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

SC Administrative Law Court Decisions

CAPTION:
Town of Lexington, South Carolina vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Town of Lexington, South Carolina

Respondent:
South Carolina Department of Health and Environmental Control

Intervenor:
Lexington County Joint Municipal Water and Sewer Commission
 
DOCKET NUMBER:
01-ALJ-07-0364-CC

APPEARANCES:
Frank R. Ellerbe, III, Esquire
For Petitioner Central Midlands Council of Governments

Clifford O. Koon, Jr., Esquire
For Petitioner Town of Lexington, South Carolina

E. Crosby Lewis, Esquire
Raymon E. Lark, Jr., Esquire
For Petitioner Carolina Water Service, Inc.

Mason A. Summers, Esquire
For Respondent South Carolina Department of Health and Environmental Control

Joel W. Collins, Jr., Esquire
William A. Bryan, Jr., Esquire
For Respondent Lexington County Joint Municipal Water and Sewer Commission
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

The above-captioned cases all arise out of the decision of the South Carolina Department of Health and Environmental Control (DHEC or Department) to refuse certification of a proposed amendment to the 208 Water Quality Management Plan for the Central Midlands Region of South Carolina. Petitions for administrative review of DHEC's nonconcurrence in the proposed amendment from Petitioners Central Midlands Council of Governments (CMCOG), the Town of Lexington (Town), and Carolina Water Service, Inc. (CWS) were filed with the Administrative Law Judge Division (ALJD or Division) and docketed as numbers 01-ALJ-07-0363-CC, 01-ALJ-07-0364-CC, and 01-ALJ-07-0365-CC, respectively. Petitioners contend that DHEC did not have legal authority to nonconcur in the amendment, and that, even if DHEC had such authority, it did not have proper grounds upon which to issue the nonconcurrence. By Order dated August 29, 2001, these three cases were consolidated pursuant to ALJD Rule 19D. A fourth contested case was filed with the Division by Petitioner CWS to challenge a subsequent decision by DHEC to issue a National Pollutant Discharge Elimination System (NPDES) permit for CWS's I-20 wastewater treatment facility (WWTF) that did not reflect the terms of the proposed amendment to the Central Midlands 208 Plan. By Order dated October 15, 2001, this fourth case, docket number 01-ALJ-07-0433-CC, was consolidated with the three other cases. By an Order also dated October 15, 2001, the Lexington County Joint Municipal Water and Sewer Commission (Joint Commission) was granted leave to intervene in this matter in support of DHEC's decisions.

After timely notice to the parties, a contested case hearing was held in this matter on March 21, 22, 25, and 26, 2002, and on April 4 and 10, 2002, at the Administrative Law Judge Division in Columbia, South Carolina; this hearing produced 1557 pages of hearing transcript and 122 exhibits. Having weighed the evidence and arguments presented and having considered the applicable law, I find that, while DHEC does have the authority to review and certify amendments to regional 208 plans to the EPA for its approval, DHEC's decision to refuse such certification to the CMCOG's 2001 plan amendment was improperly made and cannot be sustained.

BURDEN OF PROOF

Generally, in administrative proceedings, the burden of proof rests upon the party who asserts the affirmative of an issue. Leventis v. S.C. Dep't of Health & Envtl. Control, 340 S.C. 118, 132-33, 530 S.E.2d 643, 651 (Ct. App. 2000); 2 Am. Jur. 2d Administrative Law § 360 (1994); see also Alex Sanders & John S. Nichols, Trial Handbook for South Carolina Lawyers § 9.3, at 366-69 (2d ed. 2001) (stating that the burden of proof in civil matters is generally upon the party asserting the affirmative of an issue). Here, Petitioners contend that DHEC improperly refused to certify a proposed amendment to the Central Midlands 208 Plan. Therefore, Petitioners, as the moving parties, must prove by a preponderance of the evidence that DHEC's nonconcurrence in the proposed plan amendment was improper. See Anonymous v. State Bd. of Med. Exam'rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998) (holding that the standard of proof in an administrative proceeding is generally the preponderance of the evidence). (1)

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of these cases, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. The Central Midlands Council of Governments (CMCOG) is a regional council of county and municipal governments that has various planning responsibilities for the Central Midlands region of South Carolina, which includes Fairfield, Lexington, Newberry, and Richland counties. (2) For the purposes of Section 208 water quality planning, (3) Kershaw County is also included in the Central Midlands region.

2. The Town of Lexington is a voting member on the CMCOG and sits on the CMCOG Board and the CMCOG Environmental Planning Advisory Committee. The Town is the designated management agency (DMA) for the treatment of wastewater in the 12- and 14-Mile Creek Basins of eastern Lexington County. The Town also owns and operates the Coventry Woods wastewater treatment facility, which discharges into 12-Mile Creek and then into the lower Saluda River.

3. Carolina Water Service, Inc. (CWS) is a private wastewater utility company operating in, and regulated by, the State of South Carolina. CWS owns and operates several wastewater treatment facilities in Lexington County, including the I-20 WWTF and the Watergate WWTF. The I-20 WWTF serves approximately 2400 customers and discharges into the lower Saluda River under a NPDES permit that authorizes a discharge of 800,000 gallons per day. The Watergate WWTF serves approximately 1100 customers and discharges into the 14-Mile Creek under a NPDES permit that authorizes a discharge of 294,000 gallons per day. CWS is a voting member on the CMCOG Environmental Planning Advisory Committee.

4. The Lexington County Joint Municipal Water and Sewer Commission (Joint Commission) is a public water and sewer utility operating in Lexington County. The CMCOG has designated the Joint Commission as a DMA to serve certain portions of Lexington County. The Joint Commission also sits on the CMCOG Environmental Planning Advisory Committee.

5. The United States Congress significantly amended the Federal Water Pollution Control Act in 1972 to create what is commonly known as the Clean Water Act. Section 208 of that Act provides a framework by which states, through local and regional governmental authorities, are to create and implement areawide waste treatment management plans to control both point and nonpoint source pollution.

6. On March 25, 1975, Russell Train, the Administrator of the EPA, approved Governor James Edwards' designation of the Columbia metropolitan area including Lake Murray as an areawide waste treatment planning area and the Central Midlands Regional Planning Council (4) as the planning agency for that area in accordance with Section 208 of the Clean Water Act. This designation of the CMCOG as the areawide waste treatment planning agency for the Central Midlands region continues to remain in effect.

