ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before
the Administrative Law Court upon two requests for a contested case hearing
pursuant to the Administrative Procedures Act to review the issuance of and
conditions attached to the 401 Water Quality Certification and Construction in
Navigable Waters Permit issued by Respondent South Carolina Department of Health
and Environmental Control (DHEC) for a bridge replacement project proposed by
Petitioner South Carolina Department of Transportation (DOT). The first
petition was filed by DOT and challenged the findings and conditions contained
in the Notice of Proposed Decision Water Quality Certification and Construction
in Navigable Waters Permit issued by DHEC on June 23, 2006 (NOPD or Proposed
Decision). Specifically, DOT contested DHEC’s 401 water quality certification
because:
· DHEC failed to meet the applicable regulatory time periods to
issue the Certification and/or Permit;
· The 401 Water Quality Certification should have been issued
without a condition for additional bridging; and
· DHEC imposed conditions that do not accomplish an objective related
to the project proposed by DOT.
The
second petition was filed by Friends of Congaree Swamp, South Carolina Wildlife
Federation, and Audubon South Carolina (Environmental Groups) and challenged
the findings and conditions contained in the 401 Water Quality Certification
and Construction in Navigable Waters Permit issued by DHEC on October 12, 2006
and the January 12, 2007 Decision of the DHEC Board. Simultaneously with this
filing, the Environmental Groups also filed a motion to intervene in the
contested case proceeding initiated by DOT. In its contested case petition,
the Environmental Groups alleged that the 401 Water Quality Certification and
Construction in Navigable Waters Permit should not have been issued because the
DOT project violated the 401 Water Quality Certification Regulations contained
in subsection F of 25A S.C. Code Ann. Regs. 61-101 (Supp. 2006) and the
Construction in Navigable Waters Permit Regulations contained in subsection 9 of
23 S.C. Code Ann. Regs. 19-450 (Supp. 2006). By an order dated March 26, 2007,
contested case 07-ALJ-07-0804, which was filed by the Environmental Groups, was
consolidated with this case. After notice to the parties, a contested case
hearing on the merits was held on October 16–18, 2007, at the Administrative Law Court in Columbia, South Carolina.
PROCEDURAL HISTORY
On or about June 23,
2006, DHEC issued an NOPD authorizing a 401 Water Quality Certification to DOT
for its proposed project to replace four bridges on U.S. Highway 601 in Richland County. A Final Review Conference before the DHEC Board was requested by both DOT
and the Environmental Groups and was granted by the DHEC Board. DOT sought
the removal of a condition in the permit that required 1:1 slopes throughout
the project. The Environmental Groups sought the denial of the permit or the
inclusion of a condition that would require DOT to bridge the entire
floodplain. Arguments were heard by the DHEC Board from the parties and DHEC
staff at the Board’s August 10, 2006 hearing. The DHEC Board did not announce
a decision at that time but continued the matter to its September 14, 2006
meeting. Following the September 14, 2006, the DHEC Board issued a decision finding
that:
[T]he Board concludes that although the 1:1 slope requirement
is intended to reduce adverse ecological impact of the proposed project, it is
not an appropriate condition. Because the Board is removing the 1:1 slope
requirement it is necessary for staff to consider whether alternative measures
are appropriate. Therefore, the Board remands the certification and permit issuance
to staff to remove the 1:1 slope condition and to consider inclusion of
alternative measures that would more appropriately reduce the adverse
ecological impact of the proposed project.
On
October 12, 2006, DHEC staff issued an “Agency Decision Upon Remand Water
Quality Certification and Construction in Navigable Waters Permit” (Remand
Permit). This document was similar to the June 23 NOPD, with two exceptions:
it did not include the condition requiring 1:1 slopes throughout the project,
and it included new language in Condition 15 requiring four additional spans of
bridge. Following that decision, DOT filed a request for a contested case
hearing on October 20, 2006. The request contested the new conditions raised
in the Remand Permit and asked for a determination of its rights because DHEC
failed to act in a timely manner on the permit application.
On October 27, 2006, the Environmental Groups filed a request
for a Final Review Conference before the DHEC Board concerning the Remand
Permit. They sought either the denial of the permit or the inclusion of a
condition that would require DOT to bridge the entire floodplain. The DHEC
Board granted the request for a third Final Review Conference on the project
and scheduled it for December 14, 2006. This Court issued an order on December
7, 2006 in response to DOT’s motion to stay the proceedings at the DHEC Board,
holding that the DHEC Board no longer had jurisdiction over the case.
LEGAL ISSUES RAISED
The
following issues were raised in this proceeding:
1. Did DOT
request a Final Review Conferences of DHEC’s issuance of the 401 Water Quality
Certification and the Construction in Navigable Waters Permit in a timely
manner?
2. What
is the legal effect of the DHEC Board’s attempt to remand this permit
application back to DHEC staff following the Final Review Conference, and of
the October 12, 2006 Decision Upon Remand issued by DHEC staff?
4. Does DHEC
have the authority to require the conditions of one to one slopes on the
causeway embankments and extra bridge spans as mitigation for wetlands impacts
of the proposed project?
FINDINGS OF FACTS
Having
observed the witnesses and exhibits presented at the hearing and taking into
consideration the burden of persuasion and the credibility of the witnesses, I
make the following findings of fact by a preponderance of evidence:
General
Findings
The project proposed by
DOT is the replacement of four bridges[1] along US Highway 601 in lower Richland County south of the intersection of US
601 and S-48, Bluff Road. The existing highway between the bridges is built on
a fill embankment that has been in place since at least 1942. This embankment
elevates the road above the floodplain and is up to 30 feet high. Bridge One is
a 150 foot bridge over a minor creek at the Northern end of the project.
Bridge Two, which is at the beginning of the Congaree floodplain, is 1590 feet
long and crosses part of an old oxbow known as Bates Old River. Bridge Three
is 630 feet long and crosses another portion of Bates Old River. Bridge Four
is a 1,760 foot bridge over the Congaree River at the Southern end of the
project. Approximately 1.95 miles of this earthen embankment are in the
Congaree floodplain.
The project would begin
just south of the intersection between US 601 and SC 48, immediately south of the
railroad tracks and continue south on US 601 to just across the Congaree River
in Calhoun County. It consists of the following elements: a) replacement of
the existing four bridges with structures that will have twelve (12) foot wide
travel lanes and ten (10) foot wide shoulders; b) widening of the travel lanes
on the entire causeway to twelve (12) feet and widening of the shoulders to ten (10) feet; c)
paving a four (4) foot wide strip of the expanded shoulder adjacent to the
travel lanes; d) ensuring that all slopes on the causeway are graded to a slope
of 2:1; e) upgrading guardrails along the project corridor; and f) installing a
new access ramp to and expanding the parking ramp for the existing boat landing.
The bridge openings would also be slightly larger, due to the use of longer
spans (122.5-foot spans instead of the existing 30-foot spans), which will
reduce the number of columns used to support the bridge. The total length of
the project is 4.3 miles.
The project is clearly
needed and there are clearly no feasible alternatives to replacing the existing
bridges.
Each of the four bridges to be replaced is rated as structurally deficient and
functionally obsolete, meaning that they have significant safety and repair
needs and are insufficient for the traffic volume they carry. The bridges have
undergone extensive repairs, costing between $1.25 and $1.5 million, in the
last ten years. The condition of the bridges has deteriorated to the point
where it may not be financially feasible to continue to repair them. Moreover,
the existing bridges and causeway roadway have travel lanes that are only eleven
(11) feet wide with two (2) foot wide unpaved shoulders. Therefore, in
addition to replacing the existing bridges, the proposed project would slightly
widen the existing fill embankment in some areas to allow for a widening of the
travel lane from 11 to 12 feet and for ten-foot wide shoulders. This
additional width would bring the bridges into currently accepted roadway safety
standards.
