SC Administrative Law Court Decisions

The Army Corps of Engineers (Corps) desires to deposit dredged material on a tract of land known as the Ballam Tract, near McClellanville, South Carolina. Since the Corp's project will result in the discharge of material into the waters of the State, a permit is required under § 404 of the Federal Water Pollution Control Act, more commonly known as the Clean Water Act (CWA). However, before a permit under § 404 can be issued, a water quality certification is required under § 401 of the CWA. See 33 U.S.C. § 1341 (1986). In such circumstances, the Department of Health and Environmental Control, Bureau of Water Pollution Control (DHEC), has the responsibility to determine if a 401 Water Quality Certification should be issued. Sierra Club v. Kiawah Resort Associates, 318 S.C. 119, 456 S.E.2d 397 (1995).

Dorothy Vivian Hathaway Darrell, William F. Hathaway, Jr., and Richard E. Hathaway, (Hathaways) argue DHEC erred in its decision to grant the 401 Water Quality Certification. The Administrative Law Judge Division (ALJD) has jurisdiction to decide this controversy pursuant to S. C. Code Regs. 61-101(G)(4), S. C. Code Ann. § 1-23-310(2), and S. C. Code Ann. § 1-23-600(B) (Supp. 1996). After reviewing the evidence and arguments, issuance of a 401 Water Quality Certification is proper.

Is the Corps entitled to a § 401 Water Quality Certificate from DHEC ?

1. Positions of Parties:

DHEC and the Corps assert the certificate is properly granted since all statutory and regulatory requirements have been met. The Hathaways disagree. While the Hathaways presented various arguments preceding the hearing,⁽¹⁾ at the hearing itself, essentially five arguments were made.

First, the Hathaways assert the ground water at the Ballam tract will become contaminated by sodium chloride infiltration and that the resulting movement of ground water toward the Hathaways' property will also contaminate their ground water as well. Second, the Hathaways assert DHEC failed to test for dioxin and did not give sufficient consideration to the identified arsenic levels in the area. Third, DHEC allegedly failed to consider alternatives to the project since not only could other sites be used but also the disposal site on the Ballam tract could be moved further away from the Hathaways' property. Fourth, the Hathaways argue the project will alter the drainage of the area causing water runoff and seepage from the project to drain onto and adversely impact the Hathaways' property. Fifth, DHEC failed to properly consider storm water management since a major storm or hurricane will cause the Baldwin and Ballam dikes to create a funnel effect directing salt water across the Hathaway tract.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

1. In the McClellanville area, the Corps conducts dredging operations in the Atlantic Intracoastal Waterway, with such dredging activities being water dependent.

2. On prior occasions, in disposing of the dredged material, the Corps used a 48 acre property known as the Baldwin tract.

3. The easement allowing use of the Baldwin tract expired in March of 1995, requiring the Corps to seek other disposal sites.

4. The size of the previously used Baldwin tract provided the Corps with a significant area for its disposal material.

5. To compensate for the loss of the Baldwin tract, the Corps procured several sites for disposal purposes.

6. One of the replacement sites is known as the Ballam tract.

7. The Corps intends to construct a diked disposal site around approximately 17 acres of the 22.93 acre Ballam property.

8. One side of the project site parallels the Hathaways' property.

9. The Hathaways' property and the Ballam site are separated by a 30 foot buffer zone.

10. On the side parallel to the Hathaways' property but still on the project's side of the buffer zone, the Corps will construct a portion of the diking of the property.

11. A portion of the dike will parallel the Hathaways' property for a distance of 1250 feet.

12. Over the course of depositing dredged material onto the Ballam property, the dike will reach a height of approximately seven feet.

13. The Corps obtained a 401 Certification from DHEC to conduct the dredging operation.

14. The certification was conditioned upon implementation of best management practices during construction to minimize erosion and migration of sediments and, upon completion of the project, to permanently stabilize the area.

