THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Virginia Mappus, Appellant,
v.
South Carolina Department of Health and Environmental Control, Respondent.
Appeal From Administrative Law Court
Judge Ralph K. Anderson, III
Unpublished Opinion No. 2010-UP-536
Submitted November 3, 2010 – Filed
December 14, 2010
REVERSED AND REMANDED
Carlisle Roberts, Jr., of Columbia and Davis Whitfield-Cargile, of Charleston, for Appellant.
Mary D. Shahid, of Charleston, for Respondent.
FEW, C.J.: This appeal arises out of Virginia Mappus's dock permit application. The South Carolina Department of Health and Environmental Control (DHEC) denied her application in part because it determined that an unnamed tributary, which Mappus wanted her dock to cross, was navigable. The Administrative Law Court (ALC) reversed the final DHEC Board decision and authorized Mappus to construct her dock over the tributary and out to Bohicket Creek. DHEC appeals the ALC's decision. We reverse and remand.[1]
I. Facts
Mappus lives on Bohicket Road in Johns Island. There is an unnamed tributary that opens into Bohicket Creek and runs parallel to Bohicket Road. The tributary eventually separates into two branches. Prior to submitting her dock permit application on October 2, 2006, Mappus had a permitted dock extending to the south branch of the tributary. Her application to DHEC sought to extend her dock out to Bohicket Creek. To reach Bohicket Creek, Mappus's dock had to cross both the south and north branches of the tributary. DHEC staff granted the application in part. It issued a permit allowing Mappus to extend her dock across the south branch of the tributary, but denied her request to extend it across the north branch to Bohicket Creek because it deemed that branch "navigable" under South Carolina Code of Regulations 30-12(A).[2] The DHEC Board conducted a final agency review and affirmed the staff decision based on its conclusion that the tributary was navigable. Mappus argued that two docks between hers and the mouth of the tributary rendered the tributary non-navigable at her property. The two docks, the Atkinson dock and the Combos dock, were the subjects of prior litigation with DHEC whose results are relevant here.
The Atkinson dock is located at the mouth of the tributary and extends farther into the tributary than allowed by its permit. In a prior case, Brownlee v. South Carolina Department of Health & Environmental Control, 372 S.C. 119, 128, 641 S.E.2d 45, 49 (Ct. App. 2007), rev'd, 382 S.C. 129, 676 S.E.2d 116 (2009), this court determined that the Atkinson dock was a man-made impediment that rendered the tributary non-navigable. Therefore, DHEC granted multiple dock permit applications to cross the tributary and extend docks to Bohicket Creek. However, after the ALC's decision in this case, the supreme court reversed this court's Brownlee decision, finding that "navigability does not hinge on the existence of man-made impediments." Brownlee v. S.C. Dep't of Health & Envtl. Control, 382 S.C. 129, 141, 676 S.E.2d 116, 122 (2009).
The Combos dock, located between the Atkinson dock and Mappus, is illegally built to Bohicket Creek without a permit. To access the mouth of the tributary and get to Bohicket Creek, Mappus must navigate under the Combos dock. DHEC obtained a circuit court order directing Combos to remove the dock. On June 15, 2009, after the underlying Mappus decision by the ALC, the supreme court affirmed the circuit court order in S.C. Dep't of Health & Envtl. Control v. Combos, Op. No. 2009-MO-029 (Sup. Ct. filed June 15, 2009).
Mappus appealed the final DHEC Board decision to the ALC. On February 3, 2009, it reversed DHEC's decision requiring the dock to terminate at the north branch of the tributary. The ALC's order authorized Mappus "to construct a dock terminating at Bohicket Creek at the location, and in the configuration, set forth in her permit application." The ALC relied upon this court's subsequently reversed Brownlee decision, which found that the Atkinson dock rendered the tributary non-navigable. Brownlee, 372 S.C. at 128, 641 S.E.2d at 49. Based on that decision, the ALC also determined the Combos dock was a man-made impediment which independently rendered the tributary non-navigable and warranted allowing Mappus to extend her dock to Bohicket Creek. Furthermore, the ALC order stated that "the termination of the tributary closely near the location where Petitioner's dock will cross over the tributary is an exceptional geographic condition that warrants further consideration in determining whether Petitioner should be allowed to extend her dock to Bohicket Creek."