Furthermore, closing a
portion of Highway 601 for the construction of the replacement bridges is not a
feasible alternative to avoid or minimize the impact to wetlands. US 601 is a
major thoroughfare for trucks and passenger traffic. The detour route would be
approximately 74 miles. Accordingly, it would result in significant financial,
safety, and convenience impacts to the traveling public and businesses in the
area. The project designers calculated the cost to the traveling public to be
approximately $110,000 per day that the bridges would be closed. For instance,
the International Paper Plant at Eastover would see a cost increase of $3.5
million per year for pulpwood supplies plus additional costs to employees and
suppliers if the highway were closed. In fact, a closure of six to ten hours
for bridge repairs costs the firm roughly $8,000. Therefore, the project is
designed to replace the bridges without having to close the road. To do this,
the new bridges will be built as close as possible to the East of the existing
bridges and the new bridges will be tied into the existing road.
Application
for the 401 Certification
The application
submitted to DHEC for the 401 Water Quality Certification showed Barrett W.
Stone, an employee of Florence and Hutcheson,
as the contact agent for the project. DOT’s environmental office also had
dealings with DHEC concerning the pending application. On June 26, 2006, DHEC mailed,
via U.S. Postal Service, the NOPD/Staff Assessment to Wayne Hall at DOT.
However, DOT did not receive that notice. DOT nevertheless received actual
notice of DHEC’s intention to issue the NOPD via an e-mail on June 26, 2006.
Once DOT received that notice, it requested a copy of the NOPD. Upon receiving
the copy of the NOPD, DOT filed its request for a hearing before the DHEC Board
within one day. Therefore, I find that DOT timely requested a Final Review
Conference.
Environmental
Impacts
The project is located
in the Congaree Swamp adjacent to a newly acquired portion of the Congaree National Park and extends over the Congaree River. The Congaree River is a major
river in the South Carolina Midlands formed by the confluence of the Saluda and
Broad Rivers near the City of Columbia that merges with the Wateree River to become the Santee River. In the area south of the City of Columbia, the Congaree River winds through a large old growth bottom land forest. The uniqueness of this
area led to the area being recognized by the federal government as the Congaree Swamp National Monument and in 2003 as the Congaree National Park.[6]
The Congaree River floodplain is part of a larger ecological concept known as the river continuum.
Floodplain wetlands are linked to their associated river system, as water and
materials that originate upstream will, during high flow periods, flow out into
flood plain wetlands. They are considered waters of the State. Flow in the
wetlands may be in channels, but will often be in the form of sheet flow –
non-directed horizontal flow.
Floodplain wetlands
also provide habitat for plants and animals through the sediment deposited when
they are inundated with water. Typically, the water leaving a floodplain
wetland is cleaner than when it entered the wetland because the wetland removes
sediment, and excess nutrients and chemicals. Furthermore, the water leaving a
floodplain wetland is higher in organic materials, which are exported
downstream and are extremely important for other ecological functions that take
place in downstream lakes, rivers, estuaries, and other floodplains.
The existing Highway
601 causeways constructed in 1942 have had a negative impact on the Congaree River floodplain. Those impacts include the interference with sheet flow across
the floodplain and animal migration. The construction of the new causeways,
however, will not exacerbate those existing problems. Nevertheless, in light
of the recognition of the impacts of this project in this important area, DOT
offered to add one bridge length and two 60-inch culverts. DOT also proposed
to purchase 43 acres of land for preservation and to “debit” 20 credits from
DOT’s Black River “mitigation bank.” After the Board ordered that the
additional 1:1 condition be removed, DHEC imposed the following condition in
its Remand Permit:
[T]he applicant must remove existing
roadway embankment for the purpose of restoring the hydrologic conditions. A
total of 5.99 acres of embankment shall be removed and restored to wetland
habitat. Further, bridge number 2 must be extended by 122.5 feet to the south,
as agreed to, and 2 additional spans of 122.5 feet to the north, bridge number
3 must be extended 122.5 feet to the south and 122.5 feet to the north.
DHEC determined in its
staff assessment that there are no feasible alternatives to the proposed
project. While DHEC and the Environmental Groups have argued that the
conditions they sought to include in the permit constitute “feasible
alternatives” to the project, no argument has been raised that there is a
feasible alternative to replacing the four bridges in a manner similar to that proposed
by DOT. I find that the conditions sought by DHEC and the Environmental Groups
are not feasible alternatives to building the project for purposes of
determining whether the permit should be issued, but are simply related to what
conditions can properly be required in the permit to minimize the adverse
effects of the project.
Culverts
The language of
Condition 2 of the proposed permit, requiring 60-inch floodplain pipes, states
that the purpose of the pipes is to “help restore some of the sheetflow characteristics
of the floodplain” in “the historical drainage areas along the causeway.” The
60-inch culverts required in the proposed permit would, however, have no
benefit for either wildlife passage or restoration of sheetflow. Terrestrial
animals will not utilize a 60-inch culvert and fish will be unlikely to use
it. Therefore, culverts that size would have little or no benefit to wildlife.
Finally, the effect of flood waters being carried through two 60-inch pipes
would be minuscule on a 2.7-mile wide floodplain. In fact, Hop Ridgell, DHEC’s
project manager who handled the permit, testified that he recommended removing
the condition requiring the culverts because he did not believe the culverts were
a cost-effective mitigation strategy.
A biologist from the
Department of Natural Resources nevertheless proposed the addition of larger
24-foot wide culverts for wildlife passage and the restoration of historic
sloughs that existed prior to the placement of the existing fill causeways.
However, there was no evidence presented as to the construction cost of such
large culverts. In fact, the 60-inch culverts would cost between $360,000 and
$400,000 each. Moreover, the purpose of culverts, in general, is not to
minimize the adverse effect of a project, but as a compensatory restoration
measure. However, even in this regard, the evidence did not establish that the
culverts would effectively accomplish that goal.
Embankment
The
existing embankments are constructed at a 2:1 slope and DHEC proposes to construct
the new portions of the embankments also at a 2:1 slope. The Environmental
Groups contend that the banks should be constructed at 1:1 slopes. Using 1:1
slopes would cut in half the amount of wetlands to be filled. However, if the
embankments are constructed at 1:1 slopes instead of 2:1 slopes, it would add
$20 million (in 2006 dollars) to the cost of the project, and it would also
lead to higher future maintenance costs. The preliminary cost estimate for the
entire project was $25 million (in 2005 dollars) including both the roadway and
new bridges. The most recent estimate is $34 million (in 2007 dollars). Therefore,
1:1 slopes simply are not a cost-effective mitigation strategy.
Bridge
Spans
With DOT’s approval,
the June 23, 2006 NOPD required that one extra 122.5-foot bridge span be added,
and the corresponding causeway be removed, at the Southern end of Bridge Two.
The bridge span would be paid for using Federal Highway Administration (FHWA)
bridge replacement funds.
DHEC now contends that
additional bridge spans and removal of the existing roadway embankment are
appropriate because the “additional bridge spans will eliminate approximately
4.4 acres (0.86 acres per span) of existing embankment to help restore the
sheetflow characteristics of the floodplain in the area.” The Remand Permit
therefore added conditions requiring the construction of four 122.5-foot bridge
spans. The proposal would require two spans at the North end of Bridge Two;
one span at the South end of Bridge Three; and one span at the North end of
Bridge Three.
