Wednesday, April 23, 2014

SC Administrative Law Court Decisions

CAPTION:
Beaverdam Community Association, et al vs. DHEC, et al

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioners:
Beaverdam Community Association, M. Cindy Wilson, Mr. and Mrs. Jacky Hunter, Mr. and Mrs. Robbie Seawright, Mr.and Mrs. Gene Cromer, William R. McCoy, and John Lesley

Respondents:
South Carolina Department of Health and Environmental Control, Anderson County Environmental Services Division and Anderson County
 
DOCKET NUMBER:
02-ALJ-07-0012-CC

APPEARANCES:
Appearances: Robert Guild, Esquire, for the Petitioners

Alexander G. Shissias, Esquire, and Etta R. Williams, Esquire, for Respondent SC DHEC

M. Elizabeth Crum, Esquire, Mary D. Shahid, Esquire, and Sara S. Rogers, Esquire for Respondents Anderson County Environmental Services Division and Anderson County
 

ORDERS:

STATEMENT OF THE CASE



This matter comes before the Administrative Law Judge Division (ALJD or Division) upon request of Petitioners for an administrative hearing pursuant to the South Carolina Administrative Procedures Act, S.C. Code Ann §§ 1-23-310, et seq. (1986 and Supp. 2001) and 25 S.C. Code Ann. Regs. 61-72 (Supp. 2001). The Petitioners seek review of the Department of Health and Environmental Control's (DHEC or Department) issuance of Water Quality Certifications pursuant to Section 401 of the federal Clean Water Act to Anderson County Environmental Services Division (ESD) and Anderson County (the County) (collectively Anderson County, Respondents) for the Beaverdam Creek Sewer Project (the Project) Phase IA (Public Notice No. SAC 12-2000-1406-W) and Phase II (Public Notice No. SAC 12-2000-0894 D). The Petitioners allege that the Department's issuance of the Certifications was in violation of the requirements of 25A S.C. Code Ann. Regs. 61-101 (Supp. 2001) ("Water Quality Certification"), 25 S.C. Code Ann. Regs. 61-68 (Supp. 2001) ("Water Classifications and Standards"), and Section 401 of the Clean Water Act, 33 U.S.C. § 1341. A hearing was held before me on July 30 and 31, 2002, and August 1 and 5, 2002, at the offices of the Division in Columbia, South Carolina.

PRELIMINARY MATTERS

During the hearing, the Petitioners requested that I take judicial notice of certain testimony from an earlier hearing held on the Wastewater Construction Permits for the Beaverdam Creek Sewer Project, Docket No. 00-ALJ-07-0671-CC. (1) On July 30, 2002, without objection from counsel for the Respondents, I admitted as evidence in this proceeding the following portions of the hearing transcript of the previous proceeding:

  • Testimony of William McCoy on page 84, line 11, to page 88, line 11;
  • Testimony of Chuck Sitka on page 208, line 17, to the end of page 215; page 219 to page 233; and page 240, line 3 to page 241; and
  • Testimony of Cindy Wilson on page 243 to the end of page 251, line 23; and page 252, line 231, to page 254.

LEGAL ISSUES RAISED

The following questions of law were raised in this proceeding:

1. Did DHEC comply with the procedures set forth in Regulation 61-101(A) by reviewing this Project pursuant to a Nationwide Permit 12?



2. Did the applicant comply with Regulation 61-101(C) and provide sufficient information to DHEC in order for it to fully review this Project?



3. Was DHEC's review sufficient in scope, in accordance with Regulation 61-101(F)?

4. Is DHEC's interpretation and application of Regulation 61-101(F)(3)(b) - feasible alternatives, and Regulation 61-101(F)(3)(c) - potential water quality impacts over the life of the Project, sufficient?



5. Since this is a public project for a public utility line, does Regulation 61-101(F)(4) mandate issuance of a 401 certification when the applicant can demonstrate that no feasible alternatives are available and that it has implemented avoidance, minimization, and best management practices (BMPs) to minimize any adverse effects?



6. Are the Petitioners barred by the doctrine of collateral estoppel from disputing matters of fact and law which are the law of the case in an earlier administrative appeal of the Wastewater Construction Permits?



7. Have the Petitioners demonstrated that they have standing to maintain this legal challenge?

FINDINGS OF FACT

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

General Findings

1. Notice of the date, time, place and subject matter of the hearing was properly given to all parties.

2. The Petitioners object to the Department's issuance of a 401 Water Quality Certification (Public Notice No. SAC 12-2000-1406-W) on March 14, 2001, for Phase IA of the Project and a 401 Water Quality Certification (Public Notice No. SAC 12-2000-0894-D) for Phase II of the Project issued on December 19, 2001. The Project is a multiple-phase interceptor sewer project approved by Anderson County Council to provide sanitary sewer services to meet the existing and future development needs of the County, specifically in the Beaverdam Basin (the Basin). The Project was approved as part of the County's Ten Year Plan to provide sewer services in the County.

3. Since construction of both Phase IA and Phase II would impact Waters of the United States, which includes streams and wetlands, (2) the Project requires a 401 Water Quality Certification to be issued by the Department. A federal permit issued by the United States Army Corps of Engineers (Corps) under Section 404 of the federal Clean Water Act is required in order to discharge fill material into the Waters of the United States. In order for Anderson County Respondents to obtain a federal 404 permit, however, the Department must first issue a Water Quality Certification under Section 401 of the Clean Water Act, pursuant to the requirements of DHEC Regulation 61-101.

Description of the Project

4. Phase IA is a gravity interceptor sewer line. (3) It begins at Alliance Industrial Park located near the intersection of Interstate 85 and State Highway 81, follows along the tributary Beaverdam Creek to a point near the Anderson Reservoir, flows around the Reservoir, and then back along Beaverdam Creek to a point just north of Long Road where a pump station will be constructed. Phase IA will reroute the existing flow that is now being pumped by two existing pump stations to the Six and Twenty Wastewater Treatment Plant. (4)

5. Construction of Phase IA will involve clearing activities, excavation of a trench, installation of sewer pipes, the backfilling of material, and revegetation and monitoring of the construction site. Phase I, of which Phase IA is a portion, is approximately 7.38 miles in length (389,963 linear feet). It would require crossing 10 perennial streams, 3 intermittent streams, and 8 wetlands areas. Those crossings would impact 0.08 acres of wetlands due to excavation and trenching and 3.14 acres of wetlands for clearing in the rights-of-way, resulting in a total impact of 3.22 acres of wetlands. The amount of excavation and fill required for the 0.08 acres of wetlands is 780 cubic yards. The Phase IA portion of Phase I would require seven jurisdictional crossings of the Waters of the United States. Once the sewer pipe is installed, the impacted areas will be backfilled and restored to preconstruction contours and conditions. Wetlands and stream areas will be allowed to revegetate naturally.

6. Phase II is also a gravity interceptor sewer line. The Phase IA line would eventually connect to the Phase II sewer line. Phase II would parallel Beaverdam Creek down to a point at Cobb's Glen Golf Course development (Cobb's Glen). It would then cross the Rocky River at Cobb's Glen and parallel the Rocky River approximately to Highway 29 where it would connect to an existing sewer line near the City of Anderson (the City). The Phase II line would carry the flow to the City's Rocky River Wastewater Treatment Plant (Rocky River Plant) in which the County has previously purchased capacity. (5) Construction of Phase II would allow the County to take advantage of the natural flow of the drainage Basin to the Rocky River Plant and to access the treatment capacity which it owns at the Rocky River Plant.

Phase II will involve the same construction activities as Phase IA. Phase II is approximately 9.2 miles (48,789 linear feet) in length. Phase II requires 51 jurisdictional crossings of the Waters of the United States. The total area of jurisdictional waters impacted would be 11.01 acres, of which 1.07 acres are wetlands which would be impacted by excavation and backfill for the sewer line. The amount of excavation and fill required for the 1.07 acres is 10,356 cubic yards. After the sewer line is installed, the impacted areas will be restored to their original contours and will be actively revegetated.

