IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA18-712

Filed: 2 June 2020

Beaufort County, No. 15 CVS 262

Carteret County, No. 16 CVS 1272

SOUND RIVERS, INC. and NORTH CAROLINA COASTAL FEDERATION, INC., 

Petitioners,

v.

N.C. DEPARTMENT OF ENVIRONMENTAL QUALITY, DIVISION OF WATER 

RESOURCES, Respondent, MARTIN MARIETTA MATERIALS, INC., RespondentIntervenor.

Appeal by respondent North Carolina Department of Environmental Quality, 

Division of Water Resources, respondent-intervenor Martin Marietta Materials, Inc., 

and cross-appeal by petitioners Sound Rivers, Inc. and North Carolina Coastal 

Federation, Inc., from orders entered 13 November 2015 by Judge W. Douglas 

Parsons in Superior Court, Beaufort County, 30 October 2017, 4 December 2017, and 

20 December 2017 by Judge Joshua W. Willey, Jr in Superior Court, Carteret County. 

Heard in the Court of Appeals 22 May 2019.

Southern Environmental Law Center, by Geoffrey R. Gisler, Blakely E. 

Hildebrand, and Jean Zhuang, for petitioner-appellees. 

Attorney General Joshua H. Stein, by Assistant Attorney General Asher P. 

Spiller and Assistant Attorney General Scott A. Conklin, for respondentappellant. 

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Matthew B. 

Tynan, George W. House, Alexander Elkan and V. Randall Tinsley, for 

respondent-intervenor-appellant. 
SOUND RIVERS, INC. V. NC DEP’T OF ENVTL. QUALITY

Opinion of the Court

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STROUD, Judge.

This case arises from the issuance of a National Pollutant Discharge 

Elimination System Permit (“Permit”) by respondent North Carolina Department of 

Environmental Quality, Division of Water Resources (“DEQ”) to respondentintervenor Martin Marietta Materials, Inc., (“Martin Marietta”) allowing respondent 

Martin Marietta to discharge wastewater from Vanceboro Quarry (“quarry”) into 

“unnamed tributaries to Blounts Creek[.]” The Administrative Law Judge (“ALJ”) of 

the Office of Administrative Hearings (“OAH”) entered a final decision affirming the 

issuance of the Permit. Petitioners Sound Rivers, Inc. and North Carolina Coastal 

Federation, Inc. (“Petitioners”) filed a petition for judicial review with the superior 

court.

1 The superior court reversed the ALJ’s final decision based upon a failure to 

“ensure reasonable compliance with the biological integrity standard” (“biological 

integrity standard”) found in the North Carolina Administrative Code (“Code”) but 

concluded that the Permit was in compliance with other water quality standards, 

including “swamp waters supplemental classification and the state antidegradation 

rule” (“swamp waters”) and pH (“pH standards”).

 

1 Petitioner Sound Rivers, Inc. was known as the Pamlico-Tar River Foundation when the original 

petition for a contested case hearing was filed; it noted its name had changed to Sound Rivers, Inc. 

effective 1 April 2015 in its 20 April 2015 petition for judicial review. For simplicity, we will refer to 

the petitioner throughout this opinion as Sound Rivers.
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Respondent Martin Marietta and respondent DEQ appeal from the superior 

court’s order reversing the ALJ’s order due to its conclusion on biological integrity 

standards. Petitioners cross-appeal from the superior court’s order based upon its 

conclusion that the Permit reasonably ensured compliance with water quality 

standards regarding swamp waters and pH standards. We note at the outset that at 

all stages of the proceedings, the parties have filed numerous documents, including 

briefs, motions, proposed drafts of orders, responses, and exhibits; in this opinion we 

will mention only those documents relevant to the issue on appeal as the documents 

are so voluminous, but we have reviewed all of the documents before us and after 

review of the briefs, record, and transcripts, we affirm the superior court’s order as to 

swamp waters and pH standards and reverse as to the biological integrity standard. 

I. Factual and Procedural Background

In September of 2013, Sound Rivers and North Carolina Coastal Federation 

filed a petition for a contested case hearing on DEQ’s issuance of the Permit on 24 

July 2013 to Martin Marietta. According to the petition, the Permit authorized 

Martin Marietta to “the discharge of 12 million gallons of mine wastewater into 

tributaries of Blounts Creek each day.” Petitioners alleged the Permit violated 

“applicable laws” attached and incorporated into the petition. 

The Permit was issued under the provisions of North Carolina General Statute 

§ 143-215.1 and “other lawful standards and regulations promulgated and adopted 
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by the North Carolina Environmental Management Commission, and the Federal 

Water Pollution Control Act, as amended[.]” The Permit was effective on 1 September 

2013 and would expire on 31 August 2018.2 The Permit allowed Martin Marietta to 

discharge water pumped from its quarry “from two pit clarification ponds” identified 

on an attached map into “receiving waters designated as unnamed tributaries to 

Blounts Creek in the Tar-Pamlico River Basin in accordance with effluent limitations, 

monitoring requirements, and other conditions set forth in Parts I, II, and III” of the 

Permit. The supplement to the Permit cover sheet noted that the “unnamed 

tributary” into which the wastewater would be discharged was “classified as CSwamp NSW waters in the Tar-Pamlico River Basin.” In this opinion, we will refer 

to the waters into which wastewater from the quarry would be discharged as “Blounts 

Creek.”

In September of 2013, respondent DEQ submitted a prehearing statement 

identifying the issues to be resolved as

 

2 No party has argued this case may be moot based upon the fact that the Permit as issued would have 

expired in 2018. “A case is ‘moot’ when a determination is sought on a matter which, when rendered, 

cannot have any practical effect on the existing controversy. Thus, the case at bar is moot if an 

intervening event had the effect of leaving plaintiff with no available remedy. A moot claim is not 

justiciable, and a trial court does not have subject matter jurisdiction over a non-justiciable claim. 

Moreover, if the issues before the court become moot at any time during the course of the proceedings, 

the usual response is to dismiss the action for lack of subject matter jurisdiction.” Cumberland Cnty. 

Hosp. Sys., Inc. v. N.C. Dep’t of Health & Human Servs., 242 N.C. App. 524, 528-29, 776 S.E.2d 329, 

333 (2015) (citations, quotation marks, brackets omitted). But an exception to the mootness doctrine 

applies to this case because it is “capable of repetition, yet evading review[.]” Id. at 529, 776 S.E.2d at 

333-34 (“Two elements are required for the capable of repetition, yet evading review exception to apply: 

(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or 

expiration, and (2) there is a reasonable expectation that the same complaining party would be 

subjected to the same action again.” (citations, quotation marks, and brackets omitted)).
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Opinion of the Court

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[(1)] whether Respondent, properly issued the Permit 

pursuant to Article 21, Chapter 143 of the North Carolina 

General Statutes and the applicable rules promulgated 

thereunder, including but not limited to 15A NCAC 

2B.0200 et. seq.; and [(2)] whether Respondent, in issuing 

the Permit substantially prejudiced Petitioner’s rights and 

erred in one or more of the five ways enumerated in N.C. 

Gen. Stat. § 150B-23(a).

Martin Marietta, who had intervened, also submitted a prehearing statement 

contending the Permit “would not violate water quality standards” and noted that 

the Permit had been issued “after years of pre-permitting work, the submission of

engineering, economic, and ecological studies and materials by Martin Marietta, and 

extensive review and analysis by DWR [, Division of Water Resources,] and other 

state and federal government agencies.” Martin Marietta contended state and federal 

regulatory personnel had thoroughly analyzed the proposed permit over about

eighteen months, including “site visits, field work, numerous communications and 

meetings, the further submission of materials and studies by Martin Marietta, and 

public comment and a public hearing, in which Petitioners and their members and 

counsel participated.” Thus, Martin Marietta contended state and federal regulatory 

personnel had already considered the “claims asserted by Petitioners in this contested 

case” and DEQ “correctly concluded that the proposed discharge allowed by the NPDS 

Permit would not violate water quality standards and lawfully and appropriately

issued the NPDES Permit.”

On 6 November 2013, Petitioners filed their prehearing statement contending 
SOUND RIVERS, INC. V. NC DEP’T OF ENVTL. QUALITY

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that the Permit did not comply with biological integrity standards, protection of 

swamp waters, and pH standards, and identifying the issues as:

1. The Clean Water Act and state laws implementing 

it prohibit discharges that violate any water quality 

standard. State water quality standards for waters 

like Blounts Creek prohibit any discharge that will 

make a waterbody unsuitable for native plants and 

animals, violating its “biological integrity.” Martin 

Marietta’s proposed discharge of 12 million gallons 

of mine wastewater per day into Blounts Creek 

would displace native fish, macroinvertebrates 

(insects, mollusks, crayfish, etc.) and plants. Did 

DWR exceed its authority, act erroneously, fail to 

use proper procedure, act arbitrarily or capriciously 

or fail to act as required by rule or law “err”) by 

authorizing the discharge?

2. The Clean Water Act and state laws implementing 

it prohibit discharges that violate any water quality 

standard. The state water quality standard for pH 

is the normal pH for the waterbody receiving a 

discharge, which is between 4.0 and 5.5 in Blounts 

Creek. Did DWR err by authorizing a discharge that 

would raise the pH in the creek to a minimum of 6.3 

to 6.9?

3. The Clean Water Act and state laws implementing 

it require classification of waters to protect existing 

uses. North Carolina has classified Blounts Creek 

as swamp waters to protect characteristics unique to 

these waters, including low flow and velocity, low 

pH, and high tannin levels. Did DWR err by issuing 

a permit for a discharge that will cause Blounts 

Creek to have higher flow and velocity, near neutral 

pH, and low tannin levels, thereby no longer 

qualifying as swamp waters?

In November of 2014 Petitioners filed a motion for summary judgment on the 
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issues of whether Petitioners were “persons aggrieved” under North Carolina’s 

Administrative Procedure Act and whether DWR had exceeded its authority or failed 

to act as required by law based upon failure to ensure compliance with the biological 

integrity water quality standard, the pH water quality standard, and Blounts Creek’s 

swamp waters classification. Petitioners also submitted numerous affidavits to 

support their motion. On 25 November 2014, Martin Marietta filed a motion for 

summary judgment.

On 23 March 2015, the ALJ entered an order granting summary judgment for 

respondents. The order stated at length the undisputed facts and concluded

“Petitioners are not ‘Persons Aggrieved[;]’” “Respondent’s Decision to Issue the 

Permit was Not in Violation of N.C. Gen. Stat. § 150B-23(a)[;]” “Respondent Ensured 

Compliance with Biological Integrity Standard[;]” “Respondent Ensured Compliance 

with pH Water Quality Standards[;]” and “Respondent Protected Existing Uses[.]” 

The ALJ also noted the “Re-opener Provision” of the Permit:

The permit issued to the Respondent-Intervenor 

allows the Respondent to re-open and modify the permit if 

water quality standards are threatened or other monitored 

data cause concern. Even if Petitioner provided evidence 

of specific and particularized potential violations of water 

quality standards, the re-opener provision assures 

reasonable compliance with those standards.

In summary, the ALJ concluded,

There is no evidence that Petitioners’ rights have 

been substantially prejudiced, or that Respondent 
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exceeded its authority or jurisdiction, acted erroneously, 

failed to use proper procedure, acted arbitrarily or 

capriciously, or failed to act as required by law or rule.

For the reasons discussed herein, there is no genuine 

issue as to any material fact. Respondent’s Motion for 

Summary Judgment is allowed; Respondent-Intervenor’s 

Motion for Summary Judgment is allowed. Petitioners’

Motion for Summary Judgment is denied, and Petitioners 

are not entitled to the relief requested in the petition.

On 20 April 2015, Petitioners filed a petition for judicial review of the summary 

judgment order contesting the ALJ’s determinations. On 20 May 2015, Martin 

Marietta responded to and filed a motion to dismiss petitioners’ petition for judicial 

review, arguing the superior court did not have subject matter jurisdiction because 

petitioners are not “persons aggrieved” and therefore not entitled to judicial review. 

On 13 November 2015, the superior court entered its order denying Martin Marietta’s

motion to dismiss and denying petitioner’s petition on all grounds except for the issue 

of “persons aggrieved.” The superior court concluded petitioners were persons 

aggrieved and remanded the matter back to OAH for a “full plenary hearing[.]”

After a “hearing on the merits May 31, 2016 through June 9, 2016[,]” on 30 

November 2016, the ALJ issued a 62-page final decision. The final decision addressed 

four primary issues:

Issue 1: “pH Claim”: Whether Petitioners have met their 

burden of proving that Respondent exceeded its authority 

or jurisdiction, acted erroneously, failed to use proper 

procedure, acted arbitrarily or capriciously, or failed to act 

as required by law or rule in determining the NPDES 
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Permit reasonably ensures compliance with the pH water 

quality standard.

Issue 2: “Swamp Waters Claim”: Whether Petitioners 

have met their burden of proving that Respondent 

exceeded its authority or jurisdiction, acted erroneously, 

failed to use proper procedure, acted arbitrarily or 

capriciously, or failed to act as required by law or rule in 

determining the NPDES Permit reasonably ensures 

compliance with water quality standards and regulations 

related to the “Swamp Waters” supplemental 

classification.

Issue 3: “Biological Integrity Claim”: Whether 

Petitioners have met their burden proving that Respondent 

exceeded its authority or jurisdiction, acted erroneously, 

failed to use proper procedure, acted arbitrarily or 

capriciously, or failed to act as required by law or rule in 

determining the NPDES Permit reasonably ensures 

compliance with the biological integrity water quality 

standard.

Issue 4: Substantial Prejudice: Whether Petitioners 

have met have their burden of proving that Respondent

substantially prejudiced Petitioners’ rights in issuing the 

NPDES Permit.

The ALJ made 311 findings of fact; we will address some of these findings of 

fact below in detail in our discussion of the challenged findings applicable to each 

issue. The order ultimately denied Petitioners’ claims based upon two alternative 

and independent grounds: First, “Petitioners failed to meet their burden of proving 

by a preponderance of evidence that Respondent DWR exceeded its authority or 

jurisdiction, acted erroneously, acted arbitrarily and capriciously, used improper 

procedure, or failed to act as required by law or rule in issuing the NPDES Permit.” 
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Second, as an independent and alternative basis for the ruling, “Petitioners failed to 

carry their burden of proof by a preponderance of the evidence that their rights have 

been substantially prejudiced by Respondent DWR’s issuance of the NPDES Permit.” 

In December of 2016, Petitioners filed a petition in superior court for judicial 

review of the ALJ’s final decision. Petitioners alleged the order was in error in that 

“The Final Decision Contains Findings of Fact Unsupported by Substantial Evidence, 

Findings That Are Arbitrary, Capricious, or an Abuse Of Discretion, and Findings 

Affected By Other Errors Of Law[;]” “The ALJ’s Conclusion That Petitioners Are Not 

Substantially Prejudiced Is Erroneous[;]” “The ALJ’s Grant of Deference to DWR 

Staff And [Martin Marietta] Consultants Is An Error Of Law[;]” “The ALJ’s 

Conclusion That DWR Complied with the Biological Integrity Standard Is 

Erroneous[;]” “The ALJ’s Conclusion That DWR Complied with the pH Standard Is 

Erroneous[;]” “The ALJ’s Conclusions of Law Regarding the Swamp Waters 

Classification And Antidegradation Rules Are Erroneous[;]” and “The ALJ’s 

Conclusion That the Required Reopener Provision Ensures Compliance With Water 

Quality Standards Is Erroneous[.]” 

On 30 January 2017, Martin Marietta filed a motion to dismiss the petition 

under North Carolina General Statute § 150B-46 and North Carolina Rule of Civil 

Procedure 12 because the petition for judicial review was not timely served. On 30 

October 2017, the superior court denied Martin Marietta’s motion to dismiss. On 4 
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December 2017, the superior court denied Martin Marietta’s motion to dismiss for 

failure to state a claim under North Carolina Rule of Civil Procedure 12(b)(6).

On 20 December 2017, the superior court entered its order on petition for 

judicial review. The superior court noted these issues:

I. Did the ALJ err in admitting, considering, or 

determining the credibility or weight of evidence?

II. Did the ALJ err in upholding DWR’s issuance of the 

Permit as reasonably ensuring compliance with:

A. The swamp waters supplemental 

classification and antidegradation rule;

B. The water quality standard for pH; and 

C. The water quality standard for biological 

integrity?

III. Did the ALJ err in holding that the Permit’s 

monitoring and reopener provisions further 

reasonably ensure compliance with state water 

quality standards?

IV. Did the ALJ err in holding that Petitioners failed to 

prove their rights were substantially prejudiced?

The superior court entered its order in paragraph form with no numbered findings of 

fact and with two conclusions of law. Ultimately, the superior court concluded 

Petitioners were “substantially prejudiced by the issuance of the Permit and are 

entitled to the relief sought.” On the substantive issues regarding water quality 

standards, the superior court concluded that DEQ “did not ensure reasonable 

compliance with the biological integrity standard as set forth in 15A N.C.A.C. 02B 
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Opinion of the Court

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.211(2), 0220(2), and 0202(11)” and therefore reversed the final decision of the ALJ 

and vacated the Permit.

Over the course of 10 days, all parties filed written notices of appeal and crossappeal, seeking review of the following orders:

1. 13 November 2015 order granting summary judgment to Petitioners regarding 

being “persons aggrieved” and denying all other matters;

2. 27 February 2017 ruling from the superior court denying Martin Marietta’s

motion to dismiss and granting Petitioners’ motion for extension of time;

3. 30 October 2017 order memorializing 27 February 2017 ruling that denied

Martin Marietta’s motion to dismiss and granted Petitioners’ motion for 

extension of time;

4. 4 December 2017 order denying Martin Marietta’s motion to dismiss, and

5. 20 December 2017 superior court order on the petition for judicial review

vacating the Permit.

II. Preliminary Issues

We begin our analysis by addressing preliminary issues.

A. Martin Marietta’s Motion to Dismiss

On 30 January 2017, Martin Marietta filed a motion to dismiss the petition for 

judicial review under North Carolina General Statute § 150B-46 and North Carolina 

Rule of Civil Procedure 12 because it was not timely served on Martin Marietta. On 

30 October 2017, the superior court denied Martin Marietta’s motion to dismiss. 

North Carolina General Statute § 150B-46 (2017) provides, “Within 10 days after the 

petition is filed with the court, the party seeking the review shall serve copies of the 
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petition by personal service or by certified mail upon all who were parties of record to 

the administrative proceedings.” According to the motion, the petition was filed on 

28 December 2016, but Martin Marietta was not actually served until 17 January 

2017. On 30 October 2017, the superior court denied Martin Marietta’s motion to 

dismiss and extended the time for service. 

Martin Marietta relies upon In re State ex rel. Employment Security

Commission, 234 N.C. 651, 68 S.E.2d 311 (1951), arguing Petitioner’s appeal must be 

dismissed due to late service of the notice:

There is no inherent or inalienable right of appeal from an 

inferior court to a Superior Court or from a Superior Court 

to the Supreme Court. 

