SC Administrative Law Court Decisions

I. Statement of the Case

Responsible Economic Development (RED) along with several other petitioners brings this contested case to challenge a decision by the South Carolina Department of Health and Environmental Control (DHEC) granting a stormwater management and sediment control permit to Wal-Mart Stores East, LP (Wal-Mart). The disagreement on the issuance of the permit places contested case jurisdiction in the Administrative Law Court under S.C. Code Ann.§§ 1-23-310 et seq. (Supp. 2003). After considering the evidence and applicable law, the permit must be granted.

II. Issues

Two issues are raised here. Should the permit request be denied on the ground that granting the permit will violate the antidegradation rules of 25 S.C. Code Ann. Regs. 61-68 (D)? Second, should the permit be denied on the ground that other available measures and practices would be more effective in reducing the discharge of pollutants from this project?

III. Analysis

A. Findings of Fact

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

Beltline Drive in Florence, South Carolina is the site of the proposed Wal-Mart project. The property consists of grass and pasture areas, an existing Sam's Club, an existing church, several wooded areas, and a drainage swale along the eastern property boundary.

The site presently drains to three separate stormwater systems. The portion of the site along the western property boundary drains to a ditch along Beltline Drive. That portion of the existing Sam's Club parking lot draining towards Beltline Drive is routed through an existing detention pond and outlets to a storm drain system. The church property drains to a storm drain system which outlets to the western side of Beltline Drive, while the Sam's Club property drains to three separate detention pond systems. A small portion of the existing parking lot drains to a pond located at the southwestern property corner, while the remainder of the site drains to two separate detention ponds located on the northern and southern sides of the existing Sam's Club building. Both of these ponds outlet to a storm drain system which leads to the existing drainage swale located along the eastern property boundary of the site.

Development of the property will occur in stages. The existing Sam's Club building will be expanded, the church property will be demolished, and the remaining portion of the 48 acre site will be developed in stages. One part of the development will be the construction of a Wal-Mart Supercenter with a central stormwater detention pond at the southeastern corner of the property. The detention pond will discharge to an existing 30" pipe located along the southern property boundary which will then outlet towards the southwestern property boundary and into the existing drainage swale.

Construction at the site will include the building plus accompanying parking and landscaped areas, two main access drives, the stormwater detention pond, and improvements along Beltline Drive. Approximately 43 acres of the site will be land-disturbed during construction activities. The stormwater will flow across the paved and landscaped areas to proposed inlets, which will lead to the detention pond. The pond will accommodate the 2, 10, 25, 50 and 100-yr storm events. Runoff will be restricted to pre-developed rates for these storms.

When completed, the runoff will flow from the detention pond into an unnamed tributary. Existing commercial sites of Sam's Club and two Lowe's establishments have paved lots that already discharge storm water runoff into the unnamed tributary. The flow in the unnamed tributary runs for approximately a half-mile before finally converging with Jeffries Creek. “Some fraction” of the pollutants entrained in the stormwater from the Wal-Mart site will pass through the storm water pond and enter the unnamed tributary. However, the size of that fraction is not established.

Approximately two miles above the confluence of the unnamed tributary and Jeffries Creek are two sampling stations that have recorded dissolved oxygen levels low enough to be detrimental to aquatic life. However, at a station approximately four miles below the confluence, another sampling station exists with that station showing no recorded low dissolved oxygen levels detrimental to aquatic life. As to the confluence of the unnamed tributary and Jeffries Creek itself, no recorded dissolved oxygen levels have been taken.

B. Conclusions of Law

1. General Framework of Applicable Law

The Stormwater Management and Sediment Reduction Act charges DHEC with the duty of developing a State Stormwater Management and Sediment Reduction Program. S.C. Code Ann. § 48-14-50(A) (Supp. 2003). Further, the General Assembly required DHEC to promulgate regulations that would, among others, govern the types of activities requiring a stormwater management and sediment control permit, establish specific design criteria and minimum standards and specifications, and set permit application and approval requirements. S.C. Code Ann. § 48-14-50(C) (Supp. 2003).

