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Bruning v. SCDHEC

Court of Appeals of South Carolina

October 26, 2016

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

          Heard May 4, 2016

         Appeal From The Administrative Law Court Shirley C. Robinson, Administrative Law Judge


          John E. North, Jr., of North & Black, PC, of Beaufort, for Appellants.

          Mary 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.

          KONDUROS, J.

         Ken 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.


         Appellants 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.

         In 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.

         NPDES 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.

         The 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.

         Appellants 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.


         According 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 provision. Id.


         I. Interpretation of CMP Provision Section XIII(A)

         Appellants 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 ...

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