A fortiori, no appeal lies from an order or decision of 

an administrative agency of the State or from the 

judgments of special statutory tribunals whose proceedings 

are not according to the course of the common law, unless 

the right is granted by statute. If the right exists, it is 

brought into being, and is a right granted, by legislative 

enactment. 

There can be no appeal from the decision of an 

administrative agency except pursuant to specific 

statutory provision therefor.

Obviously then, the appeal must conform to the 

statute granting the right and regulating the procedure. 

The statutory requirements are mandatory and not 

directory. They are conditions precedent to obtaining a 

review by the courts and must be observed. Noncompliance 

therewith requires dismissal. 

. . . .

This statement of the grounds of the appeal must be 

filed within the time allowed for appeal. Its purpose is to 

give notice to the Commission and adverse parties of the 

alleged errors committed by the Commission and limit the 
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scope of the hearing in the Superior Court to the specific 

questions of law raised by the errors assigned. Clearly it 

was intended, and must be construed, as a condition 

precedent to the right of appeal. Noncompliance therewith 

is fatal.

Id. at 653-54, 68 S.E.2d at 312 (emphasis added). Although the petition for judicial 

review was timely filed, Martin Marietta contends because Petitioners failed to serve 

the notice of appeal upon Martin Marietta within 10 days under North Carolina 

General Statute § 150B-46, the superior court never obtained subject matter 

jurisdiction. The superior court thus had no jurisdiction to extend the time for 

service, so Martin Marietta’s motion to dismiss should have been allowed for lack of 

subject matter jurisdiction. 

We review a motion to dismiss for lack of subject matter jurisdiction de novo. 

See Hardy ex rel. Hardy v. Beaufort Cty. Bd. of Educ., 200 N.C. App. 403, 408, 683 

S.E.2d 774, 778 (2009) (“Subject matter jurisdiction is a prerequisite for the exercise 

of judicial authority over any case or controversy. The standard of review on a motion 

to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction is de novo. 

(citation omitted)). While the file stamp is not legible on the petition for judicial 

review, Martin Marietta concedes that the petition was filed with the superior court 

on 28 December 2016, and thus within the time period established by North Carolina 

General Statute § 150B-45 to invoke jurisdiction from the final decision entered on 
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30 November 2016. See N.C. Gen. Stat. § 150B-45 (2017)3 (“To obtain judicial review 

of a final decision under this Article, the person seeking review must file a petition 

within 30 days after the person is served with a written copy of the decision.”). In NC 

Department of Public Safety v. Owens, this Court held “that the superior court has 

the authority to grant an extension in time, for good cause shown, to a party to serve 

the petition beyond the ten days provided for under G.S. 150B–46.” 245 N.C. App. 

230, 234, 782 S.E.2d 337, 340 (2016). Under Owens, the superior court had subject 

matter jurisdiction and properly extended the time for service and thus denied the 

motion to dismiss. See id. Because Martin Marietta raises only the issue of subject 

matter jurisdiction in its brief, and not the substance of the good cause shown, we end 

our analysis here. This argument is overruled. 

B. Standing of Petitioners as “Persons Aggrieved”

Martin Marietta next contends that the superior court erred in determining 

that petitioners were substantially prejudiced by DEQ’s issuance of the Permit. 

At the outset, we must determine our standard of 

review. That standard of review will depend upon the 

nature of the error alleged in the petition for judicial 

review. If errors of law are alleged, our review is de novo. 

If the alleged error is that the final agency decision is not 

supported by the evidence, we employ the whole record

test.

Curtis v. N.C. Dep’t of Transp., 140 N.C. App. 475, 478, 537 S.E.2d 498, 501 (2000)

 

3 North Carolina General Statute § 150B-45 was amended in 2018; the amendment does not affect this 

case. See N.C. Gen. Stat. § 150B-45 (2018).
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(citations and quotation marks omitted). 

North Carolina General Statute § 150B-23 provides,

(a) A contested case shall be commenced by 

paying a fee in an amount established in G.S. 150B-23.2 

and by filing a petition with the Office of Administrative 

Hearings and, except as provided in Article 3A of this 

Chapter, shall be conducted by that Office. The party who 

files the petition shall serve a copy of the petition on all 

other parties and, if the dispute concerns a license, the 

person who holds the license. A party who files a petition 

shall file a certificate of service together with the petition.

A petition shall be signed by a party, an attorney 

representing a party, or other representative of the party 

as may specifically be authorized by law, and, if filed by a 

party other than an agency, shall state facts tending to 

establish that the agency named as the respondent has 

deprived the petitioner of property, has ordered the 

petitioner to pay a fine or civil penalty, or has otherwise 

substantially prejudiced the petitioner’s rights and that the 

agency:

(1) Exceeded its authority or jurisdiction;

(2) Acted erroneously;

(3) Failed to use proper procedure;

(4) Acted arbitrarily or capriciously; or

(5) Failed to act as required by law or rule.

The parties in a contested case shall be given an 

opportunity for a hearing without undue delay. Any person 

aggrieved may commence a contested case hereunder.

N.C. Gen. Stat. § 150B-23(a) (2013) (emphasis added).

4 Petitioners have not alleged 

they were deprived of property or were ordered to pay a fine or civil penalty, and thus 

they must show substantial prejudice. See id. North Carolina General Statute § 

 

4 Subsection(f) was amended in 2018. See N.C. Gen. Stat. § 150B-23 (2018).
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150B-29 provides, “The party with the burden of proof in a contested case must 

establish the facts required by G.S. 150B-23(a) by a preponderance of the evidence.” 

N.C. Gen. Stat. § 150B-29 (2013). Thus, in this case, petitioners had to establish 

substantial prejudice by a preponderance of the evidence. See N.C. Gen. Stat. §§

150B-23, -29.

In Empire Power Co. v. North Carolina Department of Environmental Health 

and Natural Resources, our Supreme Court discussed the meaning of the term 

“person aggrieved” in a case with a similar context, arising from issuance of a draft

air quality permit for a proposed turbine electric generating station. 337 N.C. 569, 

572, 447 S.E.2d 768, 770 (1994). As explained in Empire Power Co.,

Under the NCAPA, any “person aggrieved” within 

the meaning of the organic statute is entitled to an 

administrative hearing to determine the person’s rights, 

duties, or privileges. N.C.G.S. § 150B–23(a). “‘Person 

aggrieved’ means any person or group of persons of 

common interest directly or indirectly affected 

substantially in his or its person, property, or employment, 

by an administrative decision.” N.C.G.S. § 150B–2(6). 

Under the predecessor judicial review statute, which did 

not define the term, the Court gave it an expansive 

interpretation:

The expression “person aggrieved” has 

no technical meaning. What it means depends 

on the circumstances involved. It has been 

variously defined: “Adversely or injuriously 

affected; damnified, having a grievance, 

having suffered a loss or injury, or injured; 

also having cause for complaint. More 

specifically the word(s) may be employed 

meaning adversely affected in respect of legal 
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rights, or suffering from an infringement or 

denial of legal rights.”

In re Assessment of Sales Tax, 259 N.C. at 595, 131 S.E.2d 

at 446 (quoting 3 C.J.S. Aggrieved, at 509 (1973)). For the 

following reasons, we conclude that Clark is a “person 

aggrieved” as defined by the NCAPA within the meaning 

of the organic statute.

Clark alleged that DEHNR issued the permit 

allowing construction and operation of air emission sources 

at the LCTS in violation of its statutory and regulatory 

duties: to act on all permit applications “so as to effectuate 

the [legislative] purpose . . . by reducing existing air 

pollution and preventing, so far as reasonably possible, any 

increased pollution of the air from any additional or 

enlarged sources,” N.C.G.S. § 143–215.108(b); to reduce 

levels of ozone pollution in the Mecklenburg County area; 

to assess fully the impact of emissions of air pollutants 

from the LCTS on levels of ozone pollution in Mecklenburg 

County; to assess fully the impact of sulfur dioxide 

emissions from the LCTS; to require air pollution control 

technology adequate to control the emission of potentially 

harmful pollutants from the LCTS; and to require Duke 

Power to cause air quality offsets. Clark also alleged that 

DEHNR issued the permit in violation of its statutory duty 

to adequately address comments filed by Clark and other 

members of the public during the public comment period.

Clark further alleged that, as the owner of property 

immediately adjacent to and downwind of the site of the 

proposed LCTS—which will emit tons of harmful air 

pollutants if constructed and operated in accordance with 

its air quality permit—he and his family will suffer injury 

to their health, the value of their property, and the quality 

of life in their home and their community.

In enacting the air pollution control provisions, the 

General Assembly, as noted above, declared its intent 

to achieve and to maintain for the citizens of 

the State a total environment of superior 

quality. Recognizing that the water and air 

resources of the State belong to the people, the 

General Assembly affirm[ed] the State’s 
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ultimate responsibility for the preservation 

and development of these resources in the 

best interest of all its citizens and declare[d] 

the prudent utilization of these resources to 

be essential to the general welfare.

N.C.G.S. § 143-211. To further that intent, the General 

Assembly mandated that standards of water and air purity 

be designed, and programs implemented to achieve those 

standards, 

to protect human health, to prevent injury to 

plant and animal life, to prevent damage to 

public and private property, to insure the 

continued enjoyment of the natural 

attractions of the State, to encourage the 

expansion of employment opportunities, to 

provide a permanent foundation for healthy 

industrial development and to secure for the 

people of North Carolina, now and in the 

future, the beneficial uses of these great 

natural resources.

Id. (emphasis added).

Clearly, Clark alleged sufficient injury in fact to 

interests within the zone of those to be protected and 

regulated by the statute, and rules and standards 

promulgated pursuant thereto, the substantive and 

procedural requirements of which he asserts the agency 

violated when it issued the permit. As an adjacent property 

owner downwind of the LCTS, Clark may be expected to 

suffer from whatever adverse environmental consequences 

the LCTS might have. In addition, a judgment in favor of 

Clark would substantially eliminate or redress the injury 

likely to be caused by the decision to permit Duke Power to 

build the LCTS. Clark therefore is a “person aggrieved” 

within the meaning and intent of the air pollution control 

act. See Orange County v. Dept. of Transportation, 46 N.C.

App. 350, 360–62, 265 S.E.2d 890, 898–99, disc. rev. denied, 

301 N.C. 94 (1980) (plaintiffs were all “aggrieved,” within 

the meaning of the NCAPA provision, by a decision of the 

State Board of Transportation on the location of an 

interstate highway where the individual plaintiffs were 
SOUND RIVERS, INC. V. NC DEP’T OF ENVTL. QUALITY

Opinion of the Court

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property owners within the proposed corridor of the 

highway, the members of plaintiff non-profit corporation 

were citizens and taxpayers who lived in or near the 

proposed highway corridor, plaintiff county’s tax base and 

planning jurisdiction would be affected, and individual 

plaintiffs would be affected as taxpayers; further, the 

“procedural injury” implicit in the failure of an agency to 

prepare an environmental impact statement was itself a 

sufficient “injury in fact” to support standing as an 

“aggrieved party” under former N.C.G.S. § 150A–43, as 

long as such injury was alleged by a plaintiff having 

sufficient geographical nexus to the site of the challenged 

project that he might be expected to suffer whatever 

environmental consequences the project might have); State 

of Tennessee v. Environmental Management Comm., 78 

N.C. App. 763, 766–67, 338 S.E.2d 781, 783 (1986) (a 

consent special order issued by respondent agency to a 

corporation allowing it to discharge effluents into a river 

was issued without a hearing and by its own terms 

purported to take precedence over the terms of a proposed 

National Pollutant Discharge Elimination System permit 

to the corporation, so that the right of petitioner to be heard 

was impaired; petitioner therefore qualified as an 

“aggrieved person” for purposes of judicial review; further, 

petitioner alleged that its property rights in the river were 

affected, and these allegations also established petitioner's 

“aggrieved person” status); see generally 2 Am. Jur. 2d 

Administrative Law §§ 443–50 (1994) (“Persons Adversely 

Affected or Aggrieved”).

Id. at 588-90, 447 S.E.2d at 779-81 (alterations in original) (emphasis added).

Here, similar to Empire Power Co. and the cases quoted within Empire, 

Petitioners alleged substantial prejudice in that the Permit was issued without 

compliance with applicable regulations in that Martin Marietta’s “proposed discharge 

of 12 million gallons of mine wastewater per day into Blounts Creek would displace 
SOUND RIVERS, INC. V. NC DEP’T OF ENVTL. QUALITY

Opinion of the Court

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native fish, macroinvertebrates (insects, mollusks, crayfish, etc.) and plants[,]” and 

the wastewater would cause “higher flow and velocity, near neutral pH, and low 

tannin levels” meaning Blounts Creek would no longer qualify as swamp waters. See 

generally id. 

More specifically, one of the individuals who filed an affidavit in support of 

Petitioners, Mr. Jimmy Daniels, averred that he was a member of the Pamlico-Tar 

River Foundation and both his “home and business, [“Cotton Patch Landing, a boat 

ramp and marina,”] are right on the banks of Blounts Creek.” Mr. Daniels described 

in detail the biodiversity in Blounts Creek and how it draws people “from all across 

the state[.]” Mr. Daniels averred that he boated “a couple of times a week” and 

enjoyed the wildlife diversity; through Cotton Patch Landing, he sells fishing 

supplies, stores and maintains boats, and engages in commercial activities involving 

his boat ramp. Mr. Daniels also noted the hundreds of thousands of dollars he has 

invested into his business and stated that based on his experience with Blounts 

Creek, he believed Martin Marietta’s wastewater being dumped “into the 

headwaters” “will change the way the whole system works.” Mr. Daniels explained 

specifically why and how the wastewater would affect his business and personal 

interests and noted “word of mouth concerning the discharge” had already had a 

negative effect on Cotton Patch Landing when a fishing tournament previously held 

at Cotton Patch Landing was moved due to fears over how the wastewater would 
SOUND RIVERS, INC. V. NC DEP’T OF ENVTL. QUALITY

Opinion of the Court

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impact fishing for the tournament. Mr. Daniels noted Cotton Patch Landing lost 

approximately $5,000 from the tournament move. Again, Mr. Daniels is but one of 

many affiants noting similar issues with the wastewater being dumped into Blounts 

Creek. We view the interests of Mr. Daniels and other affiants about wastewater in 

Blounts Creek to be similar to the complainant in Empire Power Co., who alleged, 

as the owner of property immediately adjacent to and 

downwind of the site of the proposed LCTS—which will 

emit tons of harmful air pollutants if constructed and 

operated in accordance with its air quality permit—he and 

his family will suffer injury to their health, the value of 

their property, and the quality of life in their home and 

their community.

Id. at 589, 447 S.E.2d at 780.

While Martin Marietta contends that Petitioner’s alleged prejudice amounts 

only to speculation as to the effects of the discharge of water allowed by the Permit,

allegations as to potential prejudice here are no different from the allegations of 

potential air pollution in Empire Power Co., as the actual effects cannot be known for 

certain until the discharge occurs. See generally id., 337 N.C. 569, 447 S.E.2d 768. 

In addition, this Court has clarified that in a challenge based upon an alleged failure 

of an agency or department of the State to follow its own guidelines, the prejudice 

standard differs from that in other types of civil cases. See, e.g., N.C. Forestry Ass’n 

v. N.C. Dep’t of Env’t & Natural Res., Div. of Water Quality, 357 N.C. 640, 644, 588 

S.E.2d 880, 882–83 (2003) (“In general, individuals adversely affected by a 
SOUND RIVERS, INC. V. NC DEP’T OF ENVTL. QUALITY

Opinion of the Court

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discretionary agency decision generally have standing to complain that the agency 

based its decision upon an improper legal ground.” (citation and quotation marks 

omitted)). Otherwise the burden of showing substantial prejudice would be “nearly 

impossible”:

Because the substance of those policies required the 

Department to consider a number of discretionary factors, 

however, we pointed out that a showing of prejudice would 

be “nearly impossible” for the petitioner to achieve. 

Specifically, we observed that

to show prejudice from failure to follow policy, 

the petitioner would have to show, not only 

how he stood in relation to other employees in 

the same class as to type of appointment, 

length of service, and work performance, but 

he would have to show the weight which the 

Department would attribute to each of those 

factors. The Commission and the reviewing 

court would be relegated to speculating how 

the Department would weigh each factor.

Therefore, we held that it was sufficient to show prejudice 

for the petitioner to establish that the Department failed 

to follow the mandatory policies of the Commission, which 

had been promulgated pursuant to statutory authority. A 

separate showing of prejudice was unnecessary in that 

circumstance. 

Surgical Care Affiliates, LLC v. N.C. Dep’t of Health & Human Servs., 235 N.C. App. 

620, 627, 762 S.E.2d 468, 473 (2014) (citations and brackets omitted).

Here, Petitioners alleged that the Division of Water Resources violated its own 

applicable regulations by issuing the Permit to Martin Marietta which authorized 

“the discharge of 12 million gallons of mine wastewater into tributaries of Blounts 
SOUND RIVERS, INC. V. NC DEP’T OF ENVTL. QUALITY

Opinion of the Court

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Creek each day.” Petitioners have alleged DEQ failed to follow its own policies in 

issuing the Permit and that the discharge of wastewater into Blounts Creek, if done 

in a manner not in compliance with the applicable regulations, would damage the 

water quality, the fish and other biota in Blounts Creek, and the personal and 

commercial benefits derived from Blounts Creek. Petitioners are “within the zone of 

those to be protected and regulated by the statute, and rules and standards 

promulgated pursuant thereto, the substantive and procedural requirements of 

which he asserts the agency violated when it issued the permit.” Empire Power Co., 

337 N.C. at 589, 447 S.E.2d at 780. The superior court did not err in concluding

Petitioners demonstrated their rights were substantially prejudiced and thus they 

are “person[s] aggrieved[.]” Id. at 590, 447 S.E.2d at 780. This argument is 

overruled.5

 

5 Implicit in this holding is also a rejection of Martin Marietta’s argument that “North Carolina courts 

have held that only the state, and not individual plaintiffs, can enforce public trust rights” such as 

interests in fishing, boating, and recreation. As DEQ acknowledges, the cases Martin Marietta cites 

for this proposition are inapposite. This is not a claim under public trust doctrine or any other common 

law action, see Town of Nags Head v. Cherry, Inc., 219 N.C. App. 66, 723 S.E.2d 156 (2012); Fish House, 

Inc. v. Clarke, 204 N.C. App. 130 (2010), but instead a request for review of an agency action pursuant 

to the North Carolina Administrative Procedure Act. In such an action, the organic statute at issue 

defines the rights, duties, and privileges that provide the grounds for the administrative hearing. 

Empire Power Co., 337 N.C. at 583, 447 S.E.2d at 583. North Carolina’s water quality statutes and

associated rules specifically protect water quality for recreational uses. See, e.g., N.C. Gen. Stat. § 

143-214.1(3) (year) (directing adoption of water quality standards and classifications that consider the 

use and value of waters of the state for “recreation”); 15A NCAC 02b.0101(c)(1) (stating Class C are 

freshwaters protected for “secondary recreation” and “fishing”). Petitioners “interests in the waters 

affected” by the discharge at issue “are discrete and particular to [its] certain members who live near, 

or who visit, fish, or shellfish in the affected waters, and are not merely a generalized public interest.” 