7. Phase IA and Phase II are both public utilities for purposes of Regulation 61-101(F)(4)(c).

8. There is nothing rare about the wetlands involved in the Project or their habitats. They are very common for that part of the country.

Permit/Certification Application Packages

9. Anderson County Respondents submitted detailed permit application packages to the Corps to obtain a 404 permit. Specifically, the applications requested concurrence with the Corps' Nationwide Permit 12--"Utility Line Backfill and Bedding." Those application packages were prepared and submitted on Anderson County Respondents' behalf by James A. McRacken, Jr., the Director of Ecological Resources and a Senior Environmental Scientist with Qore, Inc. Mr. McRacken has extensive experience in wetlands delineation and mitigation, is very familiar with the 401 and 404 permitting processes, and has prepared approximately 25 to 30 applications for 401 certifications in South Carolina. I find Mr. McRacken's opinions concerning this case to be persuasive.

The 404 permit application for Phase II was first submitted on June 6, 2000. The Corps requested additional information, and a second permit application was submitted on November 1, 2000, which contained the requested information and incorporated all information contained in the previous submittal. The application contained detailed information concerning the Project and its impacts on jurisdictional crossings. That information, among other things, provided: a detailed Project Narrative describing each of the types of jurisdictional crossings involved and the types of wetlands habitats; an alternatives analysis; a Plan and Profile for each crossing which also specified the BMPs to be used; site location maps; photographs of each crossing; a description for each crossing of the efforts that were made to minimize impacts; a detailed table providing additional information regarding each crossing including its length and width and a brief description; a list of adjoining property owners; written confirmation from the U.S. Fish and Wildlife Service (the Service) that Phase II was not likely to adversely affect listed or proposed endangered or threatened species; and a letter from the South Carolina Department of Archives and History that Phase II would not affect any historic properties.

A similar 404 permit application package was submitted for Phase IA. It contained essentially the same detailed information as that submitted for Phase II, including a Project Narrative, site maps, a Plan and Profile for each jurisdictional crossing, a table of the crossings, and photographs of each crossing. Anderson County Respondents also provided confirmation that Phase IA would have no effect on listed or proposed endangered species.

10. Newspaper notice was published by Anderson County for Phase I on November 3, 2000, and for Phase II on April 26, 2001. The Department also provided its required notice pursuant to Regulation 61-101(D). Accordingly, I find that public notice of both phases of the Project was properly given pursuant to the requirements of Regulation 61-101(D).

Because of the level of interest in the Project, the Department also held public hearings on both Phase IA and Phase II pursuant to the requirements of Regulation 61-101(E). A hearing on Phase IA and Phase II was held on November 20, 2000, at the Old Anderson County Courthouse located in the City of Anderson. A second public hearing on Phase II was held on August 23, 2001, at the Anderson County Library, also located within the City of Anderson.

11. The Department also sought and received comment letters from state and federal natural resource agencies regarding the Project. With regard to Phase II, the Department received a copy of a letter sent to the Corps by the South Carolina Department of Natural Resources (SCDNR) stating that it would not object to permit issuance so long as project impacts were minimized by incorporating certain conditions that SCDNR specified in its letter. Those conditions were subsequently addressed in the Department's Notice of Proposed Decision (NOPD) for Phase II and the accompanying Staff Assessment. A similar letter was received for Phase IA with those conditions also being addressed in the Phase I NOPD and Staff Assessment.

The Department also received a letter regarding Phase II from the U.S. Fish and Wildlife Service stating that it would not object to permit issuance so long as the permit was conditioned as set forth in its letter. Most notably, the Service requested a condition requiring a conservation plan to be developed to address protection of streams, wetlands, buffers, wildlife corridors, and other important features. Those conditions were ultimately incorporated into the Phase II NOPD and the Staff Assessment.

12. As authorized by Regulation 61-101(C)(2), the Department requested additional information from Anderson County Respondents during the Department's consideration of the 401 certification for Phase II. The additional information concerned population figures and water quality data in the Beaverdam Creek Basin. However, the population data provided was not necessary for the Department's review of the 401 Certification, and was requested in an attempt to respond to concerns raised by adjacent property owners.

13. The Department also received a copy of a letter sent by James McRacken, the County's consultant, to the Corps providing additional information on the maintenance and revegetation of the easements and on mitigation issues. Mr. McRacken likewise provided additional information to Mr. Longshore regarding plant species that could be utilized in wetter areas for erosion control. Mr. McRacken explained that this information was in response to an issue raised in the hearing on the Stormwater Permits regarding appropriate species for erosion control in rights-of-way.

14. The detailed information submitted in the certification application packages, as well as additional information subsequently provided, met the informational requirements of Regulation 61-101(C). In fact, the application showed details about each individual crossing which the Department does not usually receive from applicants.

Nationwide Permit 12

15. The Petitioners contend that the Project should not have been approved for coverage under the Corps' Nationwide Permit (NWP) 12 but rather the Department should have denied the Water Quality Certifications for Phases IA and II to force the Corps to process the permits as individual 404 permits. The NWP program was established by the Corps approximately fifteen (15) years ago to allow the issuance of general permits for activities that were considered minimal in impact in an effort to expedite the permitting process. The NWPs are reissued a minimum of every five (5) years.

If a proposed project does not fall within the description of activities covered by the NWP, the Corps must issue an individual 404 permit. Here, the Corps determined that both Phase IA and Phase II fit within NWP 12 and issued Pre-Construction Notices (PCNs) to the Department. Therefore, I find that the issue of whether or not the Corps should have extended coverage under a nationwide permit is not proper for administrative review in this case.

16. When the Corps issues or reissues a NWP, the Department has the option of certifying, certifying with conditions, or denying the NWP. In the instance of NWP 12, the Department certified the permit with conditions. There are two relevant conditions in that certification. The first is "Condition No. 1" which provides that if there is more than one crossing, concurrence and consistency with State water quality standards is required. The second is "Condition No. 11" which provides that, if the Department conditions are not met, a Pre-Construction Notice must be submitted to the Department by the Corps for a determination of consistency with State water quality standards.

Because Phase IA and Phase II involved multiple stream crossings, the Department determined, pursuant to the procedures set forth in the NWP 12 conditions, to proceed with individual 401 permits for Phases IA and II. Moreover, the individual 401 review conducted by the Department for an NWP 12 is identical to the 401 individual review done for an individual 404 permit. Both reviews are conducted pursuant to the requirements of Regulation 61-101. Furthermore, the Corps' procedure is to issue a NWP 12 even where the Project does not meet one of the Department's conditions of certification. Under these circumstances, the Department's only option is to perform an individual 401 review. Additionally, the EPA has oversight over states' 401 programs and therefore the EPA could have requested that the Corps put Phase IA and Phase II out on notice for individual 404 permits. In this instance, the EPA agreed with the Corps' decision to proceed under NWP 12.

17. Therefore, the Department properly followed its procedures in proceeding with an individual 401 Water Quality Certification for Phase IA and Phase II.

DHEC's NOPD/Staff Assessment

18. The Department issued its NOPD and accompanying Staff Assessment for Phase IA on March 14, 2001 and its NOPD and Staff Assessment for Phase II on December 19, 2001. The Department conducted the analysis required by Regulation 61-101(F)(3) for both Phase IA and Phase II. As a result of that analysis, the Department determined that the Project was not water dependent.

