SC Administrative Law Court Decisions

Petitioner requested a contested case hearing to challenge an after-the-fact amendment to a stormwater management permit granted by the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (OCRM) to Trinity Presbyterian Church (Trinity). The permit amendment allows Trinity to construct a timber bulkhead in an existing stormwater canal partially on and adjacent to Trinity's property in Surfside Beach, Horry County, South Carolina.

The disagreement on the issuance of the permit amendment places contested case jurisdiction in the Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 1-23-310 et seq. (Rev. 1986 & Supp. 1999) and § 1-23-600(B) (Supp. 1999). After considering the evidence presented at the May 10, 2000 hearing, I find the permit amendment should be granted.

Should permit number 51-99-01-03 for land disturbing activities on the site of Trinity Presbyterian Church in Surfside Beach, South Carolina be amended after-the-fact to allow the installation of a timber bulkhead along the stormwater detention canal partially on and adjacent to Trinity's property?

Does OCRM's failure to issue a stop work order preclude granting the permit amendment?

A. Positions of Parties

Petitioner asserts that the design criteria applied by OCRM to Trinity's amendment request was not stringent enough. Petitioner argues that because the surrounding watershed already had flooding problems prior to Trinity's installation of the bulkhead, the resulting loss of storage capacity in the watershed is improper. Petitioner also asserts that OCRM's failure to issue a stop work order when it first learned of the bulkhead construction renders the permit amendment invalid.

OCRM and Trinity disagree with Petitioner. They argue that the impact of the bulkhead installation on the watershed is not significant enough to warrant utilization of a higher level of storm event design than that applied by OCRM. They also argue that Trinity has exceeded regulatory requirements by maintaining retention capacity that is more than three times in excess of what is needed. They contend that the flooding problem in the area has been exacerbated by downstream constrictions in the system which is outside of Trinity's control. In response to Petitioner's argument on OCRM's failure to issue a stop work order, OCRM states that Petitioner is barred from raising any enforcement issues in conjunction with this contested case, which only concerns the propriety of the permit amendment itself.

B. Findings of Fact

I find, by a preponderance of the evidence, the following facts:

On December 28, 1998, Trinity Presbyterian Church, located in Surfside Beach, South Carolina, applied to OCRM for a stormwater management and sediment control permit. In its permit application, Trinity proposed to disturb 2.9 acres on its property in order to construct a Family Life Center, to expand the existing sanctuary and to add additional parking.

To control stormwater runoff, Trinity's property was originally developed with two retention areas: a pond at the corner of Glenn Bay Road and Spanish Oak Drive, which still exists, and a pond on the other side of the church property near the present location of a canal serving both the church and the residential subdivision behind it, Mallard Landing. ⁽¹⁾ The pond that was near the present location of the canal was partially filled in. The remainder of that pond became part of the canal. There is an agreement between Mallard Landing and Trinity to share use of the canal for stormwater retention.

Trinity indicated in its permit application that the retention canal was originally sized to handle the future expansion of the church infrastructure. The application also indicated that there was sufficient capacity in the canal for the projected stormwater runoff from its proposed construction. On February 1, 1999, an architect for Trinity advised OCRM by letter that none of the proposed construction would disturb the existing pond or canal on the site. On February 3, 1999, OCRM approved Trinity's application and authorized the construction described therein.

In the course of completing its improvements to the church property, Trinity installed a bulkhead in the retention canal in order to prevent the washing of sediment from the bank down into the canal. ⁽²⁾ The bulkhead was not shown on the plans which accompanied the stormwater permit application, and the installation of this bulkhead was not considered in the calculations of existing capacity for projected stormwater runoff. In the fall of 1999, Steve Gosnell, County Engineer for Horry County, contacted OCRM to advise it of Trinity's installation of the bulkhead. Mr. Gosnell expressed concern that the bulkhead was eliminating storage capacity in the canal. He advised OCRM that Horry County was opposed to any loss of storage capacity because the area was already flood-prone.

OCRM contacted Trinity to address the unpermitted installation of the bulkhead and entered into an enforcement agreement with Trinity. Trinity voluntarily agreed to cease all site work unless and until an after-the-fact amendment to its stormwater permit could be obtained. The enforcement agreement also provided for a $500 fine against Trinity. Although OCRM had authority to issue a formal stop work order, it did not do so, but rather considered the enforcement agreement sufficient to address the violation.

