ORDERS:
conferred or necessarily implied for it to effectively fulfill the duties with which it is charged. City
of Rock Hill v. South Carolina Department of Health and Environmental Control, 302 S. C. 161, 394
S. E. 2d 327 (1990).
11.When the legislature has expressly mandated a regulatory body to promulgate regulations to
govern the evaluation of permit applications, it must include in its regulations any tests it formulates
and applies in the permit evaluation. Captain’s Quarters Motor Inn, Inc. v. South Carolina Coastal
Council , 306 S.C. 488, 413 S.E.2d 13 (1991); Charleston Television, Inc. v. South Carolina Budget
and Control Bd., 301 S. C. 468, 392 S. E. 2d 671 (1990).
12.The criteria for permitting are not required to be so specific as to be all inclusive in setting
forth factors to be considered. However, factors must not be arbitrarily limited by unwritten internal
agency policy. See Home Health Services, Inc. v. South Carolina Tax Commission, 312 S.C. 324,
440 S.E.2d 375 (1994); see also Captain’s Quarters Motor Inn, Inc. v. South Carolina Coastal
Council, 306 S.C. 488, 413 S.E.2d 13 (1991).
13. S.C. Code Ann. § 1-23-10 (Supp. 2002) defines “regulation” as “each agency statement of
general public applicability that implements or prescribes law or policy or practice requirements of
any agency.” Further, this statute provides that “policy or guidance issued by an agency other than
in a regulation does not have the force or effect of law.”
Regulation 61-101--Water Quality Certification
14.S.C. Code Regs. § 61-101 (Supp. 2002) is captioned “Water Quality Certification.” Its
provisions contain procedures and policies for implementing the state water quality certification
requirements of Section 401 of the Clean Water Act (“CWA”), 33 U.S.C. § 1341. This regulation
provides that no Federal permit will be issued pursuant to Section 404 of the CWA, 33 U.S.C. §
1344, until the person has first been granted a state water quality certification and met the
requirements of Section 401 of the CWA. The certification is called a Section 401 water quality
certification or water quality certification.
15.If an activity requires a permit for the construction in State navigable waters pursuant
to applicable laws and regulations, the review for the water quality certification will consider issues
for that permit, also. DHEC will not issue a separate permit for the construction in State navigable
waters; the water quality certification permit serves as the permit for both. See Regs. § 61-101.A.2
(Supp. 2002).
16.In order to obtain the water quality certification with no conditions, an applicant must
present a complete application to DHEC, identifying the proposed activities reasonably associated
with the proposed project, along with additional information required by DHEC at the time of filing
and as requested thereafter. See Regs. 61-101.C. (Supp. 2002).
17.Regs. 61-101. D.1. (Supp. 2002) requires public notice of all applications.
18.After the public notice and any public hearing, if requested, DHEC assesses the proposed
activity and its water quality impacts and makes conclusions concerning compliance with water
quality standards, protection of classified uses, and related water quality impacts. Thereafter, DHEC
issues a water quality certification in an NOPD (with supporting staff assessment)
to the applicant
if the applicant has demonstrated that the project is consistent with the provisions of DHEC’s
regulations, the State Water Quality Standards found in S.C. Code Regs. 61-68, the CWA, 33 U.S.C.
§ 1341, and regulations promulgated thereunder by the EPA.
19.If the application is denied or the NOPD and the Staff Assessment contain conditions that
the applicant disagrees with, the applicant may file a request for a contested case hearing. In this case,
Petitioner disagreed with one of the conditions contained in the NOPD and the Staff Assessment and
timely filed a request for a contested case hearing. See S.C. Code Regs. 61-101.G.4. (Supp. 2002).
20.S.C. Code Regs. 61-101.F.3. requires the following factors to be considered when assessing
the water quality impacts of a project:
(1) whether the activity is water dependent and the intended purpose of the activity;
(2) whether there are feasible alternatives to the activity;
(3) all potential water quality impacts of the project, both direct and indirect, over the life of
the project including:
(a) impact on existing and classified water uses;
(b) physical, chemical, and biological impacts, including cumulative impacts;
(c) the effect on circulation patterns and water movement;
(d) the cumulative impacts of the propose activity and reasonably foreseeable similar
activities of the applicant and others.
21.Requests to fill an area necessary for the maintenance or protection of public highways will
be certified when there are no feasible alternatives. See Regs. 61-101.F.4.R.
22.S.C. Code Regs. 61-101.F.5. mandates the denial of a certification if:
(1) the proposed activity permanently alters the aquatic ecosystem in the vicinity of the
project such that its functions and values are eliminated or impaired;
(2) there is a feasible alternative to the activity, which reduces adverse consequences on water
quality and classified uses;
(3) the proposed activity adversely impacts waters containing State or Federally recognized
rare, threatened, or endangered species;
(4) the proposed activity adversely impacts special or unique habitats, such as National Wild
and Scenic Rivers, National Estuarine Research Reserves, or National Ecological Preserves,
or designated State Scenic River.
23.Certification will also be denied if DHEC is not assured that appropriate and practical steps,
including storm water management, will be taken to minimize adverse impacts on water quality and
the aquatic ecosystem. See Regs. 61-101.F.6. DHEC has the authority to certify a project, to deny
certification or to certify with conditions. See CWA §§ 401 (a)(1) and (d).
Regulation 19-450--Permits for Construction in Navigable Waters
24.Regs. 19-450 governs the issuance by DHEC of a permit to dredge, fill or construct or alter
activity in, on, or over a navigable water, or in, or on the bed under navigable waters.
25.However, no construction permit is required under this regulation if a water quality
certification is required. See Regs. 19-450.3.G.
Regulation 61-68--Water Classifications and Standards
26.In meeting the requirements for water quality enumerated in Regs. 61-101, an applicant for
a water quality certification must meet the qualifications of Regs. 61-68. This regulation establishes
a system and rules for managing and protecting the quality of South Carolina’s surface and ground
water.
27.S.C. Code Regs. § 61-68.E.8. disallows the discharge of fill into a water of this State unless
the activity is consistent with DHEC regulations and will result in enhancement of classified uses with
no significant degradation to the aquatic ecosystem or water quality.
28.The term “classified uses” is defined in S.C. Code Regs. § 61-68. B.22. as “those uses
specified in Section G for surface waters and Section H for ground waters whether or not those uses
are being attained.”
29.Lake Thurmond is classified as a “freshwater” in S.C. Code Regs. 61-69.E. S.C. Code Regs.
61-68.G.10. describes “freshwaters” as being suitable for primary and secondary contact recreation
and as a source for drinking water supply after conventional treatment in accordance with the
requirements of the Department. Further, it is defined as being suitable for fishing and the survival
and propagation of a balanced indigenous aquatic community of fauna and flora.
30.S.C. Code Regs. § 61-68.D.1. requires that the existing water uses and the level of water
quality necessary to protect the existing uses shall be maintained and protected.
31.“Existing use” is defined in Regs. § 61-68.B.31. as “those uses actually being attained in or
on the water, on or after November 28, 1975, regardless of the classified uses.”
32.S.C. Code Regs. 61-68.F.1.c. states that narrative biological criteria shall be consistent with
the objective of maintaining and improving all surface waters to a level that provides for the survival
and propagation of a balanced indigenous aquatic community of fauna and flora attainable in waters
of the State; and in all cases shall protect against degradation of the highest existing or classified uses
or biological conditions in compliance with the Antidegradation Rules contained in this regulation.
33.A “balanced indigenous aquatic community” is “a natural, diverse biotic community
characterized by the capacity to sustain itself through cyclic seasonal changes, presence of necessary
food chain species and by a lack of domination by pollutant tolerant species.” Regs. § 61-68.B.11.