Consistent with that duty, DHEC promulgated regulations establishing standards for stormwater management and sediment reduction. See 26 S.C. Code Ann. Regs. 72-300 through 72-316 (Supp. 2003). Those regulations subject an applicant proposing a land disturbance project exceeding five acres to the duty of satisfying the requirements of 26 S.C. Code Ann. Regs. 72-305 and 72-307 (Supp. 2003). Given that Wal-Mart's proposed project involves a land disturbance of approximately 43 acres, the numerous provisions of 72-305 and 72-307 apply to the instant case.

2. Disputed Provisions of Applicable Regulations

While the requirements of Regs 72-305 and 72-307 are numerous, not all need to be addressed here. Rather, the current controversy rests with Regs. 72-305(B)(4).

Regs. 72-305(B)(4) explains that “[t]hese requirements [of 72-305 and 72-307] may be modified on a case-by-case basis to address specific stormwater quantity or quality problems or to meet S.C. Coastal Council or other regulatory requirements.” RED argues that the “case-by-case” language of Regs. 72-305(B)(4) requires denying the permit due to the antidegradation rules of Regs. 61-68(D)(1) and also due to the inadequate measures that will be employed to handle the pollutants that will be discharged from the Wal-Mart property. Each argument is addressed below.

a. Antidegradation Rules

The Federal Clean Water Act (CWA) sets the background for South Carolina’s antidegradation rules. The CWA established a goal “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. 1251(a). To achieve that goal, the CWA required the development of “water quality standards” (see 33 U.S.C. § 1313(c)(2)(A)) and placed the primary responsibility for that task with the States. 33 U.S.C. 1313(a)-(c). In establishing a water quality standard, a State is interested in three factors.

i. Required Factors

The first is identifying what the “designated uses” are for a specific water body with those potential uses including such diverse possibilities as “use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation.” 33 U.S.C. 1313(c)(2). “Designated uses” are defined as “those uses specified in water quality standards for each water body or segment whether or not they are being attained.” 40 C.F.R. 131.3(f).

The second factor is that of setting “criteria” that specify the amounts of various pollutants that may be present in water without impairing the designated use. 33 U.S.C. 1313(c)(2)(A). “Criteria” are defined as “elements of State water quality standards, expressed as constituent concentrations, levels, or narrative statements, representing a quality of water that supports a particular use.” 40 C.F.R. 131.3(b).

And finally, the third element in establishing a water quality standard is that of setting an antidegradation policy. The object of such a policy is to protect a water body’s existing use. 40 C.F.R. 131.6(d), 131.12; 33 U.S.C. 1313(d)(4)(B). Indeed, in evaluating whether a water use is being protected, the common sense approach is that “[w]hen criteria are met, water quality will generally protect the designated use." 40 C.F.R. § 131.3(b).

Against this backdrop, South Carolina established its water quality standards in 25 S.C. Code Ann. Regs. 61-68 and 61-69 with the antidegradation rules being listed in Regs. 61-68. Consistent with the goal of the CWA, in South Carolina the “[a]ntidegradation rules provide a minimum level of protection to all waters of the State.” Regs. 61-68(A)(1)(c). More specifically for the instant case, the required level of protection means that “[e]xisting water uses and the level of water quality necessary to protect these existing uses shall be maintained and protected regardless of the water classification . . . .” Regs. 61-68(D)(1). Thus, to decide whether the granting of a permit is in compliance with the required level of protection, three elements must be determined.

First, an identification of the water bodies potentially impacted by the runoff must be made. Second, the water uses and the water quality of each water body potentially impacted must also be identified. And, third, a decision must be made on whether the water use and the water quality necessary to protect that use can be maintained if the permit is granted.

ii. Application of Required Factors

– Water Bodies –

Identifying the water bodies to be examined is not a disputed matter. Here, all agree the stormwater runoff will flow into an unnamed tributary and then run for approximately a half-mile before finally converging with Jeffries Creek.

