SC Administrative Law Court Decisions

On November 7, 2003, the South Carolina Department of Health and Environmental Control (DHEC) issued the General Permit for Storm Water Discharges from Regulated Small Municipal Separate Storm Sewer Systems (MS4s), Permit No. SCS0000000 (hereinafter referred to as "General Permit"). The South Carolina Association of Stormwater Managers, County of Charleston, Dorchester County, and Town of Summerville and Berkeley County appealed the permit, identifying twelve exceptions to the permit. The South Carolina Association of Stormwater Managers, Dorchester County, Town of Summerville, and Berkeley County have reached a comprehensive settlement with DHEC on all issues, and Charleston County has reached a settlement agreement with DHEC on all but four of its original twelve issues, leaving Charleston County as the only remaining petitioner (hereinafter referred to as "Charleston").

The Administrative Law Court has jurisdiction to decide the contested case between DHEC and Charleston County pursuant to S.C. Code Ann. Sections 1-23-600 and 1-23-310 et seq. (Supp. 2005). Based upon the evidence and the arguments presented by the parties at the hearing in this matter, Charleston's challenge to the permit on the remaining four issues fails, and the permit will issue as modified by this decision.

II. Analysis

A. Construction and Post-Construction Storm Water Runoff

1. Positions of the Parties.

Three of Charleston's four remaining issues involve common factual matters, and will be addressed together. Charleston alleges that the requirement that Small MS4s to develop, implement, and enforce a program to reduce construction and post-construction storm water runoff is an "unnecessary and costly duplication of authority, in violation of the goals and policies of the Clean Water Act as set forth in 33 U.S.C. section 1251" because there is already in place a storm water permitting requirement for such land disturbing activities -- the Standards for Stormwater Management and Sediment Reduction program ("State Stormwater Program") codified at 26 S.C. Code Ann. Regs. 72-300 -- that requires a permit for "any land disturbing activities located one-half mile from a receiving waterbody regardless of the size of the disturbance." (PHS Issues Presented Nos. 10 and 11). Charleston further alleges that the existing regulatory structure in place address land disturbance and storm water runoff "could be amended to comply with the Clean Water Act by lowering the threshold acreage required under the Phase II Rule." (PHS Issue Presented No. 12).

DHEC argues that a careful analysis of these issues, especially in light of the evidence presented at the hearing, reveals that the program required under Phase II is substantively more stringent than the State Stormwater Program. As a result, DHEC asserts that the State Stormwater Program cannot be used to satisfy the requirements of the Phase II program. Moreover, DHEC argues that Charleston's own position supports DHEC's analysis; i.e., if the State Stormwater Program were already stringent enough to satisfy the requirements of the Clean Water Act, there would be no need to amend it as Charleston suggests.

2. Findings of Fact

Based on the preponderance of evidence, the following findings of fact are entered:

a. Brief History of Stormwater Regulation in South Carolina

The South Carolina Legislature enacted the first real statutory efforts to address the growing problem of stormwater runoff pollution in South Carolina in the early 1970s when it passed legislation allowing local governments and municipalities to develop and enact local ordinances for regulation of sediment and erosion control related to construction activities. Prefiled Statement of K. Flint Holbrook, Exhibit 1, at 4. The program was voluntary for local governments, and provided ample leeway for the local governments to design their local ordinances and methodologies as they saw fit. Id. By 1990, roughly twenty-five municipalities and local governments had enacted ordinances to address sediment and erosion control. Id, at 5.

In 1983, the General Assembly enacted the South Carolina Erosion and Sediment Reduction Act. Id. This statute, codified at S.C. Code Ann. section 48-18-10 et seq., addresses controlling sediment and erosion on state-owned lands. The statute is implemented through two different sets of regulations promulgated by the Land Resources Conservation Commission, regulations that are now implemented by DHEC. Id. One set of these regulations, entitled Erosion and Sediment Reduction and Stormwater Management Relations, codified at S.C. Code Ann. Regs. 72-101 et seq. (Supp. 2004) (hereinafter referred to as "72-101"), applies to land owned by the state, a state agency, or a quasi-state agency. The other set of regulations, entitled Standards for Stormwater Management and Sediment Reduction, codified at S.C. Code Ann. Regs. 72-405 et seq. (Supp. 2004) (hereinafter referred to as "72-405"), applies to land disturbing activities carried out by the South Carolina Department of Transportation.