15. The purpose of the dredging activity is to maintain the navigability of the waterway.

16. The dredging is required to maintain the navigability of the waterway.

17. No feasible alternative to the dredging activity exists.

18. No adequate alternative site is available.

19. Even with the use of four other sites, the Ballam tract will not fully offset the loss of the previously used and much larger Baldwin site.

20. The disposal site on the Ballam tract allows the Corps not to block any existing roadways on the property.

21. The disposal site on the Ballam tract allows the Corps to use the smallest amount of land to accomplish the project.

22. No feasible alternative exists to the methodology the Corps seeks to employ in its dredging operation.

23. Ground water will flow toward the Intracoastal Waterway.

24. The natural drainage in the vicinity of the Ballam tract directs water toward the marsh which adjoins the Intracoastal Waterway.

25. Ground water movement will not be toward the Hathaways' property.

26. The Baldwin tract received the same type of dredged material proposed for the Ballam

tract.

27. A healthy stand of pine trees exists along the edge of the Baldwin property.

28. The pine trees indicate no salt infiltration of ground water at the Baldwin tract.

29. The Baldwin tract has no sign of salt infiltration of ground water.

30. Salt infiltration is not a likely result on the Ballam tract.

31. Ditches and piping on the Ballam tract will move the diked water away from the Ballam property.

32. Diked water will remain on the property a relatively short time period of approximately one week to three weeks.

33. The water removal from the Ballam tract will prevent the standing of water for long periods of time.

34. The water removal time schedule will minimize any impact upon ground water.

35. Dioxin is a possibility in an environment that presents a high concentration of organic material, chlorine and heat.

36. While organic material and chlorine are significant possibilities in the Ballam tract vicinity, no concentration of a heat source is present.

37. Dioxin is most closely associated with sites near manufacturing areas where industrial processes provide a heat source.

38. No data or studies were submitted which conclude forest fires have created dioxin in the vicinity of the Ballam tract.

39. Approximately 17 types of dioxin are identifiable.

40. The most common form of dioxin is also the least offensive form and is capable of being found virtually everywhere.

41. Dangerous concentrations of dioxin are produced near industrial sites.

42. No industrial activity exists in the area of the dredging.

43. No reason exists to test for dioxin at the project location.

44. Arsenic is a naturally occurring substance detected in 99% of the cases in which the Corps is involved.

45. The arsenic level is safely below the standard needed to protect aquatic life.

46. The arsenic level standard for human health at the dredging location was exceeded only when the measuring method was equivalent to testing the effluent itself.

47. A measurement of arsenic from the waterway after the effluent has been returned will show a decreased arsenic level due to dilution within the waterway.

48. The presence of arsenic at the levels found at the Ballam site is not sufficient to adversely impact water quality.

49. The diking on the Ballam property will retain the dredged material in a slurry state of 85% water.

50. The effluent will be discharged as rapidly as the settling will allow.

51. Both the discharge and runoff from the Ballam tract will be directed away from the Hathaways' property and toward the Intracoastal Waterway.

52. To capture any potential seepage as well as runoff from the dikes and the dike property, a perimeter ditch will encircle the diked property.

53. Ditching from the property will direct drainage water toward the marsh and away from the Hathaways' property.

54. Existing ditches on the property will be rehabilitated by the Corps in order to direct water toward the Intracoastal Waterway.

55. Two 18 inch diameter culverts will drain water from the disposal site toward the Intracoastal Waterway.

56. The Hathaways' property will not receive drainage from the project site.

57. The dike on the Ballam property will be somewhat perpendicular to the Baldwin dike.

58. A "gap" of approximately 300 feet will separate the two dikes.

59. The gap will not operate as a funnel to direct water across the Hathaway property.

60. In the event of a storm the height of the dikes will form a buffer serving as protection for the Hathaways' property.

61. The Corps has received a storm water management permit from DHEC.

62. Storm water management is not a problem at the Ballam disposal site.

63. The dredging project does not add any outside material to the aquatic ecosystem.

64. The sampling of sediment and water demonstrates no element exceeds the standard for aquatic life.

65. The project returns effluent to the waterway in a condition virtually unaltered from the state in which it was received.

