Savannah Riverkeeper v. South Carolina Department of Health & Environmental Control , 400 S.C. 196 ( 2012 )

Justice PLEICONES.

Petitioners Savannah Riverkeeper, South Carolina Coastal Conservation League, South Carolina Wildlife Federation, and Conservation Voters of South Carolina (collectively, Conservation Groups) petitioned this Court to hear this matter in our original jurisdiction to determine whether the South Carolina Department of Health and Environmental Control (DHEC) acted illegally and usurped the authority of the Savannah River Maritime Commission (the Commission) when it negotiated an agreement with the U.S. Army Corps of Engineers (the Corps) and the Georgia Ports Authority (GPA) before issuing a 401 Water Quality Certification (the Certification or the 401 Certification) requested for the proposed Savannah Harbor Expansion Project (SHEP). The Court granted the petition. We find that DHEC’s action contravened the plain language of S.C.Code Ann. § 54-6-10 (2007).

FACTS

The U.S. Army Corps of Engineers, Savannah District, initiated the Savannah Harbor Expansion Project in order to dredge and deepen the navigation channel in the Savannah River to facilitate its use by ocean-going vessels traveling to and from the Port of Savannah. Under Section 401 of the federal Clean Water Act, the Corps was required to seek certification from the appropriate South Carolina authority that the SHEP complied with state water quality standards.

The Corps applied to DHEC for the 401 Certification and a Construction in Navigable Waters permit (the Permit) on November 15, 2010, as well as for a Coastal Zone Management Act consistency determination. The Savannah River Maritime Commission, an entity created by S.C.Code Ann. § 54-6-10 (2007), submitted comments to DHEC opposing approval of the Corps’s application for the Certification, Permit, and consistency determination. On September 30, 2011, DHEC issued a notice of decision proposing to deny the Certification because a staff assessment had determined that the SHEP did not meet South Carolina’s water quality standards. The notice of decision appended the staff assessment.

Subsequently, DHEC staff, the Corps, and GPA negotiated and entered into an agreement (the Agreement) addressing the grounds for denial identified by DHEC staff as detailed in the assessment. On November 15, 2011, the DHEC Board issued the § 401 Certification, adopting the Agreement as part of the Certification.

The § 401 Certification also served as approval of the Permit pursuant to 1 S.C.Code Ann. Regs. 19-450.3(G) (2011) and 25A S.C.Code Ann. Regs. 61-101(A)(9) (Supp.2011).¹ In December 2011, Conservation Groups and the Commission filed requests for contested case review with the Administrative Law Court (ALC), seeking review of the decision on both procedural and substantive grounds. That matter is pending in the ALC. In March 2012, Conservation Groups filed a Motion for Original Jurisdiction with this Court, asking the Court to rule on the question whether DHEC violated § 54-6-10 when it negotiated with and entered into an agreement with the Corps and GPA in the course of issuing the 401 Certification and in authorizing the Corps to conduct construction in navigable waters. DHEC consented to the request. This Court granted the petition. The Commission sought to intervene as a Respondent and was permitted to intervene as a Petitioner.

ISSUE

Did DHEC’s action in issuing the 401 Certification contravene § 54-6-10?

DISCUSSION

I

Petitioners contend that DHEC contravened § 54-6-10 in two respects: when it negotiated and entered into the Agreement with the Corps and GPA that provided the basis for its issuance of the 401 Certification and when it effectively-granted the Permit. We agree.

Section 54-6-10 establishes the Commission, in relevant part as follows:

(A) [A] commission to be known as the Savannah River Maritime Commission is hereby established to represent this State in all matters pertaining to the navigability, depth, dredging, wastewater and sludge disposal, and related collateral issues in regard to the use of the Savannah River as a waterway for ocean-going container or commerce vessels. The commission as an instrumentality of this State is empowered to negotiate on behalf of the State of South Carolina and enter into agreements with the State of Georgia, the United States Army Corps of Engineers, and other involved parties in regard to the above which bind the State of South Carolina[.]

(F) Except as provided below, nothing in this section shall supersede .the authority of other state agencies, departments, or instrumentalities including the Department of Natural Resources, the Department of Health and Environmental Control, or the State Ports Authority to exercise all powers, duties, and functions within their responsibilities as provided by law. However, on an interstate basis and specifically in regard to the State of Georgia, the responsibilities granted to the Savannah River Maritime Commission in this joint resolution supersede any other concurrent responsibilities of a particular state agency or department. Any requirements for permitting and constructing new terminal facilities on the Savannah River in Jasper County are declared not to be the responsibility of this commission, except as they may relate to this state’s responsibility for the navigability or depth of the South Carolina portion of the Savannah River.

“The primary rule of statutory construction is to ascertain and effectuate the intent of the Legislature.” Gilstrap v. South Carolina Budget and Control Bd., 310 S.C. 210, 213, 423 S.E.2d 101 (1992). “Under the plain meaning rule, it is not the court’s place to change the meaning of a clear and unambiguous statute.” Hodges v. Rainey, 341 S.C. 79, 83, 533 S.E.2d 578, 581 (2000). “If the statute is ambiguous, however, courts must construe the terms of the statute.” Town of Mt. Pleasant v. Roberts, 393 S.C. 332, 342, 713 S.E.2d 278, 283 (2011). “A statute as a whole must receive practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of lawmakers.” Id.

The plain language of the statute gives the Commission the authority “to represent this State in all matters pertaining to the navigability, depth, dredging, wastewater and sludge disposal, and related collateral issues in regard to the use of the Savannah River as a waterway for ocean-going container or commerce vessels.” § 54-6-10(A) (emphasis added). The Commission is specifically “empowered to negotiate on behalf of the State of South Carolina and enter into agreements with the State of Georgia, the United States Army Corps of Engineers, and other involved parties.” Id.