19. Following its analysis pursuant to Regulation 61-101(F)(3), the Department determined that the appropriate course of action would be to issue the 401 Certifications for Phase IA and II as conditioned by the permit application, and with additional conditions added by Department Staff. Many of the conditions incorporated were those requested by SCDNR, U.S. Fish and Wildlife Service, and the EPA. The NOPD and the Staff Assessment for Phase IA and Phase II included conditions requiring that:

  • BMPs to be used during construction and all land surfaces be stabilized after construction;


  • All necessary measures be taken to prevent pollutants from entering adjacent waters and wetlands;


  • The Project be carried to completion expeditiously;


  • Impacted stream beds and wetlands be restored to their original contours and revegetated;


  • Encroachment into any wetlands outside the permitted impact area be avoided;


  • Excavated materials not be stockpiled in adjacent wetlands or at least placed at intervals to allow adequate water circulation in the wetlands;


  • Construction be minimized during certain months to limit potential impacts to fish spawning; and


  • The Project be in compliance with the Anderson County Flood Damage Prevention Ordinance.


Most significantly, the Department included conditions requiring extensive monitoring for both phases of the Project. The applicant must monitor remediation areas and provide the Department with monitoring reports, including photographic documentation, upon completion of work, six months after completion, one year after completion, and at yearly intervals for five years. The Department also required the applicant to develop a contingency plan if remediation areas do not successfully revegetate. The Staff Assessment for Phase II contains additional conditions including:

  • Providing compensatory mitigation for temporary wetlands impacts;


  • Maintaining a minimum 50-foot forested buffer between the sewer line and the Rocky River and Beaverdam Creek when applicable;


  • Requiring submission of a conservation plan before construction activities commence;


  • Requiring barriers in rock beds underlying the sewer line to prevent draining of adjacent wetlands during construction; and


  • Requiring the use of clean earth material excavated from the trench to be used as backfill.


Also, the conditions for Phase II require active revegetation to restabilize the area and restore native hydrophilic vegetation. The Department, however, reserved the right to impose additional conditions if necessary and to take enforcement action to ensure compliance with State water quality standards.





Wetlands Mitigation

20. The Petitioners question the adequacy of the wetlands mitigation provided for in Phase II. Mr. McRacken testified that based on his experience as a wetlands scientist and his field observations, that wetlands restored to their original contours will revegetate naturally. He further testified that there would be no permanent loss of wetland habitat in either Phase IA or Phase II. Moreover, given the Department's requirements for clean original fill, recontouring to original grade, and replanting, there will be no permanent adverse impact on jurisdictional areas. In fact, Mr. Quinton Epps, the Manager of the 401 Water Quality Certification Section, testified that it has been his experience that restoration of freshwater wetlands can be successfully accomplished. I find this evidence persuasive and therefore find that the impacts of the Project will be only temporary. In other words, I find that there would be no permanent adverse effects upon the wetlands, and that the wetlands area will successfully revegetate.

Moreover, the Staff Assessment for Phase II states that compensatory mitigation for "temporary" wetlands impacts will be provided by preserving, through restrictive covenants, 18 acres of wetlands adjacent to the Six and Twenty Plant. The applicant also proposed to restore rights-of-way in Phase II, as well as add 18 acres of preservation for mitigation. However, the compensatory mitigation was provided at the request of the Corps, not the Department. No mitigation was required by South Carolina law because there would be no permanent loss of wetlands, only temporary impacts. Therefore, since compensatory mitigation was not required by South Carolina law, the adequacy of that mitigation is not relevant in this case.

Purpose or Need for the Project

21. The Petitioners contend that the Department violated Regulation 61-101 by failing to make an independent determination of the need for the Project, specifically whether there is a need for the sewer line in the middle of the Basin where property owners object to placement of the line. However, the Regulations do not suggest or require that the Department consider the need for the Project. Regulation 61-101(F)(3) does set forth that the Department should consider the "purpose" of the Project in assessing the water quality impacts of the Project. In fact, the Petitioners' planning expert stated that rather than a regulatory obligation to consider need that the Department had an obligation to determine whether the stated purpose of the Project could be served by less environmentally damaging alternatives.

Here, the purpose of Phase IA is to provide sanitary sewer service to planned residential and commercial developments along State Road 81 and the I-85 interchange and to eliminate existing septic tank systems along the proposed route. Likewise, the purpose of Phase II is to provide sanitary sewer service to planned residential and commercial developments along State Road 81 and the Beaverdam Creek watershed, to connect to the Rocky River Wastewater Treatment Plant and to eliminate existing septic tanks and systems along the proposed route. In summary, the purpose of Phases I and II are to supply sewer service to the Beaverdam watershed by means of a gravity sewer line.

The Petitioners questioned the fact that John Collum requested information on the need for Phase II of the Project and briefly addressed that issue in the Public Benefits section of his Staff Assessment. However, his independent consideration of need does not establish that need is a part of the required analysis under Regulation 61-101(F)(3). Moreover, Mr. Collum explained that the population data he requested is not normally requested by the Department but that he was trying to respond to concerns of adjacent property owners in his Staff Assessment.

22. The Petitioners also argue that the population data provided by Anderson County Respondents was contradictory and that the best methodology was not used to determine how the Beaverdam Creek Basin would develop. The Petitioners' arguments regarding the validity of the population figures, however, are barred by collateral estoppel in light of my factual finding in the Wastewater Construction Permits case, Docket No. 00-ALJ-07-0671-CC. See Conclusion of Law No. 11. Nevertheless, the testimony at trial established a need for the Project given the growth that is already occurring in certain portions of the Basin such as the interchange of I-85 and State Highway 81, the Highway 81 corridor, the Highway 29 corridor, and the lower portion of the Basin near the City of Anderson. Regardless of whether growth will occur evenly throughout the Basin, there is a need for sewer service in the areas where growth is already occurring and will likely continue to occur. Providing for that growth and development through a gravity sewer line takes advantage of the natural flow of the Basin, costs less, is more protective of the environment, allows the County to access existing capacity which it owns at the City's Rocky River Plant, and is a rational way to provide sewer services.

Loss of Stream Flow

23. The Petitioners contend that the possible loss of stream flow as a result of the construction of the sewer line would be a permanent impact on the water quality uses. The Petitioners claim that smaller streams in particular may be lost to a "French Drain" effect. The French Drain effect is a de-watering effect that can be caused by improper construction of adjacent trenches.

James M. Longshore, the engineer with B.P. Barber who designed the Beaverdam Creek Sewer Project, testified that, in his professional opinion, there would not likely be a French Drain effect associated with the Project. (6) More importantly, a condition of the permit requires cut-off dams to be installed periodically to prevent such an effect from occurring. Furthermore, the permit includes a condition that the site be monitored for a five (5) year period. That period of time is sufficient to assess whether a "French Drain effect" would occur as a result of this Project. If such a problem did occur, the Department has the authority and responsibility to require the problem to be corrected either through enforcement of the 401 conditions or through an enforcement action pursuant to the Pollution Control Act.

Development Impacts/Modeling

24. The Petitioners contend that the Department failed to consider the indirect impacts of development in the Beaverdam Creek Basin that would occur as a result of installation of the sewer line. The Petitioners further contend that, if such impacts were considered, the Certifications should be denied because there would be violations of water quality standards, both in terms of numeric and narrative standards, and impacts on uses. In that regard, the Petitioners offered testimony about the adverse impact of development on water quality, particularly when impervious surfaces in a given area reach or exceed 10% based upon their experts assumed level of development. Based upon that development, their expert hypothesized about the possible water quality impacts.

The development impacts which the Petitioners argue the Department must consider are not indirect or secondary impacts associated with the Project itself that the Department normally considers, such as additional tie-ins to the system. They are impacts which are much further removed from the Project under review. Furthermore, over a twenty (20) year planning period, a number of assumptions that meaningfully impact development levels could obviously change, such as:

  • Zoning classifications;
  • Environmental laws and regulations; or
  • The decision of a major industry or large residential development to locate or not locate within the area.