66. The project will not permanently alter the aquatic ecosystem in the vicinity of the dredging.

3. Discussion

a. Basic Legal Framework

In deciding whether to issue a 401 certification, DHEC must perform a water quality assessment on the proposed activity. Regs. 61-101(F)(1). If the assessment demonstrates the project is consistent with Regs.§§ 61-101, 61-68, and the Federal Clean Water Act, the certification is granted. § 61-101(F)(2). While such language is general in nature, DHEC is not without direction in the decision process since the regulations provide more specific guidance on when to grant, when to deny, and when to "consider" certification.

In the "consider" area, DHEC must "address and consider" whether the activity is water dependent and whether there are feasible alternatives to the activity. § 61-101(F)(3)(a),(b). Additionally, DHEC must consider the direct and indirect impact on potential water quality over the life of the project. § 61-101(F)(3)(c). This latter requirement directs DHEC to consider the impact on existing and classified water uses; physical, chemical, and biological impacts; the effect on circulation patterns and water movement; and the cumulative impacts of not only the proposed activity, but also similar activities of the applicant and others if those activities are reasonably foreseeable. § 61-101(F)(3)(c)(1) - (4). The specific factors listed in § 61-101(F)(3)(c)(1) - (4) are not exhaustive since the regulation allows DHEC to consider "all" water quality factors with the provided list of factors merely a minimum consideration. See Premier Products Co. v. Cameron, 240 Or. 123, 400 P.2d 227 (Or. 1965) (when the context so provides, the word "including" is interpreted as a term of enlargement or of illustration).

Rather than merely "consider" factors, in some specified instances, DHEC is required to either issue or deny a certification request. For example, DHEC is directed to grant a certification when no feasible alternatives exist and the activity involves dredging related to maintenance of a Federal or State navigational channel. In granting such a certification, DHEC must condition the certification upon compliance with all measures necessary to minimize adverse effects, including storm water management. §§ 61-101(F)(4) and 61-101(F)(4)(d).

On the other hand, DHEC is required to deny certification in specific instances. For example, denial is required if the proposed activity permanently alters the aquatic ecosystem in the vicinity of the project such that the aquatic ecosystem's functions and values are eliminated or impaired. § 61-101(F)(5)(a). Denial is also required if a feasible alternative to the activity exists and that alternative reduces adverse consequences on water quality and classified uses. § 61-101(F)(5)(b). Additionally, certification will not be issued unless DHEC is assured appropriate and practical steps, including storm water management, will be taken to minimize adverse impacts on water quality and on the aquatic ecosystem. § 61-101(F)(6).

Given such a legal framework, this case is best analyzed by examining the three areas guiding DHEC's review of an application: must, cannot, and may.

b. DHEC Must Issue Certification

In this case, the Corps seeks to conduct a dredging activity associated with the obviously navigable Intracoastal Waterway. DHEC must issue a certification for the dredging of such a waterway if no feasible alternatives exist and, if the certification is issued, conditions must be attached which seek to minimize adverse effects, including storm water management. §§ 61-101(F)(4) and 61-101(F)(4)(d). The Hathaways argue DHEC erred in granting the certification since feasible alternatives exist and further, the conditions imposed by DHEC do not minimize the adverse effects of the activity. I cannot agree with the Hathaways. No feasible alternatives exist to the dredging activity, and the certification is properly conditioned.

1. Feasible Alternatives

No one doubts that feasible alternatives are relevant to a 401 certification request. See Regs. 61-101(F)(3)(b); (F)(4); and (F)(5). Here, however, no feasible alternative exists. The purpose of the dredging is to maintain the navigability of the waterway. No persuasive evidence demonstrates any alternative that will accomplish the required maintenance needed to secure the navigability of the waterway. Rather, the opposite is true; the dredging is required.

