Sam's. Rather, they urge
that any residential development at all, regardless of safeguards and
protections, on the now-undeveloped Captain Sam's highland
peninsula along the ocean and river, is per se "ill-planned." The
Court concludes that the numerous measures and safeguards [Kiawah]
intends to utilize in its development of Captain Sam's demonstrate that
this limited residential use would be sensitively planned, responsive to
the natural features of the peninsula, attentive to its flora and fauna,
and without significant negative effects on the critical area. Even
though consideration of the effects of [sic] the upland is beyond the
purview of the regulation, the Court concludes that there was no
evidence adduced that the residential development would have any
material adverse environmental effects on the upland. The
development team also has a twenty-two year unblemished "track
record" for compliance with all OCRM permits.
III. REGULATION 30-12(C)
The appellants also challenge the ALC's holding that regulation 30-12(C)
which creates public access requirements for bulkheads and revetments was
satisfied. Specifically, the appellants contend the ALC erred in finding the project
would have no adverse effect on public access and there is no feasible alternative.
We agree.
The public access requirements of regulation 30-12(C) provide:
(c) Bulkheads and revetments will be prohibited where marshlands are
adequately serving as an erosion buffer, where adjacent property
could be detrimentally affected by erosion or sedimentation, or where
public access is adversely affected unless upland is being lost due to
tidally induced erosion.
(d) Bulkheads and revetments will be prohibited where public access
is adversely affected unless no feasible alternative exists.
The ALC found any adverse effect on public access caused by the
proposed bulkhead and revetment would be so insignificant it would not
implicate the requirements of regulation 30-12(C). Additionally, the ALC
found that even if there was a sufficient effect on public access, regulation
30-12(C) was satisfied because upland was being lost to erosion and no
feasible alternatives exist.
While we find substantial evidence exists to support the ALC's finding that
upland is being lost due to tidally induced erosion, we believe the ALC erred both
in finding that public access would not be adversely affected and that no feasible
alternatives exist.
A. Adverse Effects on Public Access
The ALC's order essentially acknowledges that public access would be
adversely affected by the proposed bulkhead and revetment, finding "public access
to the riverbank at low tide may be affected on a very limited basis" and "the
[articulated concrete block] mat degrades the public uses of the shoreline where the
mat is approved." However, the ALC erroneously read the regulation as requiring
consideration of the degree to which public access is affected, concluding that
regulation 30-12(C) is not implicated when the adverse effect on public access is
insubstantial.
The ALC erred in inserting a substantiality requirement into the regulation.
With the exception of a de minimis effect which cannot be argued here, the
regulation is implicated whenever a proposed bulkhead or revetment would have
an adverse effect on public access. That reading is supported not only by the plain
language of the regulation, but also by the statutory and common law basis for it.
By its terms the regulation applies "where public access is adversely
affected." The language of the regulation contains no indication that the adverse
effect on public access must be substantial; rather, it only states that public access
must be affected. Our role is to apply and interpret, not rewrite, regulations.
Where the language of a regulation is plain, unambiguous, and conveys a clear and
definite meaning, interpretation of the regulation is unnecessary and improper. See
Murphy v. S.C. Dep't of Health & Envtl. Control, 396 S.C. 633, 639, 723 S.E.2d
191, 195 (2012) ("Regulations are interpreted using the same rules of construction
as statutes."); Paschal v. State Election Comm'n, 317 S.C. 434, 436, 454 S.E.2d
890, 892 (1995) ("If a statute's language is plain and unambiguous, and conveys a
clear and definite meaning, there is no occasion for employing rules of statutory
interpretation and the court has no right to look for or impose another meaning.
Where the terms of the statute are clear, the court must apply those terms according
to their literal meaning." (citation omitted)). To read a substantiality requirement
into the regulation ignores its clear wording and effectively rewrites the regulation.
Furthermore, reading regulation 30-12(C) as not containing a substantiality
requirement and considering the entirety of the regulation, it presents a nuanced
balancing of economic and environmental, and public and private considerations.
This balancing neatly comports with the statutory foundation for the regulation and
solidifies our conclusion that this is the correct interpretation of the regulation. In
order to protect public access, the regulation limits when bulkheads or revetments
that affect public access may be permitted. The regulation does not prohibit
outright any bulkhead or revetment that would adversely affect public access;
rather, it balances the need for public access against the need for a bulkhead or
revetment. It does so by providing that a bulkhead or revetment that affects public
access may still be permitted where upland is being lost due to tidally induced
erosion and no feasible alternative exists.
The balancing provided by regulation 30-12(C) is not only supported by the
CZMA and the public trust doctrine foundation for the CZMA, but more closely
comports with those policies than a substantiality requirement. A substantiality
requirement would improperly favor private interests over public interests in
contravention of the CZMA and the public trust doctrine. It seems to begin with
the principle that bulkheads and revetments should be built and the burden is on
the State, representing the public interest, to prove that the structure should not be
built. This skews the consideration in favor of the private interest, treating public
lands as if they are held in trust waiting for private development, rather than held
in trust for the public to use as they truly are.
Such an elevation of economic development over the importance of public
access would also be inconsistent with the significance the CZMA accords to
public access. The CZMA's focus on protecting public access from economic
development is evidenced by its findings that "the coastal zone is rich in a variety
of natural, commercial, recreational and industrial resources" and that "[t]he
increasing and competing demands upon the lands and waters of our coastal zone
occasioned by population growth and economic development . . . have resulted in .
. . decreasing open space for public use . . . ." S.C. Code Ann. § 48-39-20(A), (B)
(emphasis added). As previously discussed, the CZMA provides that "[c]ritical
areas shall be used to provide the combination of uses which will insure [sic] the
maximum benefit to the people . . . ." S.C. Code Ann. § 48-39-30(D). The CZMA
also enumerates specific factors to consider in deciding whether to grant or deny a
permit which include:
(5) The extent to which the development could affect existing public
access to tidal and submerged lands, navigable waters and beaches or
other recreational coastal resources.
...
(7) The extent of the economic benefits as compared with the benefits
from preservation of an area in its unaltered state.
S.C. Code Ann. § 48-39-150 (emphasis added). Considering those statutory
provisions, we believe the CZMA was intended to achieve a balance between
environmental and public considerations on the one hand and economic and private
considerations on the other. However, it recognizes that environmental and public
considerations had historically been sacrificed at the altar of economic
development and must be protected going forward.11 Regulation 30-12(C) fulfills
those statutory goals by protecting public access while balancing the need for
public access against economic development.