34.“Primary contact recreation” is defined in Regs. 61-68.B.47 as “any activity with the intended
purpose of direct water contact by the human body to the point of complete submergence, including
but no limited to swimming, water skiing, and skin diving.”
35.“Secondary contact recreation” is “any activity occurring on or near the water which does
not have an intended purpose of direct water contact by the human body to the point of complete
submergence, including but not limited to fishing, boating, canoeing, and wading. Regs. § 61-68.E.51.
Discussion
DHEC is the state agency charged with the duty to protect the waters of this state. See
generally Title 48, South Carolina Code of Laws (1987 & Supp. 2002). This case involves Lake
Thurmond, which is classified as open water or freshwater. In issuing a water quality certification,
DHEC must consider the impact on any aquatic wildlife or habitat in the area as well as the
recreational use of the disputed area. It seeks to ensure that water quality standards are met and that
any impacts from a project will be minimized. When an application is filed with DHEC requesting
approval for a proposed activity which may, either during construction or during later operation,
result in a discharge into navigable waters, it has a statutory duty to assess the proposed project to
ensure and protect the quality of that water and to assess the water quality impacts of the project.
DHEC is required to issue, deny, or waive the requested water quality certification within one year
after the completed application is filed with it.
To prevent further erosion at its site on Lake Thurmond, Petitioner filed an application with
the Corps for the water quality certification and the permit to construct sea walls and to backfill
approximately 2.04 acres in the disputed area (five separate areas). The Corps forwarded Petitioner’s
application to DHEC for its determination.
In its Staff Report, DHEC gave various reasons for its denial of the requested certification
and permit. At the hearing, it offered additional reasons for its denial which were not contained in
the Staff Report. In its Staff Report, DHEC held that if the sea walls as proposed by Petitioner were
authorized for construction by DHEC, the following would result:
(1) a permanent loss of approximately 2.04 acres of open water aquatic habitat life use; See
Pet. Exh.23, pp. 6 and 8.
(2) a permanent alteration and a significant degradation of the aquatic ecosystem in the
vicinity/area of the proposed project such that its functions and values are eliminated or
impaired; See Pet. Exh. 23, pp. 6-8.
(3) a failure by Petitioner to take appropriate and practical steps including storm water
management to minimize adverse impacts on water quality and the aquatic ecosystem; See
Exh. 23, pp. 7 and 8.
(4) a permanent elimination of the disputed area for seasonal shallow lake habitat, and thus,
a permanent removal of an existing aquatic life use from the lake; See DHEC Exh. 23, pp. 7.
(5) an elimination of spawning in the disputed area; See DHEC Exh. 23, p. 7.
(6) an elimination of foraging habitat for fish and invertebrates in the disputed area several
months of each year which supports the Lake Thurmond food web; See DHEC Exh. 23, p.
7-9.
(7) a failure by Petitioner to provide for the survival and propagation of a balanced
indigenous aquatic community of fauna and flora in the waters of Lake Thurmond; See DHEC
Exh. 23, p. 8.
(8) a failure by Petitioner to maintain the existing aquatic community in the area of the
proposed project; See DHEC Exh. 23, p. 8.
(9) a significant loss of aquatic habitat and existing aquatic life uses in waters of the State of South Carolina due to cumulative impacts when DHEC certified similar projects to
Petitioner and others in the Waters of the State; See DHEC Exh. 23, p. 9.
Precedential Value of Sandhill Case
At the hearing, DHEC correctly argued that only the determinations contained in its Staff
Report and the NOPD were appropriate for consideration. However, in its closing argument to the
court, DHEC raised for the first time an additional reason for denying the requested water quality
certification and construction permit. It brought to the court’s attention DHEC Order 90-4-B,
entitled In Re: Sandhill, a Partnership, Joe L. Carter v. South Carolina Department of Health and
Environmental Control and Sierra Club, Intervenor (“Sandhill”), issued by the DHEC board on April
12, 1990. DHEC stated that this decision had been adopted by DHEC as a policy which it follows
in these certification and permit cases. It argued that the decision had precedential value since it was
affirmed by a circuit court and by the Court of Appeals in an unpublished decision. For the following
reasons this court finds that the board decision in the Sandhill case, and its adoption by the DHEC
board as a policy to be adhered to in water quality certification and construction permit applications,
is not applicable to this case and is not binding on this court:
(1) A decision by the Court of Appeals which is unpublished does not have precedential value
and is not binding on subsequent similar issues which are litigated. This ruling by the South
Carolina Court of Appeals is subject to SCACR 239, which provides that “memorandum
opinions and unpublished orders have no precedential value and should not be cited except
in proceedings in which they are directly involved.”
(2) The decision by the DHEC board in Sandhill could not be validly adopted by DHEC as
a policy to be applied to the general population since it has not been promulgated as a
regulation as required by statutory and decisional law;
(3) The decision was not cited in the NOPD and in the Staff Report as a reason for denying
the placement of the sea walls at the 324' MSL;
(4) The facts in the Sandhill case are inapposite to this case as follows:
1.Petitioner in Sandhill sought to construct dikes which would replace or repair
previously existing dikes constructed for water control associated with rice
cultivation;
2.The dikes replaced about 1.7 acres of former fresh water tidal estuarine marsh
or wetlands between the Pee Dee and Waccamaw Rivers in Georgetown
County;
3.The dikes would impound about 29 acres of that same marsh;
4.The dikes would isolate the impoundment area from the diurnal tidal flow
which would otherwise occur;
5.Petitioner wanted to create the impoundment for crops which would attract
migratory waterfowl;
6.After the dikes were constructed, Petitioner applied for an after the fact
permit to discharge dredge material into waters of the state pursuant to
section 404 of the CWA;
7.DHEC found in Sandhill that the rebuilding of the dikes turned 1.7 acres of
marsh into land of upland character, changed its classified use and displaced
a balanced indigenous aquatic community;
8.DHEC found in Sandhill that the construction of the dikes would isolate 29
acres of marsh from the free diurnal tidal flow which would alter the pre-existing balanced aquatic community;
9.DHEC found in Sandhill that there is a likelihood that reduced levels of
dissolved oxygen at variance with the levels to be expected in the unaltered
marsh will violate state water quality standards.
In contrast to the facts in Sandhill, here there is no credible evidence that any previously
existing balanced indigenous aquatic community will be disturbed or displaced by the proposed
project. Nor is there any credible evidence that the water quality in Lake Thurmond will be adversely
impacted. For these reasons, it is inappropriate to apply the Sandhill case in this instance.
It is noteworthy that DHEC concluded in Sandhill that because some previously litigated 401
certification cases “had significantly different facts” or, had been “issued several years previously,”
they had no value and the use of their comparisons were “not valid.” This conclusion is totally
inconsistent with the board’s present policy that it will apply the conclusion reached in the Sandhill
case to all subsequent cases, notwithstanding that they may have significantly different facts, such as
is the case here.
Other Rationales for Denial
Secondly, DHEC argued that the proposed project would not maintain and protect the
existing uses and water quality at the specific locations as required by the Antidegradation Rules
contained in Regs. 61-68 (D)(1). The existing uses for the waters of Lake Thurmond (freshwater)
are defined in Regs. 61-68 (B)(31) as the uses actually being attained there. It defines the uses for
the freshwater of Lake Thurmond as: (1) fishing; (2) the survival and propagation of a balanced
indigenous aquatic community of flora and fauna; (3) industrial and agricultural uses; (4) primary
and secondary contact recreation; and (5) a source for drinking water supply after conventional
treatment. Here, the only existing use which DHEC argues that the proposed project would infringe
upon was the permanent elimination of the balanced indigenous aquatic community of flora and fauna
(which DHEC alleges exists in the disputed area). A thorough analysis of the Staff Report reflects
that this conclusion by DHEC staff was not based upon any independent study made by the DHEC
staff, but was based upon reports and letters it received from third parties, e.g., DNR, EPA, and
FWS, which contained no supporting data. See DHEC Exh. 23, pp. 7-10.