7. In addition to the CMCOG, four other Councils of Governments in South Carolina have been designated as areawide planning agencies under Section 208 for different regions of the state. These four agencies are the Appalachian COG, the Lowcountry COG, the Berkeley-Charleston-Dorchester COG, and the Waccamaw Regional Planning and Development Council. The planning areas within the boundaries of these five Councils of Governments account for 21 of the state's 46 counties. The other 25 counties of the state of South Carolina are considered to be "non-designated" areas of the state for Section 208 planning purposes. DHEC is the agency responsible for developing and maintaining a 208 Plan for these non-designated portions of the state.

8. In 1976, Governor Edwards submitted South Carolina's Continuing Planning Process (CPP) for water quality to the EPA. (5) In the 1976 CPP, DHEC was designated as the state agency authorized to implement the CPP:

For the purpose of being responsible for the conduct, coordination and implementation of the CPP, there is hereby designated the South Carolina Department of Health and Environmental Control as the State planning agency. The State planning agency may contract portions of its responsibility to other Federal, State, interstate, or local agencies with the approval of the Governor and the Regional Administrator of the U.S. Environmental Protection Agency (EPA); however, the State planning agency is responsible and shall assure that each element of the State's water quality management (WQM) planning process is implemented. In order to carry out this responsibility, the State planning agency shall review and approve each element of designated 208 agency plans before incorporation into the State's Water Quality Management Plans.



Exhibit WC-3, at 19 (emphasis added). Pursuant to this language and other provisions of the CPP describing DHEC's role in the Section 208 planning process, see Exhibit WC-3, at 28-29, DHEC has acted, and continues to act, as the governor's designee for the purpose of annually certifying Section 208 Plans from the areawide planning agencies to the EPA.

9. Since 1977, the CMCOG and DHEC have entered into several Memoranda of Agreement (MOA) setting forth the terms under which the CMCOG and DHEC would coordinate their water quality planning responsibilities and cooperate in their efforts to implement state and federal water quality laws. However, these MOA do not materially alter the CMCOG's role, as the areawide planning agency, in creating and updating a Section 208 Plan for the Central Midlands region or DHEC's responsibility, as the governor's designee for certification of 208 plans, in certifying the CMCOG's 208 Plan to the EPA.

10. The CMCOG's initial Section 208 Plan for the Central Midlands region was submitted to the United States Environmental Protection Agency (EPA) on June 1, 1979. Over the ensuing years, the Central Midlands 208 Plan has been amended several times. (6) A 1993 amendment to the 208 Plan called for the closure of the I-20, Watergate, and Coventry Woods wastewater treatment facilities. The wastewater generated by customers of those plants would then be re-routed to the wastewater treatment plant owned and operated by the City of Cayce, a designated regional treatment facility that discharges into the Congaree River. This wastewater would be pumped to the Cayce facility via a regional sewer line constructed and operated by the Town of Lexington and running along the 12- and 14-Mile Creeks.

11. In February 1997, CMCOG adopted an updated Section 208 Plan for the Central Midlands Region. The 1997 Section 208 Plan calls for the consolidation of small, private domestic wastewater facilities into larger, public regional facilities. The 1997 Plan further recommends the elimination of all domestic wastewater discharge into the lower Saluda River. Accordingly, the 1997 Plan continues the requirement that the discharge from the I-20, Watergate, and Coventry Woods facilities be eliminated and the wastewater re-routed to the regional facility in Cayce.

12. In late 2000, to resolve an ongoing dispute between CWS and the Town of Lexington concerning the terms under which CWS would connect the I-20 and Watergate facilities to the Town's regional sewer line, CWS and the Town, with the assistance of CMCOG representatives, reached a compromise agreement. The agreement, among other things, provided that: (1) CWS would sell the Watergate WWTF to the Town, which would eliminate discharge from the facility and connect it to the regional line within six to twelve months; (2) CWS's I-20 WWTF would be upgraded to a tertiary treatment facility, would have its capacity enlarged by nearly 200,000 gallons per day, and would be designated as a permanent regional facility under the 208 Plan; and (3) the operation of the Town's Coventry Woods WWTF would be extended for five additional years, at which time it would be closed and connected to the regional system. In order to carry this compromise agreement into effect, CWS and the Town petitioned the CMCOG to amend the Central Midlands 208 Plan to: (1) permit the enlargement of the I-20 WWTF to 990,000 gallons per day and designate the facility as a permanent regional WWTF, subject to the upgrade of the facility to tertiary treatment designed to meet certain, more restrictive effluent limits; and (2) extend the operation of the Coventry Woods WWTF until January 1, 2006.

13. The evidence in the record does not suggest that the implementation of this proposed amendment would have any adverse or inimical impact on the environment.

14. The Environmental Planning Advisory Committee of the CMCOG addressed the proposed amendment to the 208 Plan at its meeting on February 7, 2001. At the conclusion of the meeting, the Committee recommended approval of the proposed amendment by a vote of sixteen in favor of the amendment and nine opposed. The proposed amendment was further discussed at a public hearing held by the CMCOG on February 21, 2001, at which comments from members of the public as well as from representatives of interested public and private entities were heard. The Board of the CMCOG addressed the proposed amendment at its March 22, 2001 meeting. After some discussion, the CMCOG Board approved the amendment to the Central Midlands 208 Plan by a significant majority.

15. The process by which the CMCOG adopted the 2001 amendment is consistent with the policies and procedures required by the 1997 Central Midlands 208 Plan and the applicable provisions of the Clean Water Act.

16. On March 26, 2001, Doug Frate, the Governmental Services Director for the CMCOG, forwarded a summary of the 208 Plan amendment to DHEC. By letter dated July 30, 2001, Alton Boozer, the Chief of the DHEC Bureau of Water, advised the CMCOG that DHEC did not concur in the amendment to the Central Midlands 208 Plan. Specifically, DHEC raised three concerns with the amendment that led to its decision to nonconcur: (1) the CMCOG did not sufficiently consider alternative proposals that would allow for implementation of the existing 208 Plan without amendment before approving the proposed amendment (7); (2) the amendment to the 208 Plan does not weigh the cost-effectiveness of upgrading the I-20 facility against connecting the facility to the regional system and does not sufficiently address water quality goals for the lower Saluda River; and (3) the plan amendment, by allowing the Coventry Woods facility to remain in operation for five additional years, improperly conflicts with an enforcement schedule imposed by DHEC regarding the facility.