Finally, in 1991, the calendar year following EPA's promulgation of the Phase I stormwater program, the General Assembly enacted the Stormwater Management and Sediment Reduction Act, codified at section 48-14-10 et seq., at the urging of the Land Resources Conservation Commission. The goal of the program was to provide minimum criteria and standards for sediment and erosion control on a statewide basis. The program required the program to be implemented primarily at the state level by the Land Resources Conservation Commission, but established a process by which the state could delegate the program to local governments. Id. The Land Resources Conservation Commission promulgated regulations under the Act entitled Standards for Stormwater Management and Sediment Reduction, codified at S.C. Code Ann. Regs. 72-300 et seq. (Supp. 2004) (hereinafter referred to as "72-300"). DHEC is now the state agency with responsibility for this program. Id. Twelve local governments have requested and been granted delegated authority to operate their local stormwater programs under the statute. Id., at 6-7.

b. Federal Stormwater Management Regulation

While South Carolina was developing its stormwater management programs, Congress and the United States Environmental Protection Agency ("EPA") were busy addressing the problem of stormwater at the federal level. Although the federal Clean Water Act set as a goal the attainment of water quality standards throughout the United States within approximately fifteen years, Congress concluded that the goal would likely not be met without controlling more diffuse sources of water pollution, including stormwater runoff from urban and suburban developed land. See generally, 132-133 Cong. Rec. (1987); Exhibit 76 (64 Fed. Reg. 68,722 (Dec. 8, 1999)), at p. 68,723. Many of these sources of stormwater pollution discharge into municipally-owned separate storm sewer systems ("MS4"), which in turn discharge into public waters. Exhibit 76, at p. 68,723. EPA-conducted studies have since shown that the runoff of pollutants from developed or disturbed lands can have significant impacts on the chemical, physical, and biological integrity of a water body, and indeed can cause or contribute to violations of water quality standards. Storm water runoff causes these impacts and violations by "changing natural hydrologic patterns, accelerating stream flows, destroying aquatic habitat, and elevating pollutant concentrations and loadings" and because stormwater runoff may contain "sediment, suspended solids, nutrients (phosphorus and nitrogen), heavy metals and other toxic pollutants, pathogens, toxins, oxygen-demanding substances (organic material), and floatables." Exhibit 76, at p. 68,724. Storm water runoff has also been identified as the single leading cause of impairment of coastal waters. Exhibit 76, at p. 68,726.

In 1987, in order to address the problem of stormwater runoff that had become apparent even by that time, Congress amended the Act to establish a new two-phase program. 33 U.S.C. section 1342(p). The first phase required NPDES permits for stormwater discharges associated with industrial activity, discharges from the MS4s of large and medium-sized municipalities ("large" municipalities are defined as having a population of greater than 250,000, and "medium" municipalities are defined as having a population of less than 250,000 but greater than or equal to 100,000), and certain other activities as EPA or the States may require. EPA promulgated as a rule the regulations implementing the first phase of the program, generally known as "Phase I," in 1990. 55 Fed. Reg. 47,990 (Nov. 16, 1990).

Phase II of the Act's stormwater program required a series of studies to identify the stormwater discharges other than those included in Phase I, determine the nature and extent of the pollutants in such discharges, and establish methods and procedures to control such discharges "to the extent necessary to mitigate impacts on water quality." 33 U.S.C. section 1342(p)(5). The Act required EPA to promulgate regulations based on the results of these studies establishing a comprehensive system to regulate these stormwater discharges as necessary "to protect water quality." 33 U.S.C. section 1342(p)(6). EPA promulgated the regulations implementing the second phase of the program, generally known as "Phase II" on December 8, 1999. Exhibit 76, at p. 68722.