Regulation 30-12(C)'s balancing also comports with the public trust doctrine
which is the guiding principle behind the CZMA. Under that doctrine, any use of
tidelands must be to the public benefit, which is embodied in section 48-39-30(D)'s
"maximum benefit" to the public requirement. Therefore, as reflected in regulation
30-12(C), public access is to be accorded great protection while private economic
development is suspect and only permitted when in the public interest. For those
reasons, we hold the ALC erred in finding regulation 30-12(C) was not applicable
because there would be no substantial adverse effect on public access.
Moreover, even if we were to accept the ALC's conclusion that regulation
30-12(C) is only implicated when there is a substantial impact on public access, we
believe the ALC's finding that the impact on public access will be insignificant is
not supported by substantial evidence, and thus, reversal is still required. If there
ever were a case of a substantial adverse effect on public access, it is this case.
The undisputed evidence at trial established that the effect of the proposed
bulkhead and revetment would be to cover 2,783 feet by 40 feet——over 9
football fields in length and an area of over 2.5 acres—of sandy beach with
concrete. That stretch of sandy beach, a rare feature for a tidal river, is the only
sandy beach on the Kiawah River. When the sandy beach is replaced by the
11
The General Assembly expressed this sentiment in its legislative finding that:
The increasing and competing demands upon the lands and waters of
our coastal zone occasioned by population growth and economic
development, including requirements for industry, commerce,
residential development, recreation, extraction of mineral resources
and fossil fuels, transportation and navigation, waste disposal and
harvesting of fish, shellfish and other living marine resources have
resulted in the decline or loss of living marine resources, wildlife,
nutrient-rich areas, permanent and adverse changes to ecological
systems, decreasing open space for public use and shoreline erosion.
S.C. Code Ann. 48-39-20(B) (2008).
enormous concrete revetment, members of the public will not be able to walk or
land a boat or kayak on it as they have done in the past.
Also, in view of the uncontroverted evidence, the ALC's conclusion that
public use of the beach is insignificant is not supported by substantial evidence.12
All of the evidence presented at the hearing was that the public regularly uses the
beach for a variety of recreational purposes. Dr. Greg VanDerwerker testified that
he kayaks in the Kiawah River a couple of times per month and each trip he pulls
his kayak out onto the beach where the revetment would be constructed. While
there, he routinely observes others using the beach as a place to land their kayaks
and to fish. Sophia McAllister testified that she kayaks in the Kiawah River on a
weekly basis and regularly swims near the bank of the river where the revetment
would be located. Sidi Limehouse testified that he goes to the spit once or twice
per year and pulls his boat up on the beach where the revetment would exist. He
also testified that he has taken several groups of people out to the spit in recent
years. Bill Eiser, the DHEC project manager assigned to Kiawah's permit
application, testified that he conducted four site visits in order to review the project
area and observed people walking on the beach, kayaks pulled up on the beach,
and people fishing or crabbing from the beach. Thus, the record establishes that
the public use of the beach was much more significant than the "limited" use
ascribed to it by the ALC.
The ALC's misapprehension about public use and the failure to accord it the
importance it deserves is fundamentally at odds with the public nature of the
tidelands at issue here. Accordingly, we hold the ALC erred in interpreting
regulation 30-12(C) as only applying where there would be a substantial impact on
public access, in finding there would be no adverse effect on public access, and in
finding the public did not use the critical area where the bulkhead and revetment
would be constructed. For those reasons, reversal is warranted.
B. Feasible Alternatives
Finally, the ALC's consideration of feasible alternatives was erroneous in
two respects. First, the ALC erred in only considering alternatives that would stop
12
While not at issue here because the public uses the banks of the Kiawah River
along Captain Sam's Spit, we note the regulation does not require that the public's
actual use of particular portions of the critical area be adversely affected, rather it
only requires that the public's access to the critical area be adversely affected.
the natural erosion process. The ALC addressed feasible alternatives in one
sentence: "Clearly, [Kiawah]'s upland is being lost due to tidally induced erosion,
and there is no feasible alternative that will stabilize this eroding riverbank." As
that limited analysis makes clear, the ALC only considered alternatives that would
"stabilize this eroding riverbank." That constrained analysis directly contravenes
the CZMA and applicable regulations and thus, was erroneous.
As previously discussed, the CZMA specifically provides for and
encourages the preservation of natural processes. Pointedly, the General
Assembly's findings expressed in the CZMA state that there is an "urgent need to
protect and to give high priority to natural systems in the coastal zone," and the
accretion, erosion, and breach of the spit is a natural system. S.C. Code Ann. § 48-
39-20(F). In fact, the term "feasible alternatives" is specifically defined in the
CZMA to include "a 'no action' alternative." 2 S.C Code Ann. Regs. 30-1(D)(23)
(2011). Thus, in applying regulation 30-12(C), the feasibility of taking no action
and permitting natural processes to continue should not be given short shrift but
rather must be given serious consideration.
Additionally, the ALC found the "evidence did not establish that there was a
feasible alternative to the bulkhead/revetment that would stabilize the river
shoreline . . . ." The ALC thereby erroneously placed the burden on DHEC and the
League to show there were no feasible alternatives. Regulation 30-12(C) creates a
presumption that a structure which will adversely affect public access is prohibited
unless the applicant shows there are no feasible alternatives, and thus the burden to
show the structure fits within an exception to the prohibition falls on the applicant,
here Kiawah.
Therefore, we reverse the ALC's order as to regulation 30-12(C) because it
was error to fail to accord sufficient consideration to the feasibility of taking no
action and permitting the natural process to continue unabated and to place the
burden to show the lack of a feasible alternative on DHEC and the League.
CONCLUSION
Captain Sam's Spit and the public tidelands along its margins are of great
importance to the people of South Carolina. The tidelands present a bounty of
benefits to the people ranging from environmental to recreational. Unlike much of
our State's coastline which is now armored and unnatural, the spit remains
untouched by human alteration. The area, particularly the pristine sandy beach, is
undoubtedly one of this State's natural treasures. Admittedly, this alone is not a
valid reason to reverse the ALC's approval of a permit to construct a huge
bulkhead and revetment there.
However, reversal is warranted due to the several errors of law committed
by the ALC. First, the CZMA requires that uses of the public tidelands be to "the
maximum benefit to the people," but the ALC did not consider whether and to
what extent the public would benefit from the proposed structure as opposed to
leaving the tidelands in their natural state. Accordingly, the ALC erred in finding
section 48-39-150 satisfied. Second, the ALC erred in finding the project met the
requirements of regulation 30-11 both because that regulation requires
consideration of the factors in section 48-39-150 and because the ALC's
consideration of upland impacts was flawed. Finally, the ALC erred in finding
regulation 30-12(C) satisfied because this finding is tainted by the erroneous
conclusion that there was no adverse effect on public access and the failure to
consider the alternative of leaving the critical area in its natural state. For all of
those reasons, we reverse and remand for further consideration consistent with this
decision.