In order for the Department to have the necessary data to conduct the analysis the Petitioners argue is required, the Department would have to require that the applicant present some type of "master plan" that reflects what the final "build-out" of the surrounding area will be. Compliance with such a master plan or blueprint would be very difficult. If the plan changed significantly, the analysis of impacts based on that plan would no longer be useful. Furthermore, though public entities, such as cities and counties, might have some authority through zoning and other ordinances, the Department has no authority under Regulation 61-101 to require such compliance.

Moreover, many of the impacts are addressed through existing programs, such as the Stormwater program which requires an individual undertaking land-disturbing activities to obtain a Stormwater and Sediment Reduction Permit. Furthermore, the Department regularly monitors water quality in all parts of the State and will take enforcement action if impairment is traced to a specific project. If a water body is impaired, it is put on the Clean Water Act 303(d) list of impaired water bodies. The Department will then develop a "total maximum daily load" limit, and all discharges from future development would have to comply with the limit.

25. The Petitioners also contend that the Department should have required Anderson County to submit modeling data analyzing the impact of the Project on water quality in the Beaverdam Creek Basin. They argue that such models are readily available and would not be difficult to construct. However, the Petitioners' expert acknowledged that the use of models to show the relationship between a proposed development and impacts on water quality is a relatively new field within the regulatory arena in the Southeast. He further acknowledged that no local or county government in South Carolina is currently utilizing basin-level models, although he stated that some developers are submitting modeling data to counties in the context of permitting a specific development. In fact, the Petitioners' experts did not perform any such models for this case.

The basin-level modeling that Petitioners argue is required for this Project would be a complex process and if the model produced is to be meaningful, it would have to incorporate a significant amount of data. Additionally, consideration of a model for build-out of the Basin would be somewhat meaningless unless the applicant was required to comply with a master plan. In other words, if there were significant deviations from the model, the modeling would no longer be useful. As noted above, requiring adherence to a master plan would exceed the Department's authority, interfere with a county's local planning function, and limit a county's flexibility to respond to changes.

Feasible Alternatives

26. The Petitioners contend that there is a feasible alternative or alternatives to the Project and that the certifications should be denied on this basis. At trial, the Petitioners' engineering expert, William McCoy, presented an alternative consisting of three components. (7) For the upper end of the Beaverdam Creek Basin near the I-85 and State Highway 81 interchange, the alternative would be to continue to send wastewater from the Six and Twenty Wastewater Treatment Plant in the adjoining basin. The lower part of the Beaverdam Creek Basin would use an existing line going to the Rocky River Treatment Plant. The middle of the Basin, where Petitioners oppose development, would continue to be served by septic tanks. (8)

The first component of the Petitioners' alternative is use of the Six and Twenty Plant to handle wastewater from the upper part of the Beaverdam Creek Basin. However, this is not a feasible alternative. The capacity at the Six and Twenty Plant is currently only 500,000 gallons- per-day (GPD) and therefore use of that plant for the upper part of the Beaverdam Creek Basin would most probably require the plant be expanded. In fact, virtually all of the existing capacity at the Six and Twenty Plant is committed or promised. The Department has issued construction permits for approximately 334,000 GPD, leaving a remaining capacity of 166,000 GPD. The County has also promised 125,000 GPD to the Anderson residential development. Thus, the remaining available capacity at Six and Twenty is only 41,000 GPD.

On the other hand, the eventual need of the Anderson residential development will be 300,000 to 400,000 GPD. Moreover, any expanded capacity at the Six and Twenty Plant will be needed to serve the future needs of that basin. The Six and Twenty Plant will need a capacity of 1.1 million GPD to serve the Six and Twenty Basin without any contribution from the Beaverdam Creek Basin. However, the Petitioners' expert testified that the Six and Twenty Plant is only designed to be expanded to possibly 1.5 million GPD. Therefore, given the limited uncommitted capacity at the Six and Twenty Plant and the significant needs of the upper portion of the Beaverdam Creek Basin, the use of the Six and Twenty Plant to serve the current and future needs of any portion of the Beaverdam Creek Basin is not a feasible alternative to service the needed capacity.

Furthermore, use of the Six and Twenty Plant would require the installation of new sewer lines that would parallel some of the existing sewer lines going to the plant, particularly if the capacity of that plant were increased to 1.5 million GPD. Although they would occur in a different basin, construction of such lines would result in the same environmental impacts opposed by the Petitioners in this proceeding.

Additionally, the Six and Twenty Plant is upstream of Lake Hartwell, which is the source of drinking water for eighteen (18) of nineteen (19) water suppliers in the Anderson County area. Therefore, expansion of the Six and Twenty Plant would also face public scrutiny of the expansion's efficacy. Expansion of the Six and Twenty Plant would also trigger the anti-degradation provisions of Regulation 61-68. Those procedures would require a public participation process and an alternatives analysis which specifically requires consideration of possible connections to other wastewater treatment facilities. Consequently, the County would be forced into the "catch-22" situation of having to analyze the Beaverdam Project with its connection to existing capacity at the Rocky River Plant as an alternative to expansion of the Six and Twenty Plant.

Piping wastewater over the ridge line from the Beaverdam Creek Basin to the Six and Twenty Basin will also require greater use of force mains. Force mains have higher operation and maintenance costs. For every tie-in to the force main, a pump station would have to be constructed. If a force main fails, or there is a crack in the line, sewage is forced out into the environment. On the other hand, if there are problems with a gravity line, waste is more likely to seep into the line thereby causing less environmental impact. In fact, the Department's existing sewer planning guidance document urges use of gravity sewer lines where at all possible. Also, it is a generally accepted engineering practice to use gravity lines whenever possible. Therefore, gravity lines are a more cost effective and environmentally sound option than force mains.

Finally, the Six and Twenty Plant component of the Petitioners' proposed alternative is less cost-effective than the Beaverdam Creek Project. Expanding and upgrading the Six and Twenty Plant to 1.5 million GPD would cost approximately $10 million. Furthermore, the size of existing lines going from the Beaverdam Creek Basin to the Six and Twenty Basin would have to be increased, particularly if the Six and Twenty Plant were expanded to 1.5 million GPD. Installation of those additional lines would further increase the cost of using the Six and Twenty Plant. Therefore, since the total cost of both Phase IA and II is approximately $10 million, the Beaverdam Creek Project is the most cost-effective option.

27. The Petitioners' alternative for the middle portion of the Beaverdam Creek Basin is the continued use of septic tanks. However, this alternative presents its own environmental concerns. There would likely be some areas of the watershed that would not be suitable for septic tanks and installation of numerous septic tanks have a risk of failure and maintenance problems which gravity systems do not have. In that regard, Mr. Longshore testified that, in his professional opinion, there are concerns with use of a large number of septic tanks for new developments in Anderson County, such as:

  • Backups in houses;
  • Exposure of septage to the surface or ground due to upflow from a drainage system;


  • Septage in streams; and
  • The potential for groundwater impacts from improper operation of septic tanks.

Furthermore, there have been problems with septic systems in several subdivisions in Anderson County. Therefore, though this alternative is feasible, it is not a preferable one.

28. The Petitioners' alternative for the lower end of the Beaverdam Creek Basin is to use an existing sewer line for development from Cobb's Glenn down to the Rocky River Plant, including the eastern side of the Rocky River that has a lot of undeveloped land. However, the existing line is a twelve (12) inch gravity sewer line which would be too small to handle expected flows and its elevation is too high to eventually tie into a gravity line. Also, the proposed alternative does not make provisions for development of the eastern side of the drainage Basin along State Highway 29.

The Beaverdam Creek Project, on the other hand, was intentionally placed on the opposite side of the Rocky River from the existing line so that future flows from the Highway 29 area of the Basin could connect directly to the line without crossing the Rocky River and some very wide wetland areas in the lower portion of the Project area. This placement of the line minimizes wetlands impacts. Therefore, though this alternative is feasible, it also is not a preferable one.