17. On August 9, 2001, Douglas Phillips, the Executive Director of the CMCOG, replied to DHEC's letter of nonconcurrence. In his response, Phillips suggested that DHEC did not have the authority to reject the plan amendment approved by the CMCOG and requested that DHEC reconsider its decision and forward the amendment to the Governor for certification to the EPA. Boozer replied to Phillips' letter on August 13, 2001. In this reply, Boozer reiterated DHEC's nonconcurrence in the amendment and cited, as an additional ground for the nonconcurrence, an inconsistency between the plan amendment and the State 208 Plan. DHEC also notified the EPA of its decision to not concur in the 2001 plan amendment. (8)

18. On August 14, 2001, Petitioners filed Petitions for Administrative Review of DHEC's nonconcurrence in the plan amendment. Petitioners contend that DHEC did not have legal authority to nonconcur in the amendment, and that, even if DHEC had such authority, it did not have proper grounds upon which to issue the nonconcurrence.

19. On September 10, 2001, DHEC issued a renewed NPDES permit #SC0035564 to CWS for the I-20 facility. The schedule of compliance in the permit provides, in part:

The existing facility is designated by the [Central Midlands] 208 Plan to be eliminated to the currently operational Town of Lexington regional sewer (i.e., 14-Mile creek sewer). The permittee shall eliminate the discharge via connection to this regional sewer no later than June 27, 2003, or within six months after PSC approval of either a purchase agreement or service agreement, whichever is sooner. In the event that the discharge cannot be eliminated by June 27, 2003, based on reasons outside the control of the permittee as agreed to by the Department, the final limits go into effect on November 1, 2003. In that situation, it is the obligation of the permittee to have upgraded the facility to be in a position to meet the final limits by that date.



Exhibit CWS-14, at 8 (emphasis added). This schedule of compliance was explicitly intended to be consistent with the 1997 Central Midlands 208 Plan, which called for the elimination of discharges from the I-20 facility, and is inconsistent with the 2001 plan amendment, which designated the I-20 plant as a permanent facility.

20. On September 26, 2001, CWS filed a Petition for Administrative Review of DHEC's issuance of the renewed NPDES permit for the I-20 facility. CWS contends that DHEC erred by issuing the I-20 permit with a schedule of compliance inconsistent with the terms of the 2001 amendment to the Central Midlands 208 Plan.

CONCLUSIONS OF LAW

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

This matter calls upon this tribunal to step into the tangled web of water quality planning under the Clean Water Act and to address arcane and complex federal and state statutory and regulatory provisions that have not been subject to extensive legal interpretation.

The Clean Water Act provides for a comprehensive program to restore and maintain fishable and swimable waters in the United States through the implementation of three main components: a construction grants program, the NPDES permit process, and the Act's "numerous and disparate planning provisions." William Goldfarb, Water Quality Management Planning: The Fate of 208, 8 U. Tol. L. Rev. 105, 105 (1976) [hereinafter Goldfarb, The Fate of 208]; see also 33 U.S.C. §§ 1251 to 1387 (2000) (the Federal Water Pollution Control Act, or the Clean Water Act). In these numerous and disparate planning provisions, the Clean Water Act envisioned water quality planning on four levels: (1) basin planning under Section 209 of the Act, (2) state planning under Sections 106 and 303(e), (3) areawide or regional planning under Section 208, and (4) facility planning under Sections 201 and 102. 2 William H. Rodgers, Jr., Environmental Law: Air & Water, § 4.21, at 306 (1986 & Supp. 2002); see 33 U.S.C. §§ 1289, 1256, 1313(e), 1288, 1281, 1252; see also Goldfarb, The Fate of 208, at 105. However, rather than setting forth a coherent framework to connect these various water quality planning activities and providing an efficient means of implementing the resulting plans, the Clean Water Act failed to link these fragmented planning functions in any meaningful way and left the implementation of the water quality plans to an equally fragmented and contentious political mechanism that required extensive cooperation between local, state, and federal government bodies. See Rodgers, supra, § 4.21, at 305-08.

These weaknesses in the Act created a potential for a water quality planning system plagued by political quarreling between municipalities and regional authorities, between regional authorities and state regulatory agencies, and between state agencies and the federal government. This potential for difficulties was presaged by commentators at the time of the Act's initial implementation, (9)

and recent commentators have recognized that those potential difficulties have indeed come to fruition. (10) These sorts of problems have been particularly acute for water quality planning efforts under Section 208 with its focus on regional planning that requires the cooperation of any number of public and private entities for its success. (11) Given these difficulties, many commentators have labeled Section 208 a failure. (12)

And it is precisely that politically problematic and arguably failed section of the Clean Water Act's planning provisions that gives rise to the instant case. Petitioners-a regional council of governments, a municipality, and a private utility company-contend that the CMCOG has the sole authority to develop and certify areawide waste treatment management plans for the Central Midlands region pursuant to Section 208 of the Act. Respondents-a state regulatory agency and a public utility company-argue that, while the CMCOG has the responsibility of creating the 208 Plans, DHEC has the authority to review and approve the plans before submitting them to the EPA for its approval. The resolution of this dispute requires this tribunal not only to make some sense of the disjointed water quality planning provisions of the Clean Water Act, but also to wade reluctantly into a political quagmire involving nearly every level of government in South Carolina. See Harvey Lieber, Federalism & Clean Waters 106 (1975) (describing the considerable intergovernmental disputes between state and local agencies caused by the implementation of Section 208).

Section 208 of the Clean Water Act is "the key provision in the Act governing areawide waste treatment management planning." Natural Res. Def. Council v. Train, 396 F. Supp. 1386, 1387 (D.D.C. 1975). As stated above, this section establishes a procedure under which states or designated regional agencies are required to formulate and carry out strategies to control both point source and nonpoint source pollution. 33 U.S.C. § 1288 (2000); see also Goldfarb, The Fate of 208, at 108. Under Section 208, the governor of each state is required to designate areas with "substantial water quality control problems" and, for each such area, to designate "a single representative organization, including elected officials from local governments or their designees, capable of developing effective areawide waste treatment management plans for such area." 33 U.S.C. § 1288(a)(2). These planning agencies must then prepare and put into effect "a continuing areawide waste treatment management planning process." Id. § 1288(b)(1)(A). Plans prepared under that process must "contain alternatives for waste treatment management, and be applicable to all wastes generated within the area involved." Id. (13) These initial plans are then certified by the governor and submitted to the EPA for approval. Id. Section 208 also provides for interstate cooperation where an area with water quality control problems stretches across state lines, id. § 1288(a)(3), and authorizes local governmental officials to designate an area as having substantial water quality control problems and to form their own planning agency for that area if the governor has not acted to either designate or non-designate the area. Id. § 1288(a)(4). Finally, the State is required to act as the planning agency for those portions of the state that have not been designated either by the governor or by local authorities as areawide waste treatment management areas. Id. § 1288(a)(6); Natural Res. Def. Council v. Train, 396 F. Supp. 1386 (D.D.C. 1975).

