South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
South Carolina Coastal Conservation League vs. SCDHEC and SCSPA

AGENCY:
South Carolina Department of Health and Environmental Control and South Carolina State Ports Authority

PARTIES:
Petitioner:
South Carolina Coastal Conservation League

Respondent:
South Carolina Department of Health and Environmental Control and South Carolina State Ports Authority
 
DOCKET NUMBER:
07-ALJ-07-0107-CC

APPEARANCES:
n/a
 

ORDERS:

ORDER OF DISMISSAL
This matter is before the Administrative Law Court (ALC or Court) on a motion of Respondent South Carolina State Ports Authority (SPA) to dismiss the contested case request of Petitioner South Carolina Coastal Conservation League (League) on the ground that the League’s request for final review was not timely filed with the South Carolina Board of Health and Environmental Control (Board). For the reasons set forth below, this Court finds that the motion to dismiss must be granted. FACTUAL BACKGROUND SPA is an instrumentality of the State of South Carolina created in 1942 by Act No. 626. On behalf of the State, SPA is charged with the duty to promote, develop, construct, equip, maintain, and operate the harbors and seaports within the state. In executing this duty, the SPA is authorized to acquire, construct, maintain, and operate terminal facilities at such seaports and to foster and stimulate the shipment of freight and commerce through such seaports. S.C. Code Ann. § 54-3-130 (1992). SPA, in accordance with its duties and a statutory mandate, began the environmental permitting process to construct a marine container terminal at the site of the former Charleston Naval Base on the Cooper River (hereinafter referred to as the “Project”). See Act No. 256 of 2002, § 2 (effective May 20, 2002), codified at S.C. Code Ann. § 54-3-270 (Supp. 2006) and amended by Act No. 356 of 2002, § 16 (effective July 1, 2002) (requiring SPA to begin the permitting process to develop new terminal facilities on the west bank of the Cooper River). On January 24, 2003, SPA submitted permit applications to the U.S. Army Corps of Engineers, Charleston District (Corps), for a federal “dredge and fill” wetlands permit pursuant to section 404 of the Clean Water Act, 33 U.S.C.A. § 1344, and to the S.C. Department of Health and Environmental Control (DHEC) for a critical area permit, a water quality certification, and a coastal zone consistency determination for the Project. Both the Corps and DHEC determined the Project to be in the public interest. As part of the process for the acquisition of the federal permit, the Corps initiated an environmental review pursuant to the federal National Environmental Policy Act, 42 U.S.C.A. §§ 4321 et seq. (NEPA). Pursuant to the requirements of NEPA, the Corps issued a draft environmental impact statement for the Project in October 2005. Public hearings were noticed and held to receive comment on both the federal permit application and the state permit applications. See S.C. Code Ann. § 48-39-150(B) (Supp. 2006); S.C. Code Ann. Regs. 30-3, 61-101.D.1 (Supp. 2006). The League participated in the public hearing and provided comments to the Corps and DHEC. However, while the League filed comments with DHEC, it never requested that DHEC notify the League of the department decision on the permit application. Staff from DHEC’s Office of Ocean and Coastal Resource Management and Bureau of Water Quality evaluated the Project under applicable law and considered the public comments, including those of the League. On October 30, 2006, DHEC issued a critical area permit to SPA. On October 31, 2006, the permit was mailed to the applicant, SPA, via certified mail, return receipt requested. The permit was subsequently revised, and the revised permit (Permit) was issued and mailed to the applicant, SPA, on November 2, 2006, again via certified mail, return receipt requested. On November 13, 2006, SPA filed a letter with the Board styled as a “notice of appeal” requesting final review of the Permit. See S.C. Code Ann. § 44-1-60(E) (Supp. 2006) (providing a time period of fifteen days in which to file a request for final review of a staff decision with the Board). On November 17, the League’s counsel became aware of the issuance of the Permit and received a copy of the Permit by e-mail from the DHEC staff. Then, on November 20, 2006, the League also filed its own “notice of appeal” with the Board challenging the issuance of the Permit. On December 6, 2006, the League filed a motion to intervene in SPA’s request for final review. A final review conference was scheduled before the Board on January 11, 2007. See S.C. Code Ann. § 44-1-60(F) (Supp. 2006) (providing for final review conferences before the Board). At the beginning of that final review conference, SPA and DHEC staff jointly presented a revised Permit that contained agreed-upon modifications that fully