ORDERS:
ORDER TO COMPEL AGENCY TRANSMITTAL
The Petitioners moved on November 12, 1997 for an order to compel the South Carolina
Department of Health and Environmental Control's Bureau of Ocean and Coastal Resource
Management (DHEC-OCRM) to transmit the Petition for Administrative Review filed with the
agency on October 1, 1997. Petitioners' Motion to Compel Transmittal of Appeal is GRANTED.
Appeals of certifications that include coastal zone consistency certification are contested
cases: S.C. Code Ann. Regs. 61-101(A)(7) provides that:
For Federal permits that require both a water quality certification and a coastal zone
consistency certification, the coastal zone consistency certification determination
shall be issued as a component of, and concurrently with, the water quality
certification, according to the administrative procedures set forth in this regulation,
and in accordance with the management policies of the S.C. Coastal Management
Program and applicable laws and regulations. In these instances, the water quality
certification will serve also as the coastal zone consistency certification.
The Federal Water Pollution Control Act § 401 [33 U.S.C. § 1341] further provides:
Any applicant for a Federal license or permit to conduct any activity including, but
not limited to, the construction or operation of facilities, which may result in any
discharge into the navigable waters, shall provide the licensing or permitting agency
a certification from the State in which the discharge originates or will originate . . .
that any such discharge will comply with the applicable provisions of sections 1311,
1312, 1313, 1316, and 1317 of this title.
The Administrative Law Judge Division has subject-matter jurisdiction to hear contested
cases concerning coastal-zone consistency certifications required by Federal permits. "Upon timely
request for a hearing, the matter shall be heard as a 'contested case' under the South Carolina
Administrative Procedures Act, and shall be processed according to law. Determinations of whether
a person has legal standing to contest a determination shall be made in the course of the contested
case proceeding." S.C. Code Ann. Regs. 61-101(G)(4); cf. S.C. Code Ann. § 1-23-600(B) and S.C.
Code Ann. Regs. 61-72, §§ 501 & 502 (Supp. 1996).
DHEC-OCRM's reliance on League of Women Voters of Georgetown County v. Litchfield-by-the-Sea, 305 S.C. 424, 409 S.E.2d 378 (1991), for the proposition that coastal zone consistency
certifications are not contested cases is not persuasive. Justice Finney's primary rationale for
concluding that coastal zone consistency certifications were not contested cases was that, at that
time, no law required there be an opportunity for a hearing in a certification, relying on Triska v.
Department of Health & Envt'l Control, 292 S.C. 190, 355 S.E.2d 531 (1987). Under the current
statutory scheme, however, hearings for coastal zone consistency certifications are required;
therefore, the limited rationale and holding League of Women Voters do not support the proposition
that coastal zone consistency certifications are not contested cases.
Accordingly DHEC-OCRM is required under ALJD Rule 12 to notify the Division of the
receipt of the request for a contested case hearing.
ORDER
IT IS HEREBY ORDERED that the South Carolina Department of Health and
Environmental Control, Bureau of Ocean and Coastal Resource Management shall transmit the
Petition for Administrative Review filed with the agency on October 1, 1997 to the Administrative
Law Judge Division.
AND IT IS SO ORDERED.
__________________________________
ALISON RENEE LEE
Administrative Law Judge
January 7, 1998
Columbia, South Carolina. |