Thirdly, DHEC argued that the proposed project does not meet the water quality standard
as enunciated in Reg. 61-68.E(8), i.e., the discharge of fill into Lake Thurmond (the disputed area)
is not consistent with DHEC regulations, it will not enhance the classified uses of Lake Thurmond,
and it will create significant degradation to its aquatic ecosystem or to its water quality. Again,
a thorough analysis of the Staff Report reflects that this conclusion by the DHEC staff was based
upon reports and letters it received from third parties, e.g., DNR, EPA, and FWS, none of which was
based upon any supporting data. See DHEC Exh. 23, pp. 7-10.
Finally, DHEC argued that the proposed project would not meet the requirements of Regs.
61-68(F)(1)(c). This regulation requires a project to be consistent with the maintenance and
improvement of the surface waters to such a level that it will provide for the survival and
propagation of that balanced indigenous aquatic community of fauna and flora which is
attainable in the waters. Once again, a thorough analysis of the Staff Report reflects that this
conclusion by DHEC staff was based upon reports and letters it received from third parties, e.g.,
DNR, EPA, and FWS, none of which contained any data or studies to support their opinions. See
DHEC Exh. 23, pp. 7-10.
In addition to the above, Ms. Rheda Geddings of DHEC testified during the hearing that there
was no need to assemble a panel of fishery experts to look at the fish and aquatic impacts at the
disputed area since Regs. 61-101 “requires that we look and we deny a project if there are less
damaging feasible alternatives.” See Transcript, Day Three of Four, p. 59. She asserted that DHEC
must look at avoidance of impact or minimization of impact if avoidance is impossible. Ms. Geddings
reasoned that DHEC can analyze the facts in an application to ensure the requested construction
would avoid or minimize an impact without first having to make a determination that there is an
impact at the proposed construction site. In her testimony she clarified this position somewhat when
she agreed with the court that DHEC does need to evaluate other alternatives than those presented
by an applicant to determine whether any of them might be less damaging to the habitat or
aquaculture, Notwithstanding, she failed to explain why it is unnecessary to first determine whether
a project actually has an impact on the indigenous aquatic community prior to denying the application
because there are “less damaging feasible alternatives. In this case, DHEC absolutely failed to make
an adequate determination of whether Petitioner’s project would cause any impact. Despite
Petitioner’s request, DHEC did not meet with the fishery experts to determine if there would be any
effect from the proposed construction project on the local indigenous aquatic community of flora and
fauna. This omission by DHEC undermines the credibility of the findings in the Staff Report and
NOPD, in light of the fact, as discussed herein, that the fishery experts’ reports generally concluded
there would be no significant impact resulting from the project.
Review of the Reports and Testimony of State and Federal Agencies
This court must now carefully analyze the various reports and letters from the several state
and federal agencies made part of the record, as well as the testimony at trial, to determine if they
provide support for DHEC’s conclusions in its Staff Report and NOPD, i.e., a failure by Petitioner
to maintain a balanced indigenous aquatic community of fauna and flora in the disputed area and/or
a degradation of the ecosystem which it alleges presently exists there.
In support of its conclusions, DHEC relies upon the reports submitted by Dr. Isely of Clemson
University, Mr. Duncan of DNR, the reports of the FWS and the EPA, and the testimony of Ms.
Matthews of EPA. DHEC first argues that Dr. Isely’s report supports its conclusion that the
proposed project will create a reduction in the secondary lake level and fish production level.
Further, DHEC uses the reports of Mr. Duncan to support its conclusion that the disputed area is
suitable for sunfish spawning and if the project is constructed there will be a loss of shallow lake
habitat and foraging habitat. DHEC also relies upon the reports of both the FWS and the EPA to
support its conclusion that the disputed area is shallow lake which provides spawning and foraging
habitat for fishes and invertebrates which support the Lake Thurmond food web. Finally, DHEC
solicited the testimony of Ms. Matthews to support its conclusion that if adverse consequences will
result from the construction of a proposed project, the agency must then look to the least damaging
alternative. The Court will examine each of these in turn.
First, Dr. Isely, a professor of wildlife management at Clemson University, actually visited the
disputed area on several occasions with some of his students from Clemson University. In his report
he found that there was no aquatic or emergent vegetation present in the proposed impact areas. He
found no evidence of fish spawning in the disputed area. Further, he opined that the proposed project
would not have a net negative direct or indirect impact on the fish habitat or fish populations in Lake
Thurmond. He stated that the sites were not good nursery habitat. In conclusion, he opined that the
proposed project would improve, not damage, the local fish populations and would serve as the base
for an enhanced food supply for fish. Further he felt the proposed project would reduce
sedimentation and erosion, increase habitat stability and cover for adult fish. Accordingly, Dr. Isely’s
report provides no support for DHEC’s conclusions.
Second, Mr. Duncan’s report provides little support for DHEC’s position. Mr. Duncan
agreed with Mr. Mike Alexander’s opinion that the disputed area did not contain a habitat which is
critical for the fish in Lake Thurmond or for their spawning. Mr. Duncan could only opine that the
disputed area contains some level of production of aquatic organisms and fish use during the times
of the year when it is flooded. His opinion is based on pure conjecture, since there was no evidence
that he inspected the disputed area nor that he had reviewed any studies or data to support his
conclusion. Indeed, after reviewing the correspondence of Mr. Alexander, who did inspect the
disputed area, Mr. Duncan changed his opinion, proposing that the sea walls at the proposed project
should be constructed ten feet away from the escarpment. Accordingly, Mr. Duncan’s initial opinion,
which was relied upon by DHEC, is not credible.
I further find that the reports from the FWS do not support DHEC’s position. In his earliest
correspondence, Mr. Banks of the FWS did not disagree with the construction of the sea walls at the
324' MSL. Subsequently, after he was telephoned by Mr. Giffin of DHEC and requested to write
a letter supporting DHEC’s position, Mr. Banks wrote a letter to DHEC wherein he agreed with
DHEC’s position that the sea walls should be constructed at the existing escarpment. See Transcript,
Day Three of Four, pp. 22-24. He was not provided any additional data or studies to support the
request. This court gives no credibility to this second opinion by Mr. Banks contained in the letter
addressed to DHEC. The better action would have been for DHEC to join with Petitioner in having
a meeting with the fish biologist from DNR, Wade Bales, Dr. Isely and Mr. Alexander. DHEC
showed no interest in having this conference. Ms. Geddings testified that DHEC never contacted
either Mr. Alexander or Mr. Bales. See Transcript of Day Three of Four, p. 89. To the contrary,
DHEC sought, without notice to Petitioner and without including him in either telephone
conversation, an opinion from DNR which was consistent with its opinion and for EPA to have an
employee testify at the hearing.
Finally, Mr. Giffin of DHEC testified that the plankton in the area could be adversely impacted
by the project. However, DHEC made no independent study of plankton in Lake Thurmond, nor did
it conduct an evaluation or study of the proposed site. See Transcript Day Three of Four, pp. 148-149; Transcript Day Two of Four, p. 22. Moreover, DHEC’s conclusion regarding plankton is
contradicted by the letter from Dr. Hains and Dr. Theriot of the Corps, which stated that there would
be no impact on the plankton community as a result of this project. Indeed, Ms. Geddings conceded
in her testimony that Dr. Hains of the Corps, who has studied plankton for eighteen years, is “very
well qualified” to talk about the plankton in Lake Thurmond. Despite this fact, she testified that she
felt no need to talk with either Dr. Hains or Dr. Theriot after receiving their letter. I find and
conclude that the report of Drs. Hains and Theriot is entitled to greater weight and that there would
be no loss of plankton resulting from the construction of the sea walls as requested.