Moreover, the Commission is given not only the authority but the “responsibility” to represent the state, a responsibility that “supersede^] any other concurrent responsibilities of a particular state agency” to represent South Carolina in all matters pertaining to dredging of the Savannah River for navigation by oceangoing container and commerce vessels, and in related collateral issues. § 54-6-10(F). Given this language, we find the conclusion inescapable that the grant of authority was exclusive.

DHEC argues that the term “represent,” interpreted in the context of the purpose of the Act, is limited to activities necessary for the development of the Jasper County terminal facilities, largely relying on the Act’s title.² However, an inquiry into the purpose of the Act arises only if the plain language is ambiguous. Garner v. Houck, 312 S.C. 481, 486, 435 S.E.2d 847, 849 (1993) (title of statute “cannot undo or limit what the text makes plain”). In our view, there is no ambiguity in the text of § 54-6-10.

The Corps’s proposed dredging of the Savannah River for purposes of navigation by ocean-going commerce and container vessels clearly implicates the statute’s grant of responsibility and exclusive authority. Moreover, it was the impact of SHEP dredging in the South Carolina portion of the Savannah River that created the Corps’s obligation to obtain the 401 Certification. Pursuant to § 54-6-10, the Commission has exclusive authority to represent the state in all matters pertaining to navigability and dredging of the Savannah River for use by ocean-going container and commerce vessels.

The plain language of § 54-6-10 gave the Savannah River Maritime Commission the responsibility and exclusive authority to represent South Carolina in all matters pertaining or collaterally related to dredging in the Savannah River for purposes of navigation by ocean-going container or commerce vessels, and 401 Certification for the SHEP fell within the scope of that authority. Thus, we find that DHEC acted in contravention of § 54-6-10 when it issued the 401 Certification.

II

The majority finds that DHEC “acted” for purposes of the state certification requirement of the Clean Water Act. This question is not at issue. Moreover, the Corps and GPA are not parties to this case. See Spanish Wells Property Ass’n v. Board of Adjustment, 295 S.C. 67, 367 S.E.2d 160 (1988) (rule that permittee is necessary party in appeal of action challenging issuance of building permit serves judicial economy by ensuring that permittee will be bound if permit approval is reversed); S.C. Const, art. I, § 22 (2009) (“No person shall be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard; ... nor shall he be deprived of liberty or property unless by a mode of procedure prescribed by the General Assembly, and he shall have in all such instances the right to judicial review.”); Ross v. Medical University of South Carolina, 328 S.C. 51, 68, 492 S.E.2d 62, 71 (1997) (“We have interpreted [article I, section 22 of the South Carolina Constitution] as specifically guaranteeing persons the right to notice and an opportunity to be heard by an administrative agency, even when a contested case under the APA is not involved.”); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

Likewise, the majority reaches the questions whether DHEC’s final decision was rendered a nullity and whether the notice of proposed decision became a final agency decision even though these questions have not been raised to us and a necessary party, the permit applicant, is not before us. I would not reach these questions without affording the appropriate parties an opportunity to be heard, and thus do not join that portion of the majority opinion.

TOAL, C.J., concurring in part and dissenting in part in a separate opinion in which BEATTY and HEARN, JJ., concur. KITTREDGE, J., dissenting in a separate opinion.

1 . When a § 401 Certification is issued, no separate permit for construction in navigable waters is required. Instead, the 401 Certification serves as the construction permit. Before DHEC may issue the permit, however, the staff reviewing the certification application is "required to coordinate with the Construction in Navigable Waters Permitting staff to insure" that the regulatory requirements for the construction permit are met. 1 S.C.Code Ann. Regs. 19-450.3(G).

2 . The title the Act reads as follows:

A JOINT RESOLUTION TO DIRECT THE STATE PORTS AUTHORITY TO CONTINUE AND BRING TO ITS EARLIEST CONCLUSION THE CONDEMNATION ACTION IT HAS BEGUN INVOLVING APPROXIMATELY ONE THOUSAND EIGHT HUNDRED ACRES IN JASPER COUNTY NEEDED TO DEVELOP NEW TERMINAL FACILITIES; TO PROVIDE THAT THE POWER AND AUTHORITY OF JASPER COUNTY TO UNDERTAKE ANY CONDEMNATION ACTION REGARDING THIS APPROXIMATELY ONE THOUSAND EIGHT HUNDRED ACRES IN JASPER COUNTY OR ANY OTHER CONDEMNATION ACTION IN REGARD TO THE DEVELOPMENT OF TERMINAL FACILITIES IN JASPER COUNTY IS SUSPENDED FOR A PERIOD OF THREE YEARS FROM THE EFFECTIVE DATE OF THIS JOINT RESOLUTION; TO DIRECT THE STATE PORTS AUTHORITY TO CONTINUE AND COMPLETE CERTAIN OTHER ACTIONS BEGUN BEFORE THE EFFECTIVE DATE OF THIS JOINT RESOLUTION IN REGARD TO THESE NEW TERMINAL FACILITIES; TO DIRECT THE STATE PORTS AUTHORITY TO BEGIN SPECIFIC NEW UNDERTAKINGS WITHIN A STIPULATED TIME FRAME UPON FINAL CONCLUSION INCLUDING ALL APPEALS OF THE ABOVE CONDEMNATION ACTION, TO ESTABLISH THE SAVANNAH RIVER MARITIME COMMISSION AND PROVIDE FOR ITS MEMBERSHIP, FUNCTIONS, DUTIES, AND RESPONSIBILITIES, AND TO ESTABLISH THE JASPER COUNTY PORT FACILITY INFRASTRUCTURE FUND AND FOR THE USE OF MONIES IN THE FUND.

Act No. 56, 2007 Acts 181 (H.B. 3505).