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
THE STATE OF SOUTH CAROLINA In The Supreme Court
Heard June 5, 2013 - Refiled December 10, 2014
Appeal from the Administrative Law Court, Ralph K. Anderson, III, Administrative Law Judge, Opinion No. 27065
REVERSED AND REMANDED
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:
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
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
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.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
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
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
The ALC found DHEC misconstrued its powers under
Considering whether the structure would contravene
[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
- Provided:
- 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;
- 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;
- that, for this same western section of the proposed erosion control structure, the [revetment] shall be no greater than eight . . . feet in width; and,
- 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
- Did the ALC err in finding the bulkhead and revetment would not contravene the Coastal Zone Management Act?
- Did the ALC err in finding the bulkhead and revetment would not contravene
regulation 30-11 ? - 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.
- in violation of constitutional or statutory provisions;
- in excess of the statutory authority of the agency;
- made upon unlawful procedure;
- affected by other error of law;
- clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
- arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion.
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),
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
Specifically,
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 a combination of like uses to the exclusion of some or all other uses shall be consistent with the purposes of this chapter.
While
The ALC found
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.”
II. REGULATION 30-11
In determining whether to grant a permit for alteration of a critical area,
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 language of
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.
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 v. S.C. Dep‘t of Health & Envtl. Control, 363 S.C. 67, 75, 610 S.E.2d 486, 490 (2005); 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 v. South Carolina Board of Examiners in Optometry, 291 S.C. 221, 223, 353 S.E.2d 132, 133 (1987))); 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
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
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
The ALC summarily concluded there would be no upland impacts flowing from the construction of the revetment and bulkhead.10 This conclusion is plainly
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
The appellants also challenge the ALC‘s holding that
The public access requirements of
(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
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 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
The balancing provided by
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 . . . .”
(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.
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
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.
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 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.
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.
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
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
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
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.
(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.
(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.
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.
(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.
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.
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.”
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
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.“).
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.
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 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.
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
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 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 Mfg. 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
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.”
(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.
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.
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.
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.
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.
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.
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.
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 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
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.
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
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.
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 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
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 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.
Notes
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“).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, 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.
South Carolina Coastal Zone Management Program, II-2 (1972), available at http://www.scdhec.gov/environment/ocrm/czmp.htm.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.
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.
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.