DHEC contends that
additional bridging should be required to compensate for the fill being placed
in wetlands on account of the project. The additional bridge spans would cost
$600,000 for each 122.5-foot span. However, the four additional bridge spans would
have a de minimis impact upon the placement of any new fill. Rather, the clear
purpose in requiring the additional bridge spans is to improve the
sheetflow. The evidence clearly shows that the project, as proposed by DOT
without the additional bridge spans, does not have a negative impact on the
sheetflow in the project area, and may in fact make slight improvements to the
sheetflow characteristics.
Nevertheless, requiring
additional bridge spans would not increase sheet flow unless removal of the
corresponding existing causeway was also required. The Environmental Groups’ expert
witness, Dr. Tufford, testified that six additional spans of bridge totaling
735 feet would not make a significant difference in the sheetflow due to the
size of the floodplain. To make a significant difference, he believed that
much of the existing causeway would need to be removed. He said that modeling
could be performed to determine the amount of additional bridging required for
restoration.
The Environmental
Groups thus contend that the four spans proposed by DHEC are insufficient and,
therefore, DOT should be required to bridge the entire Congaree floodplain.
However, bridging the entire floodplain would result in an enormous cost to the
State of South Carolina, most of which would not be funded by the Federal
Bridge Replacement Program. Moreover, the purpose of bridging the entire
Congaree floodplain is not to reduce the impact of the project upon the
wetlands or waters of the State but to restore the sheet flow to the condition
existing prior to the construction of the causeway. Although, at some point,
more bridging is likely to sufficiently increase sheet flow so that the system
will again behave like a natural floodplain, Respondent’s expert, Dr. Dan
Tufford, testified that modeling would be necessary to determine how much
bridging would be required to accomplish such an improvement.
Fill
The project will result
in placement of fill material on currently undisturbed wetlands. That fill
will be placed parallel to the existing causeway along the upstream edge of the
existing elevated roadway, so that the bridge and roadway system can be
re-constructed upstream of the existing system. The original amount of fill
required will be eight (8) acres. Upon completion of the new bridges and the
new causeway embankments that are needed to tie the new bridge spans back to
the existing causeway embankments, DOT proposes to remove six acres of the existing
causeway embankments. As a result of the removal of this fill material, the project
will add a net of two acres of fill in the Congaree floodplain wetlands.
The functions and
values of the wetlands alongside the existing embankment are not as high as
those of other wetlands in the general area of the Congaree floodplain.
Therefore, the impact of the proposed new fill will likewise not be as high as
those of other wetlands in the general area. Furthermore, Respondents have no
data or studies showing that the placement of fill in this project would
degrade water quality in any way. Instead, they rely on statements that, in
general, any loss of wetlands has a negative impact by reducing wetland habitat
and existing uses. I find that the water quality impacts of the project will
be “very minimal.”
Nevertheless, wetlands
created from the excavation six acres downstream of the old roadway would not
be the same quality of the wetlands that would be newly-impacted. Any recovery
of this area will take many years. However, Respondents’ evidence did not show
that the fill proposed for this project is likely to produce an adverse impact
on navigable waters or other associated natural resources. In fact, DHEC’s
Staff Assessment for the permit does not identify any potential adverse impacts
on navigable waters. Therefore, I find that there is no credible evidence that
the fill proposed to be placed by this project will cause an adverse effect on
water quality. Furthermore, the loss of wetlands as a result of the fill will
be compensated for by DOT’s purchase of 43 acres of land for preservation and the
“debit” credits from DOT’s Black River mitigation bank.
Cumulative/Animal
Impacts
The Environmental
Groups contend that the project will create a risk of wading birds being killed
by predators. More specifically, John Grego, President of Friends of the Congaree Swamp, testified that, in his opinion, the cumulative impact of the project,
considered with the existing adjacent power line easement, will create an
increased risk of wading birds being killed by predators when they are
attracted to the wider exposed area. However, the environmental studies
prepared by a biologist for DOT found that the project would not cause a
significant increase in cumulative and indirect impacts. Moreover, DOT’s finding
was adopted by the FHWA when it issued a Finding of No Significant Impact. Furthermore,
the DHEC staff assessment states, “The cumulative impacts of the project are
expected to be minimal in light of the fact that the existing structure had
been there for 60 years.” Therefore, I find that the cumulative impacts of the
project on wading birds would be, at most, insignificant. Accordingly, I find
that any requirement for additional bridge spans would not minimize any adverse
cumulative impact effect of the proposed project.
Funding
The funding for this
project comes from federal Highway Bridge Replacement and Rehabilitation Funds
(BRR Funds). The use of BRR Funds is limited to the replacement of existing
bridges. Thus, a project replacing existing fill with a longer bridge would
only be eligible for those funds if the longer bridge were more cost
effective. Here, replacement of existing fill with bridging on this project
would not be cost effective. While the FHWA may allow some latitude with
regard to the amount of fill that can be replaced with bridging, the amount of
additional bridging that DOT can include in the project and still keep its
eligibility for the project’s funding source is limited. The project as
proposed by DOT includes one additional bridge span beyond what is necessary
for replacement of the current bridges. DHEC’s proposal for four additional
spans would yield a total of five spans replacing existing causeway. While
there is evidence that FHWA might allow as many as three additional spans if
the culverts condition were removed, there is no evidence that their approval
could be extended beyond that point. Therefore, the permit condition requiring
a total of five additional bridge spans would be likely to cause the project to
become ineligible for BRR Funds.
Issuance
of the NOPD
A Joint Public Notice
for this project was issued by the US Army Corps of Engineers and DHEC on July
8, 2005. That notice is the date that begins the one-year clock to determine
the date by which a Water Quality Certification must be issued. The one-year period
expired on July 8, 2006.
DOT’s application for
the permit was filed on June 24, 2005 and DHEC received DOT’s application fee
on September 16, 2005. Sixty days from September 16, 2005 was November 15,
2005. DHEC did not issue an NOPD on the permit within the 60-day period. The
180-day-period running from September 16, 2005 expired on March 15, 2006. DHEC
did not issue an NOPD on the permit within the 180-day period.
DHEC did not request
any additional information or materials from DOT necessary for reaching a
certification decision, other than the permit fee. However, there is no
evidence that DOT did not pay the permit fee within a reasonable time.
Moreover, there is no evidence that any letter was ever sent from DHEC in this
matter notifying DOT that DHEC was suspending its processing of the application.
Therefore, I find that the processing of the application was never suspended by
DHEC.
In the past several years,
DOT has been forced to perform repair work to the existing bridges, which has
caused significant cost to both DOT and surrounding businesses. For instance, Lee
Floyd, DOT State Bridge Maintenance Engineer, testified that DOT has spent up
to $1.5 million repairing the existing bridges in the last ten years.
Additionally, Susan McPherson, an employee of International Paper, testified
that a closure of six to ten hours for bridge repairs costs her firm $8,000.
Moreover, the new
bridges will be safer than the existing bridges, which are in major states of
disrepair. Photographs of the existing bridges reflect large cracks in the
concrete and extensive repairs used to hold the bridge decks in place. A sign
under Bridge Four warns motorists not to park under the bridge because DOT
fears that falling pieces of the bridge may injure someone.
Furthermore, current gaps at the bridges’ expansion joints pose a risk to
motorcyclists. The proposed project, in contrast, includes several features
aimed at making the bridges safer for the traveling public, including wider
shoulders on the bridge and road, and upgraded guardrails.