In each instance, DHEC promulgated regulations mirroring EPA's regulations, modifying the language only to the extent necessary to have the regulation make sense (e.g., eliminating references to the EPA Administrator as a permit decision-maker, since DHEC issues NPDES permits under its own delegated program pursuant to 33 U.S.C. section 1342(b)). The substance of DHEC's regulations is the same as EPA's regulation.

In South Carolina, Phase I required permitting of four MS4s -- Greenville County, Richland County, the City of Columbia, and the South Carolina Department of Transportation. Holbrook Prefile, at 9. Each of these MS4s were required to implement eleven measures designed to reduce the pollutants introduced to the waters of South Carolina from their stormwater discharges.

Phase II required MS4s serving densely populated urbanized areas with a population of 50,000 or more people to apply for an NPDES permit. Id., at 11. The Phase II program affects approximately 70 local governments in South Carolina, and requires implementation of six minimum measures, including public education and outreach, public participation and involvement, illicit discharge elimination, construction site runoff control, post-construction site runoff control, and pollution prevention and "good housekeeping" measures. Id. Three of these minimum measures -- illicit discharge elimination, construction site runoff control, post-construction site runoff control -- are regulatory and require ordinances or other enabling authority to implement. Id., at 11-12.

c. Combined State and Federal Stormwater Programs

The net result of these efforts is that stormwater management in South Carolina has multiple levels. State-owned lands are managed under one program --72-101-- except for Department of Transportation's lands, which are managed under a different program -- 72-405. Land-disturbing activities on other lands in South Carolina are managed under a third program --72-300 -- unless exempted. These land-disturbing activities managed under 72-300 may be regulated by DHEC, or they may be regulated by a local government. Overlaid on this structure is the NPDES Phase I and Phase II program, which, among other things, requires an NPDES permit for small regulated MS4 systems addressing land disturbing activities of one acre or more and post-construction runoff control. See S.C. Code Ann. Regs. Sections 61-9 122.34(b)(4) & (5). Although these various programs have certain elements in common with one another, each of these programs has a different jurisdictional threshold and different substantive requirements. For instance, the Phase II program requires NPDES permit coverage for land disturbing activities on one acre of land or more. The South Carolina regulations, 72-300, on the other hand, only requires submission of a "reporting form" for activities disturbing less than two acres. 72-300 only requires a permit for activities on two or more acres. According to Flint Holbrook, the witness presented by Petitioner Charleston County and qualified as an expert in, inter alia, "federal and state storm water and sediment regulation, MS4, NPDES, and construction permitting," the jurisdictional differences between these two programs can be summarized as follows:

1 . . . . Now, our acreage limits in the

2 State program deviate from the one acre. We have a

3 zero to two acre requirement, two to five, five to

4 ten, et cetera. So there would have to be some

5 modification to require a specific application and

6 permit for one acre and greater. Right now the

7 requirement is for zero to two acres, it's simply a

8 reporting form. There is no requirement for a

9 permit to be issued, so that would have to be

10 addressed.

Hearing Transcript, April 7, 2005, at 604.

In addition, the Phase II program requires that MS4s provide for very specific controls on construction site operators, including requirements to control "discarded building materials, concrete truck washout, chemicals, litter, and sanitary waste at the construction site that may cause adverse impacts to water quality." According to Mr. Holbrook, "[t]hat's not specifically addressed in the State program. That would be something that would have to be addressed for that program to qualify [as a State program satisfying the MS4 program requirements]." Hearing Transcript, April 7, 2005, at 603, lines 3-6. Mr. Holbrook and Mr. Marion Sadler, DHEC's expert in federal and state storm water and sediment regulation and in MS4, NPDES, and construction permitting and administration, also noted several exemptions in 72-300 that are not exempted from the MS4 program, including certain types of utility work, single family homes, and mining activities. Hearing Transcript, April 7, 2005, at 604, line 10, through 605, line 2; Hearing Transcript, April 7, 2005, at 763, line 14, through 764, line 22. Both Mr. Holbrook and Mr. Sadler agreed that the State Stormwater Program, as it currently exists, is not equivalent to the MS4 program, and that it lacks required elements of the MS4 program that would have to be addressed through statutory and regulatory changes. Id.

