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THE STATE OF SOUTH CAROLINA
In The Court of Appeals

N. David DuRant, Appellant,

v.

South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management, Brookgreen Gardens, and South Carolina Department of Parks, Recreation, and Tourism, Respondents.

Appeal From Georgetown County
 Edward B. Cottingham, Circuit Court Judge

Opinion No. 3865
Heard April 7, 2004 – Filed September 20, 2004

AFFIRMED

Connie C. Harness, III, of Mt. Pleasant, for Appellant.

Betty J. Willoughby and M. Craig Garner, Jr., both of  Columbia and Leslie West Stidham, of Charleston, for Respondents.

CURETON, A.J.:         N. David DuRant filed an administrative appeal of a decision by the South Carolina Department of Health and Environmental Control’s Office of Ocean and Coastal Resource Management which denied him a permit to construct a private dock.  After Brookgreen Gardens and the South Carolina Department of Parks, Recreation, and Tourism intervened in the appeal, the administrative law judge affirmed the denial of the permit.  On appeal to the circuit court, the findings of the administrative law judge were affirmed.  DuRant appeals.  We affirm.

FACTS

DuRant and another individual are co-owners of two lots located across from Huntington Beach State Park and bounded by Oaks Creek and a marsh.  The deed to this property does not reference the high water mark of the marsh.  DuRant applied to the Office of Ocean and Coastal Resource Management (Resource Management) for a permit to construct a private walkway from one of the lots to a fixed pier head and a floating dock. [1]   There are no private docks or piers located along Oaks Creek. 

The South Carolina Department of Parks, Recreation, and Tourism (Department) – through Huntington Beach State Park – conducts kayak excursions along Oaks Creek and the marsh.  The Department also has a bird-watching program that conducts tours in this marsh area, as it is a habitat for many birds.

The Department has leased the land upon which Huntington Beach State Park is located from Brookgreen Gardens (Brookgreen) since 1960.  Because Oaks Creek is a boundary of this leased property, it abuts DuRant’s lots.  Brookgreen has record title to the marsh around Oaks Creek from a deed recorded in 1938.  The deed specifically conveyed to Brookgreen “all right, title and interest of the grantors of, in and to the beds of . . . Main or Oaks Creek . . . and the marshes, mud flats and bodies of water not herein specifically named.”  By 1942, the South Carolina General Assembly had designated Brookgreen’s lands – including all waters entering those lands – as a wildlife sanctuary.  See S.C. Code Ann. § 50-11-950 (Supp. 2003) (“The lands owned by Brookgreen Gardens . . . and all streams, creeks, and waters, fresh, salt or mixed, entering into the lands are established as a sanctuary for the protection of game, other birds, and animals. . . .”).