resolved SPA’s November 13 request for final review. See S.C. Code Ann. § 44-1-60(G) (Supp. 2006) (encouraging parties to engage in mediation and negotiation to resolve permit disputes during the agency review process). At the time SPA and DHEC staff announced their settlement, the Board had not taken up the motion to intervene filed by the League. SPA then raised the issue of whether the League had timely filed its request for final review. After hearing argument from SPA, the League, and DHEC staff, the Board held that the League had timely filed a request for final review, and the final review conference proceeded. After hearing argument from SPA, the League, and DHEC staff on the substantive issues related to the Permit, the Board ruled that the Permit be issued as agreed-upon by SPA and DHEC staff. An order was issued to that effect on February 8, 2007. In Re: South Carolina State Ports Authority, Docket No. 06-RFR-65, Final Agency Decision at 2 (S.C. Bd. of Health & Envtl. Control Feb. 8, 2007). The League then filed a request for a contested case with this Court on March 9, 2007. On May 11, 2007, SPA filed a motion to dismiss this matter on the ground that the League had failed to timely file a request for final review before the Board. DISCUSSION SPA’s motion to dismiss asserts that this Court lacks jurisdiction to hear the Petitioner’s challenge to the Permit. In support of its motion, SPA relies upon the statutory language that requires a request for final review to be filed within fifteen days of the date of mailing of the decision to the applicant (in this case, SPA). S.C. Code Ann. § 44-1-60(E) (Supp. 2006). In opposition, the League asserts that the fifteen-day time period runs from the date that notice of the decision is received, rather than from the date the decision is mailed. It is undisputed that the League failed to file a request for final review with the Board within fifteen days of the date the decision was mailed to the applicant. It is also undisputed that the League filed its request for final review within fifteen days of receipt of actual notice of the decision. Statutory Interpretation “The cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature.” Sloan v. Hardee, 371 S.C. 495, 498, 640 S.E.2d 457, 459 (2007). The best evidence of legislative intent is the text of the statute. Wigfall v. Tideland Utilities, Inc., 354 S.C. 100, 110, 580 S.E.2d 100, 105 (2003); Smith v. Wallace, 295 S.C. 448, 452, 369 S.E.2d 657, 659 (1988) (“In the interpretation of statutes [the Court’s] sole function is to determine and, within constitutional limits, give effect to the intention of the legislature. [The Court] must do this based upon the words of the statutes themselves. To do otherwise is to legislate, not interpret.”); see Norman J. Singer, Statutes and Statutory Construction § 46.03 at 135 (6th ed. 2000) (“What a legislature says in the text of a statute is considered the best evidence of the legislative intent or will.”). “When the terms of a statute are clear and unambiguous, the Court must apply them according to their literal meaning. Furthermore, ‘in construing a statute, words must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute’s operation.’” Brown v. State, 343 S.C. 342, 348-9 540 S.E.2d 846, 850 (2001) (citations omitted). It is fundamental that a court should not employ rules of statutory construction when a statute’s language is clear and unambiguous. Buist v. Huggins, 367 S.C. 268, 276, 625 S.E.2d 636, 640 (2006) (quoting Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000)) (“If a statute’s language is plain, unambiguous, and conveys a clear meaning ‘the rules of statutory construction are not needed and the court has no right to impose another meaning.’”). Moreover, when a statute is clear and unambiguous, and an administrative agency’s interpretation is contrary to that plain language, no deference is warranted and the agency’s interpretation must be rejected. See Brown v. Bi-Lo, Inc., 354 S.C. 436, 439, 581 S.E.2d 836, 838 (2003). The statutory language at issue is found in section 44-1-60(E), which states as follows: Notice of the department decision must be sent to the applicant, permittee, licensee, and affected persons who have asked to be notified by certified mail, return receipt requested. The department decision becomes the final agency decision fifteen days after notice of the department decision has been mailed to the applicant, unless a written request for final review is filed with the department by the applicant, permittee, licensee, or affected person. S.C. Code Ann. § 44-1-60(E) (emphasis added). This statutory section was enacted as part of Act No. 387 (H. 3285, R. 398) (2006), effective July 1, 2006, which amended and added statutory provisions pertaining to administrative procedures and appeals in this state. Among other things, Act 387 set forth a new procedure for challenging