Although there is no evidence in the record to suggest that the various State stormwater programs -- i.e., 72-300, 72-101, and 72-405 -- either independently or in the aggregate, can satisfy the requirements of the MS4 construction and post-construction minimum measures, there is evidence suggesting that municipalities have the ability to regulate such matters.

Construction and post-construction activities are essentially a matter of land use control. Dorchester County offered as a witness Douglas Tompkins, Public Works Director and County Engineer for Dorchester County, who testified that Dorchester County has the ability to control land use within its jurisdiction to limit the number or character of development, or even to the point of disallowing development in some areas. Hearing Transcript, April 6, 2005, at page 461, line 20, through page 462, line 12; page 449, line 2, through line 450, line 20. Mr. Tompkins also acknowledged that requirements flowing from the Clean Water Act may require similar restrictions on land use. Id. Similarly, Berkeley County witness Clinton J. Busby, the deputy county engineer for Berkeley County, testified that Berkeley County had the ability to restrict development within its jurisdiction. Id., at 486.

3. Conclusions of Law

Based upon the above Findings of Fact, I conclude as a matter of law, the following:

a. Statutory Background

On October 18, 1972, Congress enacted Public Law 92-500, commonly known as the federal Clean Water Act (the "Act"). Pub. L. 92--500, section 2, Oct. 18, 1972, 86 Stat. 816. The goal of the Act was, and is, to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. section 1251(a). Congress sought to achieve this goal through a number of means. One means of achieving the goal is the establishment of water quality standards consisting of designated uses and the criteria necessary to support such uses. EPA and the States operate their water quality management programs under the Act within their respective jurisdictions to insure that the water quality standards are achieved, with an eye towards ever-increasing water quality and the prevention of degradation in all but the most compelling circumstances. See, e.g., 33 U.S.C. section1342(o); 40 C.F.R. section 131.12; 25 S.C. Code Ann. Regs. 61-68.D. In those instances where a given water fails to meet the water quality standards applicable to it, EPA or the State where the water is located have an obligation to create a "pollution budget" for the water. To do so, EPA or the State must determine the pollutant causing the violation of the water quality standard, determine how much of that pollutant the water can absorb and still meet the standard (called the "total maximum daily load," or "TMDL"), and then reduce the amount of that pollutant coming into the water below the maximum so that it will meet the water quality standard. EPA or the State may do this by allocating pollutant loads among the various sources of the pollutant, both point sources and diffuse non-point sources, and where necessary, reducing the input of any given source. This process is generally referred to as the TMDL process. 33 U.S.C. section 1313; 40 C.F.R. section 130.7.

Another means that the Act utilizes to achieve the goal of restoring and maintaining the chemical, physical, and biological integrity of the nation's waters is the general prohibition of discharges of pollutants from point-sources into waters of the United States without a permit issued under the National Pollutant Discharge Elimination System ("NPDES"). 33 U.S.C. section 1311(a). NPDES permits are issued by EPA or by States to which EPA has delegated authority to implement the Act. 33 U.S.C. section 1342(b). The default pollution control limits in NPDES permits are technology-based, but additional water quality-based controls may be implemented by EPA or the States where the technological controls are not stringent enough to meet the necessary level of water quality in the receiving waters. 33 U.S.C. sections 1311 and 1312. NPDES permits may be issued as "individual permits" to a single discharger, or they may be issued as "general permits." General permits cover a category of similar dischargers by prescribing certain terms and conditions applicable to all dischargers within the category. Dischargers to whom the general permit applies may seek coverage under the general permit by submitting a "Notice of Intent" ("NOI") to be covered by the permit, and certifying that they comply with the various requirements of the general permit. If the discharger cannot satisfy the conditions of the general permit, or wish to be covered under an individual permit, the discharger may submit an individual application and receive coverage under an individual permit, when appropriate. In any case, all NPDES permits must be consistent with the other provisions of the Act, including the water quality standards (see 24 S.C. Code Ann. Regs. 61-9 122.4(a), (d) and (i), prohibiting discharges that cause or contribute to violations of the water quality standards) and TMDLs, where applicable. 33 U.S.C. section 1313(d).