At the time a Section 208 Plan is submitted to the EPA for approval, the governor, after receiving recommendations from the designated planning agency for the area, must designate "one or more waste treatment management agencies" to implement the plan in the area in question. 33 U.S.C. § 1288(c)(1). As with the other gubernatorial designations and the 208 plans themselves, this designation is also subject to approval or rejection by the EPA. Id. § 1288(c)(2). Once the initial 208 plans have been submitted to and approved by the EPA and implementation of the plans has begun, the "[a]reawide waste treatment management plans shall be certified annually by the Governor or his designee (or Governors or their designees, where more than one State is involved) as being consistent with applicable basin plans and such areawide waste treatment management plans shall be submitted to the Administrator [of the EPA] for his approval." 33 U.S.C. § 1288(b)(3) (emphasis added). (14)

The distribution of planning authority under Section 208 as described above is unique, and thus determining the precise contours of that distribution, as is necessary in this case, can be difficult. It has been noted that "[t]he significance of section 208 lies not only in its land use and growth management provisions but also in its innovative allocation of responsibilities among levels of government." Michael Jungman, Comment, Areawide Planning Under the Federal Water Pollution Control Act Amendments of 1972: Intergovernmental and Land Use Implications, 54 Tex. L. Rev. 1047, 1062 (1976). Clearly, however, Section 208 emphasizes the planning and implementation of water quality control measures on an areawide, rather than a statewide, basis. Under 208, states are partitioned into designated areas with water quality problems, see 33 U.S.C. § 1288(a)(2); water quality planning for these areas is carried out by regional planning agencies comprised of representatives from local governments, see id. § 1288(a), (b); and the plans developed by these regional planning agencies are implemented by regional management agencies. See id. § 1288(c). This areawide approach was found to be particularly appropriate for the sort of water quality planning and management required by Section 208:

Although Congress concluded that agencies could not effectively implement section 208 on a purely local basis, it also considered state governments frequently too large and too distant from the urban citizenry to entrust them with the neighborhood decisions that section 208 entails. Public choices affecting community growth have traditionally fallen within the domain of local rather than state governments because of the strong, direct impact of such determinations on individuals. The areawide approach appears broad enough to overcome the problem of fragmentation and to provide for coordinated, cost-effective water quality management, yet it also allows decisionmaking at a level close to those people the decisions will directly affect.



Jungman, supra, at 1064 (footnotes omitted) (emphasis added). (15) Regional planning agencies occupy a middle ground between the detachment of statewide regulatory agencies and the myopia of municipal governments, and are therefore in a unique position to address the political, economic, social, and environmental issues raised by Section 208 planning. Cf. Goldfarb, The Fate of 208, at 125 ("It has been pointed out that water quality management planning has extensive implications for the amount and location of growth within a particular planning area. Thus, it is important to realize that such plans will be controversial . . . . [and that] planning agencies will find themselves walking a tightrope between politically viable triviality and hotly contested substantiality."). (16)

The corollary to Section 208's emphasis upon allocating water quality planning and management responsibilities to regional agencies is a limitation of the role for state government in those matters. While Section 208 does require gubernatorial action at several key points, particularly in the designation of planning agencies and the certification of 208 plans, Section 208 "sharply circumscribes the range within which Governors may act at each of those points." Jungman, supra, at 1071. When designating areas with water quality control problems and the planning agencies for those areas, a governor must act in accordance with guidelines published by the EPA and in consultation with local governmental officials. See 33 U.S.C. § 1288(a)(1), (2). Similarly, in designating regional management agencies to implement the 208 plans, a governor is required to consult with the planning agency responsible for the problem area. See id. § 1288(c)(1). Further, with the submission of the initial 208 plans and in the annual review of the plans, the governor is only authorized to "certify" the plans, and, in the latter case, this certification is further limited to an annual determination that the 208 plans are consistent with applicable basin plans. See id. § 1288(b)(1)(A), (b)(3). This limited authority to certify 208 plans does not appear to grant governors, or their designees, a general power to approve or disapprove the plans. See Jungman, supra, at 1071; cf. 33 U.S.C. § 1288(a)(7), (b)(3) (explicitly granting the Administrator of the EPA the power of "approval" over the governors' designations under subsection (a) of Section 208 and over the annually certified 208 plans, respectively). In short, the predominant thrust of Section 208 is for areawide water quality planning and areawide implementation of water quality plans with state-level authorities largely acting as intermediaries between the regional agencies and the federal government. See Lieber, supra, at 212 ("If implemented, [Section 208] would create another level of government for planning and management. Most states object to this section because it would create an authority independent of state control, which could regulate the location and construction of treatment facilities and thus oversee land planning.").

However, during the initial implementation of the Clean Water Act, the EPA and state environmental regulatory agencies "resisted the dilution of state power" found in Section 208. Jungman, supra, at 1072. At the time, the EPA had concerns with entrusting the significant water quality control responsibilities of Section 208 to regional planning and implementation agencies that had only recently come into existence, or that did not yet even exist. See, e.g., id. ("The EPA perhaps doubt[ed] the strength and experience of COGs in water quality matters[.]"); Lieber, supra, at 106 ("[The] EPA was troubled by the administrative and political complexities of carving out new regional agencies that could work smoothly with existing local, state, and area governments."). Further, state agencies and officials were reluctant to yield water quality planning authority to regional agencies under Section 208's regulatory scheme that would, in large part, allow the regional agencies and the EPA to bypass state agencies. See Lieber, supra, at 106, 212; Jungman, supra, at 1072. Given these concerns, the EPA specifically downgraded the priority of Section 208 and deferred the implementation of the Section 208 planning process. See Goldfarb, The Fate of 208, at 116; Lieber, supra, at 102. And, when the EPA finally did seek to implement Section 208, it did so only in conjunction with the continued planning process requirements of Section 303(e) of the Clean Water Act and only under a program that gave state governments a greater role in water quality planning than Section 208 alone. See Rodgers, supra, § 4.21, at 312-324; Lieber, supra, at 102-108.