Holly Ridge Assoc., LLC v. N.C. Dept’ of Env’t & Natural Resources, 176 N.C. App. 594, 603, 627 S.E.2d 

326, 333 (2006), rev’d on other grounds, 361 N.C. 531, 648 S.E.2d 830 (2007). 
SOUND RIVERS, INC. V. NC DEP’T OF ENVTL. QUALITY

Opinion of the Court

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III. Substantive Issues regarding Permit

We now turn to the substantive issues regarding issuance of the Permit. 

A. Standard of Review

Petitioners raised three arguments regarding DEQ’s failure to ensure 

compliance with applicable water quality standards. The superior court determined

that the ALJ’s order was in error only as to the findings and conclusion regarding 

that DEQ ensured “reasonable compliance with the biological integrity standard as 

set forth in 15A N.C.A.C. 02B .211(2), 0220(2), and 0202(11)[,]” and DEQ and Martin 

Marietta appeal this determination. The superior court affirmed the ALJ’s findings 

and conclusions regarding the other standards – swamp waters and pH standards–

and Petitioners cross-appealed these determinations. We will therefore address the 

arguments as to each substantive issue in the order as addressed by the superior 

court. 

The North Carolina Administrative Procedure Act 

(APA), codified at Chapter 150B of the General Statutes, 

governs trial and appellate court review of administrative 

agency decisions. The APA provides a party aggrieved by 

a final decision in a contested case a right to judicial review 

by the superior court. N.C. Gen. Stat. §§ 150B–43 and –50 

(2017). A party to the review proceeding in superior court 

may then appeal from the superior court’s final judgment 

to the appellate division. N.C. Gen. Stat. § 150B–52 (2017). 

The APA sets forth the scope and standard of review for 

each court.

EnvironmentaLEE v. Dept of Environment, 258 N.C. App. 590, 595, 813 S.E.2d 673, 
SOUND RIVERS, INC. V. NC DEP’T OF ENVTL. QUALITY

Opinion of the Court

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677 (2018). 

When a superior court exercises judicial review over 

an agency’s final decision, it acts in the capacity of an 

appellate court. The APA limits the scope of the superior 

court’s judicial review as follows:

(b) The court reviewing a final decision may 

affirm the decision or remand the case for further 

proceedings. It may also reverse or modify the 

decision if the substantial rights of the petitioners 

may have been prejudiced because the findings, 

inferences, conclusions, or decisions are:

(1) In violation of constitutional 

provisions;

(2) In excess of the statutory authority or 

jurisdiction of the agency or administrative 

law judge;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Unsupported by substantial evidence 

admissible under G.S. 150B-29(a), 150B-30, 

or 150B-31 in view of the entire record as 

submitted; or

(6) Arbitrary, capricious, or an abuse of 

discretion.

N.C. Gen. Stat. § 150B-51 (2017). The superior court’s 

standard of review is dictated by the nature of the errors 

asserted. The APA sets forth the standard of review to be 

applied by the superior court as follows.

(c) In reviewing a final decision in a contested 

case, the court shall determine whether the 

petitioner is entitled to the relief sought in the 

petition based upon its review of the final decision 

and the official record. With regard to asserted 

errors pursuant to subdivisions (1) through (4) of 

subsection (b) of this section, the court shall conduct 

its review of the final decision using the de novo 

standard of review. With regard to asserted errors 

pursuant to subdivisions (5) and (6) of subsection (b) 

of this section, the court shall conduct its review of 
SOUND RIVERS, INC. V. NC DEP’T OF ENVTL. QUALITY

Opinion of the Court

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the final decision using the whole record standard of 

review.

N.C. Gen. Stat. § 150B–51(c).

Id. at 595-96, 813 S.E.2d at 677–78 (citations, quotation marks, and brackets 

omitted).

Our Supreme Court has observed that the first four 

grounds enumerated under this section may be 

characterized as law-based inquiries, whereas the final two 

grounds may be characterized as fact-based inquiries. 

Moreover, it is well settled that in cases appealed from 

administrative tribunals, questions of law receive de novo

review, whereas fact-intensive issues such as the 

sufficiency of the evidence to support an ALJ’s decision are 

reviewed under the whole record test.

Under the de novo standard of review, the Court 

considers the matter anew and freely substitutes its own 

judgment. However, our Supreme Court has made clear 

that even under our de novo standard, a court reviewing a 

question of law in a contested case is without authority to 

make new findings of fact. Under the whole record test, 

the reviewing court may not substitute its judgment for the 

ALJ’s as between two conflicting views, even though it 

could reasonably have reached a different result had it 

reviewed the matter de novo. Instead, we must examine 

all the record evidence—that which detracts from the ALJ’s 

findings and conclusions as well as that which tends to 

support them—to determine whether there is substantial 

evidence to justify the ALJ’s decision. Substantial 

evidence is relevant evidence a reasonable mind might 

accept as adequate to support a conclusion. We undertake 

this review with a high degree of deference because it is 

well established that

in an administrative proceeding, it is the 

prerogative and duty of the ALJ, once all the 

evidence has been presented and considered, 

to determine the weight and sufficiency of the 

evidence and the credibility of the witnesses, 
SOUND RIVERS, INC. V. NC DEP’T OF ENVTL. QUALITY

Opinion of the Court

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to draw inferences from the facts, and to 

appraise conflicting and circumstantial 

evidence. The credibility of witnesses and the 

probative value of particular testimony are for 

the ALJ to determine, and the ALJ may 

accept or reject in whole or part the testimony 

of any witness.

N. Carolina Dep’t of Pub. Safety v. Ledford, 247 N.C. App. 266, 286–87, 786 S.E.2d 

50, 63–64 (2016) (citations, quotation marks, and brackets omitted).

This Court reviews the superior court’s order to determine if the superior court 

applied the correct standard of review based upon the “grounds for reversal or 

modification” argued before the superior court. EnvironmentaLEE, 258 N.C. App. at 

598, 813 S.E.2d at 678-79.

[I]n reviewing a superior court order examining an agency 

decision, an appellate court must determine whether the 

agency decision (1) violated constitutional provisions; (2) 

was in excess of the statutory authority or jurisdiction of 

the agency; (3) was made upon unlawful procedure; (4) was 

affected by other error of law; (5) was unsupported by 

substantial admissible evidence in view of the entire 

record; or (6) was arbitrary, capricious, or an abuse of 

discretion. N.C. Gen. Stat. § 150B–51 (2001). In 

performing this task, the appellate court need only 

consider those grounds for reversal or modification raised 

by the petitioner before the superior court and properly 

assigned as error and argued on appeal to this Court.

Id.

B. Applicable Regulations and Definitions
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Opinion of the Court

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North Carolina General Statute § 143-214.1 directs the North Carolina 

Environmental Management Commission to classify all bodies of water6 in the state 

and to adopt standards for each classification. See N.C. Gen. Stat. § 143-214.1 (2013), 

see also N.C. Gen. Stat. § 143-212 (2013). One body of water may include areas with 

different primary classifications and supplemental classifications, depending upon 

“the existing or contemplated best usage of the various streams and segments of 

streams in the basin, as determined through studies and evaluations and the holding 

of public hearings for consideration of the classifications proposed.” 15A N.C.A.C.

2B.0301 (2013). The water quality standards applicable to a body of water are 

determined by the classification. See generally 15A N.C.A.C. 2B.0301 (2013). The 

primary classification of the portion of Blounts Creek at issue is Class C along with 

supplemental classifications of Sw (“swamp waters”) and NSW (“nutrient sensitive 

waters”). See generally 15A N.C.A.C. 2B.0101, .0301 (2013).

Class C classification is appropriate for “freshwaters protected for secondary 

recreation, fishing, aquatic life including propagation and survival, and wildlife. All 

freshwaters shall be classified to protect these uses at a minimum.” 15A N.C.A.C. 

2B.0101 (2013). Sw classification applies to “waters which have low velocities and 

 

6

“(6) ‘Waters’ means any stream, river, brook, swamp, lake, sound, tidal estuary, bay, creek, reservoir, 

waterway, or other body or accumulation of water, whether surface or underground, public or private, 

or natural or artificial, that is contained in, flows through, or borders upon any portion of this State, 

including any portion of the Atlantic Ocean over which the State has jurisdiction.” N.C. Gen. Stat. § 

143-212(6) (2013).
SOUND RIVERS, INC. V. NC DEP’T OF ENVTL. QUALITY

Opinion of the Court

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other natural characteristics which are different from adjacent streams.” Id. NSW 

classification applies to “waters subject to growths of microscopic or macroscopic 

vegetation required limitations on nutrient inputs.” Id. More specifically, as to 

supplemental classifications, Sw is defined to “mean those waters which are classified 

by the Environmental Management Commission and which are topographically 

located so as to generally have very low velocities and other characteristics which are 

different from adjacent streams draining steeper topography.” 15A N.C.A.C. 

2B.0202. Nsw is defined to “mean those waters which are so designated in the 

classification schedule in order to limit the discharge of nutrients (usually nitrogen 

and phosphorus).” Id.

As for the broader classification of Class C, those water quality standards are 

provided in 15A N.C.A.C. 2B.0211, entitled “FRESH SURFACE WATER QUALITY 

STANDARDS FOR CLASS C WATERS[.]” See 15A N.C.A.C. 2B.0211. For Class C 

waters, pH “shall be normal for the waters in the area, which range between 6.0 and 

9.0 except that swamp waters may have a pH as low as 4.3 if it is the result of natural 

conditions[.]” Id. The “Best Usage” of Class C waters is “aquatic life propagation and 

maintenance of biological integrity (including fishing and fish), wildlife, secondary 

recreation, agriculture, and any other usage except for primary recreation or as a 

source of water supply for drinking, culinary, or food processing purposes[.]” Id. 

“Conditions Related to Best Usage” note “the waters shall be suitable for aquatic life 
SOUND RIVERS, INC. V. NC DEP’T OF ENVTL. QUALITY

Opinion of the Court

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propagation and maintenance of biological integrity, wildlife, secondary recreation, 

and agriculture. Sources of water pollution which preclude any of these uses on either 

a short-term or long-term basis shall be considered to be violating a water quality 

standard.” Id.

C. Biological Integrity

The trial court reversed the portion of the ALJ’s final decision regarding DEQ’s

compliance with the biological integrity standards. Martin Marietta contends the 

superior court “Failed To Defer to DWR, Misinterpreted the Biological Integrity 

Standard, and Improperly Found Facts[.]” In other words, respondents argue the 

trial court made an error of law by misinterpreting the requirements of the applicable 

regulations as to “biological integrity;” misunderstood the science behind the 

applicable regulations; and failed to use the proper standard of review in addressing 

the issues before it. Martin Marietta specifically contends,

The Superior Court failed to defer to DWR as it is 

required to do, misunderstood the permitting rules and 

what DWR did, and reversed the ALJ’s holding on 

biological integrity under the following erroneous analysis: 

(1) “DWR must protect the indigenous community”; (2) the 

“plain language” of the standard establishes “base line 

metrics” that must be “determined” or “measured” to apply 

the standard properly; and (3) without “determining the

base line metrics,” DWR “could not ensure reasonable 

compliance” [sic] with the standard. 

(Ellipses omitted.)
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Petitioners argue the superior court correctly interpreted the biological 

integrity standard:

The issue before the Court is one of law: does the 

biological integrity standard require DWR to measure the 

terms in the rule and to protect the indigenous community 

of fish, insects, and other animals that live in Blounts 

Creek? The Superior Court recognized that under the 

lawful interpretation of the rule, DWR must measure the 

terms in the standard and establish specific reference 

conditions before issuing a permit.

As the interpretation of the biological integrity standard applied by the superior court 

is an issue of law, we review this determination de novo. N. Carolina Dep’t of Pub. 

Safety, 247 N.C. App. at 286, 786 S.E.2d at 63.

This issue requires consideration of how DEQ measures and evaluates

“biological integrity” as part of its general duties in protecting water quality and in 

the context of issuance of a Permit. The ALJ made extensive findings of fact and 

conclusions of law on this issue,

7 many of which Petitioners challenge:

44. Petitioners claim that, in issuing the NPDES 

Permit, DWR failed to reasonably ensure compliance with 

the biological integrity standard.

 

7 In Petitioners’ brief to the superior court Petitioners challenge the findings of fact and conclusions of 

law in such a manner that it is difficult to keep track of what actually is at issue before the court. For 

instance, in paragraph 81 of Petitioners’ brief they challenge findings of fact “19, 23-25,” and then in 

paragraph 82 they challenge findings of fact “17-20, 22-25[,]” the latter which obviously encompasses 

the former and broadens it; this is but one of many such examples. Petitioners have divided their 

challenges based upon the topic they deem to be at issue, but for this Court’s purposes we simply note 

that Petitioners challenged many of the ALJ’s substantive findings of fact and conclusions of law as to 

biological integrity, but the challenges were so extensive we have not listed all of them, although we 

have considered all. 
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45. Under applicable North Carolina rules, one of the

existing uses of all classified surface waters is 

“maintenance of biological integrity.” See 15A NCAC 02B 

.0211(1) (2013) (freshwater), and 02B .0220(1) (2013) 

(saltwater).

46. The term “biological integrity” is defined in 15A

NCAC 02B .0202(11) as follows: “the ability of an aquatic 

ecosystem to support and maintain a balanced and 

indigenous community of organisms having species 

composition, diversity, population densities and functional 

organization similar to that of reference conditions.”

47. The biological integrity standards applicable to 

upper and lower Blounts Creek state: 

the waters shall be suitable for aquatic life 

propagation and maintenance of biological 

integrity . . . . Sources of water pollution 

which preclude any of these uses on either a 

short-term or long-term basis shall be 

considered to be violating a water quality 

standard . . . .

15A NCAC 02B .0211(2) (2013) (freshwater standard). See 

also 15A NCAC 02B .0220(2) (2013) (same standard for 

saltwater).

48. DWR interprets the applicable rules and definitions 

to mean that an NPDES permit complies with the 

biological integrity standard if the permit’s terms and 

conditions reasonably ensure that the permitted discharge 

will not preclude maintenance of the ability of an aquatic 

ecosystem to support and maintain a balanced and 

indigenous community of organisms having species 

composition, diversity, population densities and functional 

organization similar to that of reference conditions.

49. The biological integrity standard is administered by 

DWR and relates to a highly technical and scientific subject 

area within DWR’s expertise.
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50. As required by North Carolina case law and the 

APA, the undersigned accords deference and gives due 

regard to DWR’s interpretation of its own rules.

51. Even if the undersigned were not required to defer 

to DWR’s interpretation of the biological integrity standard 

rules, the undersigned finds that DWR’s interpretation is 

longstanding, is reasonable, and is consistent with and 

supported by the plain language of the rules, and therefore 

the undersigned will decide Petitioners’ biological integrity 

claim based on DWR’s interpretation of the rules.

52. The preponderance of the evidence shows that, in 

evaluating and determining whether the NPDES Permit 

reasonably ensures compliance with the biological 

integrity standard, DWR (through its staff) applied its 

knowledge and expertise, and:

a. identified the Blounts Creek system, meaning 

Blounts Creek and its tributaries, as the appropriate 

“aquatic ecosystem”;

b. determined that the appropriate “reference 

conditions” were the existing conditions of the 

Blounts Creek system before the proposed 

discharge;

c. studied and assessed the existing, predischarge ecological resources of the Blounts Creek 

system;

d. determined the degree and geographic scope 

of potential physical and chemical impacts of the 

proposed discharge;

e. determined the predicted changes to the 

ecosystem and ecological resources from the 

proposed discharge to be limited; and 

f. concluded that the effects predicted to occur 

as a result of the permitted discharge would not 

violate the standard, and, in fact, a violation would 

not occur unless the impacts to the Blounts Creek 

aquatic ecosystem were much greater in degree and 

geographic scope than those predicted to occur.
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53. Petitioners’ arguments that DWR misinterpreted 

and misapplied key aspects of the biological integrity 

standard and understated the effects of the permitted 

discharge present questions of law and fact, and mixed 

questions of law and fact. Petitioners’ arguments have 

been thoroughly considered and rejected by the 

undersigned as unpersuasive and unsupported by the 

preponderance of evidence.

“Aquatic Ecosystem”

54. Petitioners have asserted that the relevant “aquatic 

ecosystem” should be defined more narrowly and that DWR 

must use a single stream segment as the ecosystem unit for

assessing compliance. See Petition at 3.

55. The term “aquatic ecosystem” is not defined by 

North Carolina statute or rule.

56. The determination and application of “aquatic 

ecosystem” in a specific context is complex and requires 

significant scientific expertise and judgment, and should be 

accorded deference. See County of Durham v. N.C. Dept. 

of Environment and Natural Resources, 131 N.C. App. at 

396-97, 507 S.E.2d at 311 (1998), disc. rev. denied, 350 N.C. 

92, 528 S.E.2d 361 (1999).

57. DWR’s interpretation and application of this term 

are reasonable, rational, and in accordance with the 

language and purpose of the biological integrity standard.

58. To the extent DWR’s selection of an appropriate 

aquatic ecosystem is considered a factual determination, it 

is one which falls directly within the agency’s expertise and 

is therefore entitled to “due regard” pursuant to the APA.

“Reference Conditions”

59. Petitioners have asserted that DWR failed to 

conduct a biological integrity analysis by inadequately 
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Opinion of the Court

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sampling for “species composition, diversity, population 

densities and functional organization” throughout the 

Blounts Creek aquatic ecosystem.

60. The determination and application of “reference 

conditions” in a specific context is complex and requires 

significant scientific expertise and judgment, and should be 

accorded deference.

61. DWR’s interpretation and application of this term 

are reasonable, rational, and in accordance with the 

language and purpose of the biological integrity standard.

62. To the extent DWR’s selection of appropriate 

“reference conditions” is considered a factual 

determination, it is one which falls directly within the 

agency’s expertise and is therefore entitled to “due regard” 

pursuant to the APA. 

63. The preponderance of the evidence shows that 

Blounts Creek aquatic ecosystem’s existing conditions 

(“reference conditions”) are dynamic, vary over time and 

geographic location, and can be affected by many 

environmental factors.

64. The preponderance of the evidence shows that DWR 

had sufficient information such that the biological 

sampling efforts Petitioners sought were unnecessary.

65. Before issuing the Permit, DWR determined that:

(a) the proposed discharge likely would not cause 

significant erosion or sedimentation; (b) pH likely would 

not exceed 6.9 in the upper Blounts Creek and was unlikely 

to change significantly in lower Blounts Creek; (c) relative 

salinity impacts would likely be on the order of 1 ppt and 

salinities would remain within the variability of the 

system; (d) shifts in macrobenthic invertebrates would 

likely be toward an increase in diversity and would be 

geographically limited to the upper reaches of Blounts 

Creek; and (e) the proposed discharge is not likely to 
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Opinion of the Court

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adversely impact fish communities of the Blounts Creek 

aquatic ecosystem. These determinations by DWR are 

reasonable and supported by the preponderance of the 

evidence.

66. DWR determined that the likely effects of the 

permitted discharge are limited in degree, limited in 

geographic scope, and not deleterious.