The main purposes of the Phase II Rule were to include an NPDES permit requirement for "small MS4s," and to lower the permitting threshold for construction activities to one acre or more, down from five acres or more. 40 C.F.R. sections 122.26(a)(9)(i)(A) & (B); 24 S.C. Code Ann. Regs. 61-9 122.26(a)(9)(i)(A) & (B). EPA also reserved the right for EPA or the States to require other discharges to obtain an NPDES permit on case-by-case basis. Id. A "small MS4" subject to the permitting requirements of Phase II includes any MS4 not covered under Phase I as a medium or large MS4, and (1) which is located in an "urbanized area" as defined in most recent Decennial Census by the Bureau of the Census, or (2) which is designated as such by EPA or the State. 40 C.F.R. section 122.32(a); 24 S.C. Code Ann. Regs. 61-9 122.32(a).

Under the Phase II Rule, the requirements for small MS4s can be met, and the MS4 can receive a permit to discharge pollutants into public waters, by developing, implementing, and enforcing a storm water management program ("SWMP") designed to "reduce the discharge of pollutants from a MS4 to the maximum extent practicable (MEP), to protect water quality, and to satisfy the appropriate water quality requirements of the Clean Water Act." 40 C.F.R. section 122.34(a); 24 S.C. Code Ann. Regs. 61-9 122.34(a). The rule provides that "narrative effluent limitations requiring implementation of best management practices (BMPs) are generally the most appropriate form of effluent limitations when designed to satisfy technology requirements (including reductions of pollutants to the maximum extent practicable) and to protect water quality." Id. The rule also establishes "six minimum measures" that each storm water management program must include to address stormwater pollution through best management practices, and specifies that MS4s "must comply with any more stringent effluent limitations included in [a] permit, included permit requirements that modify, or are in addition to, the minimum control measures based on an approved total maximum daily load (TMDL) or equivalent analysis," or as necessary "to protect water quality." 40 C.F.R. section 122.34(b) & (e); 24 S.C. Code Ann. Regs. 61-9 122.34(b) & (e).

b. MS4s and Construction and Post-Construction Runoff

Charleston argues that the requirement in the general permit for MS4s to develop, implement, and enforce a program to reduce pollutants in any stormwater runoff from construction and post-construction activities that result in land disturbance of greater than or equal to one acre is an "unnecessary and costly duplication of authority, in violation of the goals and policies of the Clean Water Act" because 72-300 requires a permit "for any land disturbing activity located within one-half mile from a receiving waterbody, regardless of the size of the area of disturbance." Charleston Prehearing Statement, Issues Presented (10 and 11). Charleston's argument is lacking is several material respects.

First, Charleston has failed to identify any requirement, goal, or policy in the Act that prohibits a duplication of authority. While EPA has stated in the preamble to the regulations that it would accept a State program to substitute for the MS4 developing, implementing, and enforcing its own program, there is no requirement that a State do so. It is unclear upon what grounds the Court could grant any relief to Charleston on this issue presented, and Charleston has not presented facts or argument to support it.

