SC Administrative Law Court Decisions

This is a contested case in which Petitioner challenges the conditions placed on a §401 Water Quality Certification issued by Respondent South Carolina Department of Health and Environmental Control.

It now appears that the parties have reached a settlement of this matter. The parties have agreed that an amended certification should be issued with the conditions set forth in the attached Exhibit. The parties have further agreed that Petitioner's compensatory mitigation for bay impacts includes 36 acres more preserved wetlands than would be required under the Army Corps of Engineers Mitigation Standard Operating Procedure.

It appearing to the Court that the issuance of the amended certification is just and proper, and with the consent of the parties, it is therefore

ORDERED that an amended certification shall be issued by Respondent South Carolina Department of Health and Environmental Control, and this matter be dismissed with prejudice.

AND IT IS SO ORDERED.

________________________________

Ralph King Anderson, III

Administrative Law Judge

Columbia, South Carolina

February 14, 1997

WE CONSENT:

____________________________

Elizabeth B. Partlow

Attorney for Petitioner

____________________________

Elizabeth F. Potter

Attorney for Respondent

STATE OF SOUTH CAROLINA

ADMINISTRATIVE LAW JUDGE DIVISION

Docket No. 96-ALJ-07-0501-CC

JDN Associates, Ltd. - Dillon,

Petitioner,

vs.

South Carolina Department of

Health and Environmental Control,

Respondent.

EXHIBIT

CONDITIONS FOR SECTION 401 CERTIFICATION

1. Stormwater retention pond construction must be in accordance with the modifications submitted on October 16, 1996, with the following modifications:

Stormwater runoff from the roof is to be collected via gutters or other measures and directed to the Carolina Bay by underground piping located in the fill adjacent to the Bay, to be discharged directly with appropriate controls to minimize scouring, subsidence and erosion.

Groundwater from french drains along the footings for the buildings or other subsurface structures to control groundwater depths is to be directed to the Carolina Bay through the same or equivalent underground piping, tile fields or galleries, in the fill adjacent to the Bay.

2. If the applicant decides not to proceed with commercial development of the property, any impacted bay wetlands must be restored to preproject contours and conditions.

3. The applicant must implement Best Management Practices during construction to minimize erosion and migration of sediments off site. These practices may include use of mulches, hay bales, silt fences, or other devices capable of preventing erosion and migration of sediments. All disturbed land surfaces must be stabilized upon project completion.

4. Upon completion of construction activities, all disturbed areas which are not paved must be permanently stabilized with a vegetative cover. This may include sprigging, trees, shrubs, vines, or ground cover.

5. Only earthen material free of contaminants may be used as fill.

6. Sediment basins and gravel filters must be cleaned out when they lose their effectiveness, and all materials removed from the basins must be hauled off site or placed on high land and properly contained and stabilized.

7. The applicant must develop a spill prevention and clean up plan for construction of this project in accordance with DHEC guidelines. Fueling of construction equipment shall not be performed in the bay.

8. The applicant shall provide compensatory mitigation for the bay impacts by preserving approximately 50 acres of bay wetlands located directly behind the project site, as proposed. Restrictive covenants assuring preservation of bay wetlands must be submitted to the Department within 60 days of 404 permit issuance. Petitioner will prepare a comprehensive plan for protection and restoration of the remaining acreage of the bay and will work with adjacent owners and appropriate agencies to help implement the plan, as proposed in Section 3.3.2 of the October 16, 1996, submittal. Wetlands impacts outside of the bay must be compensated for on at least a 1:1 basis through preservation, enhancement, restoration, or creation. A final mitigation plan must be reviewed and approved by the Division of Water Quality in conjunction with the Army Corps of Engineers within 6 months of 404 permit issuance; provided that the 6-month period may be extended by consent of the Division of Water Quality.

9. The applicant must monitor any restoration or creation mitigation sites and provide the Department of Health and Environmental Control with monitoring reports which include photographic documentation taken from permanently established stations. The reports must be submitted upon completing of the plantings, six months after planting, one year after planting, and at yearly intervals for a total of three to five years. The applicant should develop a contingency plan to address necessary hydrological modifications and vegetation replanting if the initial mitigation is not at least 75% successful.