DHEC permit decisions, which is codified in section 44-1-60. This enactment was “intended to provide a uniform procedure for contested cases and appeals from administrative agencies.” Act No. 387 § 53. Under the procedure established in section 44-1-60(E), an applicant, permittee, licensee, or affected person wishing to challenge a staff permitting decision has “fifteen days after notice of the department decision has been mailed to the applicant” to file a request with the Board for final review of the staff decision. This statute provides the only mechanism for an administrative challenge of a department decision. The proposition is buttressed by the language of subsection (A) of section 44-1-60, which provides “[a]ll department decisions . . . which may give rise to a contested case shall be made using the procedures set forth in [section 44-1-60].” § 44-1-60(A). Hence, to properly and timely challenge a staff decision, an affected person must avail himself of the procedures set forth in section 44-1-60, namely, file a challenge within fifteen days of the mailing of the staff decision to the applicant. To ensure timely notification of a staff decision, an affected person has the statutory right to request to be notified of such decision by certified mail, return receipt requested. § 44-1-60(E). (“Notice of the department decision must be sent to … affected persons who have asked to be notified by certified mail, return receipt requested.”) (emphasis added). Notably, the record in this case is devoid of any evidence that the League filed a request to be notified of the decision per section 44-1-60(E). I conclude that section 44-1-60(E) is clear and unambiguous in requiring the fifteen-day period to run from the mailing of the notice, not the receipt of the notice. Therefore, this Court has no right to impose another meaning and must reject the Board’s interpretation favoring the League’s position. See Buist v. Huggins, 367 S.C. 268, 276, 625 S.E.2d 636, 640 (2006); Brown v. Bi-Lo, Inc., 354 S.C. 436, 439, 581 S.E.2d 836, 838 (2003). Further, in amending this law during the most recent legislative session, the General Assembly is presumed to have known what effect the notice provision of section 44-1-60(E) will have upon an affected person’s ability to appeal the staff decision. See State v. McKnight, 352 S.C. 635, 649, 576 S.E.2d 168, 175 (2003) (“There is a presumption that the legislature has knowledge of previous legislation as well as of judicial decisions construing that legislation when later statutes are enacted concerning related subjects.”) (citing State v. Corey D., 339 S.C. 107, 529 S.E.2d 20 (2000); Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760 (1993)). Notably, the General Assembly could have easily chosen, if it so desired, that the fifteen-day period run from the receipt of the notice of the staff decision, rather than from the mailing of the notice. However, it did not. Instead, the General Assembly enacted a statutory provision which plainly triggers the running of the fifteen-day period from the mailing of the notice. Importantly, the responsibility for the justice or wisdom of legislation rests exclusively with the legislature, whether or not a court agrees with the laws it enacts. Busby v. State Farm Mut. Auto. Ins. Co., 280 S.C. 330, 312 S.E.2d 716 (Ct. App. 1984). The Hamm Decision In arguing against the plain language of the statute, the League further contends that Hamm v. S.C. Public Service Commission, 287 S.C. 180, 336 S.E.2d 470 (1985), governs this timeliness dispute, and that the statutory language at issue in this case should be interpreted to reach a result similar to that reached in Hamm. That case stands for the proposition that the time for seeking appellate review of an agency decision pursuant to the South Carolina Administrative Procedures Act (APA), S.C. Code Ann. §§ 1-23-310 et seq., runs from receipt of written notice of a decision. The Hamm decision, however, is inapplicable to the facts before this Court. Unlike the instant case, Hamm involved a petition for judicial review of a final agency decision in a contested case proceeding in which the petitioner was a party. The APA states that an appeal of an agency decision should be filed “within thirty days after the final decision of the agency.” S.C. Code Ann. § 1-23-380(b) (1984). The South Carolina Supreme Court construed that provision to mean that the time to file an appeal ran from receipt of written notice of the final contested case decision. Hamm, 336 S.E.2d at 470. In the instant case, the League was not a party to a contested case proceeding but rather an affected person who received public notice of SPA’s permit application and participated in the public hearing. To be legally entitled to notice of the staff decision on the permit application, the League was required to request notice of that decision. Because it did not do