At the time of the enactment of the Clean Water Act, Section 303(e) was a little-known provision of the Act apparently intended only to be "an interim device to enable states to retain and integrate their water quality standards with the new effluent water quality and permit limitations" adopted pursuant to the Act. Lieber, supra, at 102; see also Rodgers, supra, § 4.21, at 312 ("The statewide planning provisions of Section 303(e) were conceived as a low priority mechanism for carrying over the water quality standards into the [Clean Water Act] but were elevated by EPA to a central planning tool."). Section 303(e) requires states to develop, and submit to the EPA for approval, a "continuing planning process." 33 U.S.C. § 1313(e) (2000). This continuing planning process (CPP) must yield plans for all navigable rivers within a state, which include:

(A) effluent limitations and schedules of compliance at least as stringent as those required by section 1311(b)(1), section 1311(b)(2), section 1316, and section 1317 of this title, and at least as stringent as any requirements contained in any applicable water quality standard in effect under authority of this section;

(B) the incorporation of all elements of any applicable areawide waste management plans under section 1288 of this title [i.e., Section 208], and applicable basin plans under section 1289 of this title;

(C) total maximum daily load for pollutants in accordance with subsection (d) of this section;

(D) procedures for revision;

(E) adequate authority for intergovernmental cooperation;

(F) adequate implementation, including schedules of compliance, for revised or new water quality standards, under subsection (c) of this section;

(G) controls over the disposition of all residual waste from any water treatment processing; [and]

(H) an inventory and ranking, in order of priority, of needs for construction of waste treatment works required to meet the applicable requirements of sections 1311 and 1312 of this title.



33 U.S.C. § 1313(e) (emphasis added). (17) However, rather than employ this section merely "as an interim bridging device to integrate water quality standards and effluent limitations," Lieber, supra, at 104, the EPA "decided to make 303(e) plans the keystone of their entire water management and planning strategy." Id. at 102; see also Rodgers, supra, § 4.21, at 313 ("EPA administered the Section 303(e) planning provisions with gusto . . . ."). The flexible wording of Section 303 "gave EPA the opportunity to integrate the Act's planning and management provisions through its normal political channels without the delays, complexities, risks, and costs of working with new and untried 208 agencies." Lieber, supra, at 108. By placing Section 303(e), with its focus on the state-level continuing planning process, rather than Section 208, with its emphasis on areawide planning, at the center of its implementation of the water quality planning provisions of the Clean Water Act, the EPA returned a measure of the authority granted to regional planning agencies under Section 208 to state governments.

The method by which the EPA effectuated this conjoining of areawide planning under Section 208 and statewide planning under Section 303(e) was the regulatory creation of "water quality management plans" or WQM plans. See 40 C.F.R. § 130.6 (2002); see also Battle & Lipeless, supra, at 538 ("The EPA integrated the overlapping planning obligations under sections 208(b) and 303(e) (and a few other sections), terming the result a 'water quality management plan.'"). These WQM plans consist of "initial plans produced in accordance with sections 208 and 303(e) of the Act and certified and approved updates to those plans." Id. § 130.6(a). The update and certification of these plans is governed by 40 C.F.R. § 130.6(e), which provides:

State and/or areawide agency WQM plans shall be updated as needed to reflect changing water quality conditions, results of implementation actions, new requirements or to remove conditions in prior conditional or partial plan approvals. Regional Administrators may require that State WQM plans be updated as needed. State Continuing Planning Processes (CPPs) shall specify the process and schedule used to revise WQM plans. The State shall ensure that State and areawide WQM plans together include all necessary plan elements and that such plans are consistent with one another. The Governor or the Governor's designee shall certify by letter to the Regional Administrator for EPA approval that WQM plan updates are consistent with all other parts of the plan. The certification may be contained in the annual State work program.



Id. (emphasis added). However, this gubernatorial certification of WQM plans should not be understood as expanding the governor's limited power of certification of 208 plans (18) into a general power of approval over 208 plans:

Congress' deliberate choice of the word "certification" rather than "approval," and the overall theme in the Act of reduced state responsibility suggest that the Governor should have only limited discretion in this context. It would make little sense to establish an elaborate process for the division of planning between areawide and state agencies only to give a Governor a virtual veto over plans prepared by areawide agencies. This regulation could nullify the Congressional intent that local officials have primary responsibility over water quality management decisions in metropolitan areas. To the extent that they strengthen the section 208 intergovernmental framework, the EPA's administrative modifications have value. They should not, however, bring under state control decisionmaking that Congress entrusted to local governments operating through areawide agencies.



Jungman, supra, at 1072 (footnote omitted). Rather than granting the governor a veto power over amendments to Section 208 plans, this regulation would seem to only add a secondary consistency certification to be performed by the governor before forwarding plan updates to the EPA. Now, the governor, or his designee, must not only certify that a regional 208 plan is compatible with any applicable basin plans created under Section 209, see 33 U.S.C. § 1288(b)(3), but also certify that the 208 plan is generally consonant with other applicable WQM plans throughout the state. See 40 C.F.R. § 130.6(e). Therefore, while the EPA has, through its regulations, linked regional planning under Section 208 to state-level planning under Section 303(e), the planning authority Section 208 allocates to designated regional agencies has a continuing vitality that places limits upon the role of state government in water quality management in those designated areas. Cf. Rodgers, supra, § 4.21, at 319 ("Although the EPA probably did not exceed its statutory boundaries by combining the Section 303(e) and 208 planning responsibilities, it should be acknowledged that Section 208 announces planning obligations far beyond those specified in Section 303(e).").

In the instant case, DHEC's role in the promulgation of the CMCOG's 2001 amendment to its 208 Plan is limited to the dual certification described above. The CMCOG is the designated areawide planning agency charged with the responsibility of creating, revising, and amending the 208 Plan for the Central Midlands region. See supra Finding of Fact #6; 33 U.S.C. § 1288(b). The EPA is the federal entity authorized to review and to either approve or reject initial 208 plans and revisions to those plans, including the 2001 amendment to the Central Midlands 208 Plan. See 33 U.S.C. § 1288(b)(1)(A), (3); 40 C.F.R. § 130.6(e). DHEC is the governor's designee in South Carolina for the certification of 208 plans from the regional planning agencies to the EPA. See supra Finding of Fact #8. As such, DHEC's only responsibility concerning the CMCOG's 2001 amendment is to certify that the plan amendment is consistent with any applicable basin plans prepared under Section 209 of the Clean Water Act and is generally compatible with South Carolina's other WQM plans. See 33 U.S.C. § 1288(b)(3); 40 C.F.R. § 130.6(e). Upon completing this certification, DHEC must then forward the 208 plan amendment to the EPA for its approval. See 33 U.S.C. § 1288(b)(3); 40 C.F.R. § 130.6(e).