Further, no feasible alternative exists to the methodology the Corps seeks to employ. For example, the Hathaways argue the Corps could have chosen a different site. No persuasive evidence demonstrates the availability of any adequate alternative site. The Hathaways submitted no proof of alternative sites and the evidence demonstrates that, even with the use of four other sites, the Ballam tract will not fully offset the loss of the previously used and much larger Baldwin site.

Likewise, the Hathaways argue an alternative site exists on the Ballam tract itself such that the actual disposal site could be moved further from the Hathaways' property. Again, the Hathaways did not demonstrate how another point on the Ballam tract was an acceptable alternative. Rather, the evidence shows the chosen location on the Ballam tract is proper in that the location allows the Corps not to block any existing roadways on the property and allows for the use of the smallest amount of land to accomplish the project. Accordingly, no feasible alternatives exist to the methodology or manner of carrying out the dredging activity.

2. Conditions

Finally, the Hathaways assert that the certification was not properly conditioned in that it fails to minimize the adverse effects of the dredging in four areas: alleviation of ground water contamination, failure to require dioxin testing and consider impact of arsenic levels, failure to consider drainage, and failure to require storm water management.

i. Ground Water Contamination

A significant portion of the Hathaways' position addresses the alleged impact the project will have on groundwater at the Ballam and Hathaway properties. Rather than groundwater, however, a 401 Water Quality Certification looks to discharges into navigable waters. 33 USC § 1341. In fact, debate exists as to what extent groundwater is relevant to the 401 inquiry. See Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962 (7th Cir. 1994) (regulations do not apply to discharges to ground water). But see United States v. GAF Corp., 389 F.Supp. 1379 (Tex. 1975) (permit not required for disposal of wastes into groundwater which does not flow into or otherwise effect surface waters). In this case, however, even considering the impact upon groundwater, the 401 Certification is proper.

First, the evidence establishes the ground water will flow toward the Intracoastal Waterway. The natural drainage of the area directs water toward the marsh which adjoins the Intracoastal Waterway and will not result in ground water movement toward the Hathaways' property. Second, the Baldwin tract has not demonstrated infiltrated ground water. The Baldwin tract has been receiving the same type of dredged material that is proposed for the Ballam tract, yet the Baldwin tract has no sign of salt infiltration of ground water. Rather, a healthy stand of pine trees exists along the edge of the property. Such growth indicates no salt infiltration of ground water at the Baldwin tract and is evidence that no infiltration will result on the Ballam tract. Finally, the ditches and piping on the Ballam tract will move the diked water from the property in a relatively short time period of approximately a week with some occasions of up to three weeks. Such a relatively rapid water removal process will prevent the standing of water for long periods of time and thus minimize any impact upon ground water. Accordingly, ground water movement is not a sufficient basis upon which to condition the 401 Certification.

ii. Dioxin testing and arsenic levels

The Hathaways assert DHEC failed to test for dioxin and did not give sufficient consideration to the identified arsenic levels in the area. Such failures allegedly demonstrate an inadequate review of water quality impact. I disagree.

Considering the credentials and experience of the experts testifying on the dioxin and arsenic issues, I conclude testing for dioxin is not warranted and the level of arsenic does not require conditioning of the 401 Certification. A trier of fact is not compelled to accept an expert's testimony, but may give it the weight and credibility he determines it deserves and may accept the testimony of one expert over another. Florence County Dep't of Social Serv. v. Ward, 310 S.C. 69, 425 S.E.2d 61 (1992); Greyhound Lines v. S.C. Public Serv. Comm'n, 274 S.C. 161, 262 S.E.2d 18 (1980); S.C. Cable Tel. Assn. v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992).

The evidence does not demonstrate the presence of factors warranting an investigation of dioxin levels. The expert witness for the Hathaways stated that, in his view, dioxin is a possibility in any environment that presents a high concentration of organic material, chlorine and heat. Here, while organic material and chlorine are significant possibilities, no persuasive source of the required heat was demonstrated.