Finally, because the
costs of concrete, steel and other materials necessary to build the proposed
bridges have risen 35% to 40% in the past three or four years, the estimated
construction costs for the project have increased significantly as a result of
the delay.
Therefore, in light of
the increased bridge repair and construction costs, as well as the delay in the
safety improvements that will be afforded by the project, I find that DOT and
the public have been prejudiced by DHEC’s failure to timely issue its NOPD.
DHEC
presented no evidence that it made any finding prior to November 15, 2005 that
a feasible alternative to the proposed project existed, and I find that no such
determination was made. On the contrary, the employee handling the permit
application testified that he did not know enough about the project to make a
request for information during that period of time.
This Court has subject
matter jurisdiction in this case pursuant to S.C. Code Ann. § 1-23-310 et
seq. (2005 & Supp. 2006) and S.C. Code Ann. § 44-1-60 (Supp. 2006).
The hearing before the ALC is a contested case hearing pursuant to the APA and
is heard de novo. Marlboro Park Hosp. v. S.C. Dep’t of
Health and Envtl. Control, 358 S.C. 573, 595 S.E.2d 851 (2004). The proper
standard of proof to be applied is a preponderance of the evidence. Anonymous
(M-156-90) v. State Bd. of Med. Examiners, 329 S.C. 371, 496 S.E.2d 17
(1998); National Health Corp. v. Dep’t of Health and Envtl. Control, 298
S.C. 373, 380 S.E.2d 841 (Ct. App. 1989). Furthermore, the burden of proof is
upon the party asserting the affirmative of an issue and, therefore, DOT bears
the burden in this case of proving that the agency decision was in error under
the statutory and regulatory standards. Leventis v. Dep’t of Health and
Envtl. Control, 340 S.C. 118, 530 S.E.2d 643 (Ct. App. 2000). Likewise,
where the Environmental Groups seek to establish that DHEC’s decision was in
error, they too bear the burden of proof.
Generally, to have standing
in South Carolina “one must have a personal stake in the subject matter of the
lawsuit” and be a real party in interest. Sea Pines Ass’n for Prot. of Wildlife,
Inc. v. S.C. Dep’t of Natural Res., 345 S.C. 594, 600, 550 S.E.2d 287, 291
(2001). Furthermore, in environmental cases, a petitioner has standing if he
or she meets the following three-pronged test:
First, the plaintiff must have suffered an
“injury in fact”-an invasion of a legally protected interest which is (a)
concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or
‘hypothetical.’ ” Second, there must be a causal connection between the injury
and the conduct complained of-the injury has to be “fairly ... trace[able] to
the challenged action of the defendant, and not ... th[e] result [of] the
independent action of some third party not before the court.” Third, it must
be “likely,” as opposed to merely “speculative,” that the injury will be
“redressed by a favorable decision.”
Smiley v. S.C. Dep’t of Health and
Envtl. Control, 374 S.C. 326, 649 S.E.2d 31 (2007) (quoting in part Lujan
v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130 (1992)). The
evidence established that the Petitioner and Environmental Groups have standing
to pursue this case.
The issues in this case
revolve around DHEC’s issuance of a 401 Water Quality Certification and
Navigable Waters Permit. The criteria for the 401 Water Quality Certification
are found primarily at S.C. Code Ann. Regs. § 61-101 (Supp. 2006). The relevant
provisions for a Navigable Waters Permit are found at S.C. Code Ann. Regs. §
19-450 (Supp. 2006) and 33 USCA § 1341 (1994).
Section 401(a)(1) of the
Clean Water Act allows states to exercise veto authority over Federal licenses
and permits for discharges to navigable waters if the proposed activity would
violate state water quality standards. 33 U.S.C. § 1341(a)(1) and 1341(d). In
carrying out its responsibilities, the Act requires states to adopt water
quality standards meeting certain minimum national standards. DHEC’s authority
to act for the State in issuing or denying certifications required by Section
401 of the Clean Water Act derives from the S. C. Pollution Control Act, which
authorizes and requires DHEC to “maintain reasonable standards of purity of the
air and water resources of the State.” S.C. Code Ann. § 48-1-20. Furthermore,
pursuant to S.C. Code Ann. Regs. § 61-101 (A)(1), DHEC established procedures
and policies for implementing State water quality certification requirements under
the Clean Water Act. Regulation 61-101 provides that, in reviewing an
application for a permit under the Clean Water Act, DHEC must address and
consider the following factors:
(a) whether the activity is water dependent and the intended
purpose of the activity;
(b) whether there are feasible
alternatives to the activity;
(c) all potential water quality impacts of the project, both
direct and indirect, over the life of the project including:
(1) impact on existing and
classified water uses;
(2) physical, chemical, and biological impacts, including
cumulative impacts;
(3) the effect on
circulation patterns and water movement;
(4) the cumulative impacts of the proposed activity and
reasonably foreseeable similar activities of the applicant and others.
S.C. Code Ann. Regs. § 61-101 (F)(3).
Additionally, “[w]hen issuing certification for such activities, the Department
shall condition the certification upon compliance with all measures necessary
to minimize adverse effects . . . .” S.C. Code Ann. Regs. § 61-101 (F)(4).
Certification is to be
denied, in part, if “there is a feasible alternative to the activity, which
reduces adverse consequences on water quality and classified uses.” S.C. Code
Ann. Regs. § R.61-101 (F)(5)(b). Certification
will also not be issued “unless the Department is assured appropriate and
practical steps including stormwater management will be taken to minimize
adverse impacts on water quality and the aquatic ecosystem.” S.C. Code
Ann. Regs. § 61-101 (F)(6).
DHEC’s
Compliance with Time Frames for Issuance of Its NOPD
DOT argues that DHEC waived its right to issue a Water
Quality Certification by failing to timely issue its NOPD and final decision.
The Respondents argue that the deadlines were complied with because:
· The DOT application was suspended under State permitting agency
procedures for failure to submit the application fee with the application;
· The DOT application was further suspended by the public hearing
requirement contained in R. 61-101; and
· The determination of feasible alternatives was not made until
June 23, 2006.
The Federal Water
Pollution Control Act provides the underlying authority for the regulation of water
quality in the states. See Am. Jur. Pollution Control § 718. Certification
requirements for Section 401 of the Clean Water Act are set forth in 25A S.C.
Code Ann. Regs. 61-101. See 25A S.C. Code Ann. Regs. 61-101 (A)(1) (Supp.
2006). Pursuant to Federal and state laws, there are three separate time
periods regulating DHEC’s review of this DOT application - a 60-day period;
a 180-day period;
and a general one-year period.
The 60 and 180 day time frames apply to the issuance of the NOPD whereas the
one year time frame applies to the final decision of the agency. Regarding the
one year time frame, the federal Clean Water Act, which is the controlling
legislative act, provides that:
If the State, interstate agency, or Administrator, as the
case may be, fails or refuses to act on a request for certification, within a
reasonable period of time (which shall not exceed one year) after receipt of
such request, the certification requirements of this subsection shall be waived
with respect to such Federal application. No license or permit shall be granted
until the certification required by this section has been obtained or has been
waived as provided in the preceding sentence.
Additionally, Regulation 61-101
(A)(6) provides that the Department is “required by Federal law to issue, deny,
or waive certification for Federal licenses or permits within one (1) year of
acceptance of a completed application unless processing of the application is
suspended.” Here, there is a question as to what is the final decision. In
other words, is the final decision the day the staff issued its decision or the
date the Board issued its decision after a Final Review Conference? Resolution
of that issue is decisive as to whether DHEC was timely in issuing its decision.