– Water Uses and Water Quality –

The unnamed tributary into which the runoff is first discharged is not a “listed” water body in Regs. § 61-69. Thus, the unnamed tributary does not have a separate water classification of its own. Instead, the tributary takes on the classification for the water body into which it converges, but it does not take on the site specific criteria of the named water body. 25 S.C. Code Ann. Reg. 61-69(A).

Accordingly, the tributary here under review has a water classification of “FW” (Freshwater) since the body into which the tributary flows, Jeffries Creek, is classified by Regs. 25 S.C. Code Ann. Reg. 61-68(G)(10) as “FW”. Freshwater uses include recreation, fishing, “the survival and propagation of a balanced indigenous aquatic community of fauna and flora,” industrial, and agricultural uses. S.C. Code Ann. Reg. 61-68(G)(10). Further, the applicable criteria for dissolved oxygen in the unnamed tributary is also set by S.C. Code Ann. Reg. 61-68(G)(10) as “daily average not less than 5.0 mg/l with a low of 4.0 mg/l.”

Unlike the unnamed tributary, Jeffries Creek is a listed water body in Regs. § 61-69. Its listing is that of “FW” and because of such it has (among others) an existing use of aquatic life; i.e., “the survival and propagation of a balanced indigenous aquatic community of fauna and flora.” S.C. Code Ann. Reg. 61-68(G)(10). However, identifying the applicable criteria for dissolved oxygen which is to be maintained so as to protect the aquatic use in dispute in the instant case requires giving some recognition to several locations along Jeffries Creek.

For example, along Jeffries Creek approximately two miles above the confluence of the unnamed tributary and Jeffries Creek are two stations that are on the Clean Water Act’s 303(d) list of impaired waters for dissolved oxygen. The use impaired at those locations is an aquatic life use. Accordingly, the protection due at those points is derived from the 303(d) listing and is one of not allowing dissolved oxygen to drop below 4.0 mg/l.

Though impaired above the confluence of the tributary and Jeffries Creek, no such impairment exists at a station approximately four miles below the confluence. At that point along Jeffries Creek, no listing is found on the 303(d) impaired waters list and no site specific criteria for dissolved oxygen exists at that site. Rather, at that site, the criteria is that of having a “daily average not less than 5.0 mg/l with a low of 4.0 mg/l,” the standard for Freshwater.

Finally, a third point on Jeffries Creek exists: the point of the confluence of the unnamed tributary and Jeffries Creek. That location is two miles below the up-stream impaired site and four miles above the down steam non-impaired site. That point is not specifically found on the 303(d) impaired waters list. Further, the evidence does not reveal any recorded measurements of dissolved oxygen at that location. Rather, the evidence contains calculations from opposing sides attempting to show the level of dissolved oxygen under various assumptions based on modeling under a Streeter-Phelps calculation.

Given all of the above, for the instant case addressing the antidegradation rules, what is the use to be protected and what water quality standard must be maintained to protect that use? In this case, the use presenting a need for protection is the aquatic use. Further, the criteria for water quality in the unnamed tributary and in Jeffries Creek involves dissolved oxygen. In examining the need for dissolved oxygen, the lowest level needing protection for at least one point along Jeffries Creek and the lowest level needing protection for all points along the unnamed tributary is 4.0 mg/l. Therefore, the water use to be maintained is the aquatic use and the protection for that use is that of not dropping below 4.0 mg/l.

– Impact of Permit on Water Quality –

Accordingly, for purposes of the antidegradation rules, the issue becomes one of deciding whether granting the permit will cause the dissolved oxygen in either water body to drop below 4.0 mg/l. Of course, in stating the issue in this manner, I disagree with RED’s interpretation of the antidegradation rules.

RED’s interpretation of the antidegradation rules asserts that if any discharge of stormwater from the Wal-Mart site will cause dissolved oxygen levels over some stretch of Jeffries Creek to be lower than the dissolved oxygen levels would be without the project, then such a reduction by itself is sufficient to deny the permit. RED’s interpretation is not the law in South Carolina.