67. The preponderance of the evidence supports DWR’s 

conclusion and shows that the permitted discharge will not 

have any significant detrimental effect on the Blounts 

Creek aquatic ecosystem, including the many miles of C 

and Sw stream segments of other tributaries of Blounts 

Creek.

Impacts of the Proposed Discharge

68. Petitioners argued that DWR underestimated or 

understated the effects the proposed discharge will likely 

have on the Blounts Creek aquatic ecosystem, including

effects on flow, pH, salinity, benthos, fish, and the existing 

biological community of Blounts Creek.

69. DWR’s findings and inferences regarding the 

predicted effects of the proposed discharge fall within 

“specialized knowledge of the agency.” As such, the 

undersigned is required to give such facts and inferences 

“due regard” pursuant to the APA. N.C. Gen. Stat. § 150B34(a).

70. The preponderance of the evidence demonstrates 

that DWR applied its knowledge and expertise in its 

collection and review of the data and reports obtained 

during the permitting process, and drew reasonable 

inferences and conclusions based on those data and 

reports.

71. The preponderance of the evidence demonstrates 

that DWR reasonably evaluated and adopted the findings 
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Opinion of the Court

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of the Kimley Horn reports (Exs. R13, R15) and the CZR 

report (Ex. R16) after satisfying itself of the reliability of 

these studies.

72. The preponderance of the evidence demonstrates 

that: (a) DWR applied its discretion and expertise in its 

review of the comments it received from the public 

(including Petitioners[]), EPA, and other state agencies 

during the permitting process; and (b) the substantive 

comments were considered and accounted for by DWR 

based on DWR’s expertise, judgment, and rational 

evaluation of the comments and other evidence.

73. To the extent Petitioners contend that DWR acted 

arbitrarily and capriciously in its evaluation of the 

evidence, its gathering and evaluation of relevant data and 

information, its interpretation and application of the 

biological integrity standard, and its conclusion that the 

NPDES Permit reasonably ensures compliance with the 

biological integrity standard, Petitioners failed to present 

any evidence that DWR acted “whimsically” or in “bad 

faith.”

74. The undersigned finds that DWR’s evaluation of the 

NPDES permit application, reports and data submitted 

during the permit process, the data independently collected 

by DWR, and the comments received from the public, state 

agencies and EPA was reasonable, rational, thorough, 

supported by a preponderance of the evidence in the record, 

and undertaken in good faith.

75. The undersigned finds the evidence and expert 

opinion testimony as well as the lay opinion testimony, 

even if admitted, presented by Petitioners, does not 

overcome DWR’s determinations, with respect to the likely 

impacts and effects of the permitted discharge, which were 

thoroughly evaluated based on DWR’s knowledge, 

expertise, and judgment, and well-supported by a 

preponderance of the evidence.
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Opinion of the Court

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76. The undersigned has considered all of the evidence 

of potential impacts presented by Petitioners and their 

experts, and finds, based on a preponderance of the 

evidence, that Petitioners’ evidence either does not 

contradict DWR’s determinations or is not persuasive and 

not sufficient to overcome the data, studies, and other 

information reasonably considered and relied on by DWR 

in evaluating compliance with the biological integrity 

standard.

77. Petitioners failed to present evidence sufficient to 

overcome the presumption that DWR acted appropriately 

in determining the NPDES Permit reasonably ensures 

compliance with the biological integrity standard.

78. The preponderance of the evidence demonstrates 

that DWR:

a. reasonably interpreted the biological 

integrity standard;

b. reasonably and rationally applied the 

biological integrity standard to the relevant 

information and facts regarding the proposed 

discharge;

c. reasonably determined that, although certain 

changes are predicted to occur as a result of the 

proposed discharge, the predicted effects would not 

preclude the ability of the relevant aquatic 

ecosystem to support and maintain a balanced and 

indigenous community of organisms having species 

composition, diversity, population densities and 

functional organization similar to that of reference 

conditions; and

d. reasonably and rationally determined that 

the NPDES Permit reasonably ensures compliance 

with the biological integrity standard.

79. Petitioners failed to meet their burden of proving by 

a preponderance of the evidence that DWR exceeded its 

authority or jurisdiction, acted erroneously, failed to use 

proper procedure, acted arbitrarily or capriciously, or failed 
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Opinion of the Court

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to act as required by law or rule in determining the NPDES 

Permit reasonably ensures compliance with the biological 

integrity water quality standard. See 15A NCAC 02B. 

0202(11), 15A NCAC 02B .0211(2) (2013), and 15A NCAC 

02B .0220(2) (2013).

80. DWR’s decision that the NPDES Permit reasonably 

ensures compliance with the biological integrity water 

quality standard is affirmed. 

The superior court did not determine that any of the findings of fact made by 

the ALJ were unsupported by the record, but instead determined on de novo review 

that DWR’s interpretation of the “biological integrity standard rules and related 

definitions” was not reasonable and was “contrary to the language of the standard

and definitions.” The superior court rejected both DEQ’s and the ALJ’s interpretation 

of the biological integrity standard, and Martin Marietta and DEQ challenge this 

conclusion on appeal as reflected in their arguments that the superior court “Failed 

To Defer to DWR, Misinterpreted the Biological Integrity Standard, and Improperly 

Found Facts[:]8”

Class C waters must be “suitable for aquatic life 

propagation and maintenance of biological integrity”

among other uses. 15A NCAC 02B.0211(2) The term 

“Biological Integrity” is defined by 15A NCAC 02B.202(11) 

as “the ability of an aquatic ecosystem to support and 

maintain a balanced and indigenous community of 

organisms having species composition, diversity, 

population densities and functional organization similar to 

that of reference conditions”.

The rules do not define the terms “species 

 

8 The following quote from the superior court order arguably includes some findings of fact, but the 

superior court stated its decision as based upon de novo review of a legal issue. 
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Opinion of the Court

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composition”, “diversity”, “population densities” or 

“functional organization”. Dr. Overton was offered and 

accepted by the AU as an expert in the field of fisheries 

ecology, larval fish ecology, fisheries management, and fish 

sampling methods and analysis. He testified that species 

composition counts the number of species in a system. 

Species diversity counts the number species present and 

the relative abundance of each species. Population density 

describes how many individuals are in a defined area and 

functional organization describes the organization of 

biological community.

Tom Reeder with DWR testified that he did not 

know if there was such a thing as a biological integrity 

analysis; that he had never really heard of such a thing. 

He further testified that no statutes or rules set forth 

numeric standards or explicit methods or metrics by which 

DWR must make a determination that a NPDES permit 

reasonably ensures compliance with the biological 

integrity standard. Rather, the standard requires DWR to 

exercise its discretion, expertise and professional judgment 

to determine whether the anticipated impacts of a proposed 

discharge are such that the discharge will preclude the 

ability of an “aquatic ecosystem” to support and maintain 

a balanced and indigenous community of organisms having 

species composition, diversity, population densities, and 

functional organization “similar” to that of “reference 

conditions”. DWR staff conceded that the agency did not 

evaluate species composition, diversity, population

density, or functional organization in Blounts Creek. Mr. 

Reeder justified the failure to evaluate these metrics by 

saying that he considered the impact of the permitted 

discharge to be de minimus. In essence the agency reached 

the ultimate conclusion that the impact of the permitted 

discharge was de minimus first, without evaluating species 

composition, diversity, population density, and functional 

organization, and then used the ultimate conclusion to 

conclude that evaluation of the metrics was unnecessary.

With respect to questions of law, the reviewing court 

employs a de novo review. When applying de novo review, 

the Court may freely substitute its judgment for that of the 
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Opinion of the Court

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agency. In re Appeal of N. C. Sav. & Loan League, 302 N. 

C. 458 (1981) Incorrect statutory interpretation is an error 

of law which allows the court to apply a de novo review. 

Brooks v. Rebarco, 91 N.C. App. 459 (1988) However even 

when reviewing a case de novo courts recognize the 

longstanding tradition of according deference to an 

agency’s interpretation of its rules. A reviewing Court 

should defer to agency’s interpretation of a statutes or 

rules it administers so long as the agency interpretation is 

reasonable and based upon a permissible construction of 

the statute or rule. County of Durham v. N.C. Dep’t of Env’t 

and Natural Res., 131 N.C. App. 395 (1998). 

Interpretations that conflict with the clear intent and 

purpose of the law are entitled to no deference. Burgess v. 

Your House of Raleigh, Inc., 326 N.C. 205 (1990) An 

agency’s interpretation of its own regulations will be in 

enforced unless clearly erroneous or inconsistent with the 

regulation’s plain language. WASCO LLC. V. N.C. Dep’t of 

Env’t & Natural Res., 799 S.E. 2nd 405 (2017)

The terms “species composition, diversity, 

populations densities, and functional organization” used in 

the biological integrity standard must be given meaning. 

Kyle v. Holston Group, 188 N.C. App. 686 (2008) The 

standard requires DWR to maintain the indigenous 

biological community by insuring that the post discharge 

“species composition, diversity, population densities, and 

functional organization are similar to that of reference 

conditions” determined before the discharge is permitted. 

The rule is clear that referenced conditions must be 

evaluated on the basis of and as defined in those terms. Yet 

the DWR staff conceded that they did not measure any of 

the biological integrity metrics in Blounts Creek when 

evaluating the permit’s compliance with the standard. 

Thus, DWR failed to determine the base line metrics 

required by 15A NCAC 02B.0202(11) and could not, 

therefore, ensure reasonable compliance with the biological 

integrity standard.

The Biological integrity standard is clear; DWR 

must protect the indigenous community by determining 

reference conditions in terms of an evaluated impacts on 
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Opinion of the Court

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the community’s species composition, diversity, population 

density and functional organization. Reference conditions 

must be specific enough to allow the agency to apply the 

biological integrity standard properly. DWR failed to apply 

the plain language of the biological integrity standard. 

Therefore DWR did not “reasonably ensure compliance 

with” the biological integrity standard. Consequently the 

agency exceeded its authority and erred as a matter of law 

when issuing the permit. Based upon a de novo review of 

the biological integrity standard rules and related 

definitions the Court concludes that DWR’s interpretation 

of the rule is not reasonable and is contrary to the language 

of the standard and definitions.

Conclusions of law 51 through 53, 61, 62, 64 through 

67,70, 75, 77 through 80, 110 through 112 are reversed.9

Ultimately, the superior court determined, contrary to the ALJ’s conclusion, 

that DEQ’s interpretation of the biological integrity standard was not reasonable and 

was contrary to the language of the standard and definitions. The superior court did 

not determine that the ALJ’s findings of fact were unsupported by substantial 

evidence but instead found legal error as to the meaning and application of the 

biological integrity standard. The primary difference between the ALJ’s order and 

the superior court’s order is its determination of the “clear” meaning of the biological 

integrity standard and its resulting determination not to defer to agency expertise. 

Again, the superior court concluded that 

[t]he Biological integrity standard is clear; DWR 

must protect the indigenous community by determining 

reference conditions in terms of an evaluated impacts on 

the community’s species composition, diversity, population 

 

9 This section is quoted as it was in the record before us, including spacing and punctuation.
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Opinion of the Court

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density and functional organization. Reference conditions 

must be specific enough to allow the agency to apply the 

biological integrity standard properly. DWR failed to apply 

the plain language of the biological integrity standard.

But as the superior court notes, many of the operative words in the applicable 

regulations are not defined. Despite the superior court’s conclusion that “the 

Biological integrity standard is clear[,]” it could be clear only to the extent the

operative terms in the standard are defined. However, the superior court applied

“clear” definitions where the regulations simply do not provide definitions. The 

superior court defined the biological integrity standard to mean that “DWR must 

protect the indigenous community by determining reference conditions in terms of an 

evaluated impacts on the community’s species composition, diversity, population 

density and functional organization.” But this is not the standard as defined by the 

applicable regulations. Again, classification is determined by “the existing or 

contemplated best usage of the various streams and segments of streams in the basin, 

as determined through studies and evaluations and the holding of public hearings for 

consideration of the classifications proposed.” 15A N.C.A.C. 2B.0301 (2013) 

(emphasis added). The North Carolina Administrative Code (“Code”) contemplates 

the existing state of the water or its possible best usage. See id. The “Best Usage” of 

Class C waters is “aquatic life propagation and maintenance of biological integrity 

(including fishing and fish), wildlife, secondary recreation, agriculture, and any other 

usage except for primary recreation or as a source of water supply for drinking, 
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culinary, or food processing purposes[.]” 15A N.C.A.C. 2B.0211. “Conditions Related 

to Best Usage” note “the waters shall be suitable for aquatic life propagation and 

maintenance of biological integrity, wildlife, secondary recreation, and agriculture. 

Sources of water pollution which preclude any of these uses on either a short-term or 

long-term basis shall be considered to be violating a water quality standard.” Id.

(emphasis added). 

The Code does not require the biological integrity of an aquatic ecosystem to 

remain exactly or even substantially the same as it had once been, for example, prior 

to discharge. See generally 15A N.C.A.C. 2B.0301. To violate a water quality 

standard, the discharge of water must “preclude any of these uses on either a shortterm or long-term basis[.]” 15A N.C.A.C. 2B.0211. “Preclude” is not defined in the 

statute, but its ordinary meaning is to “close” and “to make impossible by necessary 

consequence: rule out in advance[.]” Merriam-Webster’s Collegiate Dictionary 977 

(11th ed. 2003). In other words, to violate a water quality standard the discharge of 

water must make “aquatic life propagation and maintenance of biological integrity, 

wildlife, secondary recreation, and agriculture” nearly impossible. 15A N.C.A.C. 

2B.0211; see generally Merriam-Webster’s Collegiate Dictionary 977. 

Further, the superior court did not reverse the ALJ’s findings of fact as to 

DEQ’s expertise applying the regulations which ultimately led to the contested 

conclusion by the ALJ that DEQ had complied with the biological integrity standard:
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131. Mr. Reeder testified that with the assistance of DWR 

staff, he used his best professional judgment, experience 

and expertise to determine that the appropriate “aquatic 

ecosystem” was the watershed system of Blounts Creek 

and its tributaries. (Reeder, Tr. Vol. 7 pp. 1149-1150)

132. Mr. Reeder considered “reference conditions” to be 

the existing conditions in the Blounts Creek aquatic 

ecosystem without the proposed discharge. (Reeder, Tr. 

Vol. 7 pp. 1142-1144, 1149-1150; Reeder, Tr. Vol. 4 pp. 662-

663; Fleek, Tr. Vol. 6 pp. 992-993)

. . . .

136. Mr. Reeder took into consideration and weighed Mr. 

Fleek’s opinions regarding the effects of the proposed 

discharge on benthos in the upper reaches immediately 

downstream of the proposed discharge outfalls. (Reeder, 

Tr. Vol. 4 pp. 660-661)

137. Mr. Reeder understood Mr. Fleek’s professional 

opinion to be that benthic macroinvertebrates would likely 

become more diverse near the discharge outfalls and that 

farther downstream any such impacts would lessen or 

dissipate. (Reeder, Tr. Vol. 4 pp. 660-661)

138. Mr. Reeder also understood that the many other 

tributaries of the Blounts Creek aquatic ecosystem, and the 

biota inhabiting those areas, would be unaffected by the 

permitted discharge. (Reeder, Tr. Vol. 7 pp. 1142-1151,

1162-1165, 1172; Reeder, Tr. Vol. 4 pp. 658-671; Ex. R23; 

Ex. R1; Ex. R16)

Despite these findings of fact, Petitioners argued, and the Superior Court found, that 

DEQ’s interpretation of the regulations and process for evaluation of the impact of 

the proposed discharge were not “reasonable” and thus not subject to deference. 

One of respondents’ main contentions before this Court is that the superior
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court failed to apply the correct legal standard in deferring to DEQ as to the

interpretation and application of the biological integrity standards. The superior 

court determined “DWR failed to determine the base line metrics required by 15A 

NCAC 02B.0202(11) and could not, therefore, ensure reasonable compliance with the 

biological integrity standard,” but, according to Mr. Reeder, “no statutes or rules set 

forth numeric standards or explicit methods or metrics by which DWR must make a 

determination that a NPDES permit reasonably ensures compliance with the 

biological integrity standard.” As DEQ explains, 

the Superior Court’s “plain language” interpretation is not 

based on the plain language of applicable regulations at all. 

By stepping outside the plain language of the regulations 

and dictating what information the agency’s biologists and 

engineers must consider when evaluating compliance with 

a technical environmental standard, the Superior Court 

improperly substituted its judgment for that of the agency

. . . [, and]

. . . . 

As a pure question of regulatory interpretation, the 

Superior Court’s “plain language” reading is flatly 

incorrect. The “plain language” of the standard says 

nothing about what process the agency must go through or 

what information the agency must collect to reasonably 

ensure compliance with the standard. Rather, the 

regulations leave this determination to the “reasonabl[e]” 

discretion of DWR’s environmental scientists to be 

evaluated on a case-by-case basis. 15A NCAC 2H.0112(c).

The superior court considered a few lines of testimony of Mr. Reeder, “Tom 

Reeder with DWR testified that he did not know if there was such a thing as a 

biological integrity analysis; that he had never really heard of such a thing.” But this 
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Opinion of the Court

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interpretation takes the testimony out of context and is not supported by the whole 

record as noted by the next sentence in the order noting he further testified accurately 

“that no statutes or rules set forth numeric standards or explicit methods or metrics 

by which DWR must make a determination that a NPDES permit reasonably ensures 

compliance with the biological integrity standard.” In fact, the superior court did not 

determine that the ALJ’s findings regarding DEQ’s investigation of the expected 

effects of the water discharge on biological integrity were not supported by the whole 

record, but relied upon this statement by Mr. Reeder along with an erroneous 

definition of “biological integrity” to conclude that 

DWR staff conceded that the agency did not evaluate 

species composition, diversity, population density, or 

functional organization in Blounts Creek. Mr. Reeder 

justified the failure to evaluate these metrics by saying 

that he considered the impact of the permitted discharge to 

be de minimus. In essence the agency reached the ultimate 

conclusion that the impact of the permitted discharge was 

de minimus first, without evaluating species composition, 

diversity, population density, and functional organization, 

and then used the ultimate conclusion to conclude that 

evaluation of the metrics was unnecessary.

But DEQ certainly did not “concede[]” that it “did not evaluate specifies 

composition, diversity, population density, or functional organization[]” despite the 

portions of Mr. Reeder’s testimony the superior court and Petitioners take out of 

context. DEQ simply did not perform evaluations to Petitioners’ desired 

specifications, but this is vastly different from failing to evaluate at all. The question 
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Opinion of the Court

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for the superior court, and for this Court, is not whether DEQ could have done more 

or different testing or analysis or whether the ALJ could have found different facts. 

The questions before us are whether the ALJ’s findings of fact are supported by the 

whole record; N. Carolina Dep’t of Pub. Safety, 247 N.C. App. at 286, 786 S.E.2d at 

64; whether DEQ evaluated the Permit application in accord with the applicable 

regulations; and whether DEQ’s interpretation of those regulations was reasonable. 