Nevertheless, I make no finding regarding this issue because I find that DHEC’s
failure to issue its NOPD timely precludes further review of this case.
180
Day Time Frame As set forth above, the
federal Clean Water Act provides that a state must act on a request for
certification “within a reasonable period of time.” In implementing that law,
the South Carolina regulations provide two pertinent time fames. Unless an
application is suspended, the Department must issue an NOPD within 180 days of
acceptance of an application. As set forth above, the Respondents contend that
DHEC met that requirement because the application was suspended at various
times.
They first argue that the
DOT application was suspended under State permitting agency procedures for failure
to submit the application fee with the application. Indeed, the evidence
established that although DOT’s application was filed on June 24, 2005, it did
not remit the application fee until September 16, 2005, approximately 70 days
after the application. Regulation 61-30 (C)(1)(b) does set forth that “[t]he
Department will not process an application until the application fee is
received.” 24A S.C. Code Ann. Regs. 61-30 (C)(1)(b) (Supp. 2006). In this
case, the evidence does not establish that the Department refused to process
the application until it received the payment of the filing fee. In fact, the
evidence established that the Department had begun reviewing the application.
Moreover, the Respondents rely upon
some nebulous evidence that the processing of the application was suspended. I
do not find that evidence convincing. Furthermore, 25A S.C. Code Ann. Regs.
61-101 (C)(4) (Supp. 2006) sets forth the specific instance in the Regulation
as to when an application is suspended for the 180 day time frame. It provides
that:
When the Department requests additional information it will
specify a time for submittal of such information. If the information is not
timely submitted and is necessary for reaching a certification decision,
certification will be denied without prejudice or processing will be
suspended upon notification to the applicant by the Department.
Here, DHEC did not establish that
there was any meaningful length of time when information was not provided.
More importantly, DHEC never notified DOT at anytime that the
processing of its application was suspended. To allow the Department to
surreptitiously suspend the processing of an application and thereby its
deadline to make an NOPD would be a violation of due process. Finally, ignoring
the above, DHEC did not issue its NOPD in this case until June 23, 2006. Even
if its asserted time frame is accepted, the starting date for the 180-day time
period would begin on September 16, 2005 and end on March 15, 2006.
The Respondents also argue
that the running of the 180-day time period was suspended because of the public
hearing held in this matter. DHEC was required to hold a public hearing in
this matter pursuant to 25A S.C. Code Ann. Regs. 61-101(E)(2) & (5) (Supp.
2006). Further, the regulations state that, if a public hearing is held, the
public comment period must be extended fifteen days after the date of the
hearing. 25A S.C. Code Ann. Regs. 61-101(E)(4) (Supp. 2006). Here, the public
hearing was held on November 15, 2005, so the public comment period did not end
until December 1, 2005. Additionally, DOT did not respond to the written
comments and the comments raised in the public hearing until February 2006. Again,
however, DHEC never notified DOT at anytime that the processing
of its application was suspended because of the public hearing requirement.
Moreover, the Respondents have cited no provision in the Regulation that
provides that the time frames are to be suspended while public hearings are
held. Rather, those hearings would presumably be an activity that is
contemplated to occur within the 180-day time frame. Furthermore, as discussed
above, to allow the Department to surreptitiously suspend the processing of an
application and thereby its deadline to issue an NOPD under these circumstances
would be a violation of due process. Thus, I conclude that the application
process for this permit was never suspended by DHEC.
60-Day
Time Limit
The Respondents argue that the 60-day time frame is not applicable in this case
because the determination of feasible alternatives was not made until June 23,
2006, with the issuance of the Proposed Decision. Regulation 61-101 (F)(4)
provides that:
Certification of the activities listed
below will be issued when there are no feasible alternatives. When
issuing certification for such activities, the Department shall condition the
certification upon compliance with all measures necessary to minimize adverse
effects, including stormwater management. The Department shall issue proposed
certification decisions on such applications within sixty (60) days of
acceptance of the application unless otherwise suspended or in accordance with
State permitting agency procedures. The Department will also attempt to
issue general certifications for such activities.
*
*
*
(b) filling necessary for public highways or bridges.
25A S.C. Code Ann. Regs.
61-101(F)(4) (emphasis added). Therefore, when there are no feasible
alternatives to a project, DHEC must issue its NOPD “within sixty (60) days of
acceptance of the application unless otherwise suspended or in accordance with
State permitting agency procedures” in cases involving “filling necessary for
public highways or bridges.” Here, the sole request by DOT was to add
fill in order to construct new bridging. The Respondents nevertheless
argue that this regulation is not applicable because it considered “feasible
alternatives” to this project. DHEC construes the term “feasible
alternatives” to allow it to consider both its determination regarding
avoidance of impacts and its determination of which conditions on the
certification are necessary to mitigate for and minimize the unavoidable
impacts of the project. The application of this regulation is thus
contingent upon the meaning of the phrase “when there are no feasible
alternatives.”
At the outset, I fail
to see how DHEC’s belated determination of whether there is a feasible
alternative warrants a disregard for the 60-day requirement to make that very
determination. Under their logic, the time frame for DHEC to make its
decision should be ignored because DHEC failed to make its decision within that
time frame. “Each word, clause, sentence, and section of a statute
should be given meaning.” Lee v. Thermal Engineering Corp., 352 S.C.
81, 94, 572 S.E.2d 298, 305 (Ct. App 2002). The Department’s general
interpretation of “feasible alternatives” however would make the 60-day time
frame meaningless. In other words, if “feasible alternative” includes
consideration of any conditions to impose upon the project, the Department can
simply avoid the requisites of the time frame upon its contention that it is
considering the conditions it wishes to impose.
Moreover, “[c]ourts
should consider not merely the language of the particular clause being
construed, but the word and its meaning in conjunction with the purpose of the
whole statute and the policy of the law.” Hernandez-Zuniga v. Tickle,
374 S.C. 235, 247, 647 S.E.2d 691, 697 (Ct. App. 2007). DHEC’s construction of
the term “feasible alternatives” to include the conditions imposed on the
certification is inconsistent with the plain language of the regulations.
Regulation 61-101 (F)(4) provides that certification of projects involving the
placement of fill for public highways or bridges will be issued “when there are
no feasible alternatives.” The regulations further provide that:
Certification will be denied if:
* * *
(b) there is a feasible alternative to the activity,
which reduces adverse consequences on water quality and classified uses. . . .
25A S.C. Code Ann. Regs.
61-101(F)(5) (Supp. 2006) (emphasis added). Thus, the regulations provide for
certification of projects involving the placement of fill for public highways
and bridges only if there are no feasible alternatives. If there is a
feasible alternative to the activity, certification must be denied. Clearly,
under the plain language of the regulations, “feasible alternatives” cannot
encompass conditions which DHEC seeks to impose upon a certification, for if
feasible alternatives to an activity exist, there can be no certification of
that activity.