The Corps' experts asserted that existing data suggests dioxin is most closely associated with sites near manufacturing areas such as the Georgetown and Charleston areas where certain industrial processes provide the heat source. While the Hathaways' expert agreed manufacturing is a common heat source, he suggested that forest fires along the Intracoastal Waterway would provide the heat needed to warrant testing in this case. No data or studies were submitted to support this conclusion and I am not persuaded a dioxin investigation is warranted.

Rather, an expert witness presented by the Corps asserted approximately 17 types of dioxin are identifiable with the most common but least offensive form capable of being found virtually everywhere. She testified, however, that dangerous concentrations of dioxin are produced near industrial sites and that, in her view, since no industrial activity existed in the area, no reason existed to test for dioxin at the project location. Considering all of the testimony, I find no testing for dioxin is required for the 401 Certification.

As to the arsenic levels, I do not find the evidence demonstrates a level sufficient to condition the requested certification. First, the level is safely below the standard needed to protect aquatic life. Second, the standard for human health was exceeded only when arsenic is measured in the effluent itself. Since the human health standard for arsenic is best measured as an "in-stream" standard, a measurement of arsenic from the waterway after the effluent has been returned will show a decreased arsenic level due to dilution within the waterway. Thus, the arsenic level is overstated. Further, arsenic is a naturally occurring substance detected in 99% of the cases in which the Corps is involved. Accordingly, the presence of arsenic in the levels found is not sufficient to condition the certification.

iii. Drainage

The Hathaways assert water quality will be adversely affected by drainage from the disposal property. The argument is that runoff from the Ballam tract will flow toward their property and result in contamination of the Hathaway property. I cannot agree.

The diking on the Ballam property will retain the dredged material in its slurry state of 85% water only long enough to allow the sedimentary material to settle. The effluent will be discharged as rapidly as the settling will allow with the normal time period being approximately one to three weeks. The measures taken by the Corps demonstrate both the discharge and runoff will be directed away from the Hathaways' property and toward the Intracoastal Waterway.

For example, to capture any potential seepage as well as runoff from the dikes and the dike property, the site will have a perimeter ditch for drainage. That ditching will direct drainage water toward the marsh and away from the Hathaways' property. Further, existing but poorly functioning ditches on the property will be rehabilitated by the Corps and two 18 inch diameter culverts will drain the water from the disposal site. The ditching and the culvert pipes all direct the effluent from the site toward the Intracoastal Waterway. No persuasive evidence establishes that the Hathaways property will receive drainage from the project sight.

iv. Storm water management

The Hathaways' storm water concern is due to the configuration of the dikes on the Baldwin and Ballam properties. The dike on the Ballam property will be somewhat perpendicular to the Baldwin dike with a "gap" separating the two dikes. The Hathaways assert that in the event of a major storm or hurricane, the Baldwin and Ballam dikes will create a funnel effect directing salt water through the gap and across their property. The evidence does not support the existence of the danger presented by the Hathaways.

The Corps, having already received a storm water management permit from DHEC, established a prima facie case that the storm water management practices for the project are proper. To prevail on this issue, the Hathaways must offset the prima facie evidence by rebutting with contrary evidence. McKenzie v. Standard Acc. Ins. Co., 198 S.C. 109, 16 S.E.2d 529 (1941).

Here, no persuasive evidence establishes that the gap and dike configuration will cause a storm water danger. The "gap" separating the dikes is 300 feet in length. The most persuasive evidence does not establish that the gap will operate as a funnel to direct water across the Hathaway property. Rather, the most persuasive testimony confirmed that in the event of a storm the height of the dikes would form a buffer serving as protection for the Hathaway property. Accordingly, no storm water management problems are present in the 401 Certification assessment.

c. DHEC Cannot Issue Certification

DHEC is prohibited from granting a certification if the proposed activity permanently alters the aquatic ecosystem in the vicinity of the project such that the aquatic ecosystem's functions and values are eliminated or impaired. § 61-101(F)(5)(a). Denial is also required if a feasible alternative to the activity exists and that alternative reduces adverse consequences on water quality and classified uses. § 61-101(F)(5)(b). Additionally, certification will not be issued unless DHEC is assured appropriate and practical steps, including stormwater management, will be taken to minimize adverse impacts on water quality and on the aquatic ecosystem. § 61-101(F)(6). Here, the Hathaways argue certification must be denied since the project will permanently alter the aquatic ecosystem, a feasible alternative to the activity exists, and stormwater management has not been considered. Again, I must disagree.

