Murphy v. South Carolina Dep't of Health & Envt'l Control

• Decision Date: 07 March 2012
• Docket Number: No. 27099.,27099.
• Citation: 396 S.C. 633,723 S.E.2d 191,277 Ed. Law Rep. 1165
• Parties: Kim MURPHY, Appellant, v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL and District 5 of Lexington and Richland Counties, Respondents.
• Court: South Carolina Supreme Court

277 Ed. Law Rep. 1165

396 S.C. 633

723 S.E.2d 191

Kim MURPHY, Appellant,

v.SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL and District 5 of Lexington and Richland Counties, Respondents.

No. 27099.

Supreme Court of South Carolina.

Heard Jan. 11, 2012.Filed March 7, 2012.

Katie Renee Parham, The Parham Law Firm, of Irmo, and Robert Guild, of Columbia, for Appellant.

M. Elizabeth Crum & Pamela A. Baker of McNair Law Firm, of Columbia, and Stephen P. Hightower and Roger P. Hall, of Columbia, for Respondents.

Amy E. Armstrong and Michael G. Corley, of Pawleys Island, for Amicus Curiae, South Carolina Wildlife Federation.James B. Richardson, Jr., of Columbia, for Amicus Curiae, Mining Association of South Carolina.Justice HEARN.

This case centers on proposed renovations to the overcrowded Chapin High School, which require filling in a portion of a stream on the property. District 5 of Lexington and Richland Counties received a Section 401 water quality certification (WQC) from the Department of Health and Environmental Control (DHEC), authorizing the project and allowing the District to fill the approved portion of the stream. The Administrative Law Court (ALC) affirmed the certification, and Kim Murphy appeals, arguing the ALC erred in determining that the vicinity of the project included the area surrounding the proposed fill, failing to find that the project would damage the surrounding ecosystem, and finding no feasible alternatives to the proposed project. She also alleges DHEC impermissibly abdicated its decision-making authority to the District. We find no error in the ALC's analysis or in DHEC's evaluation of the project and accordingly affirm.

FACTUAL/PROCEDURAL BACKGROUND

Chapin High School, which is located in District 5 of Richland and Lexington Counties, was built in 1971 and designed to accommodate 600 pupils. Over the years, the surrounding areas have swelled in population, causing the number of students to far exceed the original building's capacity, with enrollment for the 2009–10 school year reaching approximately 1,350 students. To accommodate this growth of the student body, the District proposed an expansion of the school which would increase its capacity to 1,700 students. Because the District already owned adjacent property, it sought to undertake this expansion using that land. The proposed expansion included increasing the number of practice fields and parking lots, making improvements to the wastewater collection system, and installing stormwater controls, all of which would necessitate the filling of a portion of a stream located upon the property. This stream is part of an unnamed tributary that flows into Wateree Creek.

Because the stream was classified by the Army Corps of Engineers as waters of the United States, the District was required to obtain a WQC ¹ from DHEC, which is a prerequisite to obtaining a 404 Discharge Permit ² FROM THE CORPS. Section 61–101 governs the issuance of the wqc and requires that DHEC deny certification if, inter alia, the “proposed activity permanently alters the aquatic ecosystem in the vicinity of the project such that its functions and values are eliminated or impaired” or “there is a feasible alternative to the activity” with less adverse consequences. 25A S.C.Code. Ann. Regs. 61–101.F.5(a) & (b) (Supp.2011). Over the next few months, DHEC and the Corps periodically requested additional information and modifications from the District. During this time, the District engaged in further studies of alternatives, and it eventually reduced the length of the stream it sought to fill from 1,501 feet to 727 feet by eliminating a practice field and reducing the number of parking spaces created for students. The District's plan also included implementing stormwater controls to improve the quality of water as it flowed downstream.³

About eight months after the District applied for the WQC, DHEC issued a staff assessment recommending that the District be issued the certification. Kim Murphy, who lives near Wateree Creek and was at the time the mother of two Chapin High School students and one Chapin High School graduate, sought review of this assessment before the Board of Health and Environmental Control. The Board declined review, and the staff assessment became DHEC's final decision . DHEC then advised the Corps that it had issued the WQC, and the Corps, upon completing its review of the District's application, issued the Discharge Permit.⁴

Murphy requested a contested case hearing before the ALC arguing that DHEC had erred in applying Regulation 61–101 by concluding that the proposed fill would not detrimentally alter the aquatic ecosystem in the vicinity of the project, that there were no feasible alternatives with less adverse impacts, and that the project as proposed sufficiently minimized the impact to the ecosystem. In support of her argument, Murphy presented expert testimony on the existence of feasible alternatives and the negative impact that would result to the ecosystem if this fill took place. She also questioned the independence of DHEC's review due to its concurrence with many of the findings of the District's engineers and its acceptance of the District's claimed needs. DHEC and the District (collectively, Respondents) submitted evidence supporting the minimized impact of the proposed plan and demonstrating why the particular plan was chosen over other alternatives.

