Sierra Club v. Kiawah Resort Associates

• Decision Date: 02 November 1994
• Docket Number: No. 24121,24121
• Citation: 456 S.E.2d 397,318 S.C. 119
• Parties: SIERRA CLUB, Richard Geronimo, and Diether Klingelnberg, Appellants, v. KIAWAH RESORT ASSOCIATES, South Carolina Coastal Council, and South Carolina Department of Health and Environmental Control, Respondents. . Reheard
• Court: South Carolina Supreme Court

Page 397

456 S.E.2d 397

SIERRA CLUB, Richard Geronimo, and Diether Klingelnberg, Appellants, v. KIAWAH RESORT ASSOCIATES, South Carolina Coastal Council, and South Carolina Department of Health and Environmental Control, Respondents.

No. 24121.

Supreme Court of South Carolina.

Reheard Nov. 2, 1994.

Decided March 27, 1995.

James S. Chandler, Jr., Pawleys Island and Daryl G. Hawkins of Lewis, Babcock & Hawkins, Columbia, for appellants.

C.C. Harness, III, Charleston, for respondent South Carolina Coastal Council; Samuel L. Finklea, III, and Walton J. McLeod, III, Columbia, for South Carolina Dept. of Health and Environmental Control; Thomas Dewey Wise, G. Trenholm Walker and Robert B. Ransom all of Wise & Cole, P.A.; and Ellison D. Smith, IV of Smith, Bundy & Bybee, Charleston, for respondent Kiawah Resort Associates.

TOAL, Justice:

We granted rehearing to consider our opinion in this case. The prior opinion in Sierra Club v. Kiawah Resort Associates, Op. No. 24121, (S.C.Sup.Ct. Filed July 18, 1994) (Davis Adv. Sh. 17 at 7) is vacated and the following substituted in its place.

Appellants appeal the circuit court order affirming the Coastal Council's issuance of thirty-six dock permits on Kiawah Island, the decision of the Department of Environmental Control to issue a 401 Water Quality Certification, and the circuit court's denial of an injunction. We affirm.

FACTS

Kiawah Resort Associates (KRA) intends to develop a portion of Kiawah Island known as Rhett's Bluff. Rhett's Bluff borders on the Kiawah River and an unnamed tributary.

Consistent with Coastal Council's policy of encouraging developers to submit a comprehensive plan for development of waterfront property, KRA filed a permit application for seventy-eight docks in the Rhett's Bluff area. KRA met substantial resistance from the South Carolina Wildlife and Marine Resources Department, the United States Fish and Wildlife Service, the National Marine Fisheries Services, private groups, and members of the general public.

KRA re-drew its planned lots and amended its dock permit application to apply for thirty-six rather than seventy-eight docks. KRA also entered into an agreement with the South Carolina Wildlife and Marine Resources Department ("Wildlife Department") to place $50,000 in trust. The fund is to be used to defray the cost of protecting the shellfish in the area. In exchange, the Wildlife Department agreed to withdraw its objection to the permit application for the thirty-six docks.

Dock permits are usually issued at the administrative level of Coastal Council. In this case, however, because of the public response and the size of the project, Coastal Council requested a 401 Water Quality Certification ¹ from the Department of Health and Environmental Control ("DHEC"). DHEC's staff issued the 401 Water Quality Certification. The Coastal Council's permitting committee then issued the permit for thirty-six docks. Appellants appealed the permitting committee's issuance of the dock permits to the full Coastal Council. Appellants also appealed DHEC staff's issuance of the DHEC 401 Water Quality Certification to the DHEC Commission.

This matter involves two separate administrative determinations by two different administrative agencies, DHEC and the Coastal Council. Each final agency decision is at issue in this appeal.

The DHEC Commission refused to review the DHEC staff decision to issue the 401 Water Quality Certification. A hearing was held before the Coastal Council. The hearing officer for the Council recommended denial of the permit. In the alternative, the hearing officer for the Council recommended that the number of docks be reduced from thirty-six to twenty-one. The order of the hearing officer was appealed to the full Coastal Council. The full Council affirmed the permitting committee's issuance of the permit for thirty-six docks. Appellants appealed to the circuit court. Appellants also sought an injunction to prevent the building of the docks until the proceedings were concluded. The circuit court ordered the DHEC Commission to hold a hearing on the appeal of DHEC staff's issuance of the 401 Water Quality Certification. The circuit court also held in abeyance the appeal from the Coastal Council order and consolidated the appeal from the DHEC proceedings with the appeal from the Coastal Council order. Finally, the circuit court denied the injunction.