so, it was not legally entitled to notice of the staff decision. These facts are distinguishable from Hamm because the petitioner in that case was legally entitled to notice of the contested case decision due to his party status. Further, in enacting S.C. Code Ann. § 44-1-60(E), the General Assembly chose to specify that the fifteen-day deadline would run from the date that the decision was mailed to the permit applicant rather than to employ language similar to that in the disputed provision in Hamm. The General Assembly understood the difference between a time period running from mailing and one running from receipt, because it provided for each of these triggering events in the same statutory section in the same legislative enactment. See § 44-1-60(F)(2) (“Within thirty days after the receipt of the decision an applicant, permittee, licensee, or affected person … may request a contested case hearing before the Administrative Law Court….”) (emphasis added). This fact supports the conclusion that the General Assembly intended the time period in section 44-1-60(E) to run from mailing. See Higgins v. State of South Carolina, 307 S.C. 446, 449, 415 S.E.2d 799, 801 (1992) (“In construing statutory language, the statute must be read as a whole, and sections which are part of the same general statutory law must be construed together and each one given effect….”); Hinton v. S.C. Dep’t of Probation, Parole and Pardon Services, 357 S.C. 327, 332, 592 S.E.2d 335, 338 (Ct. App. 2004) (“The terms must be construed in context and their meaning determined by looking at the other terms used in the statute.”); Norman J. Singer, Statutes and Statutory Construction § 46.06 at 194 (6th ed. 2000) (“[W]hen the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended. In like manner, where the legislature has carefully employed a term in one place and excluded it in another, it should not be implied where excluded.”). Jurisdiction A failure to timely file a request for final review deprives any tribunal or court of jurisdiction over the matter. See Botany Bay Marina, Inc. v. Townsend, 296 S.C. 330, 372 S.E.2d 584 (1988), overruled in part on other grounds by Woodard v. Westvaco Corp., 319 S.C. 240, 460 S.E.2d 392 (1995). An administrative agency “has no authority to extend or expand the time in which [the] filing must be made.” See Sadisco of Greenville, Inc. v. Greenville County Bd. of Zoning Appeals, 340 S.C. 57, 59, 530 S.E.2d 383, 384 (2000); see also Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985); Stroup v. Duke Power Co., 216 S.C. 79, 56 S.E.2d 745 (1949); Cf. Unisys v. S.C. Budget & Control Bd., 346 S.C. 158, 551 S.E.2d 263 (2001) (holding that a party must follow the statutorily prescribed review requirements before the agency); MRI at Belfair, LLC v. S.C. Dep’t of Health & Envtl. Control, Docket No. 06-ALJ-07-0714-CC (J. Anderson, Oct. 18, 2006) (holding that “Board review is a mandatory prerequisite to any review by [the ALC]”). Counsel for SPA, DHEC, and the League all affirmatively acknowledged that the timely filing of a request for final review with the Board is a jurisdictional prerequisite to challenging a DHEC decision. Thus, because the League failed to file its request for final review within fifteen days of the Permit being mailed to SPA, the Board did not have jurisdiction over the League’s challenge to the Permit, and neither does this Court. The League offers three arguments to excuse its failure to timely file a request for final review with the Board and to allow it to continue prosecuting this contested case. First, the League argues that it was entitled to notice as a matter of law. Second, the League argues that it should have been allowed to intervene in the timely-filed request for final review filed by SPA. Third, the League asserts that a dismissal would deny it procedural due process rights. None of these arguments is availing. As a threshold matter, the League is charged with notice of the law. Smothers v. United States Fid. & Guar. Co., 322 S.C. 207, 210-11, 470 S.E.2d 858, 860 (1996) (“Everyone is presumed to have knowledge of the law and must exercise reasonable care to protect his interests.”). Additionally, the League had actual notice of the statutory changes to administrative agency procedure found in Act 387 and codified in section 44-1-60, including the requirement that it must request notice of a staff decision on a permit application. In its Winter 2006 newsletter, for example, the League wrote: “As we begin the 2006 legislative session, H. 3285 remains on the Senate’s Contested Calendar. This bill would completely strip the [Board] of its oversight of appeals and place final agency decisions in the hands of administrative law judges....” Furthermore, the League had actual notice that SPA’s permit application was pending before DHEC. The League participated in the public hearing and submitted comments for