Nowhere in the
regulation is there any indication that the 60-day time frame does not apply
when DHEC is determining whether there are feasible alternatives to the
project. To the contrary, in order to determine that a project has no feasible
alternatives, thus triggering the 60 day requirement, DHEC must necessarily
determine whether there are indeed feasible alternatives to the activity. The
regulations clearly contemplate that DHEC must act promptly upon all
certification requests. 25A S.C. Code Ann. Regs. 61-101(C)(2) states that “if
the Department does not request additional information within ten (10) days of
receipt of the application or joint public notice, the application will be
deemed complete for processing; however, additional information may still be
requested of the applicant within sixty (60) days of receipt of the
application.” Furthermore, if DHEC determines that it needs additional
information in order to make its determination, “it will specify a time for
submittal of such information. If the information is not timely submitted and is
necessary for reaching a certification decision, certification will be denied
without prejudice or processing will be suspended upon notification to the
applicant by the Department. Any subsequent resubmittal will be considered a
new application.” Regs. 61-101(C)(4). In this case, DHEC failed to follow its
own procedures, since there is no indication that it ever requested additional
information from DOT or that it suspended the processing of the permit pending
the receipt of additional information.
The Respondents’
argument that the “conditions” DHEC seeks to impose upon the permit—the
construction of additional bridging—constitute a feasible alternative to the
project as proposed by DOT must likewise fail. The term “feasible alternative”
is not defined in Regs. 61-101(F)(4) or (5). When faced with an undefined
statutory term, the court must interpret the term in accord with its usual and
customary meaning. State v. Landis, 362 S.C. 97, 606S.E.2d 503 (Ct.
App. 2004). “Feasible” means “capable of being done or carried out;”
“reasonable, likely.” Merriam-Webster’s Online Dictionary, www.m-w.com.
Therefore, not only must a “feasible alternative” be possible, but it
must also be reasonable. This construction of the term “feasible
alternative” is also supported by the fact that DHEC is required to consider
permits for construction in navigable waters in the context of this water
quality certification review. See Regs. 61-101(A)(9) (water quality
certification review for activities requiring both water quality certification
and a permit for construction in navigable waters will encompass issues
pertaining to the navigable waters permit as well). Thus, the definitions
governing navigable waters permits are instructive in this case.
The regulations governing
permits for construction in navigable waters contain the following definition
of “feasible”:
Feasible (feasibility) is determined by the Department and is
based upon the best available information, including but not limited to
technical input from the agencies, and consideration of economic,
environmental, social and legal factors bearing on the suitability of the
proposed activity and its alternatives. It includes the concepts of
reasonableness and likelihood of success of achieving the purpose.
“Feasible alternatives” applies to both locations or sites and to methods of
design or construction and includes a “no action” alternative.
24 S.C. Code Ann. Regs.
61-19-450.2(G) (emphasis added). Here, while DHEC and the Environmental Groups
argue that the conditions they sought to include in the permit constitute
“feasible alternatives” to the project, there was no evidence that there is a viable
feasible alternative to replacing the four bridges in a manner similar to that
proposed by DOT. Clearly, the bridges must be replaced at this location
following the existing roadway. Furthermore, neither spanning the entire
floodplain nor employing 1:1 slopes is an economically feasible alternative to
replacing the four bridges in a manner similar to that proposed by DOT. The
remaining conditions sought by DHEC and the Environmental Groups simply address
what conditions should be required in the permit to minimize the adverse
effects of the project.
Appropriate
Sanction
The Environmental
Groups argue that Regulation 61-101 does not set forth any consequence for
DHEC’s failure to comply with the 180-day time frame and that the Court should therefore
not assume that the legislature intended for DHEC to waive its power to dictate
401 permit terms once the 180-day time period elapses. In support of that
contention, the Environmental Groups point to Johnston v. S.C. Dep’t of
Labor, Licensing, and Regulation, 365 S.C. 293, 617 S.E.2d 363 (2005). I
disagree.
In Johnston, a
licensed real estate appraiser was charged by the Real Estate Appraisers Board
(Board) with violating certain regulations applicable to those in his
profession. After an administrative hearing on the matter, the Board found
that the appraiser had committed the alleged violations and therefore issued a
written order imposing a fine and suspending his license. Pursuant to S.C.
Code Ann. § 40-60-150(C)(3) (Supp. 2004), the Board was required to serve written notice of its decision on the appraiser
within thirty days of issuing its final order. However, notice of the Board’s
decision was not properly served on the appraiser within the requisite
thirty-day time period. Thereafter, the appraiser appealed the Board’s
decision to the ALC. The ALC reversed the Board’s order, finding that the
Board’s failure to serve notice of its decision within the statutorily-mandated
time period divested the Board of jurisdiction to decide the matter. However,
on further appeal, the Supreme Court held that the failure by the Board to
comply with Section 40-60-150(C)(3) did not affect the Board’s jurisdiction.
Instead, the Supreme Court held that the Board’s decision was valid, but
ineffective, until it was served upon the appraiser. The Supreme Court
explained:
There is no indication the Legislature intended for the time
limit to prevent the Board from having the ability to discipline an errant
appraiser if the Board fails to serve notice of the written decision within the
prescribed time period. Instead, the Legislature intended to speed the
resolution of appraiser disciplinary cases for the benefit of all parties
involved . . . We note that, although the thirty-day time limit is mandatory,
the Legislature has not provided how that mandate is to be enforced. There is
no language regarding the consequences if the Board misses the deadline for
serving written notice of its decision on the appraiser. Accordingly, we will
not assume the Legislature intended the Board to lose its power to act for
failing to comply with the statutory time limit.
Johnston, 365 S.C. at
297-98, 617 S.E.2d at 365 (internal citations omitted). The Supreme Court then
determined that the appraiser was not prejudiced by the Board’s failure to
complete service within thirty days of the Board’s issuance of its decision,
and it therefore remanded the case to the ALC for a ruling on the merits of the
appraiser’s other claims. Id. at 298, 617 S.E.2d at 365.
The present case
is distinguishable from Johnston in several ways. First, while it is
true that Regulation 61-101 does not expressly set forth consequences for
DHEC’s failure to timely issue its NOPD, Regulation 61-101 does refer to the
waiver provision of 33 USCA § 1341. See 25A S.C. Code Ann. Regs. §
61-101(A)(6) (Supp. 2006). Therefore, it would be misleading to claim that
“there is no language” in Regulation 61-101 regarding the consequences of
DHEC’s failure to timely act. In fact, a reasonable interpretation of
Regulation 61-101 is that the legislature intended to incorporate the waiver
provision of 33 USCA § 1341 into Regulation 61-101.
Second, regarding Johnston, because the Board’s decisions do not become effective until they are
served on the appraiser, the Board has an independent reason, other than the
threat of losing its power to act, to promptly serve the appraiser. Here, however,
other than the threat of losing its power to dictate 401 permit terms, DHEC
generally has no independent reason to timely issue its NOPD. Proposed
projects cannot go forward until a 401 permit is issued. Therefore, except in
rare cases where a proposed project is expected to have a positive net impact
on the environment, DHEC’s environmental interests are not harmed by delaying
the issuance of its NOPD (unless, of course, DHEC faces the possibility of
losing its power to act).
Third, in Johnston, had the Supreme Court agreed with the appraiser’s argument, it would have
meant that the appraiser would have gone undisciplined for his actions.
Clearly, allowing licensed real estate appraisers to go unpunished for their
professional misdeeds is not in the public’s best interest. Here, however, a
state’s waiver of its right to dictate 401 permit terms does not affect the
federal government’s authority to place conditions on the permit in accordance
with federal law. See Christopher J. Eggert, The Scope of State
Authority Under Section 401 of the Clean Water Act after PUD No. 1 v.
Washington Department of Ecology, 31 Williamette L. Rev. 851, 857 (1995).
Therefore, unlike the situation in Johnston, finding that DHEC has
waived its right to act does not mean that the public’s interests will go
wholly unprotected.