DHEC appeals the ALC's ruling, arguing that its reliance on this court's Brownlee decision is an error of law requiring reversal. See S.C. Code Ann. § 1-23-610(B) (Supp. 2009) ("The court of appeals may . . . reverse or modify the decision if the substantive rights of the petitioner have been prejudiced because the finding, conclusion, or decision is: . . . (d) affected by other error of law."). We agree. The supreme court's Brownlee decision requires the ALC, on remand, to review the final DHEC Board decision in accordance with the law that a man-made impediment does not affect navigability.
II. DHEC Discretion
DHEC also contends the ALC erred in finding that the termination of the tributary close to the location where Mappus's proposed dock would cross it is an "exceptional geographic condition" that warrants crossing a navigable creek under South Carolina Code of Regulations 30-12(A)(1)(n). Conversely, Mappus argues that it qualifies as an additional sustaining ground for affirming the ALC's order granting her dock extension to Bohicket Creek. We find the categorization of part of the tributary as "an exceptional geographic condition" is not an additional sustaining ground. The order merely states that the finding "warrants further consideration," but reaches no conclusion as to the effect of any such consideration. Rather, we find that the issue is whether DHEC has discretion to allow Mappus to cross a navigable creek.
The regulation governing construction of docks is South Carolina Code of Regulations 30-12(A). When DHEC considered the dock permit applications in Brownlee, the version of 30-12(A) in existence stated in pertinent part only: "Docks must extend to the first navigable creek with a defined channel as evidenced by a significant change in grade with the surrounding marsh. Such creeks cannot be abridged in order to obtain access to deeper water." S.C. Code Ann. Regs. 30-12(A)(2)(n) (Supp. 2001). Thus, DHEC had no discretion under the regulation as it was analyzed in Brownlee. In contrast, when Mappus filed her dock permit application with DHEC in 2006, the regulation had been amended to state in relevant part:
Docks must extend to the first navigable creek, within extensions of upland property lines or corridor lines, that has a defined channel as evidenced by a significant change in grade with the surrounding marsh; or having an established history of navigational access or use. Rare geographic circumstances, such as very close proximity of a significantly larger creek within extensions of property or corridor lines, may warrant dock extension to a creek other than the first navigable creek. A creek with an established history of navigational use may also be considered as navigable. Such creeks cannot be bridged in order to obtain access to deeper water. . . . In exceptional cases, the Department may allow an open water channel to be bridged if current access is prohibited by other man made or natural restrictions or if site-specific conditions warrant such a crossing.
S.C. Code Ann. Regs. 30-12(A)(1)(n) (Supp. 2005). Therefore, in Mappus's case, DHEC is afforded discretion in "rare geographic circumstances" and "exceptional cases." Mappus contends that these regulatory changes "provide the flexibility necessary to address Respondent's situation" and allow DHEC to exercise discretion in issuing dock permits, which it failed to use when considering her application.
We agree with Mappus that the regulation in place at the time of her application afforded DHEC discretion. On remand, the ALC must determine whether DHEC properly exercised such discretion when determining navigability in light of the 2005 amendments to South Carolina Code of Regulations 30-12(A)(1)(n).[3] The ALC is in a better position than this court to judge the exercise of such discretion.
III. Conclusion
We remand this case to the ALC for further proceedings in accordance with Brownlee, Combos, and the 2005 amendments to South Carolina Code of Regulations 30-12(A)(1)(n).
REVERSED AND REMANDED.
SHORT and WILLIAMS, JJ., concur.
[1] We decide this case without oral argument pursuant to Rule 215, SCACR.
[2] "Docks must extend to the first navigable creek . . . ." S.C. Code Ann. Regs. 30-12(A)(1)(n) (Supp. 2005) (amended 2009). The 2005 amendment was in place at the time of Mappus's application to DHEC; however, the 2009 amendment contains identical language. S.C. Code Ann. Regs. 30-12(A)(1)(n) (Supp. 2009).
[3] Mappus argues that DHEC should have exercised the discretion given to it by the 2005 amendments and considered whether or not (1) her "site-specific conditions warrant such a crossing" over the tributary and; (2) she has "rare geographic circumstances . . . [that] may warrant dock extension to a creek other than the first navigable creek."