See Hilliard v. N.C. Dep’t of Corr., 173 N.C. App. 594, 598, 620 S.E.2d 14, 17 (2005) 

(“On judicial review, an agency’s interpretation of its own regulations will be enforced 

unless clearly erroneous or inconsistent with the regulation’s plain language.”); see 

generally N. Carolina Dep’t of Pub. Safety v. Ledford, 247 N.C. App. 266, 286–87, 786 

S.E.2d 50, 63–64 (2016) (“[O]ur Supreme Court has made clear that even under our 

de novo standard, a court reviewing a question of law in a contested case is without 

authority to make new findings of fact. Under the whole record test, the reviewing 

court may not substitute its judgment for the ALJ’s as between two conflicting views, 

even though it could reasonably have reached a different result had it reviewed the 

matter de novo. Instead, we must examine all the record evidence—that which 

detracts from the ALJ’s findings and conclusions as well as that which tends to 

support them—to determine whether there is substantial evidence to justify the 

ALJ’s decision. Substantial evidence is relevant evidence a reasonable mind might 

accept as adequate to support a conclusion. We undertake this review with a high 
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degree of deference because it is well established that in an administrative proceeding, 

it is the prerogative and duty of the ALJ, once all the evidence has been presented 

and considered, to determine the weight and sufficiency of the evidence and the 

credibility of the witnesses, to draw inferences from the facts, and to appraise 

conflicting and circumstantial evidence. The credibility of witnesses and the probative 

value of particular testimony are for the ALJ to determine, and the ALJ may accept or 

reject in whole or part the testimony of any witness.” (emphasis added)).

The whole record supports the ALJ’s findings that DEQ evaluated species 

composition, diversity, population density, and functional organization in accord with 

its established procedures and expertise. Mr. Reeder was “the acting director of the 

Division of Water Quality and the director of the Division of Water Resources” when 

the Permit was approved; eventually the two divisions were merged. Mr. Reeder 

approved the Permit, but he was by no means the only employee of DEQ involved in 

the consideration of the Permit. Many employees of DEQ, as well as consultants

including CZR Incorporated (“CZR”) and Kimley-Horn and Associates (“Kimley 

Horn”), performed the actual sampling and analysis of water quality, fish, and 

benthos in Blounts Creek. Mr. Reeder testified at length regarding DEQ’s 

investigation and analysis of “biological integrity” in Blount’s Creek. As a whole, in 

context, Mr. Reeder testified “biological integrity” is a narrative standard, not a 

numeric standard:
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Well, I mean you can’t go to an [Standard Operating 

Procedure]—there’s no [Standard Operating Procedure] 

that says biological integrity analysis. Like I couldn’t call

Eric Fleek on the phone and say, “Hey, Eric, go out and do

a biological integrity analysis.”

What you do is you go out and do exactly what Eric 

did, is you do a biological assessment and you look at the 

technical memorandum, and according to that you make a 

decision based upon your best professional judgment and 

all the data as to whether you think this narrative 

standard for biological integrity will be violated or not. 

Mr. Eric Fleek was an environmental supervisor at DEQ. Mr. Fleek testified his 

branch, the Biological Assessment Branch, evaluated water quality by “sampling for 

fish. We also do sampling for benthic macroinvertebrates. And by assessing a water 

body and the biology that lives there, you can use them as proxies to determine what 

the water quality is like there.” Mr. Fleek also testified that there were “protocols for 

doing that sampling” of Blounts Creek in reference to the Standard Operating 

Procedure.

Our record contains one of Petitioners’ exhibits in arguing DEQ failed to 

comply with its own standards, DEQ’s “STANDARD OPERATING PROCEDURE 

BIOLOGICAL MONITORING[,] STREAM FISH COMMUNITY ASSESSMENT 

PROGRAM[,]” (“Standard Operating Procedures”) and 

the purpose of this manual [is] to provide details on 

standard operating procedures of the Biological 

Assessment Unit of the Division of Water Quality (DWQ or 

Division) for the collection and analysis of stream fish 

community assessment data. Consistency in data 

collection and analysis is the cornerstone for evaluating 
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biological integrity. The procedures provided are a 

synthesis of widely used methods and methods developed 

from the experience of personnel within the Unit. These 

methods have been shown to provide repeatable and useful 

data for water quality evaluation.

. . . . 

The Stream Fish Community Assessment Program 

was designed as an additional basinwide assessment tool 

and has been in existence since 1991. It’s core mission is 

to sample a set of fixed sites on lower Strahler order 

wadeable creeks, streams, and rivers on a five-year 

rotating basis to support the DWQ’s Basinwide 

Management Plan Program. 

While the Standard Operating Procedures address “biological integrity[,]” they 

do not require a particular type of analysis to be done for a Permit application; 

instead, the staff of DEQ uses its expertise to determine what types of testing or 

sampling need to be done for each application, depending upon its unique 

circumstances. 

The Standard Operating Procedures also describe the “NORTH CAROLINA 

INDEX OF BIOTIC INTEGRITY” which has been in use since the early 1990s: 

The Division has been monitoring the biological integrity 

of stream fish communities since the early 1990s. The 

biological monitoring tool that is used is referred to as the 

North Carolina Index of Biological Integrity (NCIBI). The 

NCIBI method was developed for assessing a stream’s 

biological integrity by examining the structure and health 

of its fish community. The North Carolina Administrative 

Code defines Biological Integrity as: “. . . the ability of an 

aquatic ecosystem to support and maintain a balanced and 

indigenous community of organisms having species 

composition, diversity, population densities, and functional 

organization similar to that of reference conditions” (15A 
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NCAC 02B .0200; NCAC 2004). The NCIBI is a 

modification of the Index of Biotic Integrity (IBI) initially 

proposed by Karr (1981) and Karr, et al. (1986). 

The NCIBI incorporates information about species 

richness and composition, trophic composition, fish 

abundance, and fish condition. The NCIBI summarizes the 

effects of all classes of factors influencing aquatic faunal 

communities such as water quality, energy source, habitat 

quality, flow regime, and biotic interactions. While any 

change in a fish community can be caused by many factors, 

certain aspects of the community are generally more 

responsive to specific influences. Species composition 

measurements reflect habitat quality effects. Information 

on trophic composition reflects the effect of biotic 

interactions and energy supply. Fish abundance and 

condition information indicates additional water quality 

effects. It should be noted, however, that these responses 

may overlap. For example, a change in fish abundance may 

be due to decreased energy supply or a decline in habitat 

quality, not necessarily a change in water quality.

The scores derived from this index are a measure of the 

ecological health of the waterbody and may not directly 

correlate to water quality. For example, a stream with 

excellent water quality, but with poor or fair fish habitat, 

may not be rated excellent with this index. However, a 

stream which rated excellent on the NCIBI should be 

expected to have excellent water quality. 

Further, the NCIBI sets out specific metrics to assess biological integrity: 

The NCIBI incorporates information about species 

richness and composition, pollution indicator species, 

trophic composition, fish abundance, fish condition, and 

reproductive function by the cumulative assessment of 12 

parameters or metrics (Tables 1-3). Each metric is 

designed to contribute unique information to the overall 

assessment. The values provided by the metrics are 

converted into scores on a 1, 3, and 5 scale. A score of 5 
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represents conditions commonly associated with 

undisturbed reference streams in the specific river basin or 

ecoregion. A score of 1, however, indicates that conditions 

deviate greatly from those typically observed in 

undisturbed streams of the region. All metrics for each of 

the three regions were calibrated using regional reference 

sites. 

The scores for all metrics are then summed to obtain the 

overall NCIBI score, an even number between 12 and 60. 

The score is then used to determine the biological integrity 

class of the stream (i.e., Poor, Fair, Good-Fair, Good, or 

Excellent) (Karr 1981 , Karr, et al. 1986). A fish community 

rated Excellent is comparable to the best situations with 

minimal human disturbance; all regionally expected 

species for the habitat and stream size, including the most 

intolerant forms, are present along with a full array of size 

classes and a balanced trophic structure. Conversely, a 

fish community rated Poor deviates greatly from the 

reference condition. The number of fish is fewer than 

expected, usually fewer than expected number of species, 

an absence of intolerant species, and an altered trophic 

structure. Communities rated Good, Good-Fair, or Fair fall 

within this disturbance gradient. 

Currently, if a fish community is rated Excellent, Good, or 

Good-Fair it is deemed to be Fully Supporting its Aquatic 

Life Use Support stream classification. If a fish community 

is rated Fair or Poor it is deemed to be Not Supporting its 

Life Use Support stream classification and the water 

quality standard is not being met. Waters that have an 

Excellent fish community rating are also eligible for 

reclassification to a[n] Outstanding Resource Waters or to 

a High Quality Waters supplemental classifications.

The Standard Operating Procedures set forth twelve metrics, grouped into five 

categories: 

1. Species richness and composition (Metric Nos. 1 and 
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Opinion of the Court

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3-5)

2. Indicator species (Metric Nos. 6 and 7)

3. Trophic function (Metric Nos. 8-10)

4. Abundance and condition (Metric Nos. 2 and 11)

5. Reproductive function (Metric No. 12)

The particular metrics used may vary depending upon the type of water and region 

of the state. For example, the species of fish measured metric number 4 are different 

in mountain streams than in and around coastal waters. The Standard Operating 

Procedures also set out sampling procedures and instructions for laboratory 

processing for samples. To assess the quality of a stream, information obtained from 

sampling is compared to reference conditions. “The scores for all 10 or 12 metrics are 

then summed to obtain the overall NCIBI score. Finally, the score (an even number 

between 12 and 60) is then used to determine the biological integrity class of the 

stream from which the sample was collected[.]”

Regarding permits, the Standard Operating Procedures provide, “The location 

of permitted dischargers should be reviewed, using the database provided by the 

Division’s Basinwide Information Management System” and notes that “[w]atershedspecific special study sites that are designed to address a specific, short-term question 

(e.g., Use Attainability, impacts from a permitted discharger, watershed 

modifications, etc.) are usually sampled only once and may be sampled anytime 

between March and December.” (Emphasis added.)
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As part of its analysis of the permit application, CZR did sampling and 

prepared a report addressing the metrics noted in the Standard Operating 

Procedures regarding fish and benthos. This report noted that fish surveying was 

done “in accordance with NCDWQ 2006 Standard Operating Procedure, Stream Fish 

Community Assessment Program (NCDENR 2006a).” “Benthic invertebrate 

sampling occurred on 11 April 2011 following the swamp stream method as described 

in NCDWQ 2006 Standard Operating Procedures for collection of benthic 

invertebrates in the Level IV Ecoregion Swamp Region B of the coastal plain of North 

Carolina NCDENR 2006b.” 

DEQ initially reviewed Martin Marietta’s application for the Permit, then 

requested additional information to address several questions: 

1. Please define a zone of impact (ZOI) and show that 

it is not degraded, considering hydraulic, biota, & saline 

water impacts as discussed below. 

Hydraulic: The point downstream at which the 

proposed discharge can be considered insignificant.

Consider the frequency of bank overflow and the 

effects of increased water levels, velocity changes,

and erosion. Impacts should be based on a major 

rainfall event such as an 80th percentile (two in 10-

year) storm, and a base flow.

Biota: The point at which the proposed discharge is 

considered to be insignificant, relative to 

anadromous fish (e.g. finfish) changes in velocity,

pH, temperature DO. Evaluate effects during 

documented spawning times (as per the NC Wildlife 

Resources Commission and the National Marine 

Fisheries Service) and during periods of lower 

stream flows.
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Saline Water: The point at which the 

freshwater impact of the proposed discharge is 

considered insignificant. Using the ZOI identified 

for the hydraulic component, determine the distance 

to a downstream point of saline stability and 

evaluate impacts

2. Please provide a process flow diagram for the mine 

dewatering and stormwater discharge, including the flow 

around the proposed stockpile area. What is the 

approximate size and capacity of the settling pond that will 

be located next to the mining pit?

3. What is the size and capacity of the closed loop 

settling system and the future overburden storage area?

4. Please provide an expanded Engineering 

Alternatives Analysis (EAA). This should include the 

alternatives of reinjection of pit drainage and the 

treatment and conveyance of this discharge for potable or 

other reusable purposes. The EAA must be performed 

according to the guidelines in the Division’s website. This 

includes a 20-year present worth analysis of all feasible 

options. 

In answer to these questions, Martin Marietta provided a Technical

Memorandum prepared by Kimley Horn summarizing “the results of several analyses 

performed to address comments regarding stream stability, potential flooding, and 

water quality issues associated with the proposed discharge[,]” including “the 

predicted zones of potential impact[;]” a revised NPDES Water Flow Map showing 

“the process flow diagram for mine dewatering and stormwater discharge[;] and 

“expanded Engineering Alternatives Analysis (EAA) dated September 14, 2012,

prepared by Groundwater Management Associates, Inc. . . . according to the 

guidelines in the DWQ website and includ[ing] a 20-year present worth analysis of 
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all feasible options.” Further, in October of 2012, CZR also prepared a Technical 

Memorandum addressing “potential direct and indirect effects on identified fish 

populations from predicted changes in Blounts Creek water quality as identified by” 

Kimley Horn’s Technical Memorandum. 

In summary, hundreds of pages of the record on appeal and hundreds of pages 

of testimony address the analysis of “biological integrity,” as well as salinity, pH, and 

many other factors evaluated by DEQ to determine whether the Permit should be 

issued. To the extent that the superior court made a finding of fact in noting that 

Tom Reeder with DWR testified that he did not 

know if there was such a thing as a biological integrity 

analysis; that he had never really heard of such a thing. 

He further testified that no statutes or rules set forth 

numeric standards or explicit methods or metrics by which 

DWR must make a determination that a NPDES permit 

reasonably ensures compliance with the biological 

integrity standard[,]

this finding is technically supported by the record because Mr. Reeder did so testify. 

But neither the superior court nor this Court may substitute its findings of fact for 

those of the ALJ; we review the ALJ’s findings of fact only to determine if they are 

supported by the whole record. See Ledford, 247 N.C. App. at 286–87, 786 S.E.2d at 

63–64. The ALJ’s findings are supported by the whole record, as discussed above. 

Contrary to the superior court’s conclusions, Mr. Reeder’s testimony indicated the 

thorough and extensive evaluation that DEQ undertook to ensure biological integrity,

although this cannot be neatly summed up as one official analysis plainly laid out in 
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a specific standard operating procedure. The ALJ’s findings as to the biological 

integrity analysis are supported by the whole record. The superior court therefore 

erred by essentially substituting its own findings of fact regarding Mr. Reeder’s 

testimony and by making legal conclusions as to biological integrity based upon a 

misinterpretation of the standard. Therefore, as to DEQ’s and Martin Marietta’s 

main contention on appeal we agree that the trial court erred in reversing the ALJ’s 

order as to the biological standard, and we now turn to address Petitioners’ issues on 

cross-appeal. 

D. Swamp Waters Classification

Petitioners cross-appealed from the superior court’s order based upon its 

determination that DEQ’s approval of the Permit violated the water quality 

standards set forth for swamp water classification. DEQ and Martin Marietta argue 

we should affirm the findings and conclusions of the ALJ and superior court regarding 

swamp waters. As noted above, a body of water may have a supplemental 

classification in addition to its primary classification. See generally 15A N.C. Admin. 

Code 2B.0301. The portions of Blounts Creek at issue have a supplemental 

classification of “swamp waters” which again is defined as “those waters which are 

classified by the Environmental Management Commission and which are 

topographically located so as to generally have very low velocities and other 

characteristics which are different from adjacent streams draining steeper 
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Opinion of the Court

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topography.” 15A N.C.A.C. 2B.0202. Swamp water classification applies to “waters 

which have low velocities and other natural characteristics which are different from 

adjacent streams.” 15A N.C.A.C. 2B.0101.

The ALJ identified the issue regarding swamp waters as follows:

Issue 2: “Swamp Waters Claim”: Whether Petitioners 

have met their burden of proving that Respondent 

exceeded its authority or jurisdiction, acted erroneously, 

failed to use proper procedure, acted arbitrarily or 

capriciously, or failed to act as required by law or rule in 

determining the NPDES Permit reasonably ensures 

compliance with water quality standards and regulations 

related to the “Swamp Waters” supplemental 

classification. 

The ALJ made the following findings regarding the swamp water 

classification:

18. Contrary to Petitioners’ assertions, the evidence 

demonstrates that the “swamp method” and the term 

“swamp stream” in the SOP are unrelated to the “swamp 

waters” supplemental classification. (Fleek, Tr. Vol. 7 pp. 

1103-1105; Ex. R34, p.6; Fleek, Tr. Vol. 6 pp. 980-981; Ex. 

P58; Ex. P59)

19. Mr. Fleek reviewed the CZR Habitat Assessment 

and provided input to Mr. Belnick. In Mr. Fleek’s 

evaluation, he concluded that there could be an increase in 

diversity and population of benthos near the proposed 

discharge outfalls because the discharge would lead to less 

stressful conditions. (Fleek, Tr. Vol. 7 pp. 1108-1111, 1114-

1116; Ex.R4; Ex. 51)

. . . . 

Petitioners’ Swamp Waters Claim
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81. Petitioners claim that the NPDES Permit does not 

reasonably ensure compliance with what Petitioners 

characterize as a requirement to “protect” swamp waters 

“characteristics.” Petition 4-5.

82. “Swamp Waters” are defined as “waters which are 

classified by the Environmental Management Commission 

and which are topographically located so as to generally 

have very low velocities and other characteristics which are 

different from adjacent streams draining steeper 

topography.” 15A NCAC 02B.0202(62). See also 15A 

NCAC 02B.0101(e)(2) and 02B .0301(c).

83. Petitioners claim that DWR has a duty to preserve 

swamp waters in their existing condition, and they objected 

to the predicted changes in physical and chemical 

parameters in upper Blounts Creek, specifically dissolved 

oxygen, pH, flow velocity, and tannins. Petitioners have 

characterized the predicted changes to these parameters as 

unlawfully eliminating swamp waters characteristics and 

uses.

84. DWR disagrees with Petitioners in that DWR has a 

duty under the applicable rules and laws to preserve 

waters with the supplemental classification “swamp 

waters” in their existing condition. DWR asserts, 

consistent with its longstanding interpretation and past 

practices, that the only effect of the Sw supplemental 

classification is to modify the water quality standards for 

dissolved oxygen and pH by lowering the minimum limits 

otherwise required for Class “C” waters. See 15A NCAC 

02B .0211(3)(b) and (3)(g) (2013).

85. Petitioners failed to identify any statute or rule that 

expressly protects “low tannins”, “low pH”, “low dissolved 

oxygen”, or “low velocity” attributes of swamp waters.

86. Petitioners have not cited a law or rule that requires 

additional protection or use for waters with the 
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supplemental classification “swamp waters.”

87. The swamp waters supplemental classification and 

the water quality standards administered by DWR relate 

to a highly technical and scientific subject area within 

DWR’s expertise.

88. As the agency delegated the responsibility for 

NPDES permitting and enforcement of North Carolina’s 

water quality standards, DWR’s interpretation and 

application of the State’s water quality standards, and its 

surface water classifications and supplemental 

classifications are entitled to deference. Hilliard v. N.C. 

Dept. of Corrections, 173 N.C. App. 594, 598, 620 S.E.2d 

14, 17-18 (2005).

89. DWR’s interpretation and application of the highly 

technical rules it administers, including the swamp waters 

and antidegradation rules, are reasonable, longstanding, 

in accord with past DWR practices, and consistent with and 

supported by the plain language of the relevant rules.