Finally, in this
case, unlike the appraiser in Johnston, DOT has suffered prejudice as a
result of DHEC’s delay in the issuance of its NOPD. For instance, the delay
has significantly increased the risk that DOT will be forced to perform
maintenance on the currently-existing bridges, which are in increasing states
of disrepair. Moreover, over the past several years, the costs of concrete,
steel and other materials necessary to build the proposed bridges have
increased at a rate much higher than inflation. Therefore, the delay has
significantly increased the cost of the proposed project. Furthermore, because
the currently-existing bridges are not as safe as the new bridges will be, the
delay has prejudiced the safety of the traveling public.
For these reasons,
I conclude that DHEC has waived its right to dictate the terms of DOT’s 401
permit by failing to issue its NOPD within the time limits set forth in
Regulation 61-101.
Timeliness of DOT’s request for a Final Review Conferences
During the trial of
this matter, DHEC made a motion to dismiss this case because DOT failed to
timely request review of this case. In pertinent part, S.C. Code Ann. 44-1-60
(E) (Supp. 2006) provides that:
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.
Furthermore, “[a]ll
department decisions involving the issuance . . . of permits . . . which may
give rise to a contested case shall be made using the procedures set forth in
this section.” S.C. Code Ann. § 44-1-60(A) (Supp. 2006). Therefore, filing a
request for a final review conference is a procedural requirement for an entity
or person to challenge a DHEC decision at the ALC. See MRI at
Belfair, LLC v. S.C. Dep’t of Health and Envtl. Control and Coastal Carolina Med. Center, 06-ALJ-07-0714-CC, 2006 WL 3232043 (Admin. Law Ct. October 18,
2006).
The timing of the issuance of the NOPD in this case creates a
quandary. The NOPD was issued before 2006 Act 387 went into effect but the
review of the case occurred after the effective date of Act 387. After noting
several exceptions, Section 57 of Act 387 provides that: “For all other actions
pending on the effective date of this act, the action proceeds as provided in
this act for review.” Therefore, it appears that the notice provisions of the
prior law applied to this case but the review of the case is pursuant to the
procedures of Act 387.
The law setting forth the requisites for notice prior to Act 387 was found in 25
S.C. Code Ann. Regs. 61-72 § 201(A) (Supp. 2005), which provided that:
Any person may request
an adjudicatory hearing by filing a Petition for Administrative Review with the
Clerk of the Board. Any such Petition must be filed within 15 days, or other
period provided by law, following actual or constructive notice of a final
staff decision on a licensing matter as defined above, or following receipt of
an administrative order.
Nevertheless, ALC Rule 11(C) provided that “[u]nless otherwise provided
by statute, a request must be filed and served within thirty (30) days after
actual or constructive notice of the agency’s determination.”
Therefore, the time for serving a request for contested case review under Rule
11(C) and Regulation 61-72 differed. Clearly, however, ALC Rule 11(C) was the
last legislative expression of a timeframe.
Therefore, since Regulation 61-72 is not a “statute,” the provisions of Rule 11(C)
must prevail. Ramsey v. County of McCormick, 306 S.C. 393, 397, 412
S.E.2d 408, 410 (1991) (“Under the ‘last legislative expression’ rule, where
conflicting provisions exist, the last in point of time or order of
arrangement, prevails.”).
DOT thus had 30 days to
file a request for review from the date of notice. The notice was mailed on
June 23, 2006 and DOT filed a cross-appeal and opposition to the Environmental
Groups’ challenge to the permit on July 19, 2006. That filing thus complied
with the thirty day time frame.
Furthermore, I find
that DOT established that it did not receive notice of the NOPD until June 26,
2006 via an e-mail. That day Berry Still, an employee of DOT, requested a
formal copy of the permit by mail. DOT filed its request for a hearing to DHEC
within one day of receiving a copy of the NOPD by mail. Therefore, I find
that, under the circumstances, DOT timely requested a Final Review Conference.
Finally, DOT is the
party seeking the permit. It is simply unreasonable to conclude that DOT would
not be a necessary party at such an early stage of the permitting process after
the Environmental Groups timely filed their request for DHEC’s Final Review
Conference. See Spanish Wells Prop. Owners Ass’n v. Bd. of Adjustment
of the Town of Hilton Head Island, 295 S.C. 67, 376 S.E. 160 (1988). In
fact, the DHEC Board properly treated DOT as a party without an objection by
the Respondents. Their failure to object at the Final Review conference waived
their right to object at this stage of the case. Ball v. Canadian American
Exp. Co., Inc., 314 S.C. 272, 442 S.E.2d 620 (Ct. App. 1994). Therefore,
even if DOT did not timely request a Final Review Conference, they were
nevertheless a party to the proceeding.
DHEC
Board’s Authority to Remand
DOT and the Environmental
Groups challenge DHEC’s right to remand the permit back to staff for the
imposition of additional conditions following the conclusion of the Final
Review Conference. S.C. Code Ann. § 44-1-60(E) provides that the decision of
DHEC’s staff becomes the final agency decision unless a written Request for
Final Review is filed with DHEC. After that final review, “the board, its
designee, or a committee of three members of the board appointed by the chair
shall issue a written final agency decision based upon the evidence
presented.” S.C. Code Ann. § 44-1-60(F)(2) (Supp. 2006). The language of the
statute referring to the Board’s hearing as a “final review” does not suggest
that DHEC will engage in further review of the matter by staff. Thus, DHEC’s
authority to remand a permit to staff following the Final Review Conference is
questionable. Nevertheless, in light of the fact that this case is properly
before the ALC for a de novo review and the ALC’s determination that
DHEC waived its right to review the Certification, this issue need not be
resolved in this case.
Mitigation
for Wetlands Impacts
401
Water Quality Certification
DOT challenges DHEC’s
mitigation for wetlands impacts as a condition of the 401 Water Quality
Certification. DHEC argues that it has the inherent right to require
mitigation based on its right to include conditions to minimize adverse impacts
on water quality and the aquatic eco-system. Regulation 61-101 (F)(3) provides
that:
In assessing the
water quality impacts of the project, the Department will address and consider
the following factors:
(a) whether the activity is water dependent and the intended
purpose of the activity;
(b) whether there are feasible alternatives to the activity;
(c) all potential water quality impacts of the project, both
direct and indirect, over the life of the project including:
(1) impact on existing and classified water uses;
(2) physical, chemical, and biological impacts, including
cumulative impacts;
(3) the effect on circulation patterns and water movement;
(4) the cumulative impacts of the proposed activity and
reasonably foreseeable similar activities of the applicant and others.
25A S.C. Code Ann. Regs. 61-101
(F)(3) (Supp. 2006). As noted above, a Certification will be denied if “there
is a feasible alternative to the activity, which reduces adverse consequences
on water quality and classified uses.” 25A S.C. Code Ann. Regs. 61-101
(F)(5)(b) (Supp. 2006). Here, there were no feasible alternatives to the project.
A Certification will also
not be issued “unless the Department is assured appropriate and practical steps
. . . will be taken to minimize adverse impacts on water quality and the
aquatic ecosystem.” 25A S.C. Code Ann. Regs. 61-101 (F)(6) (Supp. 2006).
Therefore, the issue for consideration for this project is whether the potential
water quality impacts of the project warrant conditions upon the permit and
whether the appropriate and practical steps were taken to minimize adverse
impacts on water quality and the aquatic ecosystem. Here, the potential water quality
impacts of the project are negligible. DOT has further taken the appropriate
and practical steps to insure that impacts to water quality and the aquatic
ecosystem are minimal.