On November 29, 1999, Trinity submitted a request for an after-the-fact amendment to its stormwater permit to allow for installation of the bulkhead in the retention canal. OCRM determined that the amendment should be granted based on data indicating that the canal was initially over-designed and that the project satisfied regulatory requirements, despite the loss of storage volume resulting from installation of the bulkhead. The data included information from the consultant for the Mallard Landing development indicating that the canal was constructed 30% to 40% larger than needed, based on a 25 year storm event, in order to accommodate future development. The data also included information from Trinity's environmental consultant, Steven Strickland, indicating that while the bulkhead resulted in a loss of 9720 cubic feet in the canal's storage volume, the remaining storage volume on Trinity's side of the canal (33,630 cubic feet) far exceeds what is necessary to contain the proper postdevelopment runoff rate for a ten year storm (23,093 cubic feet). Strickland also indicated that Trinity has an additional 30,800 cubic feet of storage volume in its pond on the other side of its property.

On December 7, 1999, OCRM issued a letter of approval for installation of the bulkhead in the canal. On March 14, 2000, Strickland submitted revised data based on an as-built survey of the bulkhead and pond locations and water level elevations for the project. The data showed remaining storage volume on Trinity's side of the canal to be 46,722 cubic feet and an additional 30,800 cubic feet of storage volume in its pond on the other side of the property.

On April 26, 2000, a consultant for Horry County completed a storm drainage outfall study for the Dogwood Lake watershed, in which Trinity Presbyterian Church is located. The purpose of the study, which Horry County commissioned at the beginning of 1999, was to develop and evaluate alternative solutions for relieving flooding in the Caropines and Deerfield subdivisions without adversely impacting conditions downstream. ⁽³⁾ The study identifies existing areas within the watershed that experience flooding for the 10 year, 25 year and 100 year storm events and outlines proposed alternatives for relieving flooding for the 25 year storm event.

The study concluded that there is flooding in a number of areas during a 10-year storm event, including some flooding in the area in which Trinity is located. The author of the study, Scott Robidoux, testified that during a ten year storm event, a weir structure located downstream of the church is submerged, and therefore it does not function as designed. ⁽⁴⁾ Robidoux further testified that areas upstream of the weir are flooded, otherwise known as a tail water condition, during a ten year storm event. Robidoux's study indicated that the flooding of the weir is attributable to downstream conditions, such as the limitations of an 18 inch pipe under Pine Valley Road that was not designed to handle the volume of water that passes through the weir, and the lack of maintenance of the main outfall channel.

In his study, Robidoux recommend three alternatives for reduction of flooding in the watershed. Alternative 1 calls for construction of five detention ponds at specific locations within the watershed upstream of U.S. Route 17 Business. Alternative 2 calls for modifications to the existing drainage system throughout the watershed, including increasing the pipe sizes at several locations, as well as modifying the outlet structures at Lake Elizabeth and Dogwood Lake. Alternative 3 calls for a combination of providing storage upstream of U.S. Route 17 Business, increasing pipe sizes at several locations, and modifying the outlet structures at Lake Elizabeth and Dogwood Lake. Robidoux concluded that regardless of the alternative selected, the following improvements should be made to the existing drainage system:

The main outfall channel should be excavated to the original grade in order to promote positive drainage from the top of the watershed to U.S. Route 17 Business. This will increase the capacity of the main channel and eliminate stagnant water from ponding in the channel.

There are three existing pipes along the main channel that should be replaced to improve flow and reduce water surface elevations.

Caropines/Deerfield Storm Drainage Outfall Study, page 4-1.

Robidoux testified that if one of the alternatives recommended in his study, specifically Alternative 3, is adopted by Horry County, the watershed will experience significant relief from flooding. He also admitted that restoration of the 9720 cubic feet of storage lost as a result of Trinity's bulkhead installation was not included as a recommendation in his study, and that such restoration would not provide any significant relief to the overall watershed, which is 1000 acres in size. Robidoux admitted that it would take an entire 7 acre feet of storage capacity to eliminate flooding in the watershed for the 25 year storm event.

Horry County does not currently have a stormwater ordinance in place. Because of the history of flooding problems in the area, Horry County has been working toward the implementation of stormwater ordinances for the past two years. Further, Horry County plans to initiate Alternative 3 of Robidoux's study this upcoming fiscal year.

C. Conclusions of Law

Based on the foregoing Findings of Fact, I conclude the following as a matter of law:

Under the facts of this case, the issue becomes determining whether OCRM properly applied the applicable law in granting the permit amendment. I conclude the permit amendment is proper.