Second, the Court notes that the permit condition complained of here is a direct quotation of DHEC's duly-promulgated MS4 regulations, regulations that DHEC is bound to follow, as is this Court. The regulations require the MS4 to control pollutants from construction activities that result in a land disturbance of greater than or equal to one acre. S.C. Code Ann. Regs. 61-9 122.34(b)(4). Similary, the regulations require the MS4 to control pollutants from new development or redevelopment that result in a land disturbance of greater than or equal to one acre, including projects of less than one acre that are part of a larger common plan of development or sale. S.C. Code Ann. Regs. 61-9 122.34(b)(5). Indeed, the regulation is written as an affirmative requirement for the MS4 operator, stating that the MS4 "must develop, implement, and enforce" such a program. Id. (emphasis added). Charleston's argument here is that the existing State Stormwater Program under S.C. Code Ann. section 48-14-10 et seq. and section 48-18-10 et seq. and 72-101, 72-300, and 72-405 suffices to relieve the MS4s of their obligation to develop, implement, and enforce the construction and post-construction runoff control program. Unfortunately for Charleston, there is nothing in the regulations supporting this argument. The rules plainly and clearly require the MS4s to develop, implement, and enforce this program. The mere fact that such a program may be duplicative or expensive for Charleston does not relieve it of its obligation to comply with the law. The Court also notes that the practical result of Charleston's argument would be to shift the cost of running the program to DHEC, a cost that Charleston apparently does not mind DHEC bearing.

Also, with regard to cost, several witnesses testified to the ability of individual MS4s to band together to address MS4 program requirements, thereby achieving a great savings and economy of scale. Indeed, the testimony in the record demonstrates that this is in fact happening in Lexington County, where as many as seven MS4s have joined together to take advantage of this economy of scale. This availability greatly mitigates any financial harm the MS4s may face as a result of this program requirement.

Moreover, Charleston's argument would require that the two programs--the MS4 program and the State Stormwater Program--be equivalent. However, the record clearly demonstrates that there are significant differences between the two. The State Stormwater Program contains a number of important provisions, exemptions, waivers, and variances that render it less stringent than the Phase II Rule. In particular, the State Stormwater Program exempts all of the following activities: single family lots; most gas, electric, and communication utilities; mines permitted under the South Carolina Mining Act; dams permitted under the South Carolina Dams and Reservoir Safety Act; and activities undertaken by railroad companies. 26 S.C. Code Ann. Regs. section 72-302. None of these activities are exempted under the Phase II Rule.

In addition, the State Stormwater Program does not require all of the elements of the construction minimum measures. For instance, there are no provisions in the State Stormwater Program placing any restrictions whatsoever on discarded building materials, concrete truck washout, chemicals, litter, and sanitary waste at the construction site that may cause adverse impacts to water quality. These controls are expressly required in the Phase II Rule. 24 S.C. Code. Ann. Regs. section 61-9 122.34(b)(4). Moreover, the State Stormwater Program does not require any public notice for activities seeking coverage under the program, does not require inspections, and has no provision for record-keeping. All of these are required by the Phase II Rule. 24 S.C. Code. Ann. Regs. section 61-9 124.10; 24 S.C. Code. Ann. Regs. section 61-9 122.34(g). Finally, the jurisdictional thresholds--the means for determining which activities must comply with the requirements--differ between the two programs: the Phase II Rule requires all construction activities one acre or greater to obtain a permit, while the State Stormwater Program does not requires projects covering two acres or less to obtain a permit, except in the coastal zone.

Moreover, Charleston's argument that the State Stormwater Program's requirement for a permit for all land activities within one-half mile of a receiving waterbody, regardless of the size of the area of disturbance, does not remedy the deficiencies described above. There is no evidence in the record showing that all land in the coastal zone is within one-half a mile of a receiving waterbody. It is logically possible, therefore, for construction activity disturbing more than one acre, but less than two acres, to occur more than one-half a mile from a receiving waterbody. This would mean that an activity would not be required to receive a permit under the State Stormwater Program, but would be required to receive a permit under Phase II. The exemptions from the permitting requirement under the State Stormwater Program listed above would still exempt those activities even within one-half mile of a waterbody. As a result, Charleston has failed to meet its burden of proof, and its argument must fail.