PLEICONES and BEATTY, JJ., concur. TOAL, C.J., dissenting in a
separate opinion in which KITTREDGE, J., concurs.
CHIEF JUSTICE TOAL: This will be the third time this Court has issued
divided opinions on this matter. This tortured procedural history underscores the
deep division within this Court regarding the proper role of the judicial branch of
government in reviewing final administrative decisions of an executive branch
agency under the Constitution of South Carolina and under the statutory law of our
state.
My disagreement with the majority is not in any way intended as a criticism
of the majority opinion's very learned review of the development of environmental
protection laws in South Carolina. As a young lawyer, I brought several cases
seeking to invoke the public trust doctrine to prevent unrestrained construction in
the coastal zone. As a member of the General Assembly, I co-sponsored and floor
led "Tidelands" legislation that resulted in the enactment of the Coastal Zone
Management Act and the creation of the Coastal Council as a regulatory authority.
As a judge, I must temper my support of environmental protection policy
considerations with the requirements of our state Constitution regarding due
process in administrative proceedings.
In 1993, the increased use of agency regulatory authority in South Carolina
was balanced by the creation of a professional Administrative Law Court (the
ALC) as the final decision maker for contested regulatory litigation within
executive branch agencies. The ALC was created to provide for a cadre of neutral
hearing officers not employed exclusively by or tethered to any specific agency.
The General Assembly was motivated by its desire to achieve the fairness in
administrative hearings mandated by Article I, § 22 of the South Carolina
Constitution. Today, the majority reverses the administrative law judge in this
case on the ground that he wrongly failed to defer to the decision of the DHEC
staff regarding the permit contested here.
With the best of intentions, the majority's view of deference to the opinions
of an agency bureaucracy on not only facts but also on the agency's interpretation
of statutory law fundamentally undermines South Carolina's longstanding approach
to controlling unrestrained bureaucratic decisions regarding private property rights.
Accordingly, I am compelled to dissent. I would affirm the ALC's decision
authorizing Kiawah to construct a proposed bulkhead and revetment structure (the
proposed structure) on the Spit on Kiawah Island at the size specified in its order.
ANALYSIS
I. CZMA & CZMP
Because, in my opinion, the ALC properly considered the relevant statutes
and made detailed findings of fact to support its conclusions, I would hold that the
ALC did not err in concluding that the proposed structure complies with sections
48-39-20, -30, and -150 of the South Carolina Code.
A. The CZMA
The CZMA expresses the General Assembly's intent to protect the coastal
zone. See S.C. Code Ann. § 48-39-10 to -360. (2008 & Supp. 2013). The General
Assembly defined the coastal zone as
all coastal waters and submerged lands seaward to the State's
jurisdictional limits and all lands and waters in the counties of the
State which contain any one or more of the critical areas. These
counties are Beaufort, Berkeley, Charleston, Colleton, Dorchester,
Horry, Jasper and Georgetown.
Id. § 48-39-10(B). Additionally, the General Assembly defined "critical areas,"
like that in this case, as any of the following:
(1) coastal waters;
(2) tidelands;
(3) beaches;
(4) beach/dune system which is the area from the mean high-water
mark to the setback line as determined in Section 48-39-280.
Id. § 48-39-10(J).
Section 48-39-20 of the South Carolina Code contains the "legislative
declaration of findings," explaining the General Assembly's intent to control the
regulation of critical coastal zone areas by developing a management program. Id.
§ 48-39-20(C) ("The key to accomplishing this is to encourage the state and local
governments to exercise their full authority over the lands and waters in the coastal
zone."). The General Assembly noted the coastal zone's important features in
finding:
(E) Important ecological, cultural, natural, geological and scenic
characteristics, industrial, economic and historical values in the
coastal zone are being irretrievably damaged or lost by ill-
planned development that threatens to destroy these values.
(F) In light of competing demands and the urgent need to protect and
to give high priority to natural systems in the coastal zone while
balancing economic interests, present state and local institutional
arrangements for planning and regulating land and water uses in
such areas are inadequate.
Id. § 48-39-20(E), (F) (emphasis added). Consequently, the General Assembly
provided specific guidance regarding proposed development of critical areas:
Critical areas shall be used to provide the combination of uses which
will insure the maximum benefit to the people, but not necessarily a
combination of uses which will generate measurable maximum dollar
benefits. As such, the use of a critical area for one or a combination of
like uses to the exclusion of some or all other uses shall be consistent
with the purposes of this chapter.
Id. § 48-39-30(D). The General Assembly intended DHEC to rely on the policy
statements contained in sections 48-39-20 and 48-39-30, and ten general
considerations found in section 48-39-150 when reviewing a permit to utilize a
critical area. See id. § 48-39-150 ("In determining whether a permit application is
approved or denied [DHEC] shall base its determination on the individual merits of
each application, the policies specified in Sections 48-39-20 and 48-39-30 and be
guided by the following general considerations."). Those ten general
considerations require DHEC consider:
(1) The extent to which the activity requires a waterfront location or is
economically enhanced by its proximity to the water.
(2) The extent to which the activity would harmfully obstruct the
natural flow of navigable water. If the proposed project is in one
or more of the State's harbors or in a waterway used for
commercial navigation and shipping or in an area set aside for port
development in an approved management plan, then a certificate
from the South Carolina State Ports Authority declaring the
proposed project or activity would not unreasonably interfere with
commercial navigation and shipping must be obtained by the
department prior to issuing a permit.
(3) The extent to which the applicant's completed project would affect
the production of fish, shrimp, oysters, crabs or clams or any
marine life or wildlife or other natural resources in a particular
area including but not limited to water and oxygen supply.
(4) The extent to which the activity could cause erosion, shoaling of
channels or creation of stagnant water.
(5) The extent to which the development could affect existing public
access to tidal and submerged lands, navigable waters and beaches
or other recreational coastal resources.
(6) The extent to which the development could affect the habitats for
rare and endangered species of wildlife or irreplaceable historic
and archeological sites of South Carolina's coastal zone.
(7) The extent of the economic benefits as compared with the benefits
from preservation of an area in its unaltered state.
(8) The extent of any adverse environmental impact which cannot be
avoided by reasonable safeguards.
(9) The extent to which all feasible safeguards are taken to avoid
adverse environmental impact resulting from a project.
(10) The extent to which the proposed use could affect the value and
enjoyment of adjacent owners.
Id. § 48-39-150.
In the text of its decision, the ALC listed these ten general considerations
and explained that the evidence presented at the de novo hearing demonstrated the
proposed structure complied with those considerations, and would not result in an
adverse environmental impact. The ALC then analyzed the proposed structure in
light of the policy statements of sections 48-39-20 and -30 of the South Carolina
Code.