29. In summary, the existence of a feasible alternative is not, in and of itself, a reason to deny a certification. An alternative plan must also be deemed a less damaging alternative to justify denial. Here, the Petitioners' alternative or various alternatives are not better alternatives to the Beaverdam Creek Sewer Project. First, the Petitioners' alternatives do not serve the intended purpose of the Project which is to provide sewer service to the entire Beaverdam Creek Basin. Second, the Petitioners' alternative could possibly have greater environmental impact, given:

  • The need to expand discharges from an existing treatment plant;


  • The need to parallel a number of existing sewer lines if the Six and Twenty Plant capacity is expanded, resulting in the same water quality impacts the Petitioners oppose in their own Basin;


  • The greater reliance on force mains and pumping stations as opposed to gravity lines; and


  • The reliance on septic systems for the middle of the Basin.


Additionally, the alternative of directional boring is also not a feasible alternative because it cannot be used in conjunction with a gravity line, but rather would require a force main which would in turn increase the potential of adverse environmental impacts. Furthermore, the sewer line has been located in a way to avoid jurisdictional crossings where possible and, where unavoidable, those crossings are located to cause the least impacts to water resources. Finally, the Beaverdam Creek Project is the most cost-effective option.

Water Quality Impacts

30. The stream crossings would only cause temporary impacts to the benthic community, and such impacts would neither adversely impact the overall aquatic ecosystem nor contravene water quality standards. With regard to wetlands, the installation of the sewer would not permanently diminish water quality functions of the wetlands or change existing uses in Jones Creek and Beaverdam Creek and associated tributaries, given the fact that disturbed wetlands would be restored to natural contours and conditions and would be revegetated. The impacts would be temporary and would not contravene existing standards or change existing uses. The water quality could be positively impacted by reducing the dependence on private septic systems. The impacts during construction from soil contaminants would be greatly reduced by the requirement in the Certification of using the same material excavated from the trench as fill material. The requirement in the Certification of a fifty (50) foot forested buffer between the sewer line and the Rocky River and/or Beaverdam Creek, as well as the use of BMPs, will also help to protect water quality. Also, the requirement in the Certification to use BMPs and temporary stockpiling of materials at intervals would maintain water circulation and minimize erosion and sedimentation. Finally, the conservation plan establishes a layer of protection of streams, wetlands, buffers, wildlife corridors, and other important features in the area.

I find that based on the conditions imposed through the NOPDs and Staff Assessments for Phases IA and II, that the water quality standards set forth in Regulation 61-68 would not be contravened and there will be no significant degradation to the aquatic ecosystem. Furthermore, the water quality impacts will be temporary in nature, and existing and classified uses will be maintained so long as the Department's conditions are adhered to during and following completion of work.

CONCLUSIONS OF LAW

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

General Conclusions

1. The ALJD has been statutorily authorized to conduct contested case hearings of the Department's decisions. See S. C. Code Ann. § 1-23-600(B) (1986 & Supp. 2001). The Administrative Procedures Act (APA) provides that all parties must be afforded an opportunity for a contested case hearing after proper notice. S. C. Code Ann. § 1-23-320 (1986 & Supp. 2001). The APA defines contested case as "a proceeding, including but not restricted to. . . . licensing, in which the legal rights, duties or privileges of a party are required by law to be determined by an agency after an opportunity for hearing." S. C. Code Ann. § 1-23-310(2) (1986 & Supp. 2001). Furthermore, a party is a person "named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party." S. C. Code Ann. § 1-23-310(5) (1986 & Supp. 2001).

2. The Administrative Law Judge is the fact finder in this matter for purposes of administrative and judicial review. Brown v. S.C. Dep't of Health and Envtl. Control, 348 S.C. 507, 560 S. E.2d 410 (2002). Furthermore, the burden of proof in a contested case hearing is upon the moving party. S. C. Code Ann. § 44-7-210(e)(Supp. 2001); See also 2 Am Jr. 2d Administrative Law § 360 (1994); Alex Sanders, et al., South Carolina Trial Handbook § 9:3 Party With Burden, Civil Cases (1999) (In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative on an issue.). In the present case, the Petitioners have the burden of proving that the Department erred in issuing 401 water quality certifications for construction of the Beaverdam Creek Sewer Project.

3. "To have standing, one must have a personal stake in the subject matter of the lawsuit. In other words, one must be a real party in interest. . . . A real party in interest is one who has a real, material, or substantial interest in the subject matter of the action, as opposed to one who has only a nominal or technical interest in the action. . . . A private person does not have standing unless he has sustained, or is in immediate danger of sustaining, prejudice from an executive or legislative action. Such imminent prejudice must be of a personal nature to the party laying claim to standing and not merely of general interest common to all members of the public. When an organization is involved, the organization has standing on behalf of its members if one or more of its members will suffer an individual injury by virtue of the contested act." Sea Pines Association for the Protection of Wildlife, Inc., et al. v. South Carolina Department of Natural Resources et al., 345 S. C. 594, 550 S.E.2d 287 (2001). In Sea Pines, the South Carolina Supreme Court cited Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130 (1992):

First, the plaintiff must have suffered an 'injury in fact' - an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not 'conjectural' or 'hypothetical.' Second, there must be a causal connection between the injury and the conduct complained of - the injury has to be "fairly ... traceable to the challenged action of the defendant, and not ... the result [of] the independent action of some third party not before the court." Third, it must be 'likely' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.'



Id. at 559-61.

Here, construction of the Beaverdam Project created a disputable injury-in-fact to the Petitioners' individual interests including their use and enjoyment of their personal land and of the natural resources and waters of the Beaverdam Creek Basin. Therefore, I conclude that the Petitioners have standing to bring this contested case proceeding.

4. "The qualification of a witness as an expert in a particular field is within the sound discretion of the trial judge." Smoak v. Liebherr-America, Inc., 281 S.C. 420, 422, 315 S. E.2d 116, 118 (1984). Where the expert's testimony is based upon facts sufficient to form the basis for an opinion, the trier of fact determines its probative weight. Berkeley Electric Coop. v. Pub. Service Comm'n, 304 S. C. 15, 402 S. E. 2d 674 (1991); See also Smoak, supra. Furthermore, a trier of fact is not compelled to accept an expert's testimony, but may give it the weight and credibility he determines it deserves. Florence County Dep't of Social Services v. Ward, 310 S. C. 69, 425 S. E.2d 61 (Ct. App.1992). He also may accept on expert's testimony over that of another. S.C. Cable Television Ass'n v. Southern Bell Telephone and Telegraph Co., 308 S. C. 216, 417 S. E.2d 586 (1992).

Compliance with Regulation 61-101(A)

5. The United States Army Corps of Engineers determined that these permit applications qualified for coverage under Nationwide Permit 12. Afterwards, the Department reviewed the permits as individual 401 permits for Phases I and II pursuant to the procedures set forth in the conditions to NWP 12. The Petitioners allege the Department erred in reviewing this Project under Nationwide Permit 12 because the Department had previously determined that Nationwide Permit 12 was not an appropriate vehicle for review of impacts involving multiple stream crossings.