Petitioner offered other evidence in support of its proposed project. First, Petitioner provided
an order of the Hon. Falcon Hawkins dated May 3, 2002 wherein he concluded, from his review of
a history of environmental impact studies over many years of the Richard B. Russell Lake and Lake
Thurmond, that the fishery resources and water quality in the lakes would not be significantly
adversely affected even if he approved the operation of the pumped storage turbines at the Richard
B. Russell dam. His order found that these studies reflected that there were from 6.04 to 12.78
million fishes killed in Lake Thurmond annually from the operation of the turbines, depending upon
the lake level. Notwithstanding, the studies concluded that these fish kills, even though seemingly
large, did not constitute a significant impact on the aquatic ecosystem of Lake Thurmond. In his
order, Judge Hawkins authorized the operation of the turbines. This order supports Petitioner’s
contention that no adverse impact on Lake Thurmond will occur as a result of the proposed project.
Furthermore, Mr. Alexander, the Corps district fisheries biologist, has monitored and studied
the fisheries of Lake Hartwell, Richard B. Russell Lake and Lake Thurmond (all three lakes
impounded on the Savannah River). The record reflects that he is knowledgeable of the aquatic
environmental conditions at all the shoreline erosion control projects on Lake Thurmond. Mr.
Alexander inspected the disputed area and concluded that the construction of the proposed project
would not have any impact of an aquatic environmental concern and that it would be impossible for
the construction to effect any changes in fish abundance, growth rate, etc. in Lake Thurmond. Also,
Mr. Alexander stated that there was no needed habitat in the disputed area for any portion of
the life history of a fish species.
I find and conclude that the overwhelming evidence supports the conclusion that the
construction of the proposed project away from the 330' MSL or the present erosional escarpment
should be approved. There has not been any showing that the disputed area contains an aquatic
ecosystem which would be eliminated by the construction of the proposed project, that there is
aquatic habitat or aquatic wildlife in the disputed area which would be permanently eliminated by the
construction of the proposed project, that there will be a reduction in the secondary reservoir
production level of fish resulting from the construction of the proposed project, or that there is
spawning or foraging for habitat in the disputed area which would be permanently eliminated if the
proposed project was constructed, or that there would be any adverse effect on water quality.
Without such a showing, there is no violation of Reg. 61-68 (E) (8), 61-68 (D)(1) or 61-68 (F) (1)
(c) as argued by DHEC.
Bulkheads to be used for construction
DHEC realizes the need for some form of erosion control at the Club. It believes erosion
controls are needed to benefit water quality by reducing turbidity and sedimentation in adjacent
waters during storm events and during periods of high wind and wave action. Neither the statutes
nor regulations applicable to water quality certifications or construction permits list any bulkhead
construction forms or techniques. Thus, in its Staff Report analysis of the alternative bulkhead types
which might be used for the proposed project, DHEC analyzed each alternative proposed by
Petitioner in its application. As to the Keystone block system, DHEC stated that “this method of
construction of sea walls appeared to have a significant number of advantages and no serious
drawbacks.” See DHEC Exh. 23, p. 5. It is uncontested that this is the type of construction the
Corps uses for the construction of its sea walls and river bank containments in numerous locations
around the United States. Its foundation does not require any digging or hydraulic drilling and can
be formed in place. It allows for easy modifications in height due to changes in elevation, is much
more aesthetically pleasing than any of the alternatives, and its usage would not require any major
disruption of the existing shoreline with heavy equipment to get the blocks to the placement location.In its Staff Report, DHEC authorized the usage of the Keystone block system as the type of
sea wall to be constructed at the proposed project. See DHEC Exh. 23, pp. 7, 11, and 12. At the
hearing, however, DHEC changed its position and ignored its previous approval for such
construction. Mr. Giffin testified that DHEC would now condition the issuance of the certification
and permit for the proposed project only if rip rap was used as the erosion control device. See
Transcript Day Two of Four, p. 77.
I find and conclude that the evidence supports the construction of the sea walls of Keystone
block, as agreed to by DHEC in the NOPD and the Staff Report.
Cumulative Impacts
Regs. 61-101 (F)(3) states that in assessing the water quality impacts of a project, DHEC will
address cumulative impacts of the proposed activity and reasonably foreseeable similar activities of
the applicant and others. In actuality, however, DHEC does not analyze the cumulative impacts of
a proposed application as required by this regulation. Instead, DHEC has a long-standing policy, as
testified to by Ms. Geddings at the hearing, that it automatically requires all bulkheads and erosional
devices to be placed at the erosional scarp.
Ms. Geddings acknowledged that the regulations do not
require sea walls to be constructed at the erosional escarpment. Notwithstanding, she testified that
“if we allow Plum Branch to do this, we have to be consistent with our application for the regulation,
and therefore, I...my personal feeling is that that would be a very large cumulative impact across the
state.” Tr. Day Three of Four, pp. 68-73.
It is correct for DHEC to examine the cumulative effects of a particular project as required
by the regulation. However, DHEC cannot automatically require that all erosion device projects be
constructed at the erosional escarpment. It must instead follow the regulation, which requires DHEC
to look at all the facts in each application, make an individualized assessment and then issue a
determination stating what impacts, if any, the project would cause. In this case, DHEC has not
established any adverse impact of the proposed project. When questioned by Petitioner about other
locations at Lake Thurmond, such as Scott’s Ferry landing (with boat ramps, jetties and filling
occurring in 2002),
and West Dam Recreational Site, where sea walls have been constructed, lake
bottom had been filled and ramps had been constructed as much as one hundred feet into Lake
Thurmond, Ms. Geddings testified that she was not aware of those projects nor the issuance by
DHEC of a permit for them, and that possibly they might have issued under a nationwide permit
authorized by the Army Corps of Engineers. However, she also testified that even projects
constructed pursuant to nationwide permits would require a water quality certification by DHEC, or
at least a review of the projects by DHEC. Also, Ms. Geddings testified that all nationwide permits
approved by DHEC contained conditions requiring any sea walls to be constructed at the erosional
escarpment. See Transcript, Day Three of Four, pp. 126-137. Mr. Giffin testified that he was not
aware of any requests for the construction of sea walls at Lake Thurmond since he had been
employed with DHEC. He further acknowledged that there have been no cumulative impacts on
water quality in the past. See Transcript Day Two of Four, pp. 47-49.
Accordingly, this court finds that the construction of this project will not contribute to any
potential cumulative impacts resulting in the future from certifications and permits issued by DHEC.
In fact, there is evidence that the construction of the proposed sea walls at the 324' MSL will be of
benefit to the local community of fish and plants. DHEC was aware of the Corps’ opinion to this
effect but did not discuss it with the Corps. Ms. Geddings testified Petitioner provided DHEC
information concerning the construction of the proposed sea walls prepared by Dr. Hains and Dr.
Theriot of the U.S. Army Corps of Engineers Environmental Laboratory at Vicksburg, Mississippi.
However, she noted that DHEC “felt no need to contact them.” See Transcript Day Three of Four,
p. 147.
This court finds and concludes that DHEC’s argument that it cannot allow certifications to
be issued for projects allowing the construction of sea walls away from the escarpment because of
the potential cumulative effect they would have on Lake Thurmond and other navigable waters is
lacking in merit. Other similar projects are ongoing and have been constructed since these regulations
were approved by the legislature in 1991. Further, there has been no concrete showing that allowing
this project to be constructed would contribute to any adverse impacts on the waters of this state or
on any indigenous community of flora or fauna in the area. Therefore, I find and conclude that the
sea walls should be placed at the 324' MSL as set forth in Petitioner’s application.
ORDER
For all the foregoing reasons, it is hereby
ORDERED that DHEC must issue to Petitioner the water quality certification and the
construction permit as requested by Petitioner in its application and as approved by the Corps.
AND IT IS SO ORDERED.