As referenced supra, in section 48-39-20, the General Assembly noted that
the coastal zone is rich in a variety of natural, commercial, recreational, and
industrial resources. Id. § 48-39-20 (2008). The General Assembly observed that
ill-planned development threatened to destroy important ecological, cultural, and
natural characteristics, as well as industrial and economic values. Id. § 48-39-
20(E). Thus, the General Assembly acted with competing demands between the
urgent need to protect natural systems in the coastal zone and balancing economic
interests in mind. See id. § 48-39-20(F). In section 48-39-30, the General
Assembly declared the state policy of protecting the quality of the coastal
environment and promoting the economic improvement of the coastal zone. Id. §
48-39-30(A). In subsection (B), the General Assembly expressed its intent to
promote the economic and social improvement of the citizens of this State and to
encourage development of coastal resources. Id. at § 48-39-30(B). The General
Assembly realized that such improvement should only be achieved with due
consideration for the environment, and that measurable maximum dollar benefits
should be subordinate to insuring the maximum benefit to the people. Id. at § 48-
39-30(B),(D).
The ALC considered all of these competing policies and concluded:
These policy statements require a balancing of economic development
benefits and environmental preservation. Even though the focus of
the inquiry is on the effects of the project, neither the
bulkhead/revetment nor the potential limited residential development
will result in any significant harm to the public resources or marine or
other plant or animal life, nor significantly impair public access to
critical areas . . . . The potential residential development is not ill-
planned and will be implemented in a low density, environmentally
sensitive manner. It will be subject to local, state, and possibly
federal permitting requirements. Neither the proposed
bulkhead/revetment nor the potential limited residential development
transgresses the policies set forth in these two statutes.
Further, the ALC engaged in an extensive analysis regarding the erosion
issues facing the Spit and the consequences this erosion would have on Kiawah's
ability to prevent the loss of further upland, and determined:
Moreover, evidence did not establish that there was a feasible
alternative to the bulkhead/revetment that would stabilize the river
shoreline and prevent the continued erosion of [Kiawah]'s upland . . . .
That evidence clearly establishes a need for erosion control along the
disputed shoreline.13
The majority fails to acknowledge the ALC's thorough findings of fact
supporting its conclusions regarding sections 48-39-20 and 48-39-30.
Instead—resting its conclusion on the public trust doctrine—the majority
criticizes the ALC's finding that the proposed structure satisfies section 48-
39-30(D)'s requirement of "maximum benefit to the people" because "the
ALC failed to identify any benefit flowing to the public at large."
In assigning error to the ALC's findings on this issue, the majority discounts
the General Assembly's intent to balance economic interests with the protection of
the coastal zone's natural systems. In my opinion, the term "people," as used in the
statute, should be read to include members of the general public wishing to make
proper use of our coastal resources, and those members of the public with an
ownership interest located in or around the coastal zone.
13
The ALC also examined the testimony regarding possible adverse effects on
marine resources and wildlife, and made a detailed analysis of the facts presented
regarding wintering piping plovers, a threatened species under the Endangered
Species Act, and diamond-back terrapins. The ALC observed that there had never
been a single sighting of a piping plover in the proposed structure's construction
area. The ALC also observed that the United States Fish and Wildlife Service
propounded a final determination of the critical habitat for piping plovers, and this
determination specified the critical area of piping plover habitat as extending one
mile north of Captain Sam's inlet, but not extending above the building setback line
on the Spit. The ALC cited this fact in rejecting DHEC's contention that future
residential development, apart from the proposed structure itself, would have an
adverse effect on the piping plover.
The CZMA does not contemplate the loss of status as a member of the
public simply because an individual happens to own property in a protected area.
Moreover, the CZMA does not anticipate a thumb on the scale in DHEC's favor
simply because of the opposing party's property interest. Alternatively, the
CZMA's statutory scheme clearly contemplates permitting a landowner within the
coastal zone to complete a construction project that preserves the owner's property
rights while causing minimal disruption to the surrounding coastal area.
Therefore, I would hold that the ALC did not err in concluding that the
proposed structure does not contravene the CZMA.
B. The CZMP
I would also hold that the ALC did not err in concluding that the proposed
structure does not contravene the CZMP. DHEC developed the CZMP for the
coastal zone, as required by the CZMA. See S.C. Code § 48-39-80 (2008). All
state and federal permits must be reviewed for compliance with the CZMP.
Spectre L.L.C., 386 S.C. 357, 360, 688 S.E.2d 844, 845 (2010). The CZMP
classifies barrier islands as areas of special significance and dune areas, which fall
landward of the beach zones, as areas of "special resource significance." Thus,
project proposals for barrier islands "must demonstrate reasonable precautions to
prevent or limit any direct negative impacts on adjacent critical areas." CZMP
Chapter III (C)(3)(XII)(A)(2). Additionally, project proposals for sand dune areas
in close proximity to those dunes in critical areas must also comply with these
same direct precautions. Id. Chapter III (B). The CZMP also sets forth a policy of
increasing the amount of public space in the coastal zone, and protecting those
areas in the coastal zone which are inhabited by endangered or threatened species.
Id.The ALC concluded that the proposed structure did not contravene the
CZMP:
The development techniques and safeguards [Kiawah] intends to
implement are consonant with the policies in the CZMP. More
specifically, I find the low density development . . . that would be
employed in the residential development of [the Spit] entail [sic]
reasonable precautions. No evidence was offered to alter this
important point. The many rows of dunes seaward of the setback line
would remain essentially intact on a permanent basis to enjoy for their
beauty and protection, thereby preserving the strong natural
protections deemed desirable by the policies in the CZMP.
....
The potential residential development on private property will also not
impair public open space at Beachwalker Park or along the beach.
Finally, the developable area of Captain Sam's peninsula is well
outside . . . boundaries of designated critical habitat . . . . It is thus not
a Geographic Area of Particular Concern (GAPC) under the CZMP.
(Emphasis added).
In my opinion, the ALC's findings on this issue are well supported. The
Record contains evidence of the "environmentally-friendly" nature of the proposed
residential development. Kiawah placed before ALC evidence of the proposed
structure's effect on public access, and the lack of adverse impact on critical
habitats. I would find that this evidence constituted substantial evidence
supporting the ALC's conclusions regarding the proposed structure's compliance
with the CZMP. See S.C. Coastal Conservation League v. S.C. Dep't. of Health &
Envtl. Control, 363 S.C. 67, 77, 610 S.E.2d 482, 487 (2005) ("The record contains
conflicting evidence concerning the direct and cumulative effects of building the
bridge to Park Island. The evidence that the effects will be minimal constitutes
substantial evidence supporting the finding that the permit complies with the
Effects Regulation.").