the Project’s permit application. Notice Notably, the League had the statutory right to request notification of the department’s staff decision, but it failed to exercise this right. Indeed, the duty was incumbent upon the League to request notice of the decision if it desired to acquire any entitlement to notice of the staff decision on the Permit. Section 44-1-60(E) limits entitlement to notice of the staff decision to the applicant and to those affected persons who have requested notice. That statutory provision took effect on July 1, 2006, approximately four months before the operative dates in this dispute. The League had ample opportunity to request to be notified of the staff decision on the Permit and failed to do so. Further, having the responsibility of requesting notice of a permit decision, should one be interested in the decision, is not new to environmental permitting. In fact, the longstanding regulatory procedure governing the issuance of critical area permits – which applies to the Permit in this case – states that any “persons wishing to receive notice of the initial decision on a permit application shall notify the Department within [the thirty-day] comment period.” S.C. Code Ann. Regs. 30-2.E. Thus, both the applicable statute and regulation place responsibility on an affected person to make a formal request to be notified of a decision if he wishes to receive formal notification of the staff decision. Because no such request was made by the League, DHEC had no duty or obligation under the statute or regulation to specially notify the League of its decision. Notwithstanding its failure to request to be notified, the League argues that it was entitled to notice as a matter of law pursuant to S.C. Code Ann. Regs. 61-101.G.1. That section, which relates to water quality certifications, provides a procedure in which notice of a proposed decision is provided to persons who provide comments on the water quality certification application. Because the League provided comments on the Permit, it argues this provision places on DHEC the responsibility of notifying the League of a decision. However, for the reasons that follow, this specific provision does not apply to the Permit and does not provide the League with any rights in this case. The Permit provides for the alteration of critical area as well as a water quality certification. See S.C. Code Ann. §§ 48-39-10 et seq.; S.C. Code Ann. Regs. 30-1 et seq. (governing permits in critical areas). In this circumstance, the regulations are very clear about what procedures are to be followed in processing the permit application. Where alteration of the critical area of the coastal zone is involved, as in this case, the applicable administrative procedures are found in the critical area permitting regime, not in the water quality certification regulations. The water quality certification regulation itself makes this clear, as it expressly provides as follows: The Department will not issue a separate 401 water quality certification for an activity which requires a direct permit for alteration of the critical area of the coastal zone pursuant to applicable regulations governing issuance of permits for alteration of the critical area of the coastal zone. The Department will process permit applications pursuant to applicable regulations governing issuance of permits for alteration of the critical area of the coastal zone with coordination and input from appropriate staff regarding water quality impacts. The direct permit will serve as the 401 water quality certification for an associated Federal permit. S.C. Code Ann. Regs. 61-101.A.8 (emphasis added). Therefore, the procedure found in section 61-101.G.1 and relied upon by the League is inapplicable to the processing of the Permit’s application. Moreover, the notice provision of S.C. Code Ann. Regs. 61-101.G.1 has been superseded by the statutory language of S.C. Code Ann. § 44-1-60(E). Section 44-1-60 provides a uniform procedure persons must now utilize to ensure they receive notice of a DHEC decision. In enacting Act 387, the General Assembly made clear its desire for a uniform procedure. Specifically, section 53 of Act 387 states: “This act is intended to provide a uniform procedure for contested cases and appeals from administrative agencies and to the extent that a provision of this act conflicts with an existing statute or regulation, the provisions of this act are controlling.” Act No. 387 § 53. (Emphasis added.) The League’s argument places the statutory notice provision found in section 44-1-60(E) in direct conflict with the regulatory notice provision found in S.C. Code Ann. Regs. 61-101.G.1. In light of the stated intent of the General Assembly and the fact that section 44-1-60(E) is a later-enacted and controlling statute, the regulatory notice provision found in S.C. Code Ann. Regs. 61-101.G.1 has been superseded by Act 