1. Stormwater Management Regulations - General

Under the South Carolina Stormwater Management and Sediment Reduction Act, S.C. Code Ann. § 48-14-10 et seq. (Supp. 1999), a permit must be obtained for most land disturbing activities within the State. S.C. Code Ann. §§ 48-14-30(A) (Supp. 1999). 'Land disturbing activity' means any use of the land by any person that results in a change in the natural cover or topography that may cause erosion and contribute to sediment and alter the quality and quantity of stormwater runoff. S.C. Code Ann. § 48-14-20(8) (Supp. 1999).

The Act gives DHEC the authority to promulgate regulations and to develop a State Stormwater Management and Sediment Reduction Program. S.C. Code Ann. § 48-14-50 (Supp. 1999). OCRM, formerly the South Carolina Coastal Council, is the subdivision within DHEC responsible for implementing the Program and the stormwater management regulations in the coastal zone for those jurisdictions of local governments which do not seek delegation of program elements. ⁽⁵⁾ 26 S.C. Code Ann. Regs. 72-304(F) (Supp. 1999).

The purpose of the regulatory requirements imposed on each land disturbance project is to minimize the impact of the project on the surrounding watershed. See 26 S.C. Code Ann. Regs. 72-300(A) (Supp. 1999) (entitled "Scope") ("Stormwater runoff . . . may add to existing flooding problems. The implementation of a statewide stormwater management and sediment control program will help prevent additional water quantity and quality problems and may reduce existing problems.").

Where indicated, criteria that is more customized to a particular watershed (a "Designated Watershed") is applied, and reduction of existing flooding problems becomes a specific goal. See Regs. 72-309 ("The concept of designated watersheds is intended, not only to prevent existing water quantity and water quality problems from getting worse, but also to reduce existing flooding problems and to improve existing water quality. . . ."). To initiate consideration of a watershed for Designated Watershed status, a watershed must be recommended by a local government through the passage of a local ordinance. Regs. 73-309(A). Unfortunately, during the time frame pertinent to this case, Horry County did not have such an ordinance in place. In fact, as of the date of the contested case hearing, no local government in the coastal zone has requested "Designated Watershed" status.

2. Specific Regulatory Requirements

Under the stormwater management regulations there are three different categories of land disturbing activities. The first is set forth in Regs. 72-305(B)(1): land disturbing activities involving two acres or less of actual land disturbance which are not part of a larger common plan of development or sale. If a land disturbing activity falls within this category, a land owner or responsible party must merely comply with a notification requirement, unless the site is within ½ mile of a receiving water body in the coastal zone. See South Carolina Coastal Zone Management Program Document, Chapter III(C)(3)(XIII).

Regs. 72-305(B)(2) refers to projects involving more than two acres and less than five acres of actual land disturbance which are not part of a larger common plan of development or sale. For these projects, a simplified permitting process will be used meeting the requirements of Regs. 72-307(I). Further, these activities are required to utilize Best Management Practices to control erosion and sediment and to utilize appropriate measures to control the quantity of stormwater runoff. Regs. 72-305(B)(3) provides for a third category of land disturbing activities, those disturbing more than five acres. The requirements of Regs. 72-305 and 72-307 apply in the evaluation of these types of projects.

Because Trinity's land disturbing activities involve 2.9 acres of actual land disturbance, which are not a part of a larger common plan of development or sale, Regs. 72-305(B)(2) requires the application of the requirements of Regs. 72-307(I) to the project.

The specific requirement of Regs. 72-307(I) that is at issue in this case is Reg. 72-307(I)(3)(e)(1), which provides that post-development peak discharge rates shall not exceed pre-development discharge rates for the 2-and 10-year frequency 24-hour duration storm event. It further provides that implementing agencies may utilize a less frequent storm event (e.g. 25-year, 24-hour) to address existing or future stormwater quantity or quality problems.

Trinity's environmental consultant, Steven Strickland, testified that the storage capacity needed to make certain that post-development peak discharge rates do not exceed pre-development discharge rates for a 10 year storm event is 23,093 cubic feet. Strickland indicated that while Trinity's bulkhead installation resulted in a loss of 9720 cubic feet in the canal's storage volume, the remaining storage volume on Trinity's side of the canal, 46,722 cubic feet, far exceeds the 23,093 cubic feet necessary to contain the proper postdevelopment runoff rate for a ten year storm. Strickland also noted that Trinity has an additional 30,800 cubic feet of storage volume in its pond on the other side of the property. Therefore, Trinity's bulkhead installation complies with Regs. 72-307(I)(3)(e)(1).