II. Regulation 30-11
Like the majority, I would hold the ALC erred in concluding that DHEC
may not take into account the proposed structure's impact on upland areas within
the larger coastal zone. However, I would not find that the ALC committed an
error of law in failing to give deference to DHEC's interpretation of regulation 30-
11.
a. Deference
The General Assembly placed significant authority in the boards and
directors of administrative agencies, a decision which evinces the legislature's
intent that courts defer to administrative agency decisions when appropriate.
However, the General Assembly also created the ALC to provide a dispassionate
forum for the public to challenge administrative agency decisions. Moreover, the
judicial branch retains the ultimate authority in deciding when agency decisions
comport with established law. Thus, judicial review of administrative decisions
requires a balancing between an agency's specialization and authority, and the
checks and balances deeply rooted in our democratic government.
Article I, Section 22 of the South Carolina Constitution provides:
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; nor shall he be subject to
the same person for both prosecution and adjudication; nor shall he be
deprived of liberty or property unless by a mode of procedure
prescribed by the General Assembly, and he shall have in all such
instances the right to judicial review.
S.C. Const. Art. 1, § 22.
The General Assembly codified these constitutional concerns through the
enactment of the APA. James B. Richardson, Judicial Review of Agency
Decisions, in South Carolina Administrative Practice and Procedure 459
(Randolph R. Lowell ed. 2008) [hereinafter Practice and Procedure]. Additionally,
the General Assembly placed the ALC in a central role providing a "neutral forum
for fair, prompt, and objective administrative hearings" for members of the public
affected by the actions of governmental agencies. Randolph R. Lowell, The
Contested Case Before the ALC, Practice and Procedure 148. Prior to the ALC's
creation, citizens seeking an evidentiary hearing challenging a state agency's action
appeared before that regulatory agency's own hearing officers. Id. One of the
central motivations supporting the ALC's formation was to improve the
consistency and objectivity of the administrative adjudicatory process. Id. The
General Assembly created the ALC in 1993, as part of Act No. 181 of that year,
commonly known as the "Restructuring Act." Id. As part of the Restructuring
Act, the legislature replaced many board and commissions with cabinet style
agency directors. Id. The resulting regime empowered these directors to
administer the regulatory function of the agencies. Id. Concomitantly, the General
Assembly established the ALC, creating the functional separation contemplated by
Article 1, Section 22, and the general separation of powers principle. Id.
(explaining that central panels of ALC's "provide a more efficient and professional
forum for the resolution of administrative disputes").
The instant case concerns a "contested case," one of several classes of
proceedings the ALC is authorized to conduct. The APA defines a contested case
proceeding, in pertinent part, as
a proceeding including, but not restricted to, ratemaking, price fixing,
and licensing, in which the legal rights, duties, or privileges of a party
are required by law or by Article I, Section 22, Constitution of the
State of South Carolina, 1895, to be determined by an agency or the
Administrative Law Court after an opportunity for hearing.
S.C. Code Ann. § 1-23-505(A). The General Assembly specifically granted ALCs
the significant right to render final decisions based on de novo review. Lowell,
Practice and Procedure 152 ("In contrast to [ALCs] in other states and within the
Federal system, South Carolina's [ALC's] render final agency decisions, subject
only to judicial review." (Emphasis added)). The ALC's de novo review hearing is
best explained as
one in which the decisionmaker does not review the decision of
someone else, but makes the determination himself. Thus, the [ALC],
while he may use the record compiled earlier as part of the evidence
in the case, may receive additional evidence and decides the issue
without regard to the decisions made by the agency.
Id. (emphasis added); see Blizzard v. Miller, 306 S.C. 373, 375, 412 S.E.2d 406,
407 (1991) ("A trial de novo is one in which 'the whole case is tried as if no trial
whatsoever had been had in the first instance.'"). See State v. Whitner, 399 S.C.
547, 552, 732 S.E.2d 861, 864 (2012) (explaining that questions decided under de
novo review may be decided without any deference to the court below); Lexington
Cnty. Sch. Dist. One Bd. of Trs. v. Bost, 282 S.C. 32, 34, 316 S.E.2d 677, 678
(1984) (explaining that de novo review of an agency decision record may be
entered into evidence but accorded no deference); see also William F. Funk and
Richard H. Seamon, Administrative Law: Examples and Explanations at 71 n.1
(2001)) ("Thus the de novo hearing at the ALC closely resembles a civil bench trial
in terms of procedure, evidentiary rules and standards, protocol, and finality of
decision.").
Consequently, I disagree with the majority's conclusion that the ALC
committed an error of law in failing to give deference to DHEC's interpretation of
applicable statutes and regulations. I would find that in a contested case, the ALC
is under no obligation to defer to an agency interpretation, but instead, provides the
final agency determination based on the ALC's view of the record.14 The ALC's
final decision is of course subject to judicial review, and in that context, courts
sitting in an appellate capacity must review the ALC's decision under the standard
provided by section 1-23-610. In my opinion, this perspective of agency review
comports perfectly with the APA's substantial evidence requirements contained in
section 1-23-610, the de novo paradigm of the contested case hearing, and the
constitutional safeguards contained in Article 1, Section 22 of the South Carolina
Constitution. A contrary position places a contesting party at a significant
disadvantage when contesting an agency decision. There is simply no support for
the notion that the General Assembly intended such a result, or to constrain the
ALC's ability to conduct a thorough de novo analysis.15
Nevertheless, I do not contend the reviewing court should ascribe nominal
value to an agency's statutory and regulatory interpretations, or that the agency's
interpretations are without merit—outside the ALC's final determinations. Instead,
as this Court's precedent provides, an agency's well-established and consistent
interpretation of statutes and regulations that the agency is charged with
administering are entitled to deference. Richard Seamon, Administrative Agencies:
General Concepts and Principles, Practice and Procedure 17 (Randolph R. Lowell
ed. 2004). This principle recognizes the General Assembly's decision to make the
agency initially responsible for enforcing certain statutes and regulations and
acknowledges the agency's expertise and experience in this regard. Id.However, within the administrative scheme, judicial deference to an
administrative interpretation is not the functional equivalent of section 1-23-610's
14
See, e.g., S.C. Code Ann. § 1-23-380 ("A party who has exhausted all
administrative remedies available within the agency and who is aggrieved by a
final decision in a contested case is entitled to judicial review . . . . ").
15
Of course, section 1-23-380 of the South Carolina Code provides administrative
agencies the right to appeal, despite the fact that the ALC's decision is viewed as
the final agency decision. See S.C. Code Ann. § 1-23-380 (Supp. 2012) ("A party
who has exhausted all administrative remedies available within the agency and
who is aggrieved by a final decision in a contested case is entitled to judicial
review pursuant to this article and Article 1." (emphasis added)).
restrictive standard of review. This Court's willingness to defer to a long-standing
agency interpretation should not translate into review of an agency's interpretation
or action under a special abuse of discretion standard tailored to the administrative
agency's own view of its decision. Instead, in my opinion, judicial deference is
best articulated as the attachment of "great weight" to an agency's understanding of
its own responsibilities, and applying that understanding absent a convincing or
persuasive reason for the reviewing court to diverge. See Stone Mgf. Co. v. S.C.