First, the plain language of the antidegradation requirement does not ask whether any decrease in water quality will result. Instead, South Carolina’s requirement asks whether the water uses and the water quality needed to protect those uses will be maintained. Regs. 61-68(D)(1). In other words, the literal language holds that if the applicable water quality measure (dissolved oxygen of not less than 4.0 mg/l) is maintained, then the permit is not in violation of the antidegradation rules. To find a violation based upon a test of whether any decrease in the water quality would occur is to require the court to ignore the plain text and instead to insert new language into the regulation. Hitatchi Data Sys. Corp. v. Leatherman, 309 S.C. 174, 178, 420 S.E.2d 843, 846 (1992) (words employed must be given their plain and ordinary meaning without resorting to a subtle or forced construction that limits or expands the pronouncement under review).

Second, the position advanced here by RED has not gained acceptance in other jurisdictions. Indeed, when presented by other litigants in other jurisdictions, the courts have rejected the argument. See Arkansas v. Oklahoma, 503 U.S. 91 (1992) (“The Court of Appeals construed the Clean Water Act to prohibit any discharge of effluent that would reach waters already in violation of existing water quality standards. We find nothing in the Act to support this reading.”); Idaho Sporting Congress, Inc. v. Jemmet, 1997 WL 855506, US District Court, Idaho,1997. (“Plaintiff has responded by arguing that because the streams are water quality limited, Defendants must assure that no additional sediment will enter the streams in order to comply with Idaho Water Quality Standards. However, the Idaho State Water Quality Standards require only that instream beneficial uses and the level of water quality necessary to protect those uses shall not be impaired.”).

Accordingly, RED’s interpretation of the antidegradation rules must be rejected. Rather, the appropriate determination in deciding whether the aquatic uses of Jeffries Creek and of the unnamed tributary will be protected is that of deciding whether the dissolved oxygen in either water body will drop below 4.0 mg/l. See 40 C.F.R. § 131.3(b) (“When criteria are met, water quality will generally protect the designated use.”).

In attempting to gauge the dissolved oxygen level that would result from the issuance of the permit, the parties rely upon two approaches: one quantitative, the other qualitative.

Under the quantitative approach to assessing the impact on dissolved oxygen from DHEC’s granting of a stormwater permit, both RED and Wal-Mart presented extensive expert testimony applying a modeling calculation identified as the Streeter-Phelps model. However, the tool does not provide a persuasive basis for identifying the dissolved oxygen level resulting from the issuance of the permit in the instant case. Rather, the model is applicable to a point source discharge in a closed setting and is not persuasive in the instant case dealing with a non-point discharge into an open environment. Indeed, even RED’s expert agrees that the Streeter-Phelps model is not the “proper tool” for identifying the levels of dissolved oxygen in Jeffries Creek. Tr. 4/26/2004, p. 119, l. 4-8; Tr. 4/27/2004, p. 186, l. 1-17.

Accordingly, having examined the data relied upon, the calculations performed, and the conclusions reached by all of the experts in this case, I find the Streeter-Phelps model is an inadequate basis for assessing dissolved oxygen in the unnamed tributary and in Jeffries Creek. Therefore, I place no reliance upon that model in assessing the dissolved oxygen levels in the unnamed tributary and in Jeffries Creek. See Berkeley Electric Coop. v. S.C. Pub. Serv. Comm'n, 304 S.C. 15, 402 S.E.2d 674 (1991) (The trier of fact determines the probative weight to be given to an expert's testimony); Florence County Dep't of Soc. Servs. v. Ward, 310 S.C. 69, 425 S.E.2d 61 (1992) (the trier of fact is not compelled to accept an expert's testimony, but may give it the weight and credibility he determines it deserves).

On the other hand, I find that evidence of a qualitative nature is sufficiently persuasive to establish that granting the permit will not result in the dissolved oxygen in Jeffries Creek and in the unnamed tributary dropping below 4.0 mg/l.