90. Petitioners have presented no evidence, authority, 

or argument that persuades the undersigned to overrule 

DWR’s rational interpretation and application of the 

State’s swamp waters and antidegradation laws and rules.

91. Some supplemental classifications may trigger 

protection or uses in addition to the protections or uses for 

Class C waters. For example, the “Outstanding Resource 

Waters” supplemental classification states that such 

waters “require special protection to maintain existing 

uses.” 15A NCAC 02B .0101(e)(4).

92. The specificity of additional protections and uses 

explicitly applicable by rule to some supplemental 

classifications is further evidence that, if the “swamp 

waters” supplemental classification was intended to 

provide additional protections, the rules would have 

specifically provided for such protections. See, e.g., 
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Mangum v. Raleigh Bd. Of Adjustment, 196 N.C. App. 249, 

255, 674 S.E.2d 742, 747 (2009) (“One of the longstanding 

rules of interpretation and construction in this state is 

expressio unius est exclusio alterius, the expression of one 

thing is the exclusion of another.”) (citations omitted).

93. The term “swamp waters” is a regulatory term that 

guides the assignment of the Sw supplemental 

classification to particular stream segments; and once the 

assignment is made by rule, the only regulatory effect of 

the assignment of the swamp waters supplemental 

classification is to lower the acceptable minimum values 

for pH and dissolved oxygen. See 15A NCAC 02B 

.0211(3)(b) and (3)(g) (2013). Upper Blounts Creek, for 

example, has been assigned the “Sw” supplemental 

classification by formal rulemaking. 15A NCAC 02B 

.0316(a) (Index Number 29-9-1-(1)).

94. Petitioners’ arguments that DWR misinterpreted 

and misapplied the swamp waters supplemental 

classification present questions of law and fact, and mixed 

questions of law and fact. Petitioners’ arguments have 

been thoroughly considered and rejected by the 

undersigned as unpersuasive and unsupported by the 

preponderance of evidence.

95. Petitioners rely on a sentence from the State’s 

antidegradation policy: “Existing uses, as defined by Rule 

.0202 of this Section, and the water quality to protect such 

uses shall be protected by properly classifying surface 

waters and having standards sufficient to protect these 

uses.” 15A NCAC 02B .0201(b). See Petition at 4-5.

96. According to its plain language, this provision is 

implemented by formal rulemaking that establishes 

classifications, uses and water quality standards, and that 

assign classifications, uses and standards to individual 

surface water segments. See, e.g., 15A NCAC 02B .0211 

(2013) (uses and standards for Class C waters, including 

waters with the supplemental “Sw” classification), 15A 
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NCAC 02B .0316(a) (Index Number 29-9-1-(1) (assignment 

of classifications to upper Blounts Creek).

97. There are antidegradation permitting procedures 

that did apply to DWR’s evaluation and issuance of the 

NPDES Permit, but Petitioners have not argued that these 

applicable procedures were not followed.

98. The preponderance of the evidence demonstrates 

that DWR reasonably interpreted the laws and rules 

governing swamp waters and the state’s antidegradation 

policy, and reasonably applied those laws and rules to the 

data, studies, and other information submitted or obtained 

during the course of DWR’s NPDES permitting review and 

decision.

99. Petitioners failed to present evidence sufficient to 

overcome the presumption that DWR acted appropriately 

in determining the NPDES Permit reasonably ensures 

compliance with water quality standards or regulations 

related to the “Swamp Waters” supplemental 

classification.

100. Petitioners failed to meet their burden of proving by 

a preponderance of the evidence that DWR exceeded its 

authority or jurisdiction, acted erroneously, failed to use 

proper procedure, acted arbitrarily or capriciously, or failed 

to act as required by law or rule in determining that the 

laws and rules do not require protection of the existing 

conditions or characteristics of surface waters with the 

supplemental classification “swamp waters” and that the 

NPDES Permit reasonably ensures compliance with water 

quality standards and rules related to the “Swamp Waters” 

supplemental classification.

101. DWR’s decision that the NPDES Permit reasonably 

ensures compliance with all applicable water quality 

standards and rules, including those relating to the swamp 

waters supplemental classification, is affirmed.
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. . . .

110. Petitioners failed to present evidence sufficient to 

overcome the presumption that DWR acted appropriately 

in issuing the Permit.

111. Petitioners failed to meet their burden of proving 

Respondent DWR exceeded its authority or jurisdiction, 

acted erroneously, acted arbitrarily and capriciously, used 

improper procedure, or failed to act as required by law or 

rule in issuing the NPDES Permit.

112. DWR’s issuance of the NPDES Permit is affirmed in 

all respects.

. . . . 

119. Petitioners contend that the NPDES Permit is 

unlawful because the Permit does not reasonably ensure

compliance with what Petitioners characterize as a 

requirement to “protect” swamp waters “characteristics,” 

which they contend include “low velocity,” “low dissolved 

oxygen,” “low pH,” and “high tannins.” (Petition 4-5)

120. “Swamp Waters” are defined as “waters which are 

classified by the Environmental Management Commission 

and which are topographically located so as to generally 

have very low velocities and other characteristics which are 

different from adjacent streams draining steeper 

topography.” 15A NCAC 2B.0202(62). See also 15A NCAC 

2B .0101(e)(2) and 2B .0301(c).

121. The “swamp waters” supplemental classification 

modifies the water quality standards for dissolved oxygen 

and pH in the upper Blounts Creek segment by lowering

the minimum pH and dissolved oxygen values otherwise 

required for Class “C” waters:

(b) Dissolved oxygen: . . . for non-trout waters, not 

less than a daily average of 5.0 mg/1 with a 
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Opinion of the Court

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minimum instantaneous value of not less than 4.0 

mg/1; swamp waters, lake coves or backwaters, and 

lake bottom waters may have lower values if caused 

by natural conditions;

. . . . 

(g) pH: shall be normal for the waters in the 

area, which generally shall range between 6.0 and 

9.0 except that swamp waters may have a pH as low 

as 4.3 if it is the result of natural conditions[.]

15A NCAC 2B .0211(3)(b), (g) (2013)

122. Under DWR’s longstanding interpretation of the 

statutes and rules that it administers, the supplemental 

classification of swamp waters does not provide any

additional protections to water bodies to which it is 

assigned; and low flow and velocity, low pH, low dissolved 

oxygen, and high tannins are not uses, standards, 

characteristics, or parameters of swamp waters that are 

required to be maintained or protected. (Reeder, Tr. Vol. 7 

pp. 1154-1157; Reeder, Tr. Vol. 4 pp. 653-657; Belnick, Tr. 

Vol. 4 pp. 523-524, 557-558; Reeder, Tr. Vol. 4 pp. 653-657; 

Belnick, Tr. Vol. 6 pp. 1059-1060)

123. The CZR report states that with the proposed 

discharge, upper Blounts Creek may no longer exhibit 

intermittent flow, low dissolved oxygen concentrations, 

and high tannins. (Ex. R16 p. 10)

124. The report also states that, with the proposed 

discharge, the use of the swamp stream sampling method 

may no longer be appropriate to evaluate benthic

macroinvertebrates. (Ex. R16 p. 10)

125. The report does not state that the swamp waters 

supplemental classification requires the preservation or 

maintenance of low dissolved oxygen, high tannins, low 

velocities, and low pH as contended by Petitioners. (Ex. 
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R16 p. 10)

126. Based on the evidence before it, DWR concluded that 

the Permit reasonably ensures compliance with all 

applicable water quality standards, including those 

applicable to upper Blounts Creek, which has a C primary 

classification and a Sw supplemental classification. 

(Alterations in original.)

The superior court affirmed the ALJ’s final decision as to the swamp water 

classification issue. The superior court stated the issue as follows

II. Did the ALJ err in upholding DWR’s issuance of the 

Permit as reasonably ensuring compliance with:

A. The swamp waters supplemental 

classification and antidegradation rule[.]

The superior court addressed Petitioners’ swamp water claim as follows:

North Carolina’s water quality regulations protect 

North Carolina’s surface waters by: (1) establishing 

surface water classifications based primarily on the “best 

uses” of surface waters, see 15A NCAC 02B .0101; N.C. 

Gen. Stat. § 143-214.1(b); (2) establishing water quality 

standards that protect assigned uses of “primary 

classifications,” see, e.g., 15A NCAC 02B .0211 (water

quality standards for Class C waters); and (3) assigning 

classifications to individual segments of surface waters 

throughout the State, see 15A NCAC 02B .0201 et seq.

Some segments are also assigned “supplemental 

classifications,” which may alter water quality standards 

otherwise applicable. See 15 NCAC 02B .0101(e). The 

state antidegradation rule provides that “[e]xisting uses . . 

. and the water quality to protect such uses shall be 

protected by properly classifying surface waters and 

having standards sufficient to protect these uses.” 15A 

NCAC 02B .0201(b).
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The Permit authorizes Martin Marietta to discharge 

commingled stormwater and groundwater from two 

settling basins at its proposed quarry into the upper 

reaches of Blounts Creek. The parties do not dispute the 

primary classification and supplemental classifications

assigned to Blounts Creek. Blounts Creek from its source 

to Herring Run (referred to by the parties as “upper 

Blounts Creek”) is assigned the primary classification of 

Class C and the supplemental classifications of Swamp 

Waters (“Sw”) and Nutrient Sensitive Waters (“NSW”).

Petitioners argue that assignment of the swamp 

waters supplemental classification to upper Blounts Creek 

affixed “swamp water habitat” as a “special use” of that 

portion of the Creek; in turn, Petitioners argue, the 

antidegradation rule requires DWR to protect certain 

“natural characteristics” of swamp waters such as “low 

flow,” “low velocity,” and “dark color.”

The ALJ rejected Petitioners’ argument, concluding 

that the swamp waters supplemental classification does 

not provide any additional protections to swamp waters 

beyond the water quality standards for protecting the uses 

of Class C waters. The ALJ concluded the only effect of the 

swamp waters supplemental classification is to make the 

water quality standards for pH and dissolved oxygen less 

stringent than otherwise required for Class C waters. 

Final Decision Conclusion of Law (“COL”) ¶ 93.

The Court reviews the ALJ’s conclusions of law and 

statutory and regulatory interpretations de novo and 

findings of fact under the whole record test.

“Swamp waters” are defined as “those waters which 

are classified by the Environmental Management 

Commission and which are topographically located so as to 

generally have very low velocities and other characteristics 

which are different from adjacent streams draining steeper

topography,” 15A NCAC 02B .0202(62), or “waters which 

have low velocities and other natural characteristics which 

are different from adjacent streams.” 15A NCAC 02B 

.0101(e)(2). DWR interprets state water quality rules to 

require no additional protection for water segments 

assigned the swamp waters supplemental classification 
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(beyond the protections required by the standards for the 

primary water quality classification, which in this case is 

Class C), an interpretation the ALJ considered de novo and 

upheld as reasonable and consistent with the plain 

language of North Carolina’s water quality standards. 

Final Decision COL ¶¶88-90, 98.

The Court reviews this regulatory interpretation 

issue de novo and affirms the ALJ conclusion.

Interpretation of administrative regulations 

“properly begins with the plain words” of the regulation. 

Cole v. N.C. Dep’t of Pub. Safety, 800 S.E.2d 708, 714 (N.C. 

Ct. App.), disc. rev. denied, 803 S.E.2d 156 (2017). The 

Court’s de novo review of the antidegradation rule and 

rules governing the swamp waters supplemental 

classification shows that no “plain words” identify or

protect a swamp waters “use” or identify or protect swamp 

waters “characteristics.” 15A NCAC 02B .0202(62), 

.0101(e)(2), .0211(6), .0211(14), .0220(5), .0220(12), 

.0301(c).

The Court’s de novo review of the water quality rules 

as a whole indicates that if the North Carolina 

Environmental Management Commission (“EMC”) intends 

to protect a particular attribute or condition or use of 

surface waters, it does so in the text of its rules. With 

respect to uses of a surface water, the rules explicitly 

identify the uses associated with primary surface water

classifications and, in some cases, supplemental 

classifications, and state narrative and numeric water 

quality standards to protect such uses. See, e.g., 15A 

NCAC 02B .0101(c)-(e), .0211(1), .0212(1), .0214(1), .216(1), 

.0218(1), .0219(1), .0220(1), .0221(1), .0222(1), .0231(a). 

There is no such identification of uses for the swamp 

waters supplemental classification and no effect on

applicable water quality standards except to make less 

stringent the standards for pH and dissolved oxygen that 

would otherwise apply. The plain language and structure 

of the water quality rules indicates there is no intent to 

protect any alleged “use” particular to the swamp waters

supplemental classification. See, e.g., Mangum v. Raleigh 

Bd. of Adjustment, 196 N.C. App. 249, 255, 674 S.E.2d 742, 
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747 (2009) (“One of the long-standing rules of 

interpretation and construction in this state is expressio 

unius est exclusio alterius, the expression of one thing is 

the exclusion of another.”).

Similarly, with respect to characteristics of a water 

body, the rules show that the EMC knows how to protect a 

specific characteristic if it so desires. For example, the 

water quality rules establish explicit flow requirements for 

high quality waters. 15A NCAC 02B .0224(1)(v) (setting

maximum volume of wastewater discharge into high 

quality waters). There is no text in the swamp waters 

supplemental classification rules (or elsewhere in the 

water quality rules) requiring protection of particular 

“swamp water characteristics.” With the exception of “low 

velocity,” the characteristics cited by Petitioners —

“periods of low or no flow, low velocity, low pH, low

dissolved oxygen, and high tannin levels” — do not appear 

in any water quality rule. References in the rules to “low 

velocity” pertain only to a quality that swamp waters 

“generally have,” 15A NCAC 02B .0202(62), not to a quality 

those waters must have. Significantly no rules protect or

assure that waters with the swamp waters supplemental 

classification will have low velocity, periods of low or no 

flow, or high tannin levels. The Court is not vested with 

rule making authority. The water quality standards for pH 

and dissolved oxygen applicable to Class C waters are 

made less stringent for water bodies with the swamp 

waters supplemental classification, and this appears to the 

Court to be the only effect of that supplemental 

classification. 15A NCAC 02B .0211(3)(b), (g) (2013).

Even if Petitioners’ interpretation of the swamp 

waters and antidegradation rules could be characterized as 

reasonable, DWR’s interpretation nonetheless is 

reasonable and is affirmed. The Court notes that, as found 

by the ALJ, and supported by substantial evidence in the 

record as a whole, DWR’s interpretation is longstanding 

and consistent with the plain language and the structure 

of the water quality rules. The Court gives deference to 

DWR’s interpretation that the water quality rules do not 

create special protections for characteristics such as “low 
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flow, low velocity, and dark color,” or otherwise.

The Court also notes that the state’s water quality 

rules provide a means by which the EMC may classify 

waters as High Quality Waters or classify unique and 

special surface waters of the state as Outstanding Resource 

Waters, and thereby provide a means of protecting certain

characteristics of those waters that are not otherwise 

protected by water quality standards. 15A NCAC 02B 

.0225(a)(2). The record evidence does not show that 

Petitioners have sought such regulatory protections for 

Blounts Creek. 15A NCAC 02B .0225.

The Court is not persuaded that PUD No. 1 v. 

Washington Department of Ecology, 511 U.S. 700 (1994), 

supports Petitioners’ Swamp Waters Claim. Petitioners 

have not shown that there is any designated use associated 

with the “swamp waters” supplemental classification that 

is required to be maintained or protected under North 

Carolina’s water quality rules or otherwise.

The Court has reviewed the Final Decision findings 

in relation to Petitioners’ Swamp Waters Claim, see, e.g, 

Final Decision FOF ¶¶119-126, 158-202, and based on its 

review of the whole record, the Court concludes that 

substantial evidence supports these findings. These 

findings support the ALJ’s conclusion that Petitioners 

failed to carry their burden before OAH to prove DWR 

acted erroneously or arbitrarily or otherwise unlawfully in 

determining that the Permit reasonably ensures 

compliance with all applicable water quality standards, 

including the swamp waters supplemental classification 

and the state antidegradation rule.

The Final Decision findings of fact and conclusions 

of law and holding that Petitioners failed to carry their 

burden and that the Permit reasonably ensures compliance 

with the swamp waters supplemental classification and the 

state antidegradation rule are affirmed and upheld.

Petitioners do not challenge the facts as found by the ALJ or discussed by the 

superior court regarding swamp waters but rather argue “[t]he issue before the Court 
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is one of law: does Blounts Creek’s classification as swamp waters protect the creek’s 

use as a unique habitat?” Petitioners contend that DEQ and the superior court 

interpreted the swamp water secondary classification as serving only “to weaken the 

creek’s protections, to allow for more pollution in Blounts Creek,” and if the 

classification were interpreted properly, the swamp waters classification “is like all 

other water classifications in North Carolina--it protects our creeks and rivers.” 

Petitioners further contend the swamp waters classification actually gives 

“additional protection for waterways that have special characteristics found in 

swamp waters and, as a result provides habitat for the fish, insects, and other 

animals that are well suited to that environment.” Thus, Petitioners argue that the 

secondary classification of swamp waters requires that the natural characteristics of 

swamp water to remain essentially unchanged and that DEQ’s “extreme 

interpretation” of the swamp waters classification as accepted by the ALJ and 

superior court, “does not provide any protection at all” and “only weakens . . . 

standards to allow for more pollution in Blounts Creek.” 

Martin Marietta contends that neither North Carolina law nor the Clean 

Water Act (“CWA”) require “‘natural’ conditions or characteristics” of a body of water

to remain unchanged. Martin Marietta contends both state and federal law recognize 

the need to balance many interests and needs related to use of water and water 
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quality, including public health, fish and wildlife, recreation, industry, and 

agriculture: 

The CWA requires each State to adopt and 

implement water quality standards, which “consist of the 

designated uses of the navigable waters involved and the 

water quality criteria for such waters based upon such 

uses.” 33 U.S.C.A. § 1313(c)(2)(A).

Such standards shall be such as to protect the 

public health or welfare, enhance the quality 

of water and serve the purposes of this 

chapter. Such standards shall be established 

taking into consideration their use and value 

for public water supplies, propagation of fish 

and wildlife, recreational purposes, and 

agricultural, industrial, and other purposes, 

and also taking into consideration their use 

and value for navigation.

33 U.S.C. § 1313(c)(2)(A) (emphasis added); see PUD 

No. 1, 511 U.S. at 704.

Martin Marietta argues that 

[t]he very existence of the NPDES program refutes 

the theory that the CWA requires “natural” conditions or 

characteristics to remain unchanged. The program 

provides for the issuance of permits that authorize 

discharge of wastewater into waters of the U.S. 33 U.S.C. 

§ 1342. By introducing wastewater into a water body, the 

quality and quantity of the water in the receiving water 

body necessarily changes.

Petitioners counter that DEQ has previously taken a position contrary to its 

position in this case as it “enforced against a polluter for not adequately protecting

swamp waters” in the case of House of Raeford Farms, Inc. v. North Carolina

Department of Environmental and Natural Resources, 242 N.C. App. 294, 774 S.E.2d 
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911 (2015). Petitioners, quoting House of Raeford, contend that DEQ’s previous 

interpretation of the swamp waters classification was “that ‘the designated uses for 

the swamp waters . . . were deemed to be impaired.’” But House of Raeford does not 

contradict DEQ’s action in this case. 