_________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
January 22, 2004 conferred or necessarily implied for it to effectively fulfill the duties with which it is charged. City
of Rock Hill v. South Carolina Department of Health and Environmental Control, 302 S. C. 161, 394
S. E. 2d 327 (1990).
11. When the legislature has expressly mandated a regulatory body to promulgate regulations to
govern the evaluation of permit applications, it must include in its regulations any tests it formulates
and applies in the permit evaluation. Captain’s Quarters Motor Inn, Inc. v. South Carolina Coastal
Council , 306 S.C. 488, 413 S.E.2d 13 (1991); Charleston Television, Inc. v. South Carolina Budget
and Control Bd., 301 S. C. 468, 392 S. E. 2d 671 (1990).
12. The criteria for permitting are not required to be so specific as to be all inclusive in setting
forth factors to be considered. However, factors must not be arbitrarily limited by unwritten internal
agency policy. See Home Health Services, Inc. v. South Carolina Tax Commission, 312 S.C. 324,
440 S.E.2d 375 (1994); see also Captain’s Quarters Motor Inn, Inc. v. South Carolina Coastal
Council, 306 S.C. 488, 413 S.E.2d 13 (1991).
13. S.C. Code Ann. § 1-23-10 (Supp. 2002) defines “regulation” as “each agency statement of
general public applicability that implements or prescribes law or policy or practice requirements of
any agency.” Further, this statute provides that “policy or guidance issued by an agency other than
in a regulation does not have the force or effect of law.”
Regulation 61-101--Water Quality Certification
14. S.C. Code Regs. § 61-101 (Supp. 2002) is captioned “Water Quality Certification.” Its
provisions contain procedures and policies for implementing the state water quality certification
requirements of Section 401 of the Clean Water Act (“CWA”), 33 U.S.C. § 1341. This regulation
provides that no Federal permit will be issued pursuant to Section 404 of the CWA, 33 U.S.C. §
1344, until the person has first been granted a state water quality certification and met the
requirements of Section 401 of the CWA. The certification is called a Section 401 water quality
certification or water quality certification.
15. If an activity requires a permit for the construction in State navigable waters pursuant
to applicable laws and regulations, the review for the water quality certification will consider issues
for that permit, also. DHEC will not issue a separate permit for the construction in State navigable
waters; the water quality certification permit serves as the permit for both. See Regs. § 61-101.A.2
(Supp. 2002).
16. In order to obtain the water quality certification with no conditions, an applicant must
present a complete application to DHEC, identifying the proposed activities reasonably associated
with the proposed project, along with additional information required by DHEC at the time of filing
and as requested thereafter. See Regs. 61-101.C. (Supp. 2002).
17. Regs. 61-101. D.1. (Supp. 2002) requires public notice of all applications.
18. After the public notice and any public hearing, if requested, DHEC assesses the proposed
activity and its water quality impacts and makes conclusions concerning compliance with water
quality standards, protection of classified uses, and related water quality impacts. Thereafter, DHEC
issues a water quality certification in an NOPD (with supporting staff assessment)
to the applicant
if the applicant has demonstrated that the project is consistent with the provisions of DHEC’s
regulations, the State Water Quality Standards found in S.C. Code Regs. 61-68, the CWA, 33 U.S.C.
§ 1341, and regulations promulgated thereunder by the EPA.
19. If the application is denied or the NOPD and the Staff Assessment contain conditions that
the applicant disagrees with, the applicant may file a request for a contested case hearing. In this case,
Petitioner disagreed with one of the conditions contained in the NOPD and the Staff Assessment and
timely filed a request for a contested case hearing. See S.C. Code Regs. 61-101.G.4. (Supp. 2002).
20. S.C. Code Regs. 61-101.F.3. requires the following factors to be considered when assessing
the water quality impacts of a project:
(1) whether the activity is water dependent and the intended purpose of the activity;
(2) whether there are feasible alternatives to the activity;
(3) all potential water quality impacts of the project, both direct and indirect, over the life of
the project including:
(a) impact on existing and classified water uses;
(b) physical, chemical, and biological impacts, including cumulative impacts;
(c) the effect on circulation patterns and water movement;
(d) the cumulative impacts of the propose activity and reasonably foreseeable similar
activities of the applicant and others.
21. Requests to fill an area necessary for the maintenance or protection of public highways will
be certified when there are no feasible alternatives. See Regs. 61-101.F.4.R.
22. S.C. Code Regs. 61-101.F.5. mandates the denial of a certification if:
(1) the proposed activity permanently alters the aquatic ecosystem in the vicinity of the
project such that its functions and values are eliminated or impaired;
(2) there is a feasible alternative to the activity, which reduces adverse consequences on water
quality and classified uses;
(3) the proposed activity adversely impacts waters containing State or Federally recognized
rare, threatened, or endangered species;
(4) the proposed activity adversely impacts special or unique habitats, such as National Wild
and Scenic Rivers, National Estuarine Research Reserves, or National Ecological Preserves,
or designated State Scenic River.
23. Certification will also be denied if DHEC is not assured that appropriate and practical steps,
including storm water management, will be taken to minimize adverse impacts on water quality and
the aquatic ecosystem. See Regs. 61-101.F.6. DHEC has the authority to certify a project, to deny
certification or to certify with conditions. See CWA §§ 401 (a)(1) and (d).
Regulation 19-450--Permits for Construction in Navigable Waters
24. Regs. 19-450 governs the issuance by DHEC of a permit to dredge, fill or construct or alter
activity in, on, or over a navigable water, or in, or on the bed under navigable waters.
25. However, no construction permit is required under this regulation if a water quality
certification is required. See Regs. 19-450.3.G.
Regulation 61-68--Water Classifications and Standards
26. In meeting the requirements for water quality enumerated in Regs. 61-101, an applicant for
a water quality certification must meet the qualifications of Regs. 61-68. This regulation establishes
a system and rules for managing and protecting the quality of South Carolina’s surface and ground
water.
27. S.C. Code Regs. § 61-68.E.8. disallows the discharge of fill into a water of this State unless
the activity is consistent with DHEC regulations and will result in enhancement of classified uses with
no significant degradation to the aquatic ecosystem or water quality.
28. The term “classified uses” is defined in S.C. Code Regs. § 61-68. B.22. as “those uses
specified in Section G for surface waters and Section H for ground waters whether or not those uses
are being attained.”
29. Lake Thurmond is classified as a “freshwater” in S.C. Code Regs. 61-69.E. S.C. Code Regs.
61-68.G.10. describes “freshwaters” as being suitable for primary and secondary contact recreation
and as a source for drinking water supply after conventional treatment in accordance with the
requirements of the Department. Further, it is defined as being suitable for fishing and the survival
and propagation of a balanced indigenous aquatic community of fauna and flora.
30. S.C. Code Regs. § 61-68.D.1. requires that the existing water uses and the level of water
quality necessary to protect the existing uses shall be maintained and protected.
31. “Existing use” is defined in Regs. § 61-68.B.31. as “those uses actually being attained in or
on the water, on or after November 28, 1975, regardless of the classified uses.”
32. S.C. Code Regs. 61-68.F.1.c. states that narrative biological criteria shall be consistent with
the objective of maintaining and improving all surface waters to a level that provides for the survival
and propagation of a balanced indigenous aquatic community of fauna and flora attainable in waters
of the State; and in all cases shall protect against degradation of the highest existing or classified uses
or biological conditions in compliance with the Antidegradation Rules contained in this regulation.
33. A “balanced indigenous aquatic community” is “a natural, diverse biotic community
characterized by the capacity to sustain itself through cyclic seasonal changes, presence of necessary
food chain species and by a lack of domination by pollutant tolerant species.” Regs. § 61-68.B.11.
34. “Primary contact recreation” is defined in Regs. 61-68.B.47 as “any activity with the intended
purpose of direct water contact by the human body to the point of complete submergence, including
but no limited to swimming, water skiing, and skin diving.”