Emp't Sec. Comm'n, 219 S.C. 239, 249, 64 S.E.2d 644, 648 (1951) (explaining that
administrative practice is a "weight on the scale," but not conclusive, and that final
responsibility for the interpretation of the law rests with the courts).
According to the majority, South Carolina's "deference doctrine provides
that courts defer to an administrative agency's interpretations with respect to the
statutes entrusted to its administration or its own regulations 'unless there is a
compelling reason to differ.'" (Citation omitted). In my opinion, the terms "defer"
and "compelling" should not be used to disrupt the critical balance between the
courts' role in interpreting the law and the administrative agencies' duty to execute
the law. This balance is not reflected in a standard which implies that bureaucratic
interpretations serve as a snare to judicial and administrative courts in their ability
to review agency decisions using all constitutionally and statutorily conferred
powers.
Thus, I would find that in a contested case hearing the ALC is not compelled
to defer to an agency interpretation regarding applicable laws or regulations. As a
result, I do not base my conclusion on principles of deference, and I find the
majority's deference analysis unnecessary.
b. ALC's Interpretation of Regulation 30-11
I would hold that the ALC misconstrued regulation 30-11 of the South
Carolina Code of Regulations, and erroneously concluded that DHEC lacked
authority to consider impacts "outside critical areas when reviewing applications to
alter or utilize critical areas."
Regulation 30-11 provides general guidelines for all critical areas. The
regulation contains DHEC's rules and regulations for permit applications in "an
effort to reduce the irreversible loss of productive tidelands, coastal waters,
beaches, and dunes while meeting long-range State development needs." S.C.
Code Ann. Regs. 30-11(A)(1999). Subsection (C) of Regulation 30-11's provides,
in pertinent part:
In the fulfilling of its responsibility under Section 48-39-150, the
Department must in part base its decisions regarding permit
applications on the policies specified in Sections 48-39-20 and 48-39-
30, and thus, be guided by the following:
(1) The 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.
Id. Regs. 30-11(C)(1).
Appellants argue that the "area" referred to under this regulation extends
beyond the critical area to adjacent upland. Appellants' argument necessarily
means that sections 48-39-20 and 48-39-30 permit DHEC, when considering a
critical area permit, to consider a proposed structure's impact on anything
surrounding the critical area, as long as the area is within the coastal zone.
According to Appellants, these statutes indicate the "General Assembly's intent
that [DHEC], when acting on critical area permit applications, would not just
protect and restore or enhance the critical areas, but rather that the Department
would protect . . . all of the resources within the coastal zone."
The ALC viewed DHEC's authority more narrowly:
[T]he area for which [DHEC] has regulatory authority is the critical
area, not the high ground outside the critical area. Construing this
provision otherwise would lead to a substantial expansion of
[DHEC's] authority to regulate the development of entire
communities. Conceivably, [DHEC] could deny critical area permits
near towns or cities simply because it believes the permits would
facilitate upland sprawl and general over-development . . . . [DHEC]
avers that it has the authority through coastal permitting to deny
upland development even against the Town's approval of that
development through its zoning process. If the General Assembly had
intended to authorize such a considerable expansion of [DHEC's]
authority it is inconceivable that it would have done so with such
general language.
In my opinion, both the ALC's and Appellants' views of Regulation 30-11
present competing, and equally defensible views of the force of Regulation 30-11.
Section 48-39-20 plainly sets forth the General Assembly's findings regarding the
importance of the coastal zone. The General Assembly acknowledged the coastal
zone's "rich" variety of "natural, commercial, recreational, and industrial
resources" of both immediate and potential value to South Carolina's present and
future well-being. S.C. Code Ann. § 48-39-20(A). The General Assembly
observed the adverse impacts caused by the increasing and competing demands on
the coastal zone
occasioned by population growth and economic development,
including requirements for industry, commerce, residential
development, recreation, extraction of mineral resources and fossil
fuels, transportation and navigation, waste disposal and harvesting of
fish, shellfish and other living marine resources have resulted in the
decline or loss of living marine resources, wildlife, nutrient-rich areas,
permanent and adverse changes to ecological systems, decreasing
open space for public use and shoreline erosion.
Id. § 48-39-20(B).
The General Assembly then noted the encroachment of federal regulation
into land use and permit controls in the coastal zone, and made an affirmative
statement that state and local governments must exercise their full authority over
lands and waters in the coastal zone. Id. § 48-39-20(C). The statute then provides
that ill-planned development threatens to destroy important scenic, natural,
geological, industrial, and economic values in the coastal zone, as well as
ecologically fragile marine resources and wildlife. Id. § 48-39-20(D), (E)
(specifically citing "man's alterations" as a source of destruction). Finally, section
48-39-20 labels the environmental protection regime in place at the time of the
provision's adoption as insufficient, stating:
In light of competing demands and the urgent need to protect and to
give high priority to natural systems in the coastal zone while
balancing economic interests, present state and local institutional
arrangements for planning and regulating land and water uses in such
areas are inadequate.
Id. § 48-39-20 (E). Unlike the overarching findings stated in section 48-39-20,
section 48-39-30 provides specific state policies "to be followed in the
implementation" of the CZMA. The statute provides for policies promoting
economic and social improvement, encouraging and developing coastal resources
that protect sensitive and fragile areas from inappropriate development, and
providing adequate environmental safeguards. Id. § 48-39-30(A),(B)(1).
Additionally, section 48-39-30 provides that a primary goal of the CZMA is to
protect the coastal zone, specifically tidelands and sand dunes, and to prevent
beach erosion. Id. § 48-39-30(B)(2)–(4). However, subsection (C) relays the
balance to be struck between protecting and preserving coastal resources, in that
"no government agency shall adopt a rule or regulation or issue any order that is
unduly restrictive so as to constitute a taking of property without the payment of
just compensation in violation of the Constitution of this State or of the United
States." Id. § 48-39-30(C). Of course, as discussed supra, subsection (D) of
section 48-39-30 allows for combination of uses in critical areas insuring
maximum benefit to the people, but not necessarily yielding measurable maximum
dollar benefits. Id. § 48-39-30 (D).
Based on these policies, DHEC argues that in reviewing critical area
construction permits pursuant to Regulation 30-11(C), consideration of impacts
outside the critical area is appropriate. In my opinion—and as the majority also
concludes—this position is logical. After all, DHEC cannot be expected to protect
the coastal zone as instructed by the General Assembly if it cannot decipher how
projects within the critical area might affect the coastal zone. One can envision a
scenario in which a proposed structure would have minimal, or at least acceptable,
adverse impacts on the critical area, and at the same time cause adverse impacts to
areas outside the critical area, but within the coastal zone.