In House of Raeford, DEQ investigated pollution in a creek, ultimately tracing 

the source to House of Raeford’s chicken processing facility. See id. DEQ 

representatives found that 

“the creek was just full of sludge from bank to bank and as 

far as the eye could see. It was an unbelievable site.”

She testified the sludge was fresh because it was a 

light tan color: “It starts out looking like a milkshake and 

then as it decomposes, it gets darker because of the 

septicity.” The sludge adhered to the shorelines and was so 

thick on the surface of the water that it had formed ridges. 

The sludge was darker and thinner downstream from the 

House of Raeford. 

Id. at 297, 774 S.E.2d at 914 (brackets omitted). “[F]ecal samples from Cabin Branch 

Creek, directly behind the House of Raeford facility . . . confirmed a fecal coliform 

density greater than 60,000 colonies per 100 milliliters” and based upon this

contamination, “the designated uses for the swamp waters below the House of 

Raeford facility were deemed to be impaired.” Id. at 297-98, 774 S.E.2d at 914.

Contrary to Petitioner’s argument, House of Raeford demonstrates that swamp 

waters do have protection, but that protection is consistent with the water quality 
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standards established for Class C waters. See id. at 300, 774 S.E.2d at 916. In House 

of Raeford, DEQ

assessed civil penalties against House of Raeford as 

follows:

$25,000 for violation of N.C. Gen. Stat. § 143–

215.1(a)(6); causing or permitting waste to be 

discharged to or in any manner intermixed 

with the waters of the State in violation of the 

water quality standards applicable to the 

assigned classifications or in violation of any 

effluent standards or limitations established 

for any point source, unless allowed as a 

condition of any permit, special order or other 

appropriate instrument issued or entered into 

by the Commission under the provisions of 

the Article.

$25,000 for violation of 15A N.C.A.C. 

2B.0211(3)(b); violating the dissolved oxygen 

water quality standard for Class C–Sw waters 

of the State.

$25,000 for violation of 15A N.C.A.C. 

2B.0211(3)(c); by allowing settleable solids 

and sludge in excess of the water quality 

standard for Class C–Sw waters of the State.

Id. at 308, 774 S.E.2d at 920. Thereafter, 

The ALJ found the imposition of civil penalties 

under 15A N.C.A.C. 2B.0211(3)(b) and 15A N.C.A.C. 

2B.0211(3)(c) were erroneous, but upheld the imposition of 

the $25,000.00 fine under N.C. Gen. Stat. § 143–

215.1(a)(6). The [Environmental Management 

Commission] imposed a total maximum civil penalty of 

$50,000.00 against House of Raeford for violation of N.C. 

Gen. Stat. § 143–215.1(a)(6) and 15A N.C.A.C. 

2B.0211(3)(c).
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The superior court assessed a civil penalty of 

$25,000.00 for violation of N.C. Gen. Stat § 143–215.1(a)(6) 

for causing or permitting waste to be discharged into or 

intermixed with the waters of the State in violation of the

water quality standard set forth in 15A N.C.A.C. 

2B.0211(3)(c). 

Id. at 308, 774 S.E.2d at 920–21.

House of Raeford addressed penalties for discharge of waste in violation of 

water quality standards in a manner not allowed by a permit and as such was an 

enforcement action for a water quality violation and not a proceeding for a permit 

application as presented by this case. See id., 242 N.C. App. 294, 774 S.E.2d 911. 

North Carolina General Statute 143-215.1 recognizes that some discharges of waste

which may otherwise not be allowed under applicable water quality standards may 

be allowed as provided by a permit: 

(a) Activities for Which Permits Required. -- Except as 

provided in subsection (a6) of this section, no person shall 

do any of the following things or carry out any of the 

following activities unless that person has received a permit 

from the Commission and has complied with all conditions 

set forth in the permit:

. . . .

(6) Cause or permit any waste, directly or 

indirectly, to be discharged to or in any 

manner intermixed with the waters of the 

State in violation of the water quality 

standards applicable to the assigned 

classifications or in violation of any effluent 

standards or limitations established for any 

point source, unless allowed as a condition of 

any permit, special order or other appropriate 

instrument issued or entered into by the 
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Commission under the provisions of this 

Article.

N.C. Gen. Stat. § 143-215.1 (2013) (emphasis added).

We agree with Martin Marietta’s and DEQ’s interpretation of the law in that 

protection does not require that Blounts Creek remain entirely the same. Further, 

as the ALJ determined and the superior court affirmed, “DWR concluded that the

Permit reasonably ensures compliance with all applicable water quality standards, 

including those applicable to upper Blounts Creek, which has a C primary 

classification and a Sw supplemental classification.” The findings of fact establish 

that the discharge of water into Blounts Creek may change some areas of the aquatic 

ecosystem and the changes will vary based upon distance from the outfall. For 

example, “there could be an increase in diversity and population of benthos near the 

proposed discharge outfalls because the discharge would lead to less stressful 

conditions.” The superior court acknowledges the discharge of water will change 

Blounts Creek, but keeping that change within acceptable limits is the purpose of the 

Permit. The Permit allows changes to the waters of Blounts Creek in accord with the 

limitations and provisions of the Permit, and those limitations are in accord with 

water quality standards applicable to Class C waters. On de novo review of 

Petitioners’ issue “of law[,]” the ALJ and superior Court correctly concluded that 

DEQ’s issuance of the Permit did not violate water quality standards as applicable to 

“swamp waters” of Blounts Creek. 
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E. pH Water Quality Standards

Much like the previous argument, Petitioners’ argument as to pH is based in 

large part on the characteristics of the secondary classification of swamp waters. 

Petitioners argue that the ALJ and superior court erred in approving the Permit 

because the wastewater will increase the pH in Blounts Creek to “to levels that do 

not occur naturally and are not characteristic of swamp waters.” Essentially, 

Petitioners argue that the water quality standards for pH mandate that the swamp 

waters retain all of their characteristics, including low pH. Petitioners contend that

[l]ow pH is a defining characteristic of swamp waters 

and is essential to maintaining habitat that is protected by 

the swamp waters classification. The permit allows Martin 

Marietta to increase pH in Blounts Creek to levels that do 

not occur naturally and are not characteristic of swamp 

waters. Under existing conditions, pH in Blounts Creek is 

as low as 4.37 and is almost always below 6.0. (T2 p 342:15-

17, 357:8-358:15 [App. 24, 25-26]); (see also R p 1199). The 

permit allows Martin Marietta to increase pH to 8.5. (See

R p 1589-1615).

The issue before the Court is one of law: does the pH 

standard protect the normal, natural pH of Blounts Creek? 

Martin Marietta contends that if the regulations were interpreted and applied 

as Petitioners argue

it would: (1) transform a straightforward water quality 

standard for pH into a byzantine and costly regulatory 

maze consisting of thousands of different sets of mandatory 

pH values or ranges; (2) force DWR to implement an 

expensive, time-consuming, and essentially unworkable 

site-by-site regulatory scheme to establish separate 

“normal” pH for each stream segment; and (3) create a new 
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source of regulatory uncertainty, cause delay in permitting 

and enforcement, and impose the expense of sampling and 

analysis anytime there is a need to know the pH standard 

applicable to a water body segment. Such an exorbitantly 

resource-intensive agency activity is not feasible, not 

necessary, and not dictated by the language of the pH 

standard.

The ALJ made the following findings regarding pH:

106. The water quality standard governing pH for upper 

Blounts Creek requires that pH “shall be normal for the 

waters in the area, which generally shall range between 6.0 

and 9.0 except that swamp waters may have a pH as low 

as 4.3 if it is the result of natural conditions.” 15A NCAC 

2B .0211(3)(g) (2013).

107. DWR’s longstanding interpretation of the pH 

standard for Class C water bodies is that the pH must be 

6.0 to 9.0; but if the water body has a supplemental 

classification of swamp waters (Sw), the lower range of pH 

can be extended down to 4.3 (if the low pH is caused by 

natural conditions). Thus, the pH standard for a C, Sw 

water body would be 4.3 to 9.0. (Belnick, Tr. Vol. 4 pp. 524, 

632; Reeder, Tr. Vol. 4 pp. 653-657)

108. No evidence was presented that DWR has ever 

interpreted the pH standard differently.

109. No evidence was presented that DWR has ever 

interpreted or applied the pH standard to require that low 

pH must be maintained in Sw waters. (Belnick, Tr. Vol. 4 

pp. 524, 631-632; Reeder, Tr. Vol. 4 pp. 653-657)

110. DWR does not interpret the standard to require sitespecific sampling and analysis. (Belnick, Tr. Vol. 4 p. 562)

111. Rather the standard itself defines “normal” pH to be 

6.0 to 9.0 in Class C waters, with permissible lower values 

(down to 4.3) in Sw waters if the lower values are caused 
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by natural conditions. (Reeder, Tr. Vol. 4 pp.653-657)

112. DWR’s longstanding interpretation is also reflected 

in NPDES permits issued across the State and in DWR’s 

assessment of waters for impairment. (Reeder, Tr. Vol. 4

pp. 653-657)

113. Available data indicate that the existing pH in upper 

Blounts Creek ranges from approximately 4.5 downstream 

from the outfalls to approximately 5.3 to 6.5 at Dr. Bean’s

upstream sampling site. (Ex. P12; Ex. P23)

114. The expected pH of the discharge effluent is 

approximately 6.9; and the pH in upper Blounts Creek with 

the permitted discharge is expected to range from 

approximately 6.3to 6.9. (Ex. R1 p.4; Ex. P21)

115. Dr. Bean agreed with the Kimley Horn report 

prediction that the pH of upper Blounts Creek would not 

exceed 6.94 at full discharge.10 (Ex. P12 p. 36)

116. The Permit requires that the pH of the permitted 

discharge be within the range of 5.5 to 8.5. Thus, the pH 

of upper Blounts Creek with the permitted discharge is 

predicted and required to remain within the range of 4.3 to 

9.0. (Ex. R29)

117. Petitioners’ attorneys conceded that the pH of 

neither the discharge nor the effluent would be in excess of 

9 or below 4.3. (Tr. Vol. 4 p. 657)

118. Based on the evidence before it, DWR concluded that 

the Permit reasonably ensures compliance with the pH

water quality standard.

 

10 Dr. Eban Bean was a witness for Petitioners.
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The superior court affirmed the ALJ’s findings and conclusions as to pH, as 

follows:

At the time the Permit was issued, the pH standard 

for Class C waters applicable to upper Blounts Creek read 

as follows:

pH: shall be normal for the waters in the 

area, which generally shall range between 6.0 

and 9.0 except that swamp waters may have 

a pH as low as 4.3 if it is the result of natural 

conditions.

15A NCAC 02B .0211(3)(g) (2013).

In their pH Claim, Petitioners argue that the rule 

required DWR to undertake site-specific sampling to 

determine what “normal” pH is for the receiving waters in 

the area of the proposed discharge, which, in turn, must be 

maintained. Petitioners argue that: DWR did not 

determine “normal” pH for upper Blounts Creek; the 

Permit pH limit of 5.5 to 8.5 allows the permitted discharge 

to cause upper Blounts Creek to exceed its “normal” pH; 

and the Permit therefore fails to reasonably ensure 

compliance with the pH standard.

DWR interprets the pH standard as setting a 

maximum allowable pH of 9.0 and a minimum allowable 

pH of 6.0, except that the lower limit may be as low as 4.3 

in swamp waters, if pH below 6.0 is the result of natural 

conditions. DWR interprets the rule as not requiring sitespecific sampling or testing. Based on its interpretation of 

the pH rule, DWR established a Permit limit for pH of the 

discharge effluent of 5.5 to 8.5.

The ALJ concluded that DWR’s interpretation is 

reasonable and consistent with the plain language of the 

rule, and rejected Petitioners’ pH claim because the 

Permit’s pH limits reasonably ensure compliance with the 

pH standard.

The Court reviews the ALJ’s factual determinations 

under the whole record test and asserted legal errors and 

interpretation of rules de novo.

The Court is not persuaded that the pH rule creates 
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or requires a site-specific standard for pH in receiving 

waters. First, the interpretation of administrative 

regulations “properly begins with the plain words” of the 

regulation. Cole, 800 S.E.2d at 714. The “plain words” of 

the pH rule do not require a site-specific standard or sitespecific sampling to determine a site-specific standard.

The rule states that pH “shall be normal for the waters in 

the area,” and then provides that: (a) “normal for the 

waters in the area” “generally shall range between 6.0 and 

9.0,” and (b) a lower pH may be allowed (to a minimum of 

4.3) “if it is the result of natural conditions.” DWR 

interprets the rule itself to define what “normal” pH is for 

a stream segment that has been assigned the

classifications Class C-Sw: 6.0 to 9.0, or 4.3 to 9.0 if the 

lower pH results from natural conditions.

Second, as noted in the Final Decision, this 

interpretation is supported by the EMC’s 2014 technical 

amendment, which deleted the words “generally shall”

from the pH standard. 15A NCAC 02B .0211(14) (2015). 

This technical amendment further clarifies that “normal 

for waters in the area” is defined by the numerical range 

set forth in the text of the rule. Moreover, the current text 

of the pH rule is consistent with the language of other 

water quality standards that explicitly state the numeric 

limits required. See, e.g., 15A NCAC 02B .0211(3), (5), (6), 

(9), (11). The only exception to the applicable pH range is 

in swamp waters, where the lower limit may be decreased

— made less stringent — if low pH is the result of natural 

conditions.

Third, the state’s water quality standards make 

clear that site-specific standards are the exception, not the 

norm, and are explicitly set forth where they exist. E.g., 

15A NCAC 02B .0110 (requiring site-specific strategies for 

waters providing habitat for federally listed threatened 

and endangered species), .0211(11) (allowing creation of 

site-specific standard for metals), .0226 (providing that 

“site-specific water quality standards may be granted by 

the Commission on a case-by- case basis”). No site-specific 

standards for pH are described or required in the water 

quality rules applicable here.
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Fourth, even if Petitioners’ proposed interpretation 

of the pH standard were reasonable, in reviewing agency 

regulatory interpretations, the Court agrees with the ALJ’s 

determination that DWR’s interpretation is reasonable and 

consistent with the plain language of the regulation. The

Court accords deference to that interpretation.

Based on the Court’s de novo interpretation of the 

pH rule, the Court upholds DWR’s interpretation of the pH 

rule and declines to accept Petitioners’ claim that the rule 

requires site-specific assessment.

The Court has reviewed the Final Decision findings 

in relation to Petitioners’ pH Claim, see, e.g., FOF ¶¶90, 

104-118, 145-151, 164-170, and based on its review of the 

whole record, the Court concludes that substantial 

evidence supports these findings, and that Petitioners 

failed to carry their burden before OAH to prove DWR 

acted erroneously or arbitrarily or otherwise unlawfully in 

determining that the Permit reasonably ensures 

compliance with the pH standard.

The Final Decision findings of fact and conclusions 

of law and holding that Petitioners failed to carry their 

burden and that the Permit reasonably ensures compliance 

with the pH standard are affirmed and upheld.

The Superior Court correctly addressed each of the Petitioners’ arguments. As 

the ALJ and Superior Court determined, the DEQ’s interpretation of the pH rules is 

reasonable and consistent with the regulations. The regulations do not require that 

the pH of swamp waters stay the same as they currently are and that no new 

discharges be allowed if the discharge would change the pH. Again, the law requires

the balancing of many interests and expertise in analyzing the conditions of the 

waters affected by each permit application. On de novo review of Petitioners’ issue 
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“of law[,]” the ALJ and superior court correctly concluded that DEQ’s issuance of the 

Permit did not violate pH water quality standards of Blounts Creek.

F. Reopener Provision

Petitioners last argue that the “required reopener provision does not authorize 

DWR to issue a permit expected to violate water quality standards.” (Original in all 

caps.) Petitioner notes that 

[f]or unexpected water quality standard violations 

that occur after a permit is issued, DWR has the authority 

to reopen and modify a permit—a condition that is 

memorialized in standard conditions for all discharge 

permits. See 15A N.C. Admin. Code 02H .0114(a) [App. 

140]; 40 C.F.R. §§ 122.41(a) and 122.41(f) [App. 105-6] (R 

p 1603). This standard condition has been referred to as a 

“reopener provision.” 

(Emphasis added.) Petitioners contend the superior court erred by determining that

the reopener provision “can absolve the agency of its obligation to deny a permit 

without ensuring compliance with either the swamp waters classification or the pH 

water quality standard.” 

Martin Marietta argues that the premise of Petitioner’s argument is erroneous 

because “the Permit reasonably ensures compliance with and does not violate any 

water quality standards, and Petitioners failed to carry their burden of proof to show 

otherwise.” As already noted, we agree. Neither the ALJ nor superior court 

determined that a reopener provision can “absolve” DEQ of compliance with water 

quality standards. Instead, the ALJ determined the Permit reasonably ensures 
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compliance with the water quality standards, and the superior court determined the 

Permit reasonably ensured compliance with all water quality standards except

“biological integrity,” but we have reversed that conclusion. 

The Permit was issued based upon predictions of the expected impact of the 

discharge of wastewater into Blounts Creek, but if those predictions prove to be 

wrong, DEQ has authority to modify or revoke the Permit. To ensure compliance

with water quality standards, the ALJ found the Permit requires monitoring of 

Blounts Creek after discharge of water from the quarry begins:

145. On July 24, 2013, DWR issued the final NPDES 

Permit in the same form as it had been presented to the 

EPA. (Belnick, Tr. Vol. 6 pp. 1053-1054; Ex. R29; Ex. R27).

146. The Permit terms include discharge controls, 

effluent and instream monitoring, and benthic biological 

monitoring requirements. (Ex. R29)

147. Effluent monitoring requirements include flow, total 

suspended solids, total iron, turbidity, settleable solids, 

total nitrogen, total phosphorus, temperature, and pH. 

(Ex. R29 pp.3-4)

148. The Permit also requires instream monitoring at two 

downstream stations (D1 and D2) for pH, salinity, 

temperature, and turbidity. (Ex. R29)

149. The Permit requires benthic sampling at four 

locations, the results of which must be submitted at least 

six months prior to the expiration of the permit (which 

expires every five years). (Belnick, Tr. Vol. 6 pp. 1054-

1055; Fleek, Tr. Vol. 7 pp. 1123-1128; Ex. R29)

150. The benthic monitoring provision requires 
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submission of a sampling plan to DWR for approval prior 

to sampling, and requires compliance with DWR sampling 

protocols. (Fleek, Tr. Vol. 7 pp. 1123-1128; Ex. R29)

In addition, the Permit requires Martin Marietta “to obtain other state authorizations 

for its proposed quarry” which also address “potential impacts on water quality,” 

including “a certification under Section 401 of the Clean Water Act and a consistency 

concurrence from the North Carolina Division of Coastal Management (“DCM”).” The 

ALJ order also found:

153. On May 15, 2013, DWR issued Water Quality 

Certification DWQ #11-1013 (“401 Certification”) to 

Respondent-Intervenor. (Ex. MMM46)

154. The 401 Certification requires, among other things: 

(a) that construction activities must follow best 

management practices “so that no violations of state water 

quality standards, statutes, or rules occur”; (b) a 

monitoring plan for some of the same concerns raised and 

addressed in the NPDES permit process, including: 

“measures to monitor physical and chemical stability of 

headwater streams to ensure that the project does not

result in violation of water quality standards,” and an 

annual report summarizing the monitoring results; and (c) 

that Martin Marietta conduct the authorized activities

“consistent with State water quality standards.” (Ex. 