However, in the case at hand, DHEC improperly refused to certify the 2001 amendment to the Central Midlands 208 Plan. In the two letters that comprise its nonconcurrence with the proposed plan amendment, DHEC cited four reasons for its purported rejection of the amendment: (1) the failure of the CMCOG to consider alternatives to the amendment, (2) the lack of analysis of cost-effectiveness in the amendment, (3) a conflict between the amendment and an enforcement schedule imposed by DHEC regarding a certain wastewater treatment facility, and (4) an inconsistency between the plan amendment and the State 208 Plan. See supra Findings of Fact #16, #17. The first three grounds for nonconcurrence identified by DHEC-the only grounds mentioned in its first letter of nonconcurrence-are plainly beyond the scope of its certification review. Even if DHEC's concerns are taken as true, the CMCOG's failure to consider alternatives to the amendment, to include a cost-effectiveness analysis in the amendment, and to coordinate the amendment with a DHEC enforcement schedule has no bearing upon the question of whether the amendment is consistent with applicable basin plans or with other WQM plans. While the concerns raised by DHEC might be relevant if DHEC had a general power to approve or disapprove of 208 plan amendments, those concerns are not relevant to DHEC's limited responsibility to certify 208 plans as the governor's designee under Section 208(b)(3) and 40 C.F.R. 130.6(e). Consequently, DHEC's decision to nonconcur in the proposed amendment on those grounds cannot be sustained.

The fourth stated basis for DHEC's decision to nonconcur in the 2001 amendment to the Central Midlands 208 Plan-an inconsistency between the proposed amendment and the State 208 Plan-does lie squarely within its certification purview. Nevertheless, DHEC's decision to nonconcur in the amendment on that basis is unfounded. In its second letter of nonconcurrence, DHEC added another ground for its refusal to concur in the proposed amendment to the Central Midlands 208 Plan: the inconsistency between the amendment and the State 208 Plan, in particular, Section V, Part B, of the State Plan. This section reads as follows:

It will continue to be the policy of DHEC to encourage, when possible and feasible, the consolidation of wastewater treatment facilities into regional treatment plants. Regional treatment plans are typically more efficient and provide a more consistent and better quality treated wastewater. New treatment facilities will generally not be approved if the service area can be served by an existing treatment facility. The Plan may recommend that existing treatment plants be eliminated if continued operation threatens water quality or the systematic planned growth of a regional sewer system. Permits may be issued with conditions which require the facility to be eliminated. Such factors as location of [the] treatment facility, water quality benefits, and economics will guide the decision to approve or deny a request for a new wastewater facility or to recommend the elimination of an existing facility. These factors may also be evaluated during antidegradation review for dischargers into high quality waters.



Exhibit DHEC-31, at 11 (emphasis added). This section sets up a flexible policy framework calling for the consolidation of smaller wastewater treatment facilities into regional treatment plants when feasible. However, contrary to DHEC's contentions, the proposed amendment to the Central Midlands 208 Plan is consistent with both this provision and the State plan in general.

While the 2001 plan amendment does allow two wastewater treatment facilities scheduled for elimination under the 1997 Central Midlands 208 Plan to continue to discharge, one for five years (Coventry Woods) and one indefinitely as a permanent regional facility (I-20), the proposed amendment does not alter the basic policy of the plan to consolidate small, domestic wastewater treatment facilities into regional wastewater collection systems, see Exhibit CM-8, at 44, (19) and does not affect those portions of the plan that target other facilities for consolidation into regional systems. See, e.g., Exhibit CM-8, at 108. (20) In its 2001 plan amendment, the CMCOG did not amend the basic policy of consolidation found in the plan, nor did it retreat from the elimination of small facilities in accordance with that policy of consolidation. Therefore, even after the 2001 amendment, the Central Midlands 208 Plan contains both general and specific policies of consolidation that are consistent with similar provisions in the State 208 Plan. Moreover, the CMCOG's decision to make two exceptions to the general policy of consolidation found in the Central Midlands 208 Plan is consistent with the flexible, pragmatic policy of consolidation set out in the State Plan. In approving the amendment, the CMCOG determined, after considering all the relevant circumstances, including such factors as the location of the facilities, water quality issues, (21) and economic considerations, (22) that the most reasonable course of action was to allow the I-20 and Coventry Woods plants to continue to discharge under the terms specified in the proposed amendment. The State 208 Plan clearly allows for this sort of balanced decision-making when deciding whether a facility should be consolidated into a regional system or not. In sum, the 2001 amendment to the Central Midlands 208 Plan is consistent with the provisions of the State 208 Plan, and therefore, DHEC's decision to nonconcur in the proposed amendment based upon an alleged inconsistency between the two cannot be sustained. (23)

Further, the grounds for nonconcurrence in the 2001 plan amendment raised by DHEC at the hearing of this matter are similarly unavailing. DHEC cited two other consistency concerns regarding the 2001 plan amendment as grounds for nonconcurring in the proposed amendment to the Central Midlands 208 Plan. First, DHEC argued that the 2001 plan amendment is inconsistent with the Watershed Water Quality Assessment for the Saluda River Basin, which was prepared by the DHEC Bureau of Water in 1998 and which DHEC contends is the applicable basin plan for the Saluda River. See Exhibit CM-9. However, this water quality assessment document is not the "basin plan" referred to in Section 208(b)(3) and Section 303(e), (24) and therefore the consistency of the plan amendment with the Saluda River assessment document is not within the scope of DHEC's certification review. In fact, as no party has established the existence of an applicable basin plan developed under Section 209 of the Clean Water Act for this region, DHEC has no basis to refuse to certify the 2001 plan amendment under Section 208(b)(3), which calls only for a certification by the governor or his designee that the 208 plan is consistent with such an applicable basin plan. See 33 U.S.C. § 1288(b)(3). Second, DHEC contends that its nonconcurrence in the CMCOG's plan amendment is supported by the inconsistency between the 2001 plan amendment and the 1997 Central Midlands 208 Plan itself. Taken narrowly, this argument ignores the basic function of an amendment, which, by its very nature, is in some way inconsistent with the thing it amends. (25) Even understood more broadly, this argument must fail because, as noted above, the plan amendment does not revise the general policy of consolidating local facilities into regional systems found in the 1997 Plan, nor does it remove any facilities from the list of those plants targeted for elimination except for the I-20 plant, which the amendment upgrades and expands into a permanent regional facility. (26) As there is no applicable basin plan for the 2001 amendment to be inconsistent with and as, to the extent such an argument makes sense, the amendment is consistent with the existing Central Midlands 208 Plan, these secondary consistency concerns raised by DHEC cannot support its nonconcurrence in the CMCOG's amendment.