35. “Secondary contact recreation” is “any activity occurring on or near the water which does
not have an intended purpose of direct water contact by the human body to the point of complete
submergence, including but not limited to fishing, boating, canoeing, and wading. Regs. § 61-68.E.51.
Discussion
DHEC is the state agency charged with the duty to protect the waters of this state. See
generally Title 48, South Carolina Code of Laws (1987 & Supp. 2002). This case involves Lake
Thurmond, which is classified as open water or freshwater. In issuing a water quality certification,
DHEC must consider the impact on any aquatic wildlife or habitat in the area as well as the
recreational use of the disputed area. It seeks to ensure that water quality standards are met and that
any impacts from a project will be minimized. When an application is filed with DHEC requesting
approval for a proposed activity which may, either during construction or during later operation,
result in a discharge into navigable waters, it has a statutory duty to assess the proposed project to
ensure and protect the quality of that water and to assess the water quality impacts of the project.
DHEC is required to issue, deny, or waive the requested water quality certification within one year
after the completed application is filed with it.
To prevent further erosion at its site on Lake Thurmond, Petitioner filed an application with
the Corps for the water quality certification and the permit to construct sea walls and to backfill
approximately 2.04 acres in the disputed area (five separate areas). The Corps forwarded Petitioner’s
application to DHEC for its determination.
In its Staff Report, DHEC gave various reasons for its denial of the requested certification
and permit. At the hearing, it offered additional reasons for its denial which were not contained in
the Staff Report. In its Staff Report, DHEC held that if the sea walls as proposed by Petitioner were
authorized for construction by DHEC, the following would result:
(1) a permanent loss of approximately 2.04 acres of open water aquatic habitat life use; See
Pet. Exh.23, pp. 6 and 8.
(2) a permanent alteration and a significant degradation of the aquatic ecosystem in the
vicinity/area of the proposed project such that its functions and values are eliminated or
impaired; See Pet. Exh. 23, pp. 6-8.
(3) a failure by Petitioner to take appropriate and practical steps including storm water
management to minimize adverse impacts on water quality and the aquatic ecosystem; See
Exh. 23, pp. 7 and 8.
(4) a permanent elimination of the disputed area for seasonal shallow lake habitat, and thus,
a permanent removal of an existing aquatic life use from the lake; See DHEC Exh. 23, pp. 7.
(5) an elimination of spawning in the disputed area; See DHEC Exh. 23, p. 7.
(6) an elimination of foraging habitat for fish and invertebrates in the disputed area several
months of each year which supports the Lake Thurmond food web; See DHEC Exh. 23, p.
7-9.
(7) a failure by Petitioner to provide for the survival and propagation of a balanced
indigenous aquatic community of fauna and flora in the waters of Lake Thurmond; See DHEC
Exh. 23, p. 8.
(8) a failure by Petitioner to maintain the existing aquatic community in the area of the
proposed project; See DHEC Exh. 23, p. 8.
(9) a significant loss of aquatic habitat and existing aquatic life uses in waters of the State of South Carolina due to cumulative impacts when DHEC certified similar projects to
Petitioner and others in the Waters of the State; See DHEC Exh. 23, p. 9.
Precedential Value of Sandhill Case
At the hearing, DHEC correctly argued that only the determinations contained in its Staff
Report and the NOPD were appropriate for consideration. However, in its closing argument to the
court, DHEC raised for the first time an additional reason for denying the requested water quality
certification and construction permit. It brought to the court’s attention DHEC Order 90-4-B,
entitled In Re: Sandhill, a Partnership, Joe L. Carter v. South Carolina Department of Health and
Environmental Control and Sierra Club, Intervenor (“Sandhill”), issued by the DHEC board on April
12, 1990. DHEC stated that this decision had been adopted by DHEC as a policy which it follows
in these certification and permit cases. It argued that the decision had precedential value since it was
affirmed by a circuit court and by the Court of Appeals in an unpublished decision. For the following
reasons this court finds that the board decision in the Sandhill case, and its adoption by the DHEC
board as a policy to be adhered to in water quality certification and construction permit applications,
is not applicable to this case and is not binding on this court:
(1) A decision by the Court of Appeals which is unpublished does not have precedential value
and is not binding on subsequent similar issues which are litigated. This ruling by the South
Carolina Court of Appeals is subject to SCACR 239, which provides that “memorandum
opinions and unpublished orders have no precedential value and should not be cited except
in proceedings in which they are directly involved.”
(2) The decision by the DHEC board in Sandhill could not be validly adopted by DHEC as
a policy to be applied to the general population since it has not been promulgated as a
regulation as required by statutory and decisional law;
(3) The decision was not cited in the NOPD and in the Staff Report as a reason for denying
the placement of the sea walls at the 324' MSL;
(4) The facts in the Sandhill case are inapposite to this case as follows:
1. Petitioner in Sandhill sought to construct dikes which would replace or repair
previously existing dikes constructed for water control associated with rice
cultivation;
2. The dikes replaced about 1.7 acres of former fresh water tidal estuarine marsh
or wetlands between the Pee Dee and Waccamaw Rivers in Georgetown
County;
3. The dikes would impound about 29 acres of that same marsh;
4. The dikes would isolate the impoundment area from the diurnal tidal flow
which would otherwise occur;
5. Petitioner wanted to create the impoundment for crops which would attract
migratory waterfowl;
6. After the dikes were constructed, Petitioner applied for an after the fact
permit to discharge dredge material into waters of the state pursuant to
section 404 of the CWA;
7. DHEC found in Sandhill that the rebuilding of the dikes turned 1.7 acres of
marsh into land of upland character, changed its classified use and displaced
a balanced indigenous aquatic community;
8. DHEC found in Sandhill that the construction of the dikes would isolate 29
acres of marsh from the free diurnal tidal flow which would alter the pre-existing balanced aquatic community;
9. DHEC found in Sandhill that there is a likelihood that reduced levels of
dissolved oxygen at variance with the levels to be expected in the unaltered
marsh will violate state water quality standards.
In contrast to the facts in Sandhill, here there is no credible evidence that any previously
existing balanced indigenous aquatic community will be disturbed or displaced by the proposed
project. Nor is there any credible evidence that the water quality in Lake Thurmond will be adversely
impacted. For these reasons, it is inappropriate to apply the Sandhill case in this instance.
It is noteworthy that DHEC concluded in Sandhill that because some previously litigated 401
certification cases “had significantly different facts” or, had been “issued several years previously,”
they had no value and the use of their comparisons were “not valid.” This conclusion is totally
inconsistent with the board’s present policy that it will apply the conclusion reached in the Sandhill
case to all subsequent cases, notwithstanding that they may have significantly different facts, such as
is the case here.
Other Rationales for Denial
Secondly, DHEC argued that the proposed project would not maintain and protect the
existing uses and water quality at the specific locations as required by the Antidegradation Rules
contained in Regs. 61-68 (D)(1). The existing uses for the waters of Lake Thurmond (freshwater)
are defined in Regs. 61-68 (B)(31) as the uses actually being attained there. It defines the uses for
the freshwater of Lake Thurmond as: (1) fishing; (2) the survival and propagation of a balanced
indigenous aquatic community of flora and fauna; (3) industrial and agricultural uses; (4) primary
and secondary contact recreation; and (5) a source for drinking water supply after conventional
treatment. Here, the only existing use which DHEC argues that the proposed project would infringe
upon was the permanent elimination of the balanced indigenous aquatic community of flora and fauna
(which DHEC alleges exists in the disputed area). A thorough analysis of the Staff Report reflects
that this conclusion by DHEC staff was not based upon any independent study made by the DHEC
staff, but was based upon reports and letters it received from third parties, e.g., DNR, EPA, and
FWS, which contained no supporting data. See DHEC Exh. 23, pp. 7-10.