The ALC specifically rejected Murphy's claim that in considering the “vicinity of the project” under Regulation 61–101, DHEC's inquiry should have been limited to the 727 feet of stream the District proposed to fill. Accordingly, it found that the functions and values of the stream in the vicinity would not be eliminated or impaired by the fill. Additionally, in determining whether feasible alternatives to the project existed, the ALC used the 404(b)(1) Guidelines' word “practicableness” as an equivalent to the undefined word “feasible.” Under the Guidelines, an alternative is practicable if “it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” 40 C.F.R. § 230.10(a)(2). Applying this definition, the ALC concluded that there were no feasible alternatives. The ALC therefore affirmed the certification and this appeal followed.

ISSUES PRESENTED

I. Did the ALC err in its construction of Regulation 61–101?

II. Did the ALC err in finding that there are no feasible alternatives to the project and in its use of the 404(b)(1) Guidelines found in 40 C.F.R. § 230?

III. Did DHEC improperly delegate its decision-making authority to District 5?

STANDARD OF REVIEW

The Administrative Procedures Act establishes the standard of review this Court applies to appeals from the ALC. Section 1–23–610(D) of the South Carolina Code (2010) provides that the Court may reverse or modify the ALC's decision only if the substantive rights of a party have been prejudiced due to constitutional or statutory violations; an agency exceeding its authority; unlawful procedure; an error of law; a clearly erroneous view of evidence in the record; or an abuse of discretion. “As to factual issues, judicial review of administrative agency orders is limited to a determination [of] whether the order is supported by substantial evidence.” MRI at Belfair, LLC v. S.C. Dept. of Health & Envtl. Control, 379 S.C. 1, 6, 664 S.E.2d 471, 474 (2008). When finding substantial evidence to support the ALC's decision, the Court need only determine that, based on the record as a whole, reasonable minds could reach the same conclusion. Hill v. S.C. Dept. of Health & Envtl. Control, 389 S.C. 1, 9–10, 698 S.E.2d 612, 617 (2010).

LAW/ANALYSIS

I. REGULATION 61–101

Murphy first contends that the ALC erred in both its construction of Regulation 61–101 and in its application.

A. Interpretation of the Regulation

Murphy argues that the ALC erred in interpreting the use of the word “vicinity” to include more than the project area of 727 feet of stream. We disagree.

Regulations are interpreted using the same rules of construction as statutes. See S.C. Ambulatory Surgery Ctr. Ass'n v. S.C. Workers' Comp. Comm'n, 389 S.C. 380, 389, 699 S.E.2d 146, 151 (2010) “When interpreting a regulation, we look for the plain and ordinary meaning of the words of the regulation, without resort to subtle or forced construction to limit or expand the regulation's operation.” Converse Power Corp. v. S.C. Dept. of Health & Envt. Control, 350 S.C. 39, 47, 564 S.E.2d 341, 346 (Ct.App.2002).

Regulation 61–101 states, “Certification will be denied if (a) the proposed activity permanently alters the aquatic ecosystem in the vicinity of the project such that its functions and values ⁵ are eliminated or impaired.” 25A S.C.Code Ann. Regs. 61–101.F.5(a) (Supp.2011). Although vicinity is not defined in the regulations, we interpret an undefined term in accordance with its usual and customary meaning. Branch v. City of Myrtle Beach, 340 S.C. 405, 409–10, 532 S.E.2d 289, 292 (2000). Merriam–Webster defines vicinity as meaning “the quality or state of being near: proximity” or “a surrounding area or district: neighborhood.” Merriam–Webster Dictionary, http:// www. merriam- webster. com/ dictionary/ vicinity. Using this accepted meaning of the word vicinity, the regulation clearly includes more than just the project; it logically incorporates the surrounding area. Moreover, a reading to the contrary would render it impossible to ever obtain a certification to fill a portion of a stream as the functions and values of that area would always necessarily be eliminated.

Furthermore, we give deference to the interpretation of a regulation by the agency charged with it enforcement. See Brown v. Bi–Lo, Inc., 354 S.C. 436, 440, 581 S.E.2d 836, 838 (2003). During her testimony, Jennifer Haynes, who had been the DHEC project manager for the Chapin High School WQC,...