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State v. South Carolina Coastal Council

ELR Citation: 16 ELR 21004
Nos. No. 22602, 346 S.E.2d 716/(S.C., 07/28/1986)

The court holds that the South Carolina Coastal Council exceeded its authority and violated its regulations when it granted a dredge and fill permit for a project that would block navigable waterways where there is no overriding public interest in the project. The court first holds that the permit, which would authorize the impoundment of 600 acres of wetlands, would block navigable streams in violation of the South Carolina Constitution. The court rules that a waterway is navigable if it has the capacity to be used for navigation, which includes use by the general public for pleasure boating. The court holds that the streams at issue not only have the requisite navigable capacity, but are also navigable-in-fact as evidenced by their use by the general public.

The court next holds that the Council violated its regulations by issuing the permit. The Council violated its regulations prohibiting the issuance of dredge and fill permits for reasons other than access, navigation, mining, or drainage unless an overriding public interest is demonstrated. The court finds no such interest in this project. Although one of the stated purposes of the impoundment is the development of aquaculture, the principal purpose appears to be a commercial venture to build duck blinds. The Council also violated its regulation prohibiting the impoundment of previously undisturbed marshes without an overriding public interest since the area at issue, although formerly used for rice cultivation, has stabilized and is now the functional equivalent of an undisturbed salt water marsh. Finally, the Council violated its regulation requiring permit applicants to submit details describing their project's purpose, since the application contained no details on the proposed aquaculture project.

Counsel for Appellants
T. Travis Medlock, Attorney General; Kenneth P. Woodington, Senior Ass't Attorney General
Dennis Bldg., P.O. Box 11549, Columbia SC 29211
(813) 758-3970

James S. Chandler Jr.
1916 Barnwell St., Columbia SC 29211
(803) 771-7223

Counsel for Respondents
Christopher M. Holmes, Lucas C. Padgett Jr.
Morris, Duffy & Boone
140 E. Bay St., Charleston SC 29401
(803) 723-7831

Augustine T. Smythe
Buist, Moore, Smythe & McGee
5 Exchange St., P.O. Box 999, Charleston SC 29402
(803) 722-8375