Nationwide Permit 12 placed no limits on the number of stream crossings for purposes of the federal permitting program to qualify for a nationwide permit. However, as set forth in the Findings of Fact, the Department through the formal process of reviewing the Corps' nationwide permits, approved Nationwide Permit 12 with conditions. In that regard, Regulation 61-101(A)(3) provides that "[t]he Department may issue, deny, or revoke general certifications for categories of activities or for activities specified in Federal nationwide or general dredge and fill permits pursuant to Federal law or regulations. Such general certifications are subject to the same process as individual certifications." Therefore, the Department's authority to review this Project is derived from the Clean Water Act, 33 U.S.C. § 1341, 25A S. C. Code Ann. Regs. 61-101 (Supp. 2001) (entitled "Water Quality Certification"), and 25 S.C. Code Ann. Regs. 61-68 (Supp. 2001) (entitled "Water Classifications and Standards."). The Water Quality Certification Regulation provides that: "[a]ny applicant for a Federal license or permit to conduct any activity which during the construction or operation may result in any discharge to navigable waters is required by Federal law to first obtain a certification from the Department. . . ." 25A S. C. Code Ann. Regs. 61-101 (A)(2) (Supp. 2001). Furthermore, "[a] certification shall be issued if the applicant has demonstrated that the Project is consistent with the provisions of these regulations; the State Water Quality Standards, Regulation 61-68; and the Federal Clean Water Act, 33 U.S.C. § 1341 . . . ." 25A S. C. Code Ann. Regs. 61-101 (F)(2) (Supp. 2001). Here, Anderson County sought a Federal permit from the Corps authorizing impacts to jurisdictional Waters of the United States resulting from construction of the Beaverdam Creek Sewer Project. The Department complied with the requirements of Regulation 61-101(A) when it gave individual review and certification of this Project despite the fact that the United States Army Corps of Engineers reviewed the Project under Nationwide Permit 12.

Moreover, the practical application of the nationwide permitting program is that this Project, like all other projects falling under the purview of a Nationwide 404 Permit, would have escaped an individual review by the Corps. Thus, by treating this application as it would any other individual certification, the Department performed an individual water quality certification review that would not have occurred otherwise. Furthermore, the Supremacy Clause of the United States Constitution prevents the Department, and this Division, from adjudicating the Department of the Army's administration of its nationwide permitting program.

Compliance with Regulation 61-101(C)

6. The Petitioners contend that the County's application fell far short of the regulatory requirements of 25A S. C. Code Ann. Regs. 61-101 (C) (Supp. 2001). Specifically, the Petitioners argue that no description is provided by the County of the development plans which the sewer is intended to promote nor of the water quality impacts of that development. Regulation 61-101 (C)(1) provides that an application for a Water Quality Certification "must contain the following information:

(a) the name, address, phone numbers, principal place of business of the applicant and, if applicable, the name and address of the agent for the applicant.



(b) a complete description of the proposed permitted activity, including the location, affected waterbody(s), purpose, and intent of the project; maps, drawings, and plans sufficient for review purposes (detailed engineering plans are not required).



(c) a description of all proposed activities reasonably associated with the proposed permitted project either directly or indirectly, including planned or proposed future development that relate to water quality considerations.



(d) a description of the composition, source, and quantity of any material to be dredged or used as fill and a description of the area to be impacted, including the area of fill in acres.



(e) the method of dredging or filling and specific plans for disposal and control of dredge spoils.



(f) the names and addresses of adjacent property owners."

Furthermore, Regulation 61-101 (C)(3) provides that "[t]he Department may require the applicant to provide water quality monitoring data, water quality modelling results, or other environmental assessment related to factors in Article F.3 prior to accepting or processing the application and assessing the impacts of the proposed activity." (Emphasis added).

Anderson County provided more than sufficient information to the Department in order to facilitate its review of this Project. Anderson County provided sufficient contact information; a thorough description of the activity including their expert wetland biologist's field notes, observations, and descriptions of the area impacted by each individual stream crossing; a description of the quantity and source of any material to be dredged or used as fill; specific plans for excavation; and information regarding impacted property owners. In particular, in terms of assessing the sufficiency of the application in accordance with Regulation 61-101(C)(1)(c), the Department focused on the primary effects of the construction activities, the potential secondary impacts of construction including the potential for excavated material to enter the stream bed, and the potential water quality impacts of future tie-ins to the sewer system. As for assessing the character and appearance of the Beaverdam Creek watershed upon build-out or in twenty (20) years, the Department concluded that such a determination was speculative and therefore not a proper consideration of the activities associated with the Project.

The Anderson County Respondents argue that the Department's staff's interpretation of the Department's regulations should be accorded deference and should be followed absent compelling reasons for overruling this interpretation. See Dorman, et al. v. SCDHEC, 350 S.C. 159, 565 S.E.2d 119 (Ct. App. 2002). Here, it is appropriate to give due consideration to the Department's staff's factual utilization of its specialized knowledge and expertise. See S.C. Code Ann. § 1-23-330(4) (1986 & Supp. 2001). However, the Department's Board, and not the Department's staff, is the policymaker for the Department and thus possesses the authority to establish its interpretation of its regulatory and statutory provisions. Therefore, the Department's Board's interpretation of its regulations and statutes should be accorded deference and should be followed absent compelling reasons.

Nevertheless, Regulation 61-101(C)(1)(c) sets forth the requirement that an applicant must describe all activities reasonably associated with the proposed permitted project. I find that Regulation 61-101(C)(1)(c) did not require the County to provide specific development plans which the sewer is intended to promote. In other words, I conclude that the County reasonably described plans for the Project.

Review under Regulation 61-101(F)

7. The Petitioners argue that 25A S. C. Code Ann. Reg. 61-101 (F)(3) (Supp. 2001), particularly its references to indirect and cumulative impacts, requires the Department to consider all possible impacts of development associated with the particular project under review. In its analysis of the direct water quality impacts of this Project, the Department assessed the direct impacts of the excavation of the stream bed, installation of the line, and restoration of the area. In its analysis of the indirect water quality impacts of the Project, the Department assessed the indirect impacts of potential tie-ins and removal of existing septic systems. Additionally, the Department noted that the need for the Project derived from growth pressures currently being experienced in Anderson County. The Department also considered the fact that both the City of Anderson and Anderson County were designated for permitting under the Municipal separate story sewer systems program, and would be responsible for addressing non-point source pollution arising from new development.

Regulation 61-101(F) establishes the scope of the Department's review to determine whether a project can be certified. Regulation 61-101 (F)(3) sets forth that "[i]n assessing the water quality impacts of the project, the Department will address and consider the following factors:

(a) whether the activity is water dependent and the intended purpose of the activity;



(b) whether there are feasible alternatives to the activity;



(c) all potential water quality impacts of the project, both direct and indirect, over the life of the project including:



(1) impact on existing and classified water uses;



(2) physical, chemical, and biological impacts, including cumulative impacts;



(3) the effect on circulation patterns and water movement;



(4) the cumulative impacts of the proposed activity and reasonably foreseeable similar activities of the applicant and others.

Additionally, Regulation 61-101 (F)(5) sets forth that the Department must deny a certification if there is a feasible alternative to the activity which reduces adverse consequences on water quality or the project would:

(a) the proposed activity permanently alters the aquatic ecosystem in the vicinity of the project such that its functions and values are eliminated or impaired;


(b) there is a feasible alternative to the activity, which reduces adverse consequences on water quality and classified uses;


(c) the proposed activity adversely impacts waters containing State or Federally recognized rare, threatened, or endangered species;


(d) the proposed activity adversely impacts special or unique habitats, such as National Wild and Scenic Rivers, National Estuarine Research Reserves, or National Ecological Preserves, or designated State Scenic Rivers[.]



However, Regulation 61-101 (F)(4) sets forth, in part that:



Certification of the activities listed below will be issued when there are no feasible alternatives. When issuing certification for such activities, the Department shall condition the certification upon compliance with all measures necessary to minimize adverse effects, including stormwater management. . . . The Department will also attempt to issue general certifications for such activities.



* * *

(c) filling or disturbances to facilitate construction of electric transmission lines or other public utility crossings. . . .