Petitioner argues that the discretion granted by Regs. 72-307(I)(3)(e)(1) to utilize a less frequent storm event should be exercised in evaluating Trinity's bulkhead installation. The testimony, however, indicates otherwise. OCRM's Director of Engineering and State Certifications, Joe Fersner, testified that the very insignificant amount of impact that the bulkhead would have on the watershed did not warrant utilization of a less frequent storm event than the 10 year storm required by Regs. 72-307(I)(3)(e)(1). This conclusion is supported by the testimony of Scott Robidoux, Horry County's stormwater management expert. Mr. Robidoux admitted that restoration of the 9720 cubic feet of storage lost as a result of Trinity's bulkhead installation was not included as a recommendation in his watershed study. Robidoux stated that such restoration would not provide any significant relief to the overall watershed, which is 1000 acres in size. Robidoux admitted that it would take an entire 7 acre feet of storage capacity to eliminate flooding in the watershed for the 25 year storm event. Robidoux also admitted that if one of the alternatives recommended in his study, specifically Alternative 3, is adopted by Horry County, the watershed will experience significant relief from flooding.

Petitioner also argues that Regulation 72-307(C)(4)(c) should be taken into consideration. This regulation provides that watersheds, other than Designated Watersheds, that have well documented water quantity problems may have more stringent, or modified, design criteria determined by the local government that is responsive to the specific needs of that watershed. OCRM argues that Reg. 72-307(C)(4)(c) does not apply to the project in this case because this specific provision only applies to land disturbance of more than five acres, and the project in this case disturbs only between two and five acres. OCRM also argues that this provision only applies when a local government has sought and been granted delegated review authority. I agree with OCRM.

Regs. 72-305(B) specifically assigns differing requirements to three different categories of land disturbing activities: For those land disturbing activities involving 2 acres or less, generally only a notification requirement is imposed. For those land disturbing activities involving more than two but less than five acres of actual land disturbance, a simplified permitting and approval process will be used meeting the requirements of Regs. 72-307(I). For those land disturbing activities involving more than five acres, the requirements of Regs. 72-305 and 72-307 will apply. Therefore, the specific requirements of the permit application and approval process indicated in Regs. 72-305 and 72-307 apply only to land disturbing activities involving more than five acres. Because Trinity's project only involves only 2.9 acres of actual land disturbance, Regs. 72-307(C)(4)(c) does not apply to this case. Rather, the requirements of Regs. 72-307(I) apply to this case.

In any event, Regs. 72-307(C)(4)(c) clearly contemplates certain watersheds being under the review authority of a local government which has had such authority properly delegated to it by the State. Before a local government can be delegated authority to review and approve (or disapprove) stormwater management plans, it must meet all of the requirements of Regs. 72-304 (entitled "Criteria for Delegation/Revocation of Programs"). It is undisputed that Horry County has neither sought nor received delegation of such review authority.

Based on the foregoing, I conclude that Trinity's bulkhead installation meets the applicable regulatory requirements and that more stringent design criteria should not be applied in this case.

3. Stop Work Order

Petitioner argues that OCRM was required to impose a stop work order on Trinity as soon as it learned of Trinity's installation of the bulkhead, which was not included in its original stormwater management plan. Petitioner cites S.C. Code Ann. § 48-14-95 (Supp. 1999) as supporting authority for this proposition. Under section 48-14-95, the implementing agency has the right of entry for the purposes of determining if a land disturbing activity is being conducted without an approved stormwater management plan, conducting inspections and taking enforcement actions. Section 48-14-95 further provides that upon inspection, if the implementing agency determines that a land disturbing activity is taking place without an approved plan, "the implementing agency shall post a stop work order at the site of the land disturbing activity" and shall notify the person responsible for the land disturbing activity of the requirement to submit a stormwater management plan to the implementing agency. S.C. Code Ann. § 48-14-95 (Supp. 1999) (emphasis added).

Another statute, S.C. Code Ann. § 48-14-90 (Supp. 1999), addresses violations by persons who have already obtained approval of a stormwater management plan for the site being disturbed:

(A) With respect to approved stormwater management and sediment control plans, the implementing agency shall ensure that periodic reviews are undertaken, implementation is accomplished in accordance with the approved plans, and the required measures are functioning in an effective manner. Notice of right of entry must be included in the stormwater management and sediment control plan certification. The implementing agency may request assistance from the department.

(B) The request for assistance from the department may initiate an inspection to verify site conditions. That inspection may result in the following actions:

(1) notification by the implementing agency to the person responsible for the land disturbing activity to comply with the approved plan within a specified time;

(2) notification by the implementing agency that the required measures are not functioning in an effective manner . . .