1. Ecosystem

No persuasive evidence demonstrates the aquatic ecosystem will be permanently altered. Rather, since the project does not add any outside material to the aquatic ecosystem, the project does not alter the ecosystem in any significant manner. Further, the sampling of sediment and water demonstrated no element exceeded the standard for aquatic life. In short, water and sediment from the Intracoastal Waterway are removed, these constituents are placed into a holding dike in an upland location for settling of the sediment, and, after settling has occurred, the water is returned to the waterway. In essence, the project returns effluent to the waterway in a condition virtually unaltered from the state in which it was received. No persuasive evidence demonstrates how such a project will permanently alter the aquatic ecosystem.

2. Feasible Alternative and Storm Water

The Hathaways' arguments on feasible alternatives and storm water management are also not persuasive. As discussed previously, no proof establishes an alternative to the dredging activity or the method of accomplishing the activity. Likewise, the evidence demonstrates the Corps has received a storm water management permit. That permit serves to establish proper storm water management practices.

d. DHEC May Issue Certification

In many instances a 401 Water Certification concerns addressing and considering numerous factors in an attempt to identify all potential water quality impacts from a project. § 61-101(F)(3). While I have held certification is required under § 61-101(F)(4) and is not defeated by § 61-101(F)(5) and (6), I also conclude certification is proper under the "address and consider" standard of § 61-101(F)(3).

Here, the Hathaways again argue alternatives exist to the dredging activity and that DHEC failed to properly consider the impacts to water quality from ground water contamination, lack of dioxin testing and arsenic levels, failure to consider drainage, and inadequate storm water management. Each of these arguments has been previously discussed and found lacking. Under the standard of § 61-101(F)(3), no alternative to the dredging itself or the dredging methodology has been proven; no persuasive evidence demonstrates that testing for dioxin is needed; no proof establishes the arsenic level is improper for aquatic life; no proof establishes improper drainage; and no proof confirms inadequate storm water management. In short, the factors considered by DHEC support granting the certification.

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

1. A project that will result in the discharge of material into the waters of the State requires a permit under § 404 of the Federal Water Pollution Control Act, more commonly known as the Clean Water Act (CWA).

2. Before a permit under § 404 can be issued, a water quality certification is required under § 401 of the CWA. 33 U.S.C. § 1341 (1986).

3. DHEC is responsible for determining if a 401 Water Quality Certification should be issued. Sierra Club v. Kiawah Resort Associates, 318 S.C. 119, 456 S.E.2d 397 (1995).

4. The ALJD has jurisdiction to decide controversies arising under a 401 Water Quality Certification. Regs. 61-101(G)(4), § 1-23-310(2), and § 1-23-600(B) (Supp. 1996).

5. In deciding whether to issue a 401 certification, DHEC must perform a water quality assessment on the proposed activity. Regs. 61-101(F)(1).

6. If the assessment demonstrates the project is consistent with Regs.§§ 61-101, 61-68, and the Federal Clean Water Act, the certification is granted. § 61-101(F)(2).

7. Under its consideration review, DHEC must "address and consider" whether the activity is water dependent and whether there are feasible alternatives to the activity. § 61- 101(F)(3)(a),(b).

8. Additionally, DHEC must consider the direct and indirect impact on potential water quality over the life of the project. § 61-101(F)(3)(c).

9. This latter requirement directs DHEC to consider the impact on existing and classified water uses; physical, chemical, and biological impacts; the effect on circulation patterns and water movement; and the cumulative impacts of not only the proposed activity, but also similar activities of the applicant and others if those activities are reasonably foreseeable. § 61- 101(F)(3)(c)(1) - (4).