In construing statutory or regulatory language, the statute or regulation must be read as a whole, and sections which are part of the same general law must be construed together and each one given effect. TNS Mills, Inc. v. S.C. Dept. of Revenue, 331 S.C. 611, 503 S.E.2d 471 (1998). Furthermore, Courts are constrained to avoid a construction which would read a provision out of a statute or regulation. Steinke v. S.C. Dept. of Labor, Licensing and Regulation, 336 S.C. 373, 520 S.E.2d 142 (1999). When reading of Regulation 61-101(F) as a whole, it is apparent that the intent behind this regulation was to establish a policy whereby certification for projects having a public benefit, such as those relating to public utilities and highways referenced in Subsection (F)(4), are to be treated differently from other applications for certification. Furthermore, the only reasonable reading of the regulation is that if a project falls within one of the categories listed in Subsection (F)(4) and there are no feasible alternatives to the project, the only relevant factors for consideration are whether the applicant has taken "all measures necessary to minimize adverse effects" upon the aquatic ecosystem "including stormwater management." The construction of the regulation advanced by the Petitioners and the Department, which would require consideration of all of the factors in Subsection (F) even when a project falls within the Subsection (F)(4) categories, would in effect render Subsection (F)(4) a nullity. (9) In this case, the Project is clearly a "public utility crossing" and consequently is subject to the provisions of Regulation 61-101 (F)(4). Therefore, I find that if there are no "feasible alternatives" to the Project to satisfy Subsection (F)(4) because this Project is a public utility crossing, that the provisions of Regulation 101 (F)(5) do not apply to this application.

Furthermore, the Petitioners' interpretation of Regulation 61-101(F)(3) would require the Department to consider impacts which are speculative in nature and therefore of questionable relevance in analyzing a given project. Over a twenty (20) year planning period, a number of assumptions that meaningfully impact development levels could obviously change, such as zoning classifications, environmental laws and regulations, and the decision of a major industry or large residential development to locate or not locate within the area. The development impacts which the Petitioners argue must be considered are not indirect or secondary impacts associated with the Project itself that the Department would normally consider, such as additional tie-ins to the system. They are impacts which are much further removed from the Project under review.

The Petitioners' interpretation of Regulation 61-101 would also require the Department to consider and quantify impacts which are outside the Department's jurisdiction under the 401 program. That jurisdiction is limited to crossings of the Waters of the United States, including wetlands. The Petitioners' interpretation of the scope of Regulation 61-101 would require the Department to review and evaluate activities far outside the jurisdictional limits of the 401 permitting program. In order for the Department to have the necessary data to conduct such an analysis, the Department would have to require that the applicant present a master plan reflecting the final build-out of the surrounding area. Compliance with such a master plan or blueprint would be very difficult. If the master plan changed significantly, the analysis of impacts based on that plan would no longer be useful. Moreover, though public entities, such as cities and counties, have some authority through zoning and other ordinances to enforce planned development, the Department has no authority under Regulation 61-101 to require such compliance. (10) Rather, the appropriate mechanism for addressing development issues and impacts in Anderson County is the Anderson County Comprehensive Plan, prepared pursuant to the 1994 Comprehensive Land Use Planning Act and adopted by the County as an ordinance. Additionally, private entities, whose future projects also may arguably result in development, would have no input in the development and enforcement of such a broad master plan.

Project Need

8. The Petitioners contend that the Department violated Regulation 61-101 (F)(3) by failing to make an independent determination of the need for the Project, more specifically, whether there is a need for the sewer line in the middle of the Basin where property owners object to placement of the line. However, the Regulations do not suggest or require that the Department consider the need for the Project. Regulation 61-101(F)(3) does set forth that the Department should consider the "purpose" of the Project in assessing the water quality impacts of the Project. (11) Nevertheless, the term "purpose" in that section does not require an examination of need. Rather, the purpose of a project presented by the applicant is a starting point for analyzing the universe of feasible alternatives to the Project. Moreover, the County made a legislative determination through the Anderson County Comprehensive Plan that the Beaverdam Creek Sewer Project is needed to provide sewer services to its citizens. That determination of need is the County's proper function. It is not a determination that should be made by the Department pursuant to Regulation 61-101.





Feasible Alternatives

9. Regulation 61-101(F)(4) mandates that certification for certain activities be issued if there are no feasible alternatives. Feasible means (1) "capable of being done or carried out;" (2) "capable of being used or dealt with successfully;" or (3): "reasonable, likely." Merriam-Webster OnLine (2002), available at http://www.m-w.com/. Here, I find that the Legislature meant that if there was another alternative to the Project that could be reasonably accomplished, that a "feasible alternative" exists to the Project. In other words, a "feasible alternative" is an alternative that reasonably accomplishes the same goals as the proposed Project. Therefore, I find that the Petitioners did not establish a feasible alternative available to Anderson County to provide sewer service to the entire Beaverdam Creek Basin.

Moreover, even if the provisions of Regulation 61-101 (F)(5) were applicable to these permits, that regulation requires that an alternative not only be feasible but that it also be an alternative "which reduces adverse consequences on water quality." Therefore, the mere existence of a feasible alternative does not warrant denial under Regulation 61-101(F)(5) if the alternate presents a negative environmental impact that is the same, or greater than, the proposed Project. The alternatives proffered by the Petitioners involved installation of additional parallel sewer lines to the Six and Twenty Wastewater Treatment Plant along with the expansion of that plant. An expansion of an existing facility means the possibility of introducing more pollutants into the wastewater, or the creation of more wastewater. Therefore, the Petitioners' proposed alternative would result in the same, or greater adverse consequences to water quality and classified uses.

Furthermore, the Project would not permanently alter the aquatic ecosystem in the vicinity of the Project such that its functions and values are eliminated or unreasonably impaired; it would not adversely impact waters containing State or Federally recognized rare, threatened, or endangered species; and it would not adversely impact any special or unique habitats. Consequently, the Project should not be denied pursuant to Regulation 101 (F)(5)(b).





Anti-Degradation

10. The Petitioners assert that the certification must be denied for failure to comply with the "Anti- Degradation Rule." See 25A S. C. Code Ann. Reg. 61-68 (D) (Supp. 2001). Specifically, the Petitioners contend that the Department has failed to follow the procedures set forth in Regulation 61-68(D)(2) which require consideration of alternatives, intergovernmental coordination, and public participation if higher quality water is to be impacted. Regulation 61-101(F)(2) requires the Department to determine whether a given certification is consistent with the requirements of Regulation 61-68. Regulation 61-68(D) establishes the principle that "existing water uses and the level of water quality necessary to protect these existing uses shall be maintained and protected regardless of the water classification and consistent with the [Anti- Degradation Rule] policies. . . ." In accordance with the Anti-Degradation provisions of Regulation 61-68(D)(2) the Department must engage in an intergovernmental and public process before permitting new point source discharges in surface waters of high water quality. However, those procedures apply only to new and existing point sources, i.e., NPDES permits, not to projects that only involve non-point sources. For non-point sources, Regulation 61-68(D)(2) only requires cost-effective and reasonable BMPs.

Here, this Project does not result in a new or expanded point source discharge into Beaverdam Creek. Any potential for new discharges into Beaverdam Creek arises solely from non-point source run-off, and those non-point discharges were examined by the Department when it issued a Stormwater Permit for this construction. The only requirement for non-point sources in Regulation 61-68(D)(2) is the use of cost-effective and reasonable BMPs, with which this Project complies. BMPs are required for this Project through the existing Stormwater Permits and through the conditions imposed on the 401 certifications. Therefore, I find that the Department is not required to utilize the process provided for in Regulation 61-68(D)(2) in its evaluation of Anderson County's request to build a sewer line and thus the Department properly determined the 401 certifications for Phase IA and II to be consistent with those requirements.