A hearing was held before the DHEC hearing officer on November 20 and 21, 1991. The hearing officer upheld the decision of the DHEC staff to issue the 401 Water Quality Certification. The full commission affirmed by order dated May 2, 1991.

An appeal of each agency's final determination was then taken to the circuit court. The circuit court affirmed both the DHEC Commission and Coastal Council. This appeal followed.

LAW/ANALYSIS

The appellants appeal (1) the issuance of the dock permit by Coastal Council, (2) the issuance of the 401 Water Quality Certification by DHEC, and (3) the denial of an injunction by the circuit court.

A. DOCK PERMITS

Appellants claim that the order of the full Coastal Council is not supported by substantial evidence in the record. First, appellants claim that Coastal Council's conclusion that the docks will not significantly degrade and limit public access to the shellfish beds in the vicinity of the proposed docks is not supported by the evidence.

Coastal Council's Regulations regarding approval of dock permits provide in pertinent part as follows:

A. Docks and Piers:

(1) A dock or pier is a structure built over and/or floating on water and is generally used for the mooring of boats. Docks and piers are the most popular method of gaining access to deep water. Although they are least objectionable from an ecological point of view, docks and piers sometimes pose navigational problems, restrict public use of the water and, under certain circumstances, possess potential for creating environmental problems.

(2) The following standards are applicable for construction of docks and piers:

(a) Docks and piers shall not impede navigation or restrict the reasonable public use of State lands and waters;

(j) Where docks and piers are to be constructed over tidelands utilized for shellfish culture or other mariculture activity, the Council will consider rights of the lessee and the public prior to approval.

23A S.C.Code Ann.Regs. R. 30-12 (1976).

Under the Coastal Council regulations, the "dock ... shall not ... restrict the reasonable public use of the State's lands and waters." Id. The only public access to Rhett's Bluff is by boat. The owners of the property keep the public out over land by means of a gate.

The Permit Administrator, Mr. Moore, testified that each item in the above cited regulation was considered by Coastal Council. He testified that the thirty-six docks will have some impact on the public use of the oyster beds but that the impact would not be significant. On cross examination, Mr. Moore testified that he would not gather oysters in the vicinity of a private dock.

While there was evidence that the docks would impair public access to the oysters, there was also testimony that the burden on the public's access was not substantial. The full Council is the ultimate finder of fact and may make its own findings adverse to those of the hearing officer. Ross v. American Red Cross, 298 S.C. 490, 381 S.E.2d 728 (1989). The role of this Court is to determine whether the ruling of the Coastal Council is supported by substantial evidence. Lark v. Bi-Lo, 276 S.C. 130, 276 S.E.2d 304 (1981). "Substantial evidence is, considering the record as a whole, evidence which would allow reasonable minds to reach the conclusion that the administrative agency reached." Carter v. South Carolina Coastal Council, 281 S.C. 201, 314 S.E.2d 327 (1984). While the evidence before the commission was conflicting as to the impact on public access to the oysters beds, the decision of the full Council to grant the dock permits is supported by the record before us.

Next, Appellants contend that the findings of fact of the Coastal Council in Weaver v. South Carolina Coastal Council, 309 S.C. 368, 423 S.E.2d 340 (1992) and this case are in conflict. The permit at issue in Weaver, supra, was for a dock in a different location than the permits at issue here. The factual findings in Weaver, supra, as here, were based upon the testimony at the hearing. We find no merit to this issue.

Appellants next claim that the agreement between the Wildlife Department and the developer will not alleviate the impact of the docks.

S.C.Code Ann. § 48-39-150(A)(9) provides that the Coastal Council must look at "[t]he extent to which all feasible safeguards are taken to avoid adverse environmental impact resulting from a project." Thus, the Coastal Council is mandated by statute to consider impact on the oysters from the project and any feasible measures to avoid an adverse impact.

In its conclusions of law, the Coastal Council held

Council has considered, in conjunction with the SCWMRD [S.C. Department of Wildlife], the shellfish grounds that will be affected by the proposed project and have determined that there will not be significant negative impacts on the shellfish grounds. As added insurance, the permittee has agreed to provide monies in the amount of $50,000.00 and a specific management plan to insure there is no reduction in the quality of the shellfish grounds. The agency charged with management of the oyster resource is satisfied with the issuance of the permit.

Sierra Club v. Kiawah Resort Assocs., Order of Coastal Council, dated April 19, 1991, ROA at 86.

In its findings of fact, the Coastal Council found

Most of the difficulty associated with oysters is related to non-point source pollution and not construction of docks.

The docks are to be constructed in such as fashion that the impact on public access to the oyster beds in and around the docks will be minimal. While the...