MMM46 pp. 4-6)

155. DWR is authorized to modify the 401 Certification, 

if needed, to ensure compliance. (Belnick, Tr. Vol. 6 pp. 

1064-1068; Ex. MMM46 p. 6)

156. In February 2014, DCM issued Coastal 

Management Program Consistency Concurrence DCM 

#20120010 (“Coastal Consistency Concurrence”) that 

requires Respondent-Intervenor to, among other things: (a) 
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coordinate with DCM to develop fisheries monitoring that 

will assess impacts of the proposed project on fish species 

and habitat in the Blounts Creek system; (b) coordinate 

with DCM to develop a monitoring protocol that will assess 

potential impacts of the proposed project on stream bank 

stability within the Blounts Creek system; (c) comply with 

the NPDES Permit and provide a copy of all benthic 

monitoring reports to DCM; and (d) comply with the 401 

Certification and provide a copy of all wetland hydrology 

monitoring reports to DCM. (Belnick, Tr. Vol. 6 pp. 1057-

1059; Ex. R32 p. 2)

157. DWR may revisit the NPDES Permit and modify or 

revoke it at any time based on information from the 

monitoring and reporting requirements of the Permit as 

well as information collected pursuant to the Coastal 

Consistency Concurrence and the 401 Certification.

(Reeder, Tr. Vol. 7 pp. 1151-1153; Ex. R32; Belnick, Tr. Vol. 

6 pp. 1059; Ex. R32; Ex. R29) 

This Court addressed a similar argument regarding potential future water 

quality violations in Deep River Citizens’ Coalition v. North Carolina Department of

Environment and Natural Resources, 165 N.C. App. 206, 598 S.E.2d 565 (2004). The 

Petitioner argued the Environmental Management Commission (“EMC”) and trial 

court erred by determining the Randleman Dam and Reservoir project “would not

violate certain water quality standards[,] specifically “water quality standards for 

chlorophyll a.” Id. at 209, 598 S.E.2d at 567. Petitioners contended the computer 

models used by EMC to predict the effects of the project on chlorophyll a level were 

“flawed and unreliable.” Id. at 212, 598 S.E.2d at 569. Although some models 
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predicted chlorophyll levels within the applicable standard, other computer models 

predicted levels in excess. See id. This Court noted that when

the Director of the Division of Water Quality issued the 401 

Certification, he was aware of the potential for water 

quality standard violations and “specifically considered the 

existing Randleman Lake Water Supply Watershed 

Nutrient Management Strategy and the opportunity that 

the State would have to impose additional restrictions on 

nutrient sources in the event of actual or threatened water 

quality standard violations after the reservoir is 

constructed.” We agree with respondents that “no one will 

know precisely whether or to what extent exceedances . . . 

of the Standard will occur until construction of the dam and 

impoundment of the lake have been completed” but that 

mere “knowledge of the potential for exceedances . . . of the 

chlorophyll a standard was not sufficient to preclude 

DENR from issuing the 401 Certification.” The trial court 

therefore had before it substantial and competent evidence 

that, in the event water quality standards were actually 

threatened, the State could impose additional restrictions 

to avoid chlorophyll a violations. We conclude the trial 

court did not err in concluding that DENR provided 

reasonable assurance that the State’s water quality 

standards would not be violated by the proposed project.

Id. at 213, 598 S.E.2d at 569 (brackets omitted).

Just as in Deep River, “no one will know precisely whether or to what extent” 

violations of various water quality standards, including standards not addressed in 

this opinion, may occur until after discharge of wastewater begins. Id. The ALJ and 

superior court determined that the Permit reasonably ensures compliance with water 

quality standards, but the Permit requires specific monitoring and reports, and if a 

violation does occur, DEQ can modify or revoke the Permit to prevent further 
SOUND RIVERS, INC. V. NC DEP’T OF ENVTL. QUALITY

Opinion of the Court

- 89 -

violations of water quality standards. The reopener provision in no way allows DEQ

“to issue a permit expected to violate water quality standards” as Petitioner contends. 

This argument is without merit.

IV. Conclusion

Ultimately, we affirm the superior court’s order as to the ALJ’s conclusions on 

compliance with pH standards and swamp water and reverse the superior court’s 

order as to the ALJ’s findings and conclusions on compliance with the biological 

integrity standards. As a practical matter, this means the ALJ correctly determined 

the Permit was properly and validly issued in accord with applicable regulations.

AFFIRMED in part; REVERSED in part.

Judge BROOK concurs in part and concurs in the result in part with separate 

opinion. 

Judge HAMPSON concurs in part and dissents in part with separate opinion.
No. COA18-712 – Sound Rivers, Inc. v. N.C. Dep’t of Envtl. Quality

BROOK, Judge, concurring in part and concurring in the result in part.

I agree with the lead opinion’s rejection of Martin Marietta’s motion to dismiss. 

I further agree with the lead opinion’s conclusion that Petitioners demonstrated their 

rights were substantially prejudiced and are thus “person[s] aggrieved” within the 

meaning of Section 150B-23(a). And I agree with the lead opinion’s rejection of 

Petitioners’ argument pertaining to the reopener provision. Accordingly, I join these 

portions of the opinion in full.

I also agree with the lead opinion that we must affirm the superior court’s order 

as to DEQ’s compliance with the swamp waters supplemental classification and the 

pH water quality standards. I further agree that we must reverse the superior court’s 

order as to the ALJ’s findings and conclusions regarding compliance with the 

biological integrity standard. I concur only in the result as to these issues, however, 

because I would decide them strictly on the basis of the deference owed DEQ’s 

interpretation of these regulations and the ALJ’s assessment of the record.

As the lead opinion notes, the crux of the dispute is whether DEQ 

misinterpreted the biological integrity, swamp water, and pH regulations and, as a 

result, failed to engage in a sufficiently rigorous process.

The scope of our review as to these issues is limited. “[U]nless clearly 

erroneous or inconsistent with the regulation’s plain language[,]” we defer to “an 
SOUND RIVERS, INC. V. N.C. DEP’T OF ENVTL. QUALITY

Brook, J., concurring in part and concurring in the result in part.

2

agency’s interpretation of its own regulations[.]” Hilliard v. N.C. Dep’t of Corr., 173 

N.C. App. 594, 598, 620 S.E.2d 14, 17 (2005). And, in assessing whether the factual 

record evinces compliance with the agency’s interpretation of its regulations, we are 

similarly constrained:

[O]ur Supreme Court has made clear that even under our

de novo standard, a court reviewing a question of law in a 

contested case is without authority to make new findings 

of fact. Under the whole record test, the reviewing court 

may not substitute its judgment for the ALJ’s as between 

two conflicting views, even though it could reasonably have 

reached a different result had it reviewed the matter de 

novo. Instead, we must examine all the record evidence—

that which detracts from the ALJ’s findings and 

conclusions as well as that which tends to support them—

to determine whether there is substantial evidence to 

justify the ALJ’s decision. Substantial evidence is relevant 

evidence a reasonable mind might accept as adequate to 

support a conclusion. We undertake this review with a high 

degree of deference because it is well established that ‘[i]n 

an administrative proceeding, it is the prerogative and 

duty of the ALJ, once all the evidence has been presented 

and considered, to determine the weight and sufficiency of 

the evidence and the credibility of the witnesses, to draw 

inferences from the facts, and to appraise conflicting and 

circumstantial evidence. The credibility of witnesses and 

the probative value of particular testimony are for the ALJ 

to determine, and the ALJ may accept or reject in whole or 

part the testimony of any witness.’ 

N.C. Dep’t of Pub. Safety v. Ledford, 247 N.C. App. 266, 286-87, 786 S.E.2d 50, 63-64 

(2016) (internal citations and marks omitted) (quoting City of Rockingham v. N.C. 

Dep’t of Envt. & Natural Res., Div. of Water Quality, 224 N.C. App. 228, 239, 736 

S.E.2d 764, 771 (2012)).
SOUND RIVERS, INC. V. N.C. DEP’T OF ENVTL. QUALITY

Brook, J., concurring in part and concurring in the result in part.

3

These standards compel us to affirm the ALJ here. As discussed by the lead 

opinion, the agency’s interpretations of its own regulations in question are not clearly 

erroneous. Further, and again as chronicled by the lead opinion, there is evidence 

(much of it unchallenged by Petitioners and thus binding on our Court) a reasonable 

mind might accept as adequate to support the ALJ’s conclusions that DEQ complied 

with its long-standing regulatory interpretations in issuing this permit.

I write separately because, pursuant to the controlling case law and standard 

of review, I would stop there. Whatever the merits of agency deference, it governs 

our deliberation and, coupled with the deference owed to the ALJ, decides this case. 

I respectfully concur in part and concur in the result in part.
No. COA18-712 – Sound Rivers, Inc. v. N.C. Dep’t of Envtl. Quality

HAMPSON, Judge, concurring in part and dissenting in part. 

I agree with the majority opinion’s conclusion Petitioners demonstrated their 

rights were substantially prejudiced and are “person[s] aggrieved” within the 

meaning of Section 150B-23(a). I also concur in the majority opinion’s conclusions 

the trial court should be affirmed as to the ALJ’s conclusions on compliance with pH 

standards and swamp water. I dissent, however, from the majority opinion’s 

conclusion the trial court erred by failing to give DWR’s interpretation of the 

“biological integrity standard” appropriate deference. Rather, I would affirm the trial 

court’s conclusion DWR did not demonstrate compliance with the biological integrity 

standard. As such, I would affirm the trial court’s Order in full including, specifically, 

the determination the ALJ’s Final Decision should be reversed and the Permit be 

revoked. 

The role of an appellate court in reviewing a trial court’s order 

affirming a decision by an administrative agency is two-fold. We 

must: (1) determine the appropriate standard of review and, when 

applicable, (2) determine whether the trial court properly applied 

this standard. De novo review is applied where an error of law is 

alleged.

York Oil Co. v. N.C. Dep’t of Env’t, Health, & Natural Res., 164 N.C. App. 550, 554, 

596 S.E.2d 270, 273 (2004) (citations and quotation marks omitted). As the majority 

opinion notes, the issue before this Court is a question of law reviewed de novo. See

N.C. Dep’t of Pub. Safety v. Ledford, 247 N.C. App. 266, 286, 786 S.E.2d 50, 63 (2016). 
SOUND RIVERS, INC. V. N.C. DEP’T OF ENVTL. QUALITY

Hampson, J., concurring in part and dissenting in part.

2

“ ‘When the issue on appeal is whether a state agency erred in interpreting a 

regulatory term, an appellate court may freely substitute its judgment for that of the 

agency and employ de novo review.’ ” York Oil Co., 164 N.C. App. at 554, 596 S.E.2d 

at 273 (citing Britt v. N.C. Sheriffs’ Educ. and Training Stds. Comm’n, 348 N.C. 573, 

576, 501 S.E.2d 75, 77 (1998)). “[A]n administrative agency’s interpretation of its 

own regulation should be accorded due deference unless it is plainly erroneous or 

inconsistent with the regulation.” Id. at 554-55, 596 S.E.2d at 273 (citation and 

quotation marks omitted). Consequently, “[a]lthough the interpretation of a statute 

by an agency created to administer that statute is traditionally accorded some 

deference by appellate courts, those interpretations are not binding.” WASCO LLC 

v. N.C. Dep’t of Env’t & Nat. Res., 253 N.C. App. 222, 228, 799 S.E.2d 405, 410-11 

(2017) (citing Savings & Loan League v. Credit Union Comm., 302 N.C. 458, 465-66, 

276 S.E.2d 404, 410 (1981) (quotation marks omitted)). 

“It is the public policy of the State to maintain, protect, and enhance water 

quality within North Carolina.” N.C. Gen. Stat. § 143-211(b) (2019). Accordingly, the 

North Carolina Environmental Management Commission is required to adopt water 

quality standards for bodies of water throughout North Carolina. See N.C. Gen. Stat. 

§§ 143-214.1, -212. As the majority opinion detailed, Blounts Creek is classified as a 

Class C body of water with additional portions classified as Sw and NSW. Bodies of 

water that fall under Class C classification are subject to the water quality standards 

set forth in 15A N.C.A.C. 2B.0211. Notably, the best usage of Class C waters includes 
SOUND RIVERS, INC. V. N.C. DEP’T OF ENVTL. QUALITY

Hampson, J., concurring in part and dissenting in part.

3

“aquatic life propagation and maintenance of biological integrity (including fishing 

and fish), wildlife, secondary recreation, agriculture[.]” 15A N.C.A.C. 2B.0211(1) 

(2018) (emphasis added). 

“Biological integrity” is defined as “the ability of an aquatic ecosystem to 

support and maintain a balanced and indigenous community of organisms having 

species composition, diversity, population densities and functional organization 

similar to that of reference conditions.” 15A N.C.A.C. 2B.0202(11) (2018). Therefore, 

as a Class C body of water, emissions into Blounts Creek must not impair the 

biological integrity of the water body. See 15A N.C.A.C. 2B.0211(2) (“Sources of water 

pollution that preclude any of these uses on either a short-term or long-term basis 

shall be considered to be violating a water quality standard[.]”). 

I would affirm the trial court’s conclusion DWR “did not ensure reasonable 

compliance with the biological integrity standard set forth in 15A N.C.A.C 

02B.0211(2), 0220(2) and 0202(11).” I recognize this Court affords deference to an 

agency’s interpretation of its own regulations; however, that necessarily means the 

agency actually has an interpretation of the regulation. In the present case, the 

Record does not indicate DWR had any interpretation for the “biological integrity 

standard” that it employed when evaluating the water quality standards prior to 

issuing the NPDES permit at issue to which deference is due. Instead—as the 

majority opinion notes and the ALJ found—final decision maker and Director of DWR
SOUND RIVERS, INC. V. N.C. DEP’T OF ENVTL. QUALITY

Hampson, J., concurring in part and dissenting in part.

4

Mr. Reeder testified that he ‘[did not] know if there is such a thing’ 

as a biological integrity analysis, and he ‘never really heard of 

such a thing’ in that there are no statutes or rules setting out 

numeric standards or explicit methods or metrics by which DWR 

must make a determination that an NPDES permit reasonably 

ensures compliance with the biological integrity standard. 

Further, “Mr. Fleek provided review, input, and opinions as to potential biological 

effects, Mr. Fleek was not asked to provide, nor did he provide, an opinion as to 

whether proposed discharge would comply with the biological integrity standard.”

The majority opinion here relies on the fact that there “are no statutes or rules 

setting out numeric standards or explicit methods or metrics by which DWR must 

make a determination” in concluding that DWR was entitled to our deference in its 

interpretation of the biological integrity standard. Indeed, after the fact, DWR now 

contends it complied with the biological integrity standard because the “Standard 

Operating Procedure” encompasses the parameters defined in 15A N.C.A.C. 

2B.0202(11) as supporting biological integrity. However, this ignores the 

requirement that the parameters supporting biological integrity be considered 

together and before the issuance of the NPDES permit.

In this regard, unlike the majority, I see no conflict between the ALJ’s findings 

of fact and the trial court’s findings and legal conclusions. The ALJ documented the 

actions taken by DWR in reviewing the Permit Application but yet accepts that none 

of those actions were taken in the context of a specific analysis of biological integrity. 

This is not in tension with the trial court’s decision. To the contrary, the trial court 
SOUND RIVERS, INC. V. N.C. DEP’T OF ENVTL. QUALITY

Hampson, J., concurring in part and dissenting in part.

5

determined, notwithstanding DWR’s efforts to retroactively justify its decision, the 

regulation is clear: in reviewing a Permit Application, DWR is required to undertake 

sufficient analysis to ensure the biological integrity standard (as that term is defined) 

is met.11 It is just as clear on this Record, DWR did not undertake that analysis in 

reviewing the application.12 Thus, as the trial court concluded, DWR was not entitled 

to any deference in how it interpreted or analyzed a biological integrity standard that 

it failed to interpret or analyze. Put another way: interpreting the regulation 

requiring DWR to reasonably ensure any discharge would not preclude the protected 

use of Blounts Creek to maintain its biological integrity in a manner that allows DWR 

to functionally ignore that very requirement during the permitting process would be 

 

11 I do not read the trial court’s decision as declaring every aspect of the biological integrity

standard, its component parts, or the specific measurements required to be clear and unambiguous 

and not subject to any deference in its interpretation and application. Rather, I read the trial court’s 

decision as concluding simply that the regulation expressly and clearly requires DWR, in reviewing 

an application, to specifically undertake steps to ensure compliance with the biological integrity 

standard, including analysis of the definitional components of that standard. It is no stretch to further 

conclude that in order to ascertain whether or not a proposed application would preclude “the ability 

of an aquatic ecosystem to support and maintain a balanced and indigenous community of organisms 

having species composition, diversity, population densities and functional organization similar to that 

of reference conditions[,]” 15A N.C.A.C. 2B.0202(11) (2018), an affirmative determination of the 

“reference conditions” is necessarily required.

12 Indeed, on this Record, there is reason to believe had DWR contemporaneously conducted 

any type of analysis envisioned by the regulation, it may well have reached a different conclusion. For 

example, the Record reflects email correspondence in which Mr. Fleek notes:

The biota presently found in the Blounts Creek system is adapted to 

intermittent flow, low pH, and low dissolved oxygen. The proposed discharge 

will alter the natural physcio-chemcial [sic] parameters of this system . . . . As 

such, many of the taxa currently found in this system which are adapted to the 

natural condition will be replaced by taxa that are adapted to more permanent 

flows, higher pH, and higher dissolved oxygen levels. The taxa that are 

naturally occurring to this type of stream system will be replaced with taxa 

that are not typical to this type of system. . . . These types of streams, and the 

taxa which inhabit them, are not normally found in North Carolina’s coastal 

plain.
SOUND RIVERS, INC. V. N.C. DEP’T OF ENVTL. QUALITY

Hampson, J., concurring in part and dissenting in part.

6

plainly inconsistent with the plain language of the regulation and, thus, DWR is not 

entitled to any deference in such an interpretation. Pamlico Marine Co., Inc. v. N. C. 

Dep’t of Natural Resources, 80 N.C. App. 201, 206, 341 S.E.2d 108, 112 (1986) 

(“Ordinarily, an administrative agency’s interpretation of its own regulation is to be 

given due deference by the courts unless it is plainly erroneous or inconsistent with 

the regulation.”(citation omitted)).

I therefore disagree with the majority opinion and would affirm the trial court’s 

conclusion DWR did not reasonably demonstrate compliance with the biological 

integrity standard. Accordingly, I would also affirm the trial court’s Order requiring 

the Permit be revoked.