Bruning v. Scdhec
418 S.C. 537
| S.C. Ct. App. | 2016Background
- Homeowners in the Rookery subdivision (Appellants) challenged DHEC’s issuance of an NPDES permit to Cat Island POA to alter stormwater management for Garfield Park (Phase 3) by abandoning a detention lake and installing curb inlet baskets.
- The seven-acre lake (a pre-regulation dike-built detention pond) failed in 2009 and converted to marsh; Cat Island POA sought approval to manage runoff using curb inlet baskets that filter but do not store runoff.
- DHEC (with OCRM) approved the retrofit; Appellants petitioned for revocation raising multiple CMP/regulatory violations, including proximity to shellfish beds and required on-site storage/retention volumes.
- The DHEC Board agreed with Appellants that DHEC’s shellfish-bed distance measurement failed to consider high tide; ALC reversed that part but otherwise affirmed issuance of the permit.
- The appeals court: reversed the ALC in part because the approved treatment (curb inlet baskets) did not satisfy the CMP’s mandatory storage/retention requirement; held the permit application was a modification that should have been evaluated under modification rules; affirmed the ALC on shellfish-distance (substantial evidence); and declined to decide several other issues rendered moot by reversal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether CMP § C(3)(XIII)(A) permissively allows non-storage BMPs (e.g., curb inlet baskets) | CMP requires mandatory storage/retention of specified runoff; curb baskets only filter and do not store, so permit violates CMP | "May" and "as appropriate for the specific site" gives DHEC discretion to permit other methods like baskets | Reversed ALC: CMP requires storage ("shall"), and allowed methods are detention, retention, or infiltration; baskets do not comply. |
| 2. Whether Cat Island POA’s application constituted a modification of the 2004 permit requiring evaluation under modification regs | The retrofit changed the stormwater system and thus was a modification subject to Reg. 61-9.122.62(d) | DHEC treated application as a new consistency determination rather than a modification | Court: Application was a modification and DHEC should have considered modification criteria; court did not decide whether modification would have been permissible on merits. |
| 3. Whether DHEC’s distance measurement to shellfish beds was legally sufficient | Appellants: measurement must account for high tide and/or be straight-line; DHEC’s low-tide, winding-path measurement is insufficient | DHEC/POA: measurement along defined drainage pathway (including consideration) was reasonable; ALC credited Respondents’ measurements | Affirmed ALC on factual sufficiency: substantial evidence supports ALC’s finding shellfish beds are outside 1,000 ft; court declines to disturb ALC on weight of evidence. |
| 4. Whether Appellants can compel repair of the dike under the 2004 permit agreement | Appellants claim the 2004 permit obligation to repair the dike benefits them and is enforceable | DHEC/POA: Appellants are only incidental beneficiaries and lack standing to enforce repair | Affirmed ALC: Appellants lack standing to compel repair under the permit agreement. |
Key Cases Cited
- State v. Sweat, 379 S.C. 367 (Ct. App. 2008) (statutory interpretation is a question of law)
- Brown v. Bi-Lo, Inc., 354 S.C. 436 (2003) (court rejects agency interpretation contrary to plain language)
- Murphy v. S.C. Dep’t of Health & Envtl. Control, 396 S.C. 633 (2012) (regulations construed like statutes)
- Kiawah Dev. Partners, II v. S.C. Dep’t of Health & Envtl. Control, 411 S.C. 16 (2014) (deference to agency interpretation unless regulation is silent or ambiguous)
- Dreher v. S.C. Dep’t of Health & Envtl. Control, 412 S.C. 244 (2015) (appellate court may not substitute its judgment for ALC on weight of evidence)
- Futch v. McAllister Towing of Georgetown, Inc., 385 S.C. 598 (1999) (appellate courts need not address issues when another dispositive issue resolves the case)
- Bob Hammond Constr. Co. v. Banks Constr. Co., 312 S.C. 422 (Ct. App. 1994) (third‑party beneficiary standing principles)
- Kennedy v. S.C. Retirement Sys., 345 S.C. 339 (2001) (interpretation of "may" can be mandatory depending on context)