SC Administrative Law Court Decisions

This matter is before the Court upon Respondent The Village at Conway Country Club's (The Village) Motion for Summary Judgment. On May 1, 2002, The Village applied to the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (OCRM) for a stormwater permit for land disturbance. Under this permit, The Village seeks to develop a 57 lot residential subdivision on a 16.2 acre tract of land bordering Grier Swamp in the City of Conway, Horry County, South Carolina. OCRM issued SW-26-02-03-08 allowing for the requested land disturbing activities on May 29, 2002.

The Petitioner is a neighboring resident who believes The Village's development plans will adversely affect his residence. The Petitioner appealed the permit alleging it was issued in violation of the South Carolina Stormwater Management and Sediment Reduction Act. Specifically, the Petitioner alleges:

• The project violates 26 S.C. Code Ann. Regs. 72-307(C)(4)(a) (Supp. 2001);
• The slopes of the retention pond are too steep;
• Additional study of Grier Swamp is needed; and
• OCRM should evaluate the project on a higher standard.

Summary judgment is appropriate where there is no genuine issue of material fact. Cisson Construction, Inc. v. Reynolds & Assoc., Inc., 311 S.C. 499, 429 S.E.2d 847 (Ct. App. 1993). In determining whether summary judgment is proper, the court must construe all ambiguities, conclusions, and inferences arising from the evidence against the moving party. Byers v. Westinghouse Elec. Corp., 310 S.C. 5, 425 S.E.2d 23 (1992).

The Petitioner first argues water will be released into Grier Swamp at rates that cannot be absorbed in violation of 26 S.C. Code Ann. Regs. 72-307(C)(4)(a)(Supp. 2001). Regulation 72-307(C)(4)(a) requires "post-development peak discharge rates shall not exceed pre-development discharge rates for the 2- and 10- year frequency 24- hour duration storm event. 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." The Petitioner argues OCRM should have required The Village to design their project using a less frequent storm event than the 2- and 10- year frequency 24- hour duration storm event.

The record is clear that the project was designed to meet discharge rates for a 25-year frequency 24-hour duration storm event. The Petitioner conceded at the hearing into this matter that he has no evidence or reason to believe that the project was not designed to this standard, or that the project will discharge at a higher rate. By the Petitioner's own admission, The Village has not only met but exceeded the standards of Regulation 72-307(C)(4)(a). Therefore, summary judgment is appropriate on this issue.

The Petitioner claims the slopes of the retention pond walls are designed at a 1-to-1 slope. He alleges this slope is too steep and that the walls will fail. However, the Petitioner offered no evidence to support his belief that the retention walls are designed at a 1- to-1 slope. To the contrary, The Village's permit application sets forth that the walls of the retention pond are designed to have a 2-to-1 slope. Furthermore, The Village stipulated at the hearing on this matter and the permitting file reflects that the walls are to be armored with rip rap. The Petitioner testified at his deposition that the walls could be designed to avoid danger if they were rip rapped. As such, there is no material issue of fact and summary judgment is appropriate on this issue.

The Petitioner alleges OCRM should have modeled Grier Swamp before issuing The Village this permit. The Petitioner relies on S.C. Code Reg. 72-307(C)(6) for this proposition: "[w]here ponds are the proposed method of control, the person responsible for the land disturbing activity shall submit to the approving agency, when required, an analysis of the impacts of the stormwater flows downstream in the watershed for the 10- and 100- year frequency storm event." 26 S.C. Code Ann. Regs. 72-307(C)(6) (Supp. 2001).

Regulation 72-307(C)(6) does not impose an affirmative duty on OCRM or The Village to model Grier Swamp. Regulation 72-307(C)(6) gives the approving agency the discretionary authority to require an additional analysis where ponds are the method of control. The subject project has only one pond. This pond is not the only method of control. The Village is also using buffers and swales. As stated earlier, The Village has already designed this project to a higher standard than required under Regulation 72-307(C)(4)(a). As such, there is no regulatory authority for OCRM to arbitrarily require The Village to model Grier Swamp.

Furthermore, the Petitioner did not submit any evidence suggesting a need to model Grier Swamp. In fact, the Petitioner, who is a professional engineer in South Carolina, testified at his deposition that he would not have modeled Grier Swamp if The Village were his client. The Petitioner further testified it would cost $40,000.00 to model Grier Swamp. As the Petitioner has not established any material fact other than speculation of the need to model Grier Swamp and he has cited no regulations or statutes requiring OCRM to model Grier Swamp, summary judgment is appropriate on this issue.

The Petitioner further argues OCRM should be required to evaluate all land disturbance activities based on stricter standards than those currently required under the South Carolina Stormwater Management and Sediment Reduction Act. There are procedures for seeking review of regulations. However, this is not regulation hearing pursuant to pursuant to S.C. Code Ann. § 1-23-111 (Supp. 2001). This contested case is limited to whether OCRM properly applied existing regulations when reviewing The Village's permit application. The issue of whether the South Carolina Stormwater Management and Sediment Reduction Act should contain stricter standards is beyond the scope of this Court's jurisdiction in hearing the Petitioner's case.

IT IS THEREFORE ORDERED that the Petitioner's case is dismissed with prejudice and OCRM's issuance of SW-26-02-03-08 is hereby upheld.

AND IT IS SO ORDERED.

Ralph King Anderson, III

Administrative Law Judge

February 28, 2003

Columbia, South Carolina