Collateral Estoppel

11. The doctrine of collateral estoppel is a legal bar to the Petitioners raising or challenging a number of issues in this proceeding. "Under the doctrine of collateral estoppel, once a final judgment on the merits has been reached in a prior claim, relitigation of those issues actually and necessarily litigated and determined in the first suit is precluded as to the parties and their privies in any subsequent action based upon a different claim." Richburg v. Baughman, 290 S.C. 431, 351 S.E.2d 164, 166 (1986). See also Carman v. South Carolina Alcoholic Beverage Control Comm'n, 317 S.C. 1, 451 S.E.2d 383, 386 (1994) (applying collateral estoppel in administrative proceedings). The party asserting collateral estoppel must also show that "the matter or fact directly in issue was necessary to support the first judgment." Beall v. Doe, 281 S.C. 363, 315 S.E.2d 186, 191 (Ct. App.1984). I find that the Final Order and Decision in the appeal of the Wastewater Construction Permits Docket No. 00-ALJ-07-0671-CC is a final judgment. The Final Order and Decision makes specific findings and conclusions regarding the facts that were referenced in this case. Each of the issues and facts was actually and necessarily litigated, as raised by the Petitioners in their challenge to the first phase of permitting for this Project. Therefore, collateral estoppel precludes Petitioners from any further factual challenge to these issues. Consequently, the following are matters previously, and finally, determined by the Division are barred by collateral estoppel from relitigation.

Scope and Purpose of Project

This Division found that "[t]his area is near the rapidly developing Interstate 85 corridor, including the intersection of Interstate 85 and State Highway 81." Furthermore, that Phase II will allow the County to take advantage of capacity which it had previously purchased in the Rocky River Waste Water Treatment Plant owned and operated by the City of Anderson. Construction of Phase II will also allow the County to take advantage of the natural flow of the Beaverdam Creek drainage Basin to the Rocky River Plant and to access the treatment capacity, which it owns at Rocky River.





Population Projections

This Division previously determined that "[t]he Beaverdam Creek area is a rapidly growing section of Anderson County and Anderson County is a rapidly growing part of the upstate." In light of the growth in the Interstate 85 Corridor, the County's projection of two persons per acre was a "conservative projection. Furthermore, the methodology used by the County in selecting sub-basins and projecting two persons per acre properly contemplated areas within the Basin that cannot be developed, such as wetlands, flood plains, roadways, etc. Additionally, it is a common engineering practice to use planning information from a local planning agency to determine population figures.

Consistency with 208 Plan

This Division determined that the Project is consistent with the 208 Water Quality Management Plan and that the Department properly followed its procedures in obtaining the consistency determinations from the Appalachian Council of Governments.

Exfiltration from Sewer Lines

This Division has determined that exfiltration will be minimal due to the design and construction of the pipelines.

Conclusion

12. Phase IA and Phase II meet all the applicable statutory and regulatory requirements for the issuance of these 401 Water Quality Certifications. Furthermore, the Petitioners have failed to prove that the 401 Water Quality Certifications at issue in this proceeding do not meet the requirements of Regulation 61-101, Regulation 61-68, or any other applicable laws and regulations.









ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that 401 Water Quality Certifications for Phase IA (Public Notice No. SAC 12-2000-1406-W) and Phase II (Public Notice No. SAC 12-2000-0894-D) of the Beaverdam Creek Sewer Project be issued to Anderson County Respondents.

AND IT IS SO ORDERED



_______________________________

Ralph King Anderson, III

Administrative Law Judge



February 3, 2003

Columbia, South Carolina

1. The Petitioners have challenged two previous sets of permits for this Project: the Wastewater Construction Permits and the Stormwater and Sediment Control Permits. The Construction Permits were upheld by this Division (Docket No. 00-ALJ-07-0671-CC) and by the DHEC Board. They became final when the Petitioners chose not to appeal the decision of the DHEC Board. The Stormwater Permits were upheld by this Division (Docket No. 01-ALJ-07-0133-CC), and Petitioners have appealed to the DHEC Board.

2. A wetland is defined as an area inundated or saturated to a point where it has a prevalence of hydrophytic vegetation and hydric soil.

3. An interceptor sewer is defined in DHEC regulations as a pipeline system designed to transport wastewater or treated effluent from one locator to another. It can flow under pressure or by gravity. 25 S.C. Code Ann. Regs. 61-67.1000(D)(23) (Supp. 2001).

4. The pump station is a part of Phase IB of the Project, which is not at issue in this proceeding, and will pump the flow to the Six and Twenty Wastewater Treatment Plant. By Order of this Division dated February 15, 2002, Phase IB was dropped from this proceeding.

5. The County has capacity in the City's Rocky River Plant that it is paying for and cannot use absent sewer system connections.

6. Mr. Longshore is a Professional Engineer registered in the States of South Carolina and Georgia. He has over thirty (30) years of experience and has designed well over one hundred (100) wastewater treatment systems, including both the treatment facility and the connector lines. Mr. Longshore was qualified as an expert in civil engineering, including planning, engineering reports and studies, locating, designing and constructing wastewater collection, transportation and treatment systems, and environmental systems engineering. I find Mr. Longshore's opinions to be persuasive in this case.

7. Mr. McCoy is also a named Petitioner in this proceeding.

8. The Petitioners also submitted a report at trial prepared by Rogers & Callcott Engineers, Inc., in support of their proposed alternative. However, the proposed alternative offered by Petitioners had not been presented to B.P. Barber, Anderson County's engineering consultant, during development of the Project. Mr. Collum also testified that no concrete alternative was ever expressed by Petitioners to the Department during its certification review. The primary alternative discussed with the Department was the use of existing lines leading to the Six and Twenty Plant.



Additionally, the Rogers & Callcott report does not present a feasible alternative to the Project because it does not address sewer needs in the Beaverdam Creek Basin as a whole, which is the stated purpose of the Project, but rather addressed sub-basins within the Six and Twenty Basin. Moreover, the County took significant action itself to analyze what it understood to be the Petitioners' proposed alternative. The County retained Design South Professionals, Inc., to do a feasibility study of the Beaverdam Creek Sewer Project. Design South subsequently looked closely at the option of using the Six and Twenty Plant. Design South concluded, among other things, that expansion of the Six and Twenty Plant would be necessary to meet the needs of the Six and Twenty Basin and that the wastewater needs of the Beaverdam Creek Basin should be met elsewhere. It further concluded that installing a trunk sewer along Beaverdam Creek is the proper engineering strategy and is the most cost effective and environmentally sound alternative.



Additionally, B.P. Barber conducted a Preliminary Feasibility Analysis of a force main along Highway 81 -- (the "Pumping System"). The analysis demonstrated that the Highway 81 Pumping System would add eleven (11) new pump stations, while the Beaverdam Creek Project would eliminate three pumping stations. Also, the cost of the Pumping System was estimated to be $6.5 million, with $8.5 million in total life cycle costs. That is opposed to a total Project cost of $10 million for Phase IA and II which will service the entire Beaverdam Creek Basin, as opposed to 7% of the Basin. Finally, the report notes that the Highway 81 project is not a true alternative to the Beaverdam Creek Sewer Project because the latter would service the entire Beaverdam Creek Basin while the former would service only about 7% of the Basin.

9. The Department interpreted Regulation 61-101(F) such that all of the provisions of Regulation 101 (F)(3) were applicable to these permits. The Department's staff argues that its interpretation of Regulation 61-101 in this regard is entitled deference. However, as noted above, the Department's Board's interpretation and not the Department's staff's, interpretation of its regulatory and statutory provisions is entitled to deference. Moreover, I find that meaning of Regulation 61-101(F)(4) is unambiguous. Where a regulation is unambiguous, then the regulation should be enforced as written. See Brown v. South Carolina Dep't of Health and Envtl. Control 348 S.C. 507, 560 S.E.2d 410 (2002).

10. The Department has authority under the Coastal Zone Management Plan Program to require a developer to prepare a master plan for a development in the coastal zone in the context of a coastal zone consistency determination. This Project, however, is not in the coastal zone. Moreover, the type of master plan that would be required for the entire Beaverdam Creek Basin would be much more complex and speculative in nature than the master plans required for specific developments in the coastal zone.

11. Whether that section applies to public utility projects is unclear. However, for purposes of this Decision, Regulation 61-101(F)(3) is presumed to apply.