For example, the DHEC employee having the primary review responsibility for the current permit has the experience gained from reviewing over 1,100 projects covering land disturbance areas from as small as a tenth of an acre up to 600 acres. In reviewing the permit request in the instant case, he correctly concluded that the runoff from the Wal-Mart site would not discharge directly into any impaired water body, including Jeffries Creek. Rather, the discharge from the site will travel at least half a mile before reaching Jeffries Creek and thus will obtain re-aeration properties.

In addition, existing commercial sites of Sam's Club and two Lowe's establishments with virtually identical lot uses already discharge storm water runoff into the unnamed tributary. These commercial sites have paved lots that are similar in composition to the planned Wal-Mart. Despite the existence of these commercial sites, no adverse dissolved oxygen levels have been established even though Lowe's has been in the area for several years and even though a downstream monitoring station is available for the recording of any such problems.

Further, the evidence shows that experienced employees of DHEC with responsibility for storm water permits have found that other similar permits have historically not imposed an impact on dissolved oxygen in the receiving water body. Consistent with that history, the employee with primary responsibility for the current permit visited the site. That visit reviewed the site conditions and supported a conclusion that the current site is consistent with past permitting decisions and therefore required no additional water quality controls related to dissolved oxygen.

Accordingly, when weighing the evidence as a whole, the issuance of the permit does not violate the antidegradation rules.

b. Inadequate Measures For Pollutants

Having concluded that the antidegradation rules are not violated, the second issue is whether the “case-by-case” language of Regs. 72-305(B)(4) requires denial of the permit on the ground that granting the permit will allow inadequate measures for handling the pollutants to be discharged from the Wal-Mart property. Unlike the approach taken by the parties to the disputed issue of dissolved oxygen, no significant evidence quantifies the alleged inadequate measures. Rather, the parties primarily rely upon qualitative evidence.

For example, the evidence establishes that other engineering measures under certain circumstances could improve the quality of the stormwater to be discharged from the Wal-Mart site. Such measures could include reducing the amount of paving, using less impervious pavement in the parking lot, use of bioretention areas or ‘rain gardens’ in place of conventional curbed islands, perimeter sand filters, in-line stormwater filtration devices, and retention ponds specifically designed to improve water quality such as those with constructed wetlands.

However, the evidence in the instant case establishes only that “some fraction” of the pollutants entrained in the stormwater from the Wal-Mart site will pass through the storm water pond and enter the receiving waters. The evidence does not quantify the size of the fraction of the pollutants that may leave the Wal-Mart site.

Moreover, current South Carolina law does not require that no contaminants leave the site. Rather, what is required of a non-point source discharge is that the applicant employ cost-effective and reasonable Best Management Practices. Regs. 61-68(D)(2). A retention pond such as that utilized by Wal-Mart is a widely recognized form of best management practice. Such is especially true here since the dry retention pond is designed to hold enough rainfall for a 100-year storm event, a size far in excess of the required size. Further, the extended dry retention pond utilized here will cut chemical oxygen demand by 40% and will reduce the effect of BOD.

Finally, the totality of the circumstances of this case do not present a basis to invoke the “case-by-case” language of Regs. 72-305(B)(4). As discussed in the antidegradation portion of this order, the runoff from the Wal-Mart site will not discharge directly into any impaired water body and the runoff will travel at least half a mile in an unnamed tributary before reaching Jeffries Creek. Further, similar uses by an existing Sam's Club and two Lowe's establishments already discharge storm water runoff with no adverse water quality incidents reported.

Accordingly, when weighing the evidence as a whole, the “case-by-case” language of Regs. 72-305(B)(4) does not warrant a denial of the permit on the ground that granting the permit will allow inadequate measures for handling the pollutants to be discharged from the Wal-Mart property.

IV. Order

Based upon the Findings of Fact and Conclusions of Law, the following ORDER is issued:

The South Carolina Department of Health and Environmental Control shall grant a stormwater management and sediment control permit to Wal-Mart Stores East, LP for the project addressed in this order.

AND IT IS SO ORDERED

______________________

RAY N. STEVENS

Administrative Law Judge

Dated: September 24, 2004

Columbia, South Carolina