THE STATE OF SOUTH CAROLINA In The Court of Appeals

Charles S. Blackmon and South Carolinians for Responsible Agricultural Practices, Appellants,

v.

South Carolina Department of Health and Environmental Control, and David Coggins Broilers, Respondents,

Charles S. Blackmon and South Carolinians for Responsible Agricultural Practices, Appellants,

v.

South Carolina Department of Health and Environmental Control, and Heath Coggins Broilers, Respondents,

Charles S. Blackmon and South Carolinians for Responsible Agricultural Practices, Appellants,

v.

South Carolina Department of Health and Environmental Control, and Jim Young Broilers, Respondents.

Appellate Case No. 2017-002598

Appeal From The Administrative Law Court Ralph King Anderson, III, Administrative Law Judge

Opinion No. 5911 Heard December 9, 2020 – Filed May 25, 2022REVERSED AND REMANDED

Robert Guild, of Robert Gu ild, Attorney at Law, of Columbia, for Appellants.

Mitchell Willoughby and Tr acey Colton Green, both of Willoughby & Hoefer, PA, of Columbia, for Respondents David Coggins Broilers, Heath Coggins Broilers, and Jim Young Broilers.

Michael Smoak Traynham, of Nexsen Pruet, LLC, of Columbia; and Sara Volk Martinez and Stephen Philip Hightower, both of the South Carolina Department of
Health and Environmental Cont rol, of Columbia; all for Respondent South Carolina Department of Health and
Environmental Control.

LOCKEMY, A.J.: In this contested case, Charles S. Blackmon and South Carolinians for Responsible Agricultural Practices (collectively, Appellants) appeal the order of the Administrative La w Court (the ALC) affirming the South Carolina Department of Health and Envi ronmental Control's (the Department's) issuance of agricultural permits to Da vid Coggins Broilers, Heath Coggins Broilers, and Jim Young Broilers (collectiv ely, Broilers). Appellants argue the ALC erred in (1) deferring to the Depart ment's interpretation of regulations
61-9.122 and 61-43 Part 200 of the South Carolina Code 1 and concluding that, as a matter of law, Broilers were not required to apply for a separa te National Pollutant Discharge Elimination System (NPDES) pe rmit or obtain an exemption from the Department; (2) deferring to the Departme nt's interpretation of regulation 61-43 that allowed it to avoid mandated aspe cts of permit evaluation and precluded a meaningful review of the permit appli cation; and (3) requiring Appellants to establish actual discharges of pollutants by existing permittees. We reverse and remand to the Department.

1 S.C. Code Ann. Regs. 61-9.122 to 61- 9.125 (2011 & Supp. 2021) (implementing the National Pollutant Discharge Elimin ation System (NPDES) program); S.C. Code Ann. Regs. 61-43.200.10 to 200.200 (2011 & Supp. 2021) (setting forth the standards for permitting of agricultu ral facilities other than swine).FACTS AND PROCEDURAL HISTORY

In 2016, Broilers each submitted an a pplication to the Department for new agricultural animal facilities permits to cons truct and operate their proposed broiler
facilities. Broilers collec tively proposed to construct eighteen broiler houses on a
255-acre tract located in the Little Rive r watershed in the Mountville area of Laurens County. David Coggins Bro ilers' facility proposed to house 162,000 broilers, and Heath Coggins Broilers an d Jim Young Broilers each proposed to house 237,600 broilers in thei r respective facilities.

As part of the application process, public notices were sent to neighboring property owners notifying them of Broilers' intent to apply for agricultural permitting. At the request of several Mountv ille citizens, the Department held public meetings in September and October of 2016. Blackm on and several other property owners in the Mountville area, including Margaret Sparrow, Mary Basel, Kathy Lowman, and Eugene Ross Stewart, formed an unincorporated association called "South Carolinians for Responsible Agricultural Pr actices" to challenge Broilers' proposed
facilities.

After reviewing the applications and completing "Agricultural Permitting Review Checklists," the Department issued Bureau of Water Agricultural Permits to all Broilers in November and December of 2016. Each permit provided for the operation of "no-discharge" facilities a nd contained a special condition that required Broilers to "[o]pe rate and maintain [a] wast e management system in
accordance with State and Federal law so as to prevent discharges to the
environment." Public notices were circ ulated in a local publication after the Department issued the permits.

After the Department declined Appella nts' requests to hold a final review conference as to Broilers' permits, Appe llants filed a request for a contested case hearing with the ALC as to each permit. 2 The ALC granted the parties' request to consolidate the three cases for purpose s of the contested case hearing.

Broilers moved for partial summary judgment, arguing they were not required to seek NPDES permits for the facilities because the agricultural permits the Department issued to them prohibited the di scharge of pollutants into the waters of
the state. Broilers assert ed the Department was theref ore not required to follow the

2 Appellants challenged each of the pe rmits on five grounds. The only ground raised on appeal concerns the discharge of pollutants into waters of the state.procedure set forth in re gulation 61-9.122.23(d)(2) 3 for determining whether the facilities had "no potentia l to discharge."

The ALC held a merits hearing. Appellants presented the testimony of several witnesses, including Dr. David Hargett, who testified as an expert in soil and water resource management; William Chaplin, an employee of the Department, who
testified he reviewed Broile rs' permit applications; and Christopher Mosley, a staff member of Agri-Waste Technology, In c., who testified he prepared the Comprehensive Nutrient Management Plans (CNMPs) for each of the three applications. Mosley explained that in drafting each of the CNMPs, his team used soil maps, topographical maps , and satellite imagery, a nd conducted site visits. The CNMPs provided the number of broile rs to be housed at the facilities, the amount of litter that would be produced, Bro ilers' plan for disposing of that litter,
and the setback distances for the facilities.

The ALC accepted proposed orde rs from Appellants, Broile rs, and the Department. The ALC granted partial summary judgm