Nevertheless, in my opinion, the ALC raises a salient point regarding the
reach of DHEC's permitting authority. There is no indication within sections 48-
39-20 or -30 that the General Assembly intended DHEC's permitting authority
within the coastal zone to run roughshod over individual property interests and,
disturbingly, the authority of local governments to carry out their constitutionally
protected duties. To the contrary, section 48-39-20 speaks to state and local
governments exercising their full authority over the lands and waters of the coastal
zone. S.C. Code Ann. § 48-39-20(C). Moreover, that section refers to state and
local institutions operating under "arrangements," not a regime in which state
regulations eviscerate local authority. Significantly, section 48-39-30 provides for
promotion of "economic and social improvement" and specifically addresses the
role of entities outside DHEC in preserving the coastal zone:
To encourage and assist state agencies, counties, municipalities and
regional agencies to exercise their responsibilities and powers in the
coastal zone through the development and implementation of
comprehensive programs to achieve wise use of coastal resources
giving full consideration to ecological, cultural and historic values as
well as to the needs for economic and social development and
resources conservation.
Id. § 48-39-30 (B)(5). Thus, section 48-39-30 calls for a balance between
competing interests and regulatory concerns within the coastal zone, which in turn
directly contradicts DHEC's assertion of superior regulatory power throughout this
broad geographic area.
I find two prior decisions reviewing DHEC permitting actions instructive.
In Spectre, DHEC denied Spectre's storm-water/land disturbance permit because
the Department found it inconsistent with various provisions of the CZMP.
Spectre L.L.C., 386 at 364–65, 688 S.E.2d at 847–48. Spectre appealed and in
reversing DHEC, the ALC held that the CZMP did not apply to the property in
question. Id. at 362, 688 S.E.2d at 846. This Court reversed, finding that the
language of the CZMP set forth broad jurisdiction over the coastal zone, thereby
supporting DHEC's interpretation of the CZMP regarding the Spectre site. Id. at
369, 688 S.E.2d at 850.
Spectre sought to fill isolated freshwater wetlands for commercial
development. The CZMP specifically prohibited this activity, and most
commercial construction requiring fill of freshwater wetlands. Moreover, unlike
the present case, any adverse effects arose from the immediate impact of the
proposed fill, and not later development which might have occurred if the fill
permit had been granted. In the instant case, as the ALC observed, DHEC did not
deny the proposed structure permit based on immediate adverse impacts on the
critical area, but instead upon an assumption that the revetment would lead to
residential development of the upland portion of the Spit. While Spectre made it
clear that the CZMP had the full force of law, the case did not hold that the CZMP
authorizes DHEC to deny critical area permits because of the effects of later
development of the upland area simply because of the upland's location within the
coastal zone.
In Spectre, this Court noted DHEC's indirect authority and then pointed to a
provision of the CZMP which explicitly sanctioned, and served to legitimize,
DHEC's denial of the permit. No such language exists here. Thus, in my view, it
is reasonable to conclude that if the General Assembly intended to grant DHEC the
power to deny critical area permits based on possible upland construction, or
permitting authority superior to that of almost all local zoning laws within the
coastal zone, specific and enabling language would have been provided. Simply
put, DHEC's explicit statutory power would seem to narrow and confine the
Department's indirect authority over the coastal zone.
In Murphy v. South Carolina Department of Health and Environmental
Control, 396 S.C. 633, 723 S.E.2d 191 (2012), proposed renovations to Chapin
High School required filling a portion of a stream on the property. Id. at 636, 723
S.E.2d at 193. DHEC issued a permit to District 5 of Lexington and Richland
Counties authorizing the project. Id. at 636–38, 723 S.E.2d at 193–94. Regulation
61–101 of the South Carolina Code of Regulations requires DHEC to deny
certification if the proposed activity permanently alters the aquatic ecosystem in
the vicinity of the project, or if there is a "feasible alternative" with less adverse
consequences. Id. at 637, 723 S.E.2d at 193 (citing S.C. Code Ann. Regs. 61–
101.F.5(a) & (b) (Supp. 2011)). Kim Murphy, a nearby resident, claimed that in
considering the vicinity of the project under regulation 61–101, DHEC's inquiry
should have been limited to the actual 727 feet of stream DHEC planned to fill. Id.
at 638, 723 S.E.2d at 194. The ALC rejected this claim, and affirmed the
certification. Id. Murphy appealed. Id.Although the regulation did not define the term vicinity, this Court
"interprets an undefined term in accordance with its usual and customary
meaning." Id., 723 S.E.2d at 640. Thus, this Court concluded:
Merriam–Webster defines vicinity as meaning "the quality or state of
being near: proximity" . . . . Using this accepted meaning of the word
vicinity, the regulation clearly includes more than just the project; it
logically incorporates the surrounding area. Moreover, a reading to
the contrary would render it impossible to ever obtain a certification
to fill a portion of a stream as the functions and values of that area
would always necessarily be eliminated.
Id. (citation omitted).
In enacting regulation 61–101, the General Assembly intended for DHEC to
consider the impacts proposed construction might have on the surrounding area,
and thus provided the term vicinity in the regulation.
In my opinion, these two cases stand for the proposition that when the
General Assembly intends to provide DHEC with specific permitting authority,
specific and enabling language is afforded. However, I cannot deny the import of
sections 48-39-20 and 30 and would interpret DHEC's regulatory authority
pursuant to Regulation 30-11(C) in harmony with those provisions and the overall
policies set forth in the CZMA. See, e.g., Crisp v. SouthCo., Inc., 401 S.C. 627,
644, 738 S.E.2d 835, 843 (2013) ("This interpretation is in harmony with the entire
purpose of our workers' compensation regime and recognizes the other avenues of
compensation available under the scheme . . . ."); Hodges v. Rainey, 341 S.C. 79,
91, 533 S.E.2d 578, 585 (2000) (recognizing the goal of statutory construction is to
harmonize conflict and avoid absurd results).
Construction of a regulation is a question of law to be determined by the
courts, and regulations must be construed using the same canons of constructions
as statutes. See S.C. Dep't of Revenue v. Blue Moon of Newberry, Inc., 397 S.C.
256, 260, 725 S.E.2d 480, 483 (2012) (citations omitted). Thus, I would hold that
the ALC erred in concluding that DHEC may not take into account the proposed
structure's impact on the coastal zone.