Thirdly, DHEC argued that the proposed project does not meet the water quality standard
as enunciated in Reg. 61-68.E(8), i.e., the discharge of fill into Lake Thurmond (the disputed area)
is not consistent with DHEC regulations, it will not enhance the classified uses of Lake Thurmond,
and it will create significant degradation to its aquatic ecosystem or to its water quality. Again,
a thorough analysis of the Staff Report reflects that this conclusion by the DHEC staff was based
upon reports and letters it received from third parties, e.g., DNR, EPA, and FWS, none of which was
based upon any supporting data. See DHEC Exh. 23, pp. 7-10.
Finally, DHEC argued that the proposed project would not meet the requirements of Regs.
61-68(F)(1)(c). This regulation requires a project to be consistent with the maintenance and
improvement of the surface waters to such a level that it will provide for the survival and
propagation of that balanced indigenous aquatic community of fauna and flora which is
attainable in the waters. Once again, a thorough analysis of the Staff Report reflects that this
conclusion by DHEC staff was based upon reports and letters it received from third parties, e.g.,
DNR, EPA, and FWS, none of which contained any data or studies to support their opinions. See
DHEC Exh. 23, pp. 7-10.
In addition to the above, Ms. Rheda Geddings of DHEC testified during the hearing that there
was no need to assemble a panel of fishery experts to look at the fish and aquatic impacts at the
disputed area since Regs. 61-101 “requires that we look and we deny a project if there are less
damaging feasible alternatives.” See Transcript, Day Three of Four, p. 59. She asserted that DHEC
must look at avoidance of impact or minimization of impact if avoidance is impossible. Ms. Geddings
reasoned that DHEC can analyze the facts in an application to ensure the requested construction
would avoid or minimize an impact without first having to make a determination that there is an
impact at the proposed construction site. In her testimony she clarified this position somewhat when
she agreed with the court that DHEC does need to evaluate other alternatives than those presented
by an applicant to determine whether any of them might be less damaging to the habitat or
aquaculture, Notwithstanding, she failed to explain why it is unnecessary to first determine whether
a project actually has an impact on the indigenous aquatic community prior to denying the application
because there are “less damaging feasible alternatives. In this case, DHEC absolutely failed to make
an adequate determination of whether Petitioner’s project would cause any impact. Despite
Petitioner’s request, DHEC did not meet with the fishery experts to determine if there would be any
effect from the proposed construction project on the local indigenous aquatic community of flora and
fauna. This omission by DHEC undermines the credibility of the findings in the Staff Report and
NOPD, in light of the fact, as discussed herein, that the fishery experts’ reports generally concluded
there would be no significant impact resulting from the project.
Review of the Reports and Testimony of State and Federal Agencies
This court must now carefully analyze the various reports and letters from the several state
and federal agencies made part of the record, as well as the testimony at trial, to determine if they
provide support for DHEC’s conclusions in its Staff Report and NOPD, i.e., a failure by Petitioner
to maintain a balanced indigenous aquatic community of fauna and flora in the disputed area and/or
a degradation of the ecosystem which it alleges presently exists there.
In support of its conclusions, DHEC relies upon the reports submitted by Dr. Isely of Clemson
University, Mr. Duncan of DNR, the reports of the FWS and the EPA, and the testimony of Ms.
Matthews of EPA. DHEC first argues that Dr. Isely’s report supports its conclusion that the
proposed project will create a reduction in the secondary lake level and fish production level.
Further, DHEC uses the reports of Mr. Duncan to support its conclusion that the disputed area is
suitable for sunfish spawning and if the project is constructed there will be a loss of shallow lake
habitat and foraging habitat. DHEC also relies upon the reports of both the FWS and the EPA to
support its conclusion that the disputed area is shallow lake which provides spawning and foraging
habitat for fishes and invertebrates which support the Lake Thurmond food web. Finally, DHEC
solicited the testimony of Ms. Matthews to support its conclusion that if adverse consequences will
result from the construction of a proposed project, the agency must then look to the least damaging
alternative. The Court will examine each of these in turn.
First, Dr. Isely, a professor of wildlife management at Clemson University, actually visited the
disputed area on several occasions with some of his students from Clemson University. In his report
he found that there was no aquatic or emergent vegetation present in the proposed impact areas. He
found no evidence of fish spawning in the disputed area. Further, he opined that the proposed project
would not have a net negative direct or indirect impact on the fish habitat or fish populations in Lake
Thurmond. He stated that the sites were not good nursery habitat. In conclusion, he opined that the
proposed project would improve, not damage, the local fish populations and would serve as the base
for an enhanced food supply for fish. Further he felt the proposed project would reduce
sedimentation and erosion, increase habitat stability and cover for adult fish. Accordingly, Dr. Isely’s
report provides no support for DHEC’s conclusions.
Second, Mr. Duncan’s report provides little support for DHEC’s position. Mr. Duncan
agreed with Mr. Mike Alexander’s opinion that the disputed area did not contain a habitat which is
critical for the fish in Lake Thurmond or for their spawning. Mr. Duncan could only opine that the
disputed area contains some level of production of aquatic organisms and fish use during the times
of the year when it is flooded. His opinion is based on pure conjecture, since there was no evidence
that he inspected the disputed area nor that he had reviewed any studies or data to support his
conclusion. Indeed, after reviewing the correspondence of Mr. Alexander, who did inspect the
disputed area, Mr. Duncan changed his opinion, proposing that the sea walls at the proposed project
should be constructed ten feet away from the escarpment. Accordingly, Mr. Duncan’s initial opinion,
which was relied upon by DHEC, is not credible.
I further find that the reports from the FWS do not support DHEC’s position. In his earliest
correspondence, Mr. Banks of the FWS did not disagree with the construction of the sea walls at the
324' MSL. Subsequently, after he was telephoned by Mr. Giffin of DHEC and requested to write
a letter supporting DHEC’s position, Mr. Banks wrote a letter to DHEC wherein he agreed with
DHEC’s position that the sea walls should be constructed at the existing escarpment. See Transcript,
Day Three of Four, pp. 22-24. He was not provided any additional data or studies to support the
request. This court gives no credibility to this second opinion by Mr. Banks contained in the letter
addressed to DHEC. The better action would have been for DHEC to join with Petitioner in having
a meeting with the fish biologist from DNR, Wade Bales, Dr. Isely and Mr. Alexander. DHEC
showed no interest in having this conference. Ms. Geddings testified that DHEC never contacted
either Mr. Alexander or Mr. Bales. See Transcript of Day Three of Four, p. 89. To the contrary,
DHEC sought, without notice to Petitioner and without including him in either telephone
conversation, an opinion from DNR which was consistent with its opinion and for EPA to have an
employee testify at the hearing.
Finally, Mr. Giffin of DHEC testified that the plankton in the area could be adversely impacted
by the project. However, DHEC made no independent study of plankton in Lake Thurmond, nor did
it conduct an evaluation or study of the proposed site. See Transcript Day Three of Four, pp. 148-149; Transcript Day Two of Four, p. 22. Moreover, DHEC’s conclusion regarding plankton is
contradicted by the letter from Dr. Hains and Dr. Theriot of the Corps, which stated that there would
be no impact on the plankton community as a result of this project. Indeed, Ms. Geddings conceded
in her testimony that Dr. Hains of the Corps, who has studied plankton for eighteen years, is “very
well qualified” to talk about the plankton in Lake Thurmond. Despite this fact, she testified that she
felt no need to talk with either Dr. Hains or Dr. Theriot after receiving their letter. I find and
conclude that the report of Drs. Hains and Theriot is entitled to greater weight and that there would
be no loss of plankton resulting from the construction of the sea walls as requested.