Charleston is also confused about the legal basis that it has to develop, implement, and enforce the construction and post-construction runoff control program. Charleston is mistaken in its belief that it must seek delegation of the State Stormwater Program in order to satisfy the requirements of S.C. Code Ann. Regs. 61-9 122.34(b)(4). Charleston has full authority under existing state law to adopt whatever land use ordinances it deems necessary to control land use within its jurisdiction, just as do the other affected MS4s subject to this general permit. See generally S.C. Code Ann. section 5-7-10 et seq.; S.C. Code Ann. section 6-7-10 et seq.

Charleston's argument that DHEC could simply amend the general permit to allow DHEC itself to regulate these activities misses the point. There is no statutory or regulatory basis for DHEC to assert jurisdiction over those exempted activities: the MS4 regulations do not give DHEC any authority over the various activities required to be covered by the MS4 permit; rather, the regulations place a requirement on the MS4s to create and implement the programs and leaves it up to the MS4s to adopt any and all necessary ordinances to make it so. S.C. Code Ann. Regs. 61-9 122.34(b)(4)(ii); S.C. Code Ann. Regs. 61-9 122.34(b)(5)(ii). DHEC has no similar powers.

Finally, the Federal Clean Water Act clearly requires a delegated State program to be at least as stringent as the Federal program. 33 U.S.C. section 1342(b). Were DHEC to rely upon the State Stormwater Program to satisfy the requirements of the construction and post-construction minimum measures, DHEC would be in violation of the express provision of Section 1342(b) of the Act, and South Carolina's delegated authority to implement the Act would be jeopardized.

c. Amendment of 72-300

Ironically, Charleston appears to concede the arguments it presents in PHS Issues Presented 10 and 11 in presenting their twelfth issue for determination. The Petitioners allege in PHS Issue Presented No. 12 that the State Stormwater Program could be amended to be consistent with the requirements of Clean Water Act. If the State Stormwater Program were already at least as stringent as the Act, there would be no requirement to amend the State Stormwater Program as Petitioners suggest. This undermines the arguments it presents in support of its allegations that the State Stormwater Program is an acceptable substitute for the MS4 obligations to develop, implement, and enforce construction and post-construction runoff programs. Nonetheless, Charleston cannot compel DHEC to initiate rulemaking on this matter, and it is beyond the power of this Court to do so, as well. The Court is not persuaded that Charleston's argument on this point necessitates rejection of DHEC's permit condition requiring MS4 obligations to develop, implement, and enforce construction and post-construction runoff programs.

B. Arbitrary, Capricious, or Violation of Policies of the Clean Water Act.

1. Positions of the Parties.

Charleston's final issue relates to section 4.1.4 of the general permit, which requires implementation of the construction and post-construction elements of the program within eighteen months of the effective date of the permit.^[1] According to Charleston, the implementation schedule is arbitrary, capricious, and in violation of the policies and goal of the Clean Water Act. (PHS Issue Presented 7). DHEC disagrees. DHEC contends that the schedule included in Section 4.1.4 of the General Permit is not arbitrary or capricious, and that it furthers the goal and policies of the Act. DHEC further argues that based on the evidence presented, the only supportable conclusion is that the schedule is not arbitrary or capricious.

2. Findings of Fact

Based on the preponderance of evidence, the following findings of fact are entered:

Section 122.34(a) provides that, in the MS4 storm water permit for regulated, small MS4s, "[t]he Department will specify a period of up to 5 years from the date of permit issuance for [the MS4] to develop and implement [the] program." 24 S.C. Code Ann. Regs. 61-9 122.34(a). The schedule contained in the permit is in conformance with this regulatory provision. Section 4.1.4 of the General Permit provides that MS4s "must have the [Storm Water Management Plan] fully implemented by the expiration date of this permit. However, the construction and post-construction runoff control programs must be implemented in your entire MS4 area within eighteen months of the effective date of this permit." General Permit, Section 4.1.4. Thus, the schedule in the General Permit provided two different time frames for compliance: an eighteen month period for compliance with the construction and post-construction runoff control programs, and a five year period for implementation of the remaining provisions of the program.