At the hearing of this matter, DHEC also cited a concern with the procedures by which the CMCOG approved the 2001 amendment as a ground for its decision to refuse to certify the amendment. Specifically, DHEC was troubled with the amount of consideration the CMCOG gave to the amendment. However, like DHEC's concerns with the lack of a cost-effectiveness analysis in the amendment and with the CMCOG's failure to consider alternatives to the amendment, this concern regarding whether the CMCOG properly followed its own procedures in adopting the amendment, even if taken as valid, has no relevance to the limited consistency certification required of DHEC as the governor's designee under Section 208(b)(3) and 40 C.F.R. § 130.6(e). Finally, DHEC's contention that the designation of the lower Saluda River, into which the I-20 plant discharges, as a State Scenic River and other miscellaneous environmental concerns, such the location of the City of West Columbia's drinking water intake in relation to the I-20 plant, support its decision to nonconcur in the 2001 plan amendment must be rejected. First, these environmental concerns are not relevant to the certification of the plan amendment under the consistency requirements of Section 208(b)(3) and 40 C.F.R. § 130.6(e), which are focused only on the relationship between the plan amendment and other water quality plans, and not on general environmental concerns. (27) Second, and importantly, the evidence presented at the hearing does not support the conclusion that the implementation of the plan amendment will have any adverse or inimical impact on the environment. (28)

To reiterate, upon the CMCOG's approval of the 2001 amendment to the Central Midlands 208 Plan, DHEC's sole responsibility, as the governor's designee under 33 U.S.C. § 1288(b)(3) and 40 C.F.R. § 130.6(e), is to certify whether the amendment is consistent with any applicable basin plans and consistent with South Carolina's other WQM plans. In the instant case, no applicable basin plan has been shown to exist and the 2001 plan amendment has been demonstrated to be compatible with relevant WQM plans, including the State 208 Plan. Accordingly, DHEC has no valid basis upon which to refuse to certify the amendment from the CMCOG to the EPA. However, beyond the narrow confines of the statutes and regulations governing DHEC's consistency review, broader policy considerations weigh against DHEC's nonconcurrence in the plan amendment. The CMCOG's decision to approve the amendment could only be reached by weighing economic and environmental concerns, balancing public and private interests, and mediating local and state governmental responsibilities. As one commentator has noted, "[w]ater quality management planning will inevitably create winners and losers; and planning agencies will find themselves walking a tightrope between politically viable triviality and hotly contested substantiality." Goldfarb, The Fate of 208, at 125. And, while not an enviable task, this sort of decision-making was specifically entrusted by Section 208 to regional authorities, who are in a better position than state-level officials to determine the water quality needs and concerns of local populations. Consequently, in its review of these decisions, DHEC is not entitled to re-weigh the issues considered or to review the procedures followed by the regional planning agencies in reaching the decisions. Rather, DHEC is limited to determining whether the resulting decisions are generally consistent with the other water quality plans in the state before forwarding the decisions to the EPA for its approval. DHEC's function in this water quality planning process is not to make, or re-make, local planning decisions, but simply to ensure that, on a state level, those decisions result in a reasonably coherent system of water quality management. In nonconcurring in the 2001 amendment to the Central Midlands 208 Plan, DHEC strayed beyond the boundaries of its certification authority, and therefore, its decision to nonconcur cannot be sustained.

In unraveling this small corner of the tangled planning web of the Clean Water Act, it becomes apparent that Section 208 entrusts the sort of local water quality planning decision at issue in this matter to local governments acting through regional planning agencies such as the CMCOG. Section 208 recognizes that these regional planning agencies are better equipped than state environmental regulatory agencies to resolve disputes between municipal and county governments, to measure the growth patterns of local neighborhoods, to weigh the impact of utility rate increases on local customers, and to address the myriad other local and regional concerns that directly affect the 208 planning process. Not surprisingly, then, the only role Section 208 and related EPA regulations assign to state-level authorities in 208 planning is to conduct a limited consistency certification review. It is for that very reason that, after rummaging through its dusty archive bins, DHEC could not locate that elusive gubernatorial designation granting it a general power of approval over regional 208 plans. And, it is for that very reason-and not for some of the fanciful arguments also offered by Petitioners-that Petitioners must prevail in this matter.

ORDER

Based upon the Findings of Fact and Conclusions of Law set forth above,

IT IS THEREFORE ORDERED that DHEC shall certify the CMCOG's 2001 amendment to the Central Midlands 208 Plan and forward the amendment to the EPA for its approval.

IT IS FURTHER ORDERED that, as the schedule of compliance in the 2001 renewal of the NPDES permit for CWS's I-20 plant is directly based on DHEC's decision to refuse to certify the 2001 plan amendment, DHEC shall revise the schedule of compliance in that permit to conform with the certification of the plan amendment as ordered above.

AND IT IS SO ORDERED.





____________________________

JOHN D. GEATHERS

Administrative Law Judge



October 22, 2002

Columbia, South Carolina

1. The preponderance of the evidence is "[t]he greater weight of the evidence" or "superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other." Black's Law Dictionary 1201 (7th ed. 1999). "The preponderance of the evidence means such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in the mind the belief that what is sought to be proved is more likely true than not true." Sanders & Nichols, supra, § 9.5, at 371 (citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955)).

2. Prior to December 12, 1996, the CMCOG was known as the Central Midlands Regional Planning Council.

3. See infra pages 12-15.

4. See supra note 2.

5. The CPP is a water quality planning document that states are required to prepare under Section 303(e) of the Clean Water Act to provide a means for coordinating the states' various water quality planning functions.

6. While areawide waste treatment management planning under Section 208 of the Clean Water Act has taken place in the Central Midlands region, there was no evidence produced at the hearing to demonstrate that any basin planning under Section 209 of the Act has been conducted for the Central Midlands region, or any other region of South Carolina.

7. One such alternative cited by DHEC in its letter of nonconcurrence was an effort by the Joint Commission to acquire the I-20 facility through its power of eminent domain and then to connect the facility to the regional sewer line.