Petitioner offered other evidence in support of its proposed project. First, Petitioner provided
an order of the Hon. Falcon Hawkins dated May 3, 2002 wherein he concluded, from his review of
a history of environmental impact studies over many years of the Richard B. Russell Lake and Lake
Thurmond, that the fishery resources and water quality in the lakes would not be significantly
adversely affected even if he approved the operation of the pumped storage turbines at the Richard
B. Russell dam. His order found that these studies reflected that there were from 6.04 to 12.78
million fishes killed in Lake Thurmond annually from the operation of the turbines, depending upon
the lake level. Notwithstanding, the studies concluded that these fish kills, even though seemingly
large, did not constitute a significant impact on the aquatic ecosystem of Lake Thurmond. In his
order, Judge Hawkins authorized the operation of the turbines. This order supports Petitioner’s
contention that no adverse impact on Lake Thurmond will occur as a result of the proposed project.
Furthermore, Mr. Alexander, the Corps district fisheries biologist, has monitored and studied
the fisheries of Lake Hartwell, Richard B. Russell Lake and Lake Thurmond (all three lakes
impounded on the Savannah River). The record reflects that he is knowledgeable of the aquatic
environmental conditions at all the shoreline erosion control projects on Lake Thurmond. Mr.
Alexander inspected the disputed area and concluded that the construction of the proposed project
would not have any impact of an aquatic environmental concern and that it would be impossible for
the construction to effect any changes in fish abundance, growth rate, etc. in Lake Thurmond. Also,
Mr. Alexander stated that there was no needed habitat in the disputed area for any portion of
the life history of a fish species.
I find and conclude that the overwhelming evidence supports the conclusion that the
construction of the proposed project away from the 330' MSL or the present erosional escarpment
should be approved. There has not been any showing that the disputed area contains an aquatic
ecosystem which would be eliminated by the construction of the proposed project, that there is
aquatic habitat or aquatic wildlife in the disputed area which would be permanently eliminated by the
construction of the proposed project, that there will be a reduction in the secondary reservoir
production level of fish resulting from the construction of the proposed project, or that there is
spawning or foraging for habitat in the disputed area which would be permanently eliminated if the
proposed project was constructed, or that there would be any adverse effect on water quality.
Without such a showing, there is no violation of Reg. 61-68 (E) (8), 61-68 (D)(1) or 61-68 (F) (1)
(c) as argued by DHEC.
Bulkheads to be used for construction
DHEC realizes the need for some form of erosion control at the Club. It believes erosion
controls are needed to benefit water quality by reducing turbidity and sedimentation in adjacent
waters during storm events and during periods of high wind and wave action. Neither the statutes
nor regulations applicable to water quality certifications or construction permits list any bulkhead
construction forms or techniques. Thus, in its Staff Report analysis of the alternative bulkhead types
which might be used for the proposed project, DHEC analyzed each alternative proposed by
Petitioner in its application. As to the Keystone block system, DHEC stated that “this method of
construction of sea walls appeared to have a significant number of advantages and no serious
drawbacks.” See DHEC Exh. 23, p. 5. It is uncontested that this is the type of construction the
Corps uses for the construction of its sea walls and river bank containments in numerous locations
around the United States. Its foundation does not require any digging or hydraulic drilling and can
be formed in place. It allows for easy modifications in height due to changes in elevation, is much
more aesthetically pleasing than any of the alternatives, and its usage would not require any major
disruption of the existing shoreline with heavy equipment to get the blocks to the placement location. In its Staff Report, DHEC authorized the usage of the Keystone block system as the type of
sea wall to be constructed at the proposed project. See DHEC Exh. 23, pp. 7, 11, and 12. At the
hearing, however, DHEC changed its position and ignored its previous approval for such
construction. Mr. Giffin testified that DHEC would now condition the issuance of the certification
and permit for the proposed project only if rip rap was used as the erosion control device. See
Transcript Day Two of Four, p. 77.
I find and conclude that the evidence supports the construction of the sea walls of Keystone
block, as agreed to by DHEC in the NOPD and the Staff Report.
Cumulative Impacts
Regs. 61-101 (F)(3) states that in assessing the water quality impacts of a project, DHEC will
address cumulative impacts of the proposed activity and reasonably foreseeable similar activities of
the applicant and others. In actuality, however, DHEC does not analyze the cumulative impacts of
a proposed application as required by this regulation. Instead, DHEC has a long-standing policy, as
testified to by Ms. Geddings at the hearing, that it automatically requires all bulkheads and erosional
devices to be placed at the erosional scarp.
Ms. Geddings acknowledged that the regulations do not
require sea walls to be constructed at the erosional escarpment. Notwithstanding, she testified that
“if we allow Plum Branch to do this, we have to be consistent with our application for the regulation,
and therefore, I...my personal feeling is that that would be a very large cumulative impact across the
state.” Tr. Day Three of Four, pp. 68-73.
It is correct for DHEC to examine the cumulative effects of a particular project as required
by the regulation. However, DHEC cannot automatically require that all erosion device projects be
constructed at the erosional escarpment. It must instead follow the regulation, which requires DHEC
to look at all the facts in each application, make an individualized assessment and then issue a
determination stating what impacts, if any, the project would cause. In this case, DHEC has not
established any adverse impact of the proposed project. When questioned by Petitioner about other
locations at Lake Thurmond, such as Scott’s Ferry landing (with boat ramps, jetties and filling
occurring in 2002),
and West Dam Recreational Site, where sea walls have been constructed, lake
bottom had been filled and ramps had been constructed as much as one hundred feet into Lake
Thurmond, Ms. Geddings testified that she was not aware of those projects nor the issuance by
DHEC of a permit for them, and that possibly they might have issued under a nationwide permit
authorized by the Army Corps of Engineers. However, she also testified that even projects
constructed pursuant to nationwide permits would require a water quality certification by DHEC, or
at least a review of the projects by DHEC. Also, Ms. Geddings testified that all nationwide permits
approved by DHEC contained conditions requiring any sea walls to be constructed at the erosional
escarpment. See Transcript, Day Three of Four, pp. 126-137. Mr. Giffin testified that he was not
aware of any requests for the construction of sea walls at Lake Thurmond since he had been
employed with DHEC. He further acknowledged that there have been no cumulative impacts on
water quality in the past. See Transcript Day Two of Four, pp. 47-49.
Accordingly, this court finds that the construction of this project will not contribute to any
potential cumulative impacts resulting in the future from certifications and permits issued by DHEC.
In fact, there is evidence that the construction of the proposed sea walls at the 324' MSL will be of
benefit to the local community of fish and plants. DHEC was aware of the Corps’ opinion to this
effect but did not discuss it with the Corps. Ms. Geddings testified Petitioner provided DHEC
information concerning the construction of the proposed sea walls prepared by Dr. Hains and Dr.
Theriot of the U.S. Army Corps of Engineers Environmental Laboratory at Vicksburg, Mississippi.
However, she noted that DHEC “felt no need to contact them.” See Transcript Day Three of Four,
p. 147.
This court finds and concludes that DHEC’s argument that it cannot allow certifications to
be issued for projects allowing the construction of sea walls away from the escarpment because of
the potential cumulative effect they would have on Lake Thurmond and other navigable waters is
lacking in merit. Other similar projects are ongoing and have been constructed since these regulations
were approved by the legislature in 1991. Further, there has been no concrete showing that allowing
this project to be constructed would contribute to any adverse impacts on the waters of this state or
on any indigenous community of flora or fauna in the area. Therefore, I find and conclude that the
sea walls should be placed at the 324' MSL as set forth in Petitioner’s application.
ORDER
For all the foregoing reasons, it is hereby
ORDERED that DHEC must issue to Petitioner the water quality certification and the
construction permit as requested by Petitioner in its application and as approved by the Corps.
AND IT IS SO ORDERED.
_________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
January 22, 2004 |