The agency included these two different time frames for a simple reason: DHEC sought to minimize the impacts of new sources of stormwater pollution before they occur. See Affidavit of Marion F. Sadler, Jr., para. 7. ^[2] The construction and post-construction runoff programs only address new development and re-development, activities that introduce new pollutant loads into the receiving waters of the MS4. Id. DHEC required the earlier implementation of the construction and post-construction runoff control programs in order to minimize the pollutant loading from new development and re-development, and therefore reduce the impact to the receiving waters. Id. The existing sources of stormwater runoff are already present, and are responsible for the current pollutant loading to the receiving waters. Id. Whatever the impact to the receiving waters from existing sources may be, it is already occurring. Id. By utilizing this two-step process, DHEC hopes to further the requirement of the Act to minimize degradation from new or expanding sources and constantly ratchet the quality of South Carolina's waters upward. Id.; see 33 U.S.C. 1313(o); 40 C.F.R. section131.12; 25 S.C. Code Ann. Regs. 61-68.D. While there was testimony from witnesses presented by the municipalities regarding the difficulty of achieving the requirement, mostly for political reasons, there was no testimony or evidence that achieving the requirement was not possible.

3. Conclusions of Law

In order for an action to be arbitrary or capricious, it must be without basis or careful deliberation. "Arbitrary" is defined variously in Black's Law Dictionary as "without adequate determining principle; not founded in the nature of things; nonrational; not done or acting according to reason or judgment." Black's Law Dictionary 104 (6^th ed. 1990). "Caprice" is defined as "[w]him, arbitrary, seemingly unfounded motivation." Black's Law Dictionary 211 (6^th ed. 1990). Given such definitions and the evidence in the record, DHEC's action in providing eighteen months for the construction and post-construction program may not be fairly characterized as "arbitrary" or "capricious." Furthermore, DHEC's willingness to allow MS4s the entire five year period to implement the remainder of the program is, by regulation, as long a period of time as DHEC may give to the municipalities to get the program implemented. The Court also notes that Charleston failed to provide any evidence or support demonstrating that an eighteen month time frame for achieving this program is arbitrary or capricious. Indeed, the only evidence in the record regarding this issue supports the agency's decision. As such, Charleston has failed to meet its burden of proof, and its challenge to the permit on this basis must fail.

III. Order

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

That Charleston's challenge to the General Permit conditions related to the development of a construction and post-construction runoff control program by the MS4s fails, and that the following permit conditions are amended as conforming changes to require compliance by MS4s within an eighteen month period as supported by the record and this Court's findings of fact and conclusions of law:

4.1.4 Except for SMS4s that submit an NOI or individual application after the effective date of this permit, you must have the SWMP fully implemented by the expiration date of this permit. However, the construction and post construction runoff control programs must be implemented in your entire regulated MS4 area within eighteen months of the Effective Date of this permit. (see Sections 4.2.4.3 and 4.2.5.3 of this general permit). For SMS4s that submit an NOI application after the effective date of this general permit, you must include an implementation schedule in your NOI application. The schedule may extend past the expiration date of this general permit such that the implementation of the SWMP will be completed during the next term of this general permit but the schedule cannot exceed five years.

4.2.4.1 Permit requirement. Within eighteen months from the effective date of this permit, you must develop, implement, and enforce a program to reduce pollutants in any storm water runoff to your regulated SMS4 from construction activities that result in a land disturbance of greater than or equal to one acre. Reduction of pollutants in storm water discharges from construction activity disturbing less than one acre must be included in your program if that construction activity is part of a larger common plan of development or sale that would disturb one acre or more. Your program must include the development and implementation of, at a minimum:

4.2.5.1.1 Within eighteen months from the effective date of this permit, develop, implement, and enforce a program to address storm water runoff from new development and redevelopment projects that disturb greater than or equal to one acre, including projects less than one acre that are part of a larger common plan of development or sale, that discharge into your regulated SMS4. Your program must ensure that controls that would prevent or minimize water quality impacts are in place;

AND IT IS SO ORDERED.

_____________________________

Ray N. Stevens

Administrative Law Judge

Greenville, South Carolina

Dated: December 28, 2005