8. To date, the EPA has not taken any action in this matter.

9. William Goldfarb recognized the flaws in the Act's planning provisions early on:



In short, horizontal and vertical integration of planning through the water quality management planning process is fraught with potentially acrimonious clashes among divergent interests and concerns. Generous compromise will frequently be superseded by self-interested squabbling; and harmonious, coherent planning will not come about without incentives and sanctions.



Goldfarb, The Fate of 208, at 133.

10. See, e.g., Rodgers, supra, § 4.21, at 307 ("[I]n retrospect, it was predictable that the several parts of this finely-tuned system would be late arriving and awkwardly meshed. To this day, there is no agreement on what is required of the different plans and how they are supposed to fit together."); Howard Latin, Regulatory Failure, Administrative Incentives, and the New Clean Air Act, 21 Envtl. L. 1647, 1656 (1991) ("In short, communities joined together to build and operate facilities when they wanted to cooperate, and developed separate treatment plans if no consensus was present. Local political considerations came to dominate ecological circumstances and technocratic rationality in sewage treatment planning, and thereby deprived most areawide plans of any significant meaning.").

11. See, e.g., Jackson B. Battle & Maxine I. Lipeles, Water Pollution 540 (3d ed. 1998) (noting that "the emphasis in section 208 upon regional planning, although a very reasonable mechanism to address water pollution on a watershed basis, was at odds with the legal authority, and political reality, in most states"); William Goldfarb, Water Law 228 (2d ed. 1988) [hereinafter Goldfarb, Water Law] (commenting on the political problems caused by "208's naive regionalist philosophy").

12. See, e.g., Battle & Lipeles, supra, at 539 ("Thus, despite the administrative logic of the 208 planning process, the program has been a failure by virtually any standard."); Goldfarb, Water Law, at 227 ("Nevertheless, 208 has failed more often than it has succeeded."); see also Rodgers, supra, § 4.21, at 319.

13. These Section 208 plans must also, among other things: identify treatment works necessary to meet the anticipated municipal and industrial waste treatment needs of an area over a twenty-year period; establish construction priorities for such treatment works; establish a regulatory program for point and nonpoint sources within the area; identify the time and measures necessary to carry out the plan and the economic, social, and environmental impact of carrying out the plan within the time prescribed; and contain processes for identifying and controlling nonpoint sources of pollution. 33 U.S.C. § 1288(b)(2).

14. The "applicable basin plans" referred to in Section 208(b)(3) are the "Level B" basin plans developed under Section 209 of the Clean Water Act. See 33 U.S.C. § 1289 (2000); cf. 40 C.F.R. § 130.6(c)(8) (2002) (requiring water quality management plans to address "any relationship to applicable basin plans developed under section 209 of the Act"); see also Rodgers, supra, § 4.21, at 308-09 ("The only type of basin planning mentioned in the Act is not the Section 303(e) basin plans, now called water quality management plans, but rather the basin plans mentioned in Section 209.").

15. Jungman also notes an additional reason why the Clean Water Act "provided a significant role for local governments and areawide planning agencies," rather than statewide authorities, in water quality planning: the failure of state governments "to deal effectively with water quality problems" under prior federal water pollution legislation. Jungman, supra, at 1062.

16. See also Jungman, supra, at 1057 ("The availability of public sewage treatment facilities comprises a key determinant of the pattern and pace of urban growth. As a result, in determining when and where to construct treatment plants and sewer lines, the 208 planning agency must make major decisions about community growth patterns.").

17. EPA regulations set forth a similar list of requirements for the continuing planning process, including the requirement that the CPP describe "[t]he process for incorporating elements of any applicable areawide waste treatment plans under section 208, and applicable basin plans under section 209 of the Act." 40 C.F.R. § 130.5(b) (2002).

18. See supra page 15.

19. After the amendment, the Central Midlands 208 Plan continues to set forth the following policy for the "Elimination of Discharges and Consolidation of Facilities": "Small, public or private domestic wastewater treatment facilities are considered temporary facilities. When a regional wastewater collection system, public or private, becomes available, these facilities will be required to connect to that system." Exhibit CM-8, at 44.

20. By way of example, even after the 2001 amendment, the Central Midlands 208 Plan targets the Camping Creek WWTF in Newberry County for "eventual elimination" and cites two plants operated by the Joint Commission "for merger and eventual elimination in the Cayce Main plant." Exhibit CM-8, at 108.

21. The plan amendment requires the I-20 facility to upgrade to a tertiary treatment facility, and only permits the Coventry Woods facility to discharge until 2006.

22. The plan amendment resolves a long-standing dispute between CWS and the Town of Lexington regarding fees and other costs associated with connecting CWS's facilities to the Town's sewer lines.

23. Further, while DHEC only specifically raised a question as to the consistency between the CMCOG's plan amendment and the State 208 Plan, the amendment is also consistent with other regional 208 plans in South Carolina. For example, the Appalachian Regional Water Quality Management Plan sets forth a flexible policy of consolidation that "encourages" the elimination and consolidation of treatment facilities "when deemed appropriate" and that requires such consolidation determinations to be based on "economics, operational efficiency, water quality impacts, physical constraints, and water rights." See Exhibit WC-46, at 47.

24. See supra note 14. This watershed-based assessment is an evaluation of the water quality in the Saluda River that fulfills several of the reporting requirements set forth in the Clean Water Act; it is not a basin plan prepared pursuant to Section 209 of the Act. See Exhibit CM-9, at 1-2 (describing the assessment document and listing the Clean Water Act reporting requirements it satisfies).

25. See Black's Law Dictionary 81 (7th ed. 1999) (defining "amendment" as a "formal revision or addition proposed or made to a statute, constitution, or other instrument" and as a "change made by addition, deletion, or correction").

26. Although the amendment does allow the Coventry Woods facility to discharge for an additional five years, it calls for the discharge to be eliminated and the facility connected to the regional system at that time.

27. These environmental considerations are more appropriately addressed by DHEC under its administration of the NPDES permitting program, rather than under its certification responsibilities under Section 208. See Jungman, supra, at 1057 (noting the distinction suggested by Senator Edmund Muskie, the primary sponsor of the Clean Water Act, "between the NPDES program, which concerns permits controlling the quantity and quality of point source discharges, and the 208 regulatory program, which deals with the location of facilities resulting in such discharges").

28. For example, under the plan amendment, the I-20 facility must be upgraded to provide tertiary wastewater treatment and, after the upgrade, will be required to comply with more stringent effluent restrictions than at present.


Brown Bldg.

 

 

 

 

 

Copyright © 2024 South Carolina Administrative Law Court