10. The specific factors listed in § 61-101(F)(3)(c)(1) - (4) are not exhaustive since the regulation allows DHEC to consider "all" water quality factors with the provided list of factors merely a minimum consideration. See Premier Products Co. v. Cameron, 400 P. 2d 227 (Or. 1965).

11. DHEC is required to grant a certification when no feasible alternatives exist and the activity involves dredging related to maintenance of a Federal or State navigational channel. § 61- 101(F)(4) and 61-101(F)(4)(d).

12. In granting a certification for a dredging activity, DHEC must condition the certification upon compliance with all measures necessary to minimize adverse effects, including storm water management. §61-101(F)(4)(d).

13. DHEC is required to deny certification when the proposed activity permanently alters the 14. Denial is required if a feasible alternative to the activity exists and that alternative reduces adverse consequences on water quality and classified uses. § 61-101(F)(5)(b).

15. Denial is required unless DHEC is assured appropriate and practical steps, including storm water management, will be taken to minimize adverse impacts on water quality and on the aquatic ecosystem. § 61-101(F)(6).

16. Feasible alternatives are relevant to a 401 certification request. Regs. 61-101(F)(3)(b); (F)(4); and (F)(5).

17. No feasible alternatives exist for the dredging activity or the method of performing that activity.

18. A 401 Water Quality Certification looks to discharges into navigable waters. 33 USC § 1341.

19. Debate exists on the extent to which groundwater is relevant to a 401 inquiry See Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F. 3d 962 (7th Cir. 1994) (regulations do not apply to discharges to ground water). But see United States v. GAF Corp., 389 F. Supp. 1379 (Tex. 1975) (permit not required for disposal of wastes into groundwater which does not flow into or otherwise effect surface waters).

20. Even considering the impact upon groundwater, the 401 Certification is proper.

21. Testing for dioxin is not warranted and the level of arsenic does not require conditioning the 401 Certification.

22. A trier of fact is not compelled to accept an expert's testimony, but may give it the weight and credibility he determines it deserves and may accept the testimony of one expert over another. Florence County Dep't of Social Serv. v. Ward, 310 S.C. 69, 425 S.E.2d 61 (1992); Greyhound Lines v. S.C. Public Serv. Comm'n, 274 S.C. 161, 262 S.E.2d 18 (1980); S.C. Cable Tel. Assn. v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992).

23. A prima facie case must be offset by evidence rebutting those facts which establish the prima facie case. McKenzie v. Standard Acc. Ins. Co., 198 S.C. 109, 16 S.E.2d 529 (1941).

24. DHEC is required to grant the water certification to the Corps since the project activity is the dredging of a Federal or State navigable channel with DHEC having imposed adequate conditions requiring the Corps to take measures necessary to minimize adverse effects, including storm water management. § 61-101(F)(4).

25. DHEC is not required to deny the water certification to the Corps since the project will not permanently alter the aquatic ecosystem in the vicinity of the project and since no feasible alternative to the dredging activity exists. § 61-101(F)(5).

26. DHEC is not required to deny the water certification to the Corps since the Corps has take appropriate and practical steps including storm water management to minimize adverse impacts on water quality and the ecosystem. § 61-101(F)(6).

27. In granting the permit, DHEC properly considered the factor that the dredging activity is water dependent, that no feasible alternatives exist to the dredging activity, and that no significant adverse impacts would result to water quality from the project. § 61-101(F)(3).

Based upon the foregoing Findings of Fact and Conclusions of Law, the following ORDER is issued:

DHEC is ordered to issue a 401 Water Quality Certification to the Corps for its dredging and disposal activity to be conducted on the Ballam tract near McClellanville, South Carolina.

AND IT IS SO ORDERED.

__________________________________

RAY N. STEVENS

Administrative Law Judge

This 4th day of April, 1997

Columbia, South Carolina

1. The Hathaways abandoned their position that the project will create a mosquito breeding ground and abandoned their argument that DHEC failed to consider the biological impact from the planting of trees on the dike which action would allegedly result in compromising the structural integrity of the dike.