(C) Failure of the person responsible for the land disturbing activity to comply with department requirements may result in the following actions in addition to other penalties as provided in this chapter:

(1) The department may request that the appropriate implementing agency issue a stop work order until the violations have been remedied.

(2) The department may request that the appropriate implementing agency refrain from issuing any further building or grading permits to the person having outstanding violations until those violations have been remedied.

(3) The department may recommend fines to be levied by the implementing agency.

(emphasis added). Thus, the question here is determining which of these enforcement statutes applies to Trinity's bulkhead installation prior to amendment of its stormwater management plan.

The cardinal rule of statutory construction is to ascertain and effectuate the legislative intent whenever possible. City of Camden v. Brassell, 326 S.C. 556, 486 S.E.2d 492 (Ct. App. 1997). Where a statute is complete, plain, and unambiguous, legislative intent must be determined from the language of the statute itself. Id. In construing a statute, its words must be given their plain and ordinary meaning without resorting to subtle or forced construction to limit or expand the statute's operation. Id. Further, a statute as a whole must receive a practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of the lawmakers. South Carolina Department of Transportation v. Faulkenberry, 337 S.C. 140, 522 S.E.2d 822 (Ct. App. 1999)

In this case, the plain language of section 48-14-95 provides for enforcement when there is no stormwater management plan in place for the site being disturbed. The plain language of section 48-14-90, however, provides for enforcement when the person responsible for the land disturbing activity has an approved stormwater management plan for the site being disturbed, but implementation has not been accomplished in accordance with the plan. Such an interpretation of these statutes is practical and reasonable, neither limiting nor expanding their operation.

It is undisputed that Trinity had an approved stormwater management plan for the site being disturbed by its construction activities. Therefore, section 48-14-90 applies with respect to any deviations from that plan, including installation of a bulkhead in the canal. Under the plain language of section 48-14-90, OCRM has broad discretion in selecting the appropriate means of enforcement.

Here, OCRM contacted Trinity to address the unpermitted installation of the bulkhead and entered an enforcement agreement with Trinity. Trinity agreed to cease all site work unless and until an after-the-fact amendment to its stormwater permit could be obtained. The enforcement agreement also provided for a $500 fine against Trinity. Although OCRM had authority to issue a formal stop work order, it did not do so, but rather considered the enforcement agreement sufficient to address the violation. I find that OCRM's enforcement actions were appropriate in light of section 48-14-90.

In any event, this contested case is not the appropriate mechanism in which to challenge OCRM's failure to post a stop work order at the site. If the bulkhead meets the applicable regulatory requirements, then OCRM's failure to post a stop work order at the site cannot be the sole basis for denying an amendment to Trinity's stormwater permit. Petitioner had an opportunity to separately challenge OCRM's failure to post a stop work order at the site. See 26 S.C. Code Ann. Regs. 72-313(A)(4) (Supp. 1999) ("An administrative hearing is available, following a timely request, to determine the propriety of . . . [a] citizen complaint concerning program operation."). Petitioner, however, did not avail itself of that opportunity. Further, Petitioner cites no supporting authority for the proposition that the failure to post a stop work order precludes granting a permit amendment.

Based on the foregoing, I conclude that the bulkhead meets the applicable regulatory requirements, and therefore the amendment to Trinity's stormwater permit should be granted, despite OCRM's previous failure to post a stop work order at the site.

The South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management is directed to grant to Trinity Presbyterian Church an amendment to permit number 51-99-01-03, allowing the installation of a bulkhead in the retention canal on and adjacent to its property in Surfside Beach, South Carolina.

AND IT IS SO ORDERED

______________________________

RAY N. STEVENS

Administrative Law Judge

Dated: September 7, 2000

Columbia, South Carolina

1. Mallard Landing was constructed in 1996, and the canal was constructed when the infrastructure for Mallard Landing was installed.

2. OCRM's director of engineering testified that sediment reduces the capacity of the canal by filling in areas that were previously places for water to go and that the bulkhead would prevent sediment from washing into the canal during Trinity's construction.

3. The Caropines and Deerfield subdivisions are located upstream of Dogwood Lake and downstream of Trinity Presbyterian Church.

4. A weir is a dam placed across a river or canal to raise or divert the water or regulate or measure the flow. American Heritage College Dictionary (3rd Ed.) 1531. In this case, the purpose of the weir located downstream of the church is to control the stormwater output from the area in which the church and Mallard Landing are located.

5. Horry County is in the coastal zone, and, at all time relevant to this case, Horry County did not seek delegation of program elements.