387. See Norman J. Singer, Statutes and Statutory Construction § 23.9 at 470 (6th ed. 2000) (where a conflict is found by the application of a later enactment, “it is clear that the later enactment is intended to supersede the existing law”). Thus, DHEC had no legal duty or obligation to provide the League with notice of the Permit decision pursuant to S.C. Code Ann. Regs. 61-101.G.1. Intervention The League argues that it should be able to contest the Permit on the ground that it filed a motion to intervene in SPA’s timely-filed request for final review. The Board did not address this issue, as the argument at that time was moot based on the Board’s determination that the League’s review request was timely. For the following reasons, this argument does not provide any relief to the League. No procedure exists which allows or provides for intervention at the Board review level. Section 44-1-60(E) provides that an affected person’s sole method for challenging a staff decision is to timely file a request for final review with the Board. There is no alternative mechanism for an affected person to challenge a staff decision. See Hodges v. Rainey, 341 S.C. 79, 86, 533 S.E.2d 578, 582 (2000) (“The canon of construction ‘expressio unius est exclusio alterius’ or ‘inclusio unius est exclusio alterius’ holds that ‘to express or include one thing implies the exclusion of another, or of the alternative.’”) (citations omitted); 73 Am. Jur. 2d Statutes § 129 (“When a statute limits a thing to be done in a particular mode, it includes a negative of any other mode.”); Norman J. Singer, Statutes and Statutory Construction § 47:23 at 314 (6th ed. 2000) (“A statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing in any other way. Thus, the method prescribed in a statute for enforcing the rights provided in it is likewise presumed to be exclusive.”). Agency powers are limited to those expressly provided by law. City of Rock Hill v. S.C. Dep’t of Health & Envtl. Control, 302 S.C. 161, 165, 394 S.E.2d 327, 330 (1990) (“As a creature of statute, regulatory bodies such as DHEC possess only those powers which are specifically delineated.”). Thus, the Board does not have the power to allow intervention in another person’s timely-filed request for review pending before the Board because no existing legal authority provides the Board with that power. Therefore, the motion to intervene filed with the Board by the League had no meaning or effect and did not provide it with any rights. Due Process Finally, the League argues that it will be denied due process of law if it is not allowed to challenge the Permit. For the following reasons, I conclude that the application of section 44-1-60(E) to the League does not violate its due process rights. The due process clause of the South Carolina Constitution requires that a person receive due notice and an opportunity to be heard before that person may be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights. S.C. Const. art. I, § 22; see also Ross v. Med. Univ. of S.C., 328 S.C. 51, 492 S.E.2d 62 (1997) (recognizing that the South Carolina Constitution guarantees the right to notice and an opportunity to be heard by an administrative agency before a final decision is rendered). Generally, the notice due must be “reasonably calculated under all circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Blanton v. Stathos, 351 S.C. 534, 542, 570 S.E.2d 565, 569 (Ct. App. 2002) (paraphrasing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). The League received the notice due to it when (1) public notice of SPA’s permit application was provided; and (2) the General Assembly enacted the requirement in section 44-1-60(E) that affected persons must affirmatively request to be notified of the staff decision on the permit application when it is issued. See Smothers v. United States Fid. & Guar. Co., 322 S.C. 207, 210-11, 470 S.E.2d 858, 860 (1996) (“Everyone is presumed to have knowledge of the law and must exercise reasonable care to protect his interests.”). Further, the League had actual notice of the staff decision prior to the expiration of the fifteen-day period, and, therefore, it had the ability to preserve its rights by timely filing a request for final review with the Board. Because the League neither requested to be notified of the staff decision nor filed its request for final review with the Board within the specified deadline, the League’s argument that it has been denied its procedural rights is unavailing. See Zaman v. S.C. State Bd. of Medical Exam’rs, 305 S.C. 281, 285, 408 S.E.2d 213, 215 (1991) (“One cannot complain of a due process violation if he has recourse to a constitutionally sufficient administrative procedure but merely declines or fails to take advantage of it.”). CONCLUSION AND ORDER S.C. Code Ann. § 44-1-60(E) clearly provides the exclusive mechanism for review under the facts and circumstances