Ken Bruning, Janet Bruning, David Feron, individually and as Trustee; Mary Feron, individually and as Trustee; Sally Saegmuller Haley and Terrell Page Haley, Individually and Co-trustees; Martha James and Don Haarmeyer, Individually and as Co-Trustees; and Pamela S. North, Appellants,
SCDHEC and Cat Island POA, c/o Gary Meyer, Respondents. In Re: Garfield Park Phase 3. Cat Island POA, c/o Gary Meyer, Petitioner,
SCDHEC, Respondent. In Re: Garfield Park Phase 3. Appellate Case No. 2014-002010
May 4, 2016
From The Administrative Law Court Shirley C. Robinson,
Administrative Law Judge
IN PART AND REVERSED IN PART
E. North, Jr., of North & Black, PC, of Beaufort, for
Duncan Shahid, Stephen Peterson Groves, Sr., and Angelica M.
Colwell, all of Nexsen Pruet, LLC, of Charleston, for
Respondent Cat Island POA, and Nathan Michael Haber, of
Charleston, for Respondent South Carolina Department of
Health and Environmental Control.
Bruning and other homeowners in the Rookery subdivision of
Cat Island (collectively, Appellants) in Beaufort County
challenged the issuance of a National Pollutant Discharge
Elimination System (NPDES) permit to Cat Island POA regarding
stormwater management for Garfield Park, Phase 3, another
subdivision on Cat Island. Appellants appeal the
Administrative Law Court's (ALC's) order affirming
the issuance of the permit raising numerous grounds. We
reverse in part based on the misinterpretation of a provision
of the Coastal Management Program (CMP) Document. We affirm
other issues based on substantial evidence in the record, and
we decline to address certain issues as they are no longer
relevant in light of the disposition of other issues.
are homeowners in the Rookery subdivision of Cat Island where
their property is adjacent to a seven-acre lake (the Lake)
that served as a detention pond for stormwater management.
The dike creating the Lake was built between 1960 to 1965,
prior to the implementation of stormwater control
regulations. The Lake abuts Chowan Creek, which flows into
the Atlantic Ocean. Construction of the Garfield Park
development began in 2004, after the implementation of
stormwater management regulations. Cat Island POA, the
developer, obtained a NPDES permit that authorized detention
of stormwater in the Lake as the stormwater management method
for Garfield Park.
2009, the dike began to crack, allowing the fresh water in
the Lake to empty into Chowan Creek and permitting salt water
to ebb and flow into and out of the Lake bed. The dike was
never repaired, and the Lake transformed into a muddy, marshy
area. Cat Island POA sought a permit from the South Carolina
Department of Health and Environmental Control (DHEC) to
manage stormwater from Garfield park by using in-line filters
or "curb inlet baskets." These baskets would allow
stormwater to flow through while catching sediment and other
pollutants, preventing their passage into Chowan Creek. As a
result, the Lake would no longer serve as a detention pond
and eventually would naturalize back into marshland.
permit requests are reviewed by the Stormwater Permitting
division of DHEC along with the Ocean and Coastal Resources
Management Division (OCRM) of DHEC to ensure the proposed
stormwater treatment is consistent with the CMP Document.
DHEC approved Cat Island POA's application for the
baskets. Appellants petitioned DHEC to revoke the permit
based on numerous regulatory violations and deleterious
effects the abandonment of the Lake would have on the
environment and their property.
DHEC Board (the Board) found the majority of Appellants'
arguments unpersuasive. However, the Board did agree with
Appellants regarding a provision of the CMP Document
governing stormwater runoff and proximity to shellfish beds.
Because DHEC had not considered the location of the shellfish
beds at high tide, the Board determined DHEC's
measurements were insufficient to establish the required
distance from the beds.
challenged the Board's order as to the ruling on its
numerous and varied alleged violations. DHEC and Cat Island
POA (collectively, Respondents) appealed the portion of the
Board's order finding they had not established sufficient
distance from the shellfish beds to be consistent with the
governing requirements of the CMP. The ALC reversed the
Board's finding DHEC's shellfish bed measurement was
insufficient and affirmed the Board's other conclusions.
This resulted in the issuance of the permit being approved in
toto. This appeal followed.
to section 1-23-610 of the South Carolina Code (Supp. 2015),
"[t]he review of the administrative law judge's
order must be confined to the record. The court may not
substitute its judgment for the judgment of the
administrative law judge as to the weight of evidence on
questions of fact." Appellate courts confine their
analysis of an ALC decision to whether it is:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative, and
substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by an abuse of
discretion or clearly unwarranted exercise of discretion.
S.C. Code Ann. § 1-23-610(B). "In determining
whether the ALC's decision was supported by substantial
evidence, the court need only find, looking at the entire
record on appeal, evidence from which reasonable minds could
reach the same conclusion as the ALC." Kiawah Dev.
Partners, II v. S.C. Dep't of Health & Envtl.
Control, 411 S.C. 16, 28, 766 S.E.2d 707, 715 (2014).
Still, the court may reverse the decision of the ALC if it is
based on an error of law or in violation of a statutory
Interpretation of CMP Provision Section XIII(A)
argue the ALC erred in concluding Cat Island POA's NPDES
permit was compliant with Chapter III, Section C(3)(XIII)(A)
of the CMP Document entitled ...