Navigable
Waters Permit
The Environmental
Groups argue that the more comprehensive standards, and in particular the
mitigation requirements, of navigable waters permits must be considered in
evaluating the issuance of this Water Quality Certification. Regulation 61-101
(A)(9) provides that:
If an activity also requires a
permit for construction in State navigable waters pursuant to applicable laws
and regulations, the review for the water quality certification will consider
issues of that permit and the Department will not issue a separate permit for
construction in State navigable waters. The certification will serve as the
permit.
25A S.C. Code Ann. Regs. 61-101 (A)(9)
(Supp. 2006). Since this project involves construction in State navigable
waters, both the Water Quality Certification and Construction in Navigable
Waters Permit should be jointly considered in this case. However, the
requirement that the Navigable Waters Permit be considered does not necessarily
warrant the application of the more comprehensive standards in deciding the
issues of this case. Rather, the Navigable Waters Permit must be considered in
the context of the issues in this case.
A state Navigable Waters
Permit is required “for any dredging, filling or construction or alteration
activity:
· in, on, or over a navigable water, or
· in, or on the bed under navigable waters, or
· in, or on lands or waters subject to a public navigational
servitude under Article 14 Section 4 of the South Carolina Constitution and
49-1-10 of the 1976 S.C. Code of Laws including submerged lands under the
navigable waters of the state, or
· for any activity significantly affecting the flow of any
navigable water.”
23 S.C. Code Ann. Regs. §
19-450.1.A (Supp. 2006) (bullets added). A navigable water is defined in the
Regulation as “those waters which are now navigable, or have been navigable at
any time, or are capable of being rendered navigable by the removal of
accidental obstructions, by rafts of lumber or timber or by small pleasure or
sport fishing boats.” 23 S.C. Code Ann. Regs. § 19-450.2.C (Supp. 2006). Lands
or waters subject to a public navigational servitude is defined as “those lands
below the mean high water line in tidally influenced areas, or below the
ordinary high water mark of any nontidal navigable waterway of the state.” 23
S.C. Code Ann. Regs. § 19-450.2.D (Supp. 2006). Inversely, “no permit is
required by the Department for any activity or construction on private
highlands above the mean high water line or ordinary high water mark which does
not affect directly and significantly any navigable water or water or land
subject to a public navigational servitude.” 23 S.C. Code Ann. Regs. §
19-450.3 (Supp. 2006).
The issues of this case
involve solely the impact of fill in the floodplain and the benefits
associated with the removal of existing fill. There is no evidence that the
fill at issue to be placed by DOT in the construction of the bridges is: 1) in
a navigable water; 2) in, or on the bed under navigable waters; 3) in, or on
lands or waters subject to a public navigational servitude; or 4) for any
activity significantly affecting the flow of any navigable water. See also 23 S.C. Code Ann. Regs. § 19-450.2 (E), (F) (Supp. 2006) (defining “mean high
water line” and “ordinary high water mark”). In other words, the proposed activities
that Respondents are specifically objecting to will take place on
“highlands above the mean high water line or ordinary high water mark,” and
they will not “affect directly and significantly any navigable water or water
or land subject to a public navigational servitude.” Therefore, the requirements
of the Navigable Waters Permit have no application to the issues presented in
this case.
Conclusions
There are two distinct
environmental issues presented by Respondents in this case – the impact that
the proposed project will have to the area and the desire to have the impact of
the existing causeway either lessened or eliminated. I find that restoration
of the sheet flow to be a laudable goal. However, I do not find the facts of
this case or the existing law supports that aspiration. In fact, the Department
of Natural Resources proposed to have the entire floodplain bridged, which
would constitute an enormous cost to the State of South Carolina, most of which
would not be funded by the Federal Bridge Replacement Program. Rather, the
more feasible and reasonable consideration is the minimization of the impact of
this project.
If the issue was the
filling of the wetlands to create four new bridges, the impact to the wetlands
would be a grave concern. In fact, it is quite clear that the existing
causeways have interrupted the sheet flow in this area and thus had an
environmental impact.
Nevertheless, it is equally clear that the footprint of the causeways at issue
in this case has existed since 1942. Moreover, though the foot print of those
causeways will change as a result of this project, there are three important
details concerning that change. The most important detail is that the fill
will only be placed along the side of the causeways. Therefore, the impact to
sheet flow which was the most pervasive concern presented by the Respondents
would be de minimis. Secondly, as a result of the change of the bridge
design, the bridge spans will be increased. In the areas where the spans are
lengthened the resulting unneeded causeway will be removed. Consequently, the
project will actually increase sheet flow. Finally, the only significant
impact this project will have upon the floodplains is the impact to the wetlands
where the fill is placed.
However, the evidence clearly showed that DOT will offset that impact by
purchasing 43 acres of land for preservation and debiting 20 credits from its Black River “mitigation bank.”
The project, without a
condition requiring additional bridge spans, has no negative impact on
sheetflow. Rather, the reasoning behind requiring the four additional bridge
spans or bridging the entire Congaree floodplain is not to reduce the placement
of new fill by the project, but to remove fill from the pre-existing causeway.
In other words, the condition requiring additional bridging was a mitigation
compensation measure. However, there is no such requirement in the above
statutes or regulations.
Nevertheless,
DOT agreed to place two 60-inch pipes through the causeway of this area to help
increase sheet flow. However, the evidence overwhelmingly established that the
flood waters carried through two 60-inch pipes would be minuscule. Instead of
the pipes, adding bridging south of Bridge # 2 would be more beneficial for
movement of water, and additional bridging north of Bridge # 2 would be more
beneficial for movement of wildlife. I therefore find that the permit, if properly
reviewed, should be amended to eliminate the 60-inch pipes and add additional
bridging to the north and south ends of Bridge Two.
ORDER
IT
IS HEREBY ORDERED that Condition 2 of the Water Quality Certification and
Construction in Navigable Waters Permit contained in the June 23, 2006 Notice
of Proposed Decision shall be removed; and
IT
IS FURTHER ORDERED that Condition 1 of the Water Quality Certification and
Construction in Navigable Waters Permit contained in the June 23, 2006 Notice
of Proposed Decision is amended to read, “All disturbed land surfaces and sloped
areas must be stabilized and sloped with a minimum 2:1 embankment slope upon
project completion;” and
IT
IS FURTHER ORDERED that Condition 14 of the Water Quality Certification and
Construction in Navigable Waters Permit contained in the June 23, 2006 Notice
of Proposed Decision is amended to read:
As proposed, the
applicant must provide compensatory mitigation for wetlands impacts associated
with the proposed work as proposed in the compensation plan dated September 16,
2005. This will be through the purchase and preservation of 43 acres of high
quality wetlands on-site, or by providing monetary assistance to the National
Park Service for the acquisition of additional lands suitable for 60.2
mitigation credits for addition into the Congaree National Park. The applicant
must also provide documentation of withdrawal of 20.2 restoration/enhancement
credits from the SCDOT Black River Mitigation Bank. In addition, the applicant
must extend Bridge #2 by 122.5 feet on each side and remove any unnecessary causeway
that may currently exist in the areas where Bridge #2 will be extended.
and
IT
IS FURTHER ORDERED that though the above portions of the NOPD dealing with
401 Water Quality Certification are amended, this case is nonetheless dismissed
in keeping with the Findings of Fact and Conclusions of Law contained in this
Final Order and Decision.
AND IT IS SO
ORDERED.
_________________________________
Ralph
King Anderson III
Administrative
Law Judge
March 7, 2007
Columbia, South Carolina
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