presented in this case. The fifteen-day time period within which to file a request for final review begins upon mailing the notice of the staff decision to the applicant. It is undisputed that the League failed to file a request for final review with the Board within the statutory time frame. The arguments offered by the League to excuse this failure to timely file are unavailing. Therefore, this Court lacks jurisdiction over this matter, and this case must be dismissed. IT IS THEREFORE ORDERED that the South Carolina State Ports Authority’s Motion to Dismiss is GRANTED, and this matter is hereby DISMISSED for lack of jurisdiction. AND IT IS SO ORDERED. ____________________________________ JOHN D. GEATHERS Administrative Law Judge The final environmental impact statement was issued in December 2006. On April 26, 2007, after consideration of additional comments, including those from the League, the Corps issued the section 404 wetlands permit to SPA. Pursuant to the applicable regulations, a coastal zone consistency determination is issued as a component of and concurrent with a water quality certification, S.C. Code Ann. Regs. 61-101.A.7, and the water quality certification is issued as a component of the critical area permit, S.C. Code Ann. Regs. 30-2.H, 61-101.A.8. Therefore, one permit document serves to function as a critical area permit, a water quality certification, and a coastal zone consistency determination. Section 44-1-60(E) refers to the “department” decision in setting forth the time period within which to seek Board review of the initial decision. However, references in this Order to the Department’s initial decision on the Permit application may be used interchangeably with the term “staff” decision. It was, in fact, this interpretation that the Board relied upon in finding that the League had timely filed its request for final review. The procedure outlined in section 44-1-60 is complicated. Nonetheless, it is clear that the section envisions a procedural mechanism which allows the Board an opportunity to shape public policy by internally resolving administrative permitting disputes before they give rise to contested cases. The procedure invokes a “funneling approach,” which may be summarized as follows: Public hearings are conducted with the opportunity for interested individuals to present public comments on permit applications. Then, DHEC staff issues a decision that takes into consideration the comments submitted by the public. This staff decision is, in actuality, the department decision. Notice of the department decision is mailed to the applicant, permittee, licensee, or affected person who has requested to be notified. Such persons, including the applicant, may challenge the decision within fifteen days of its mailing to the applicant. § 44-1-60(E). If the decision is timely challenged, the decision does not become final; thereafter, the Board may conduct a final review conference within sixty days. It should be noted that as the law is currently written, only persons so requesting a review may participate in the conference. That is, individuals who, for instance, attended a public hearing held earlier in the process, but who did not file a request for review of the department decision would not be statutorily eligible to participate in the conference. See § 44-1-60(F)(1) (“The applicant or affected party shall state the reasons for protesting the department decision and may provide evidence to support amending, modifying, or rescinding the department decision.”). If a review conference is not conducted by the Board within sixty days, the initial department decision becomes the final decision of the department, and aggrieved individuals who protested pursuant to section 44-1-60(E) may request a contested case pursuant to section 44-1-60(F). If a conference is held, only the parties participating in the conference may then appeal, by way of a contested case, the Board’s final decision. See § 44-1-60(F)(2) (“The written decision must explain the bases for the decision and inform the parties of their right to request a contested case hearing before the [ALC].”). And to restate a crucial point, only an applicant or affected person who initially challenged the department decision pursuant to section 44-1-60(E) may ultimately appeal the decision through a contested case. See discussion of facts supra pp. 1-3. See discussion of facts supra p. 3. The current APA contains this identical clause, re-numbered at S.C. Code Ann. § 1-23-380(A)(1) (Supp. 2006) in Act 387. This court recognizes that the statute specifically provides that the Board may promulgate regulations for procedures for final review conferences. § 44-1-60(H). However, to date, no such regulations have been promulgated. See also infra note 5 for discussion of right to request a contested case before the ALC.

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