The General Assembly clearly intended to halt construction which would
destroy important ecological interests and other coastal resources, but there is no
evidence that this policy should place property owners and local governments in a
disadvantaged position. Thus, in my view, sections 48-39-20 and -30 do not
authorize DHEC to restrict the rights of property owners or the power of local
governments unless those entities act in ways that would destroy coastal resources,
or harm those resources under otherwise preventable conditions. DHEC's review
of permit applications must comport with the language contained in applicable
statutes and regulations. DHEC's authority cannot be used to transform the
Department into a broad-based governmental entity with unfettered authority over
all citizens in the coastal zone. An administrative agency with this type of power
runs counter to the South Carolina Constitution, the clear text of the CZMA, and
the APA's intent.
Despite the ALC's error, reversal is not warranted in my opinion. The ALC
concluded that the potential residential development would "not have deleterious
impacts even if the [c]ourt were to consider the effects of the potential residential
development." According to the ALC:
[T]he numerous measures and safeguards [Kiawah] intends to utilize
in its development of Captain Sam's demonstrate that this limited
residential use would be sensitively planned, responsive to the natural
features of the peninsula, attentive to its flora and fauna, and without
significant negative effects in the critical area . . . . [T]he [c]ourt
concludes that there was no evidence adduced that the residential
development would have any material adverse environmental effects
on the upland.
The majority concludes that "even the most environmentally sensitive
development will necessarily have some negative effects of the environment."
(Emphasis added). In my opinion, this observation is not grounded in the CZMA's
language. Moreover, in my view, this conclusion is far too broad to encompass the
General Assembly's specific intent evident in the CZMA.
The ALC may choose between conflicting evidence, and that decision is no
less supported by substantial evidence. See Coastal, 363 S.C. at 77, 610 S.E.2d at
487. "Substantial evidence" is not a mere scintilla of evidence nor the evidence
viewed blindly from one side of the case, but is evidence which, considering the
record as a whole, would allow reasonable minds to reach the conclusion that the
administrative agency reached or must have reached in order to justify its action.
Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981) (quoting Law v.
Richland Cnty. School Dist. No. 1, 270 S.C. 492, 243 S.E.2d 192 (1978)).
In my view, reasonable minds could reach the same conclusion as the
ALC—that even if DHEC considered possible upland effects under a proper
construction of Regulation 30-11, DHEC should not have denied Kiawah's permit
pursuant to the regulation. Thus, I would hold that the ALC's error regarding
Regulation 30-11(C) does not require reversal, and that substantial evidence in the
record supports the ALC's decision that the proposed structure complies with that
regulation.
III. Regulation 30-12(C)
Further, I would hold that the ALC did not err in concluding that the
proposed structure met the specific criteria for bulkheads and revetments set forth
in regulation 30-12(C).
Pursuant to regulation 30-12(C), bulkheads and revetments are prohibited
where they restrict public access unless upland is eroding due to tidally-induced
erosion, or no feasible alternative to the installation of the structure exists. S.C.
Code Ann. Regs. 30-12(C) (2008). In my opinion, substantial evidence supports
the ALC's determination that the proposed structure did not adversely affect public
access pursuant to the regulation. However, even if public access is affected, I
would find that the demonstrated loss of upland16 and lack of feasible alternatives
to the proposed structure support the ALC's determination that the project plainly
satisfies regulation 30-12.
In my opinion, there is substantial evidence that no environmentally-
responsible feasible alternatives existed. For example, Kiawah's project engineer
testified regarding alternative systems:
We looked at . . . a number of alternatives investigated [sic],
bulkhead, riprap, to geo-tubes, a number of things that could have
been used, and it was our recommendation that they use the concrete
mats . . . . [F]rom all the systems that we were aware of, it seemed like
that is the softest most compatible system out there . . . . We've seen
them used in other locations where they become completely
naturalized. It's kind of in keeping with the whole essence of Kiawah
where . . . we also need engineering solutions that blend with the
environment we're creating.
In response, as the ALC also noted, the South Carolina Coastal Conservation
League (CCL) urged that the "alternative" was to do nothing, because according to
the CCL, only minor erosion may have occurred in the last 10-12 months. The
ALC disagreed, finding that the testimony clearly established a trend of continuous
and significant shoreline erosion along the riverbank for several decades. In my
16
I agree with the majority's finding that substantial evidence exists to support the
ALC's finding that upland is being lost due to tidally induced erosion.
opinion, that evidence clearly establishes a need for erosion control along the
disputed shoreline.
CONCLUSION
The ALC carefully considered the evidence contained in the six-volume,
2,380 page record in this case. The ALC provided factual findings regarding the
proposed structure's potential effects on wildlife and public use, and the proposed
structure's compliance with the controlling statutes. In my view, the ALC's
decision to modify the final plan fits squarely within his discretion and de novo
review.17 See Risher v. S.C. Dep't of Health and Envtl. Control, 393 S.C. 198,
207–08, 712 S.E.2d 428, 433 (2011) (explaining that the ALC is the ultimate fact
finder in a contested case, and is not restricted by the findings of the administrative
agency); Brown v. S.C. Dep't of Health and Envtl. Control, 348 S.C. 507, 512, 560
S.E.2d 410, 413 (2002) (recognizing that the ALC sits de novo in a contested case
proceeding). The General Assembly did not vest the ALC with broad authority to
hear permit disputes, and conduct a trial, to only then have this Court restrain the
ALC from issuing a decision which reflects the best outcome gleaned from that
trial. See B & A Dev., Inc. v. Georgetown Cnty., 372 S.C. 261, 268–69, 641 S.E.2d
888, 893 (2007) (recognizing the principle that when the legislature intends to
confine expansive authority, it will expressly provide for such a limitation).
The net result of the majority decision is that a permit for construction of the
proposed structure to extend 270 feet is approved, because the majority approach is
to defer to the DHEC staff's decision. In my view, the majority's position gives
17
As Kiawah and the Savannah River Maritime Association (SRMC) note, the
General Assembly has broadly defined the authority of the ALC. The ALC has the
same "power at chambers or in open hearing as do circuit court judges" and the
authority to issue writs necessary to give effect to its jurisdiction. S.C. Code Ann.
§ 1-23-630 (2005) (granting circuit judges the power to grant, decline, or modify
injunctions). The ALC presides over hearings of all contested cases and must issue
a decision in a final written order. Id. § 1-23-505(3) (Supp. 2012). If the ALC's
final order is not appealed in accordance with the provisions of section 1-23-610 of
the South Carolina Code, the certified order has the same effect as a judgment of
the court where filed and may be recorded, enforced, or satisfied in the same
manner as a judgment of that court. Id. § 1-23-600(I) (Supp. 2012).
unbridled deference to executive branch agency personnel and thus contravenes the
protection provided by Article I, § 22 of the South Carolina Constitution. For this
reason, and the reasons heretofore discussed, I would affirm the ALJ's decision, as
modified by my analysis of Regulation 30-11 discussed supra.
KITTREDGE, J., concurs.