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, 

Robert T. Bockman, of Columbia, and Davis A. 

Whitfield-Cargile, of Brevard, NC, 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 

county park and extending for 2,783 feet along the Spit around the bend in 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. 
 

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 

section 48-39-150, the ALC found its provisions satisfied because "there are no 

significant negative impacts" from the structure. Specifically, the ALC found 

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. 
"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 

a combination of like uses to the exclusion of some or all other uses 

shall be consistent with the purposes of this chapter. 

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). 
 

 

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 

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. 
 

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 longrange, cumulative effects of the project may result within the context of other 

possible development and the general character of the area." DHEC has 

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 

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." 
 

[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, 

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 
 

 

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. 

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. 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"). 
 

 

 

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' 

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, 
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 

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 

 

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.

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: 
 

 

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 

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: 

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 
 

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. 

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: 

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. 
(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 

 

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, 
 

 

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 

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 

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).

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. 
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 

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 illplanned 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 illplanned 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 

restrictive standard of review. This Court's willingness to defer to a long-standing 

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)). 
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 environmentallyresponsible 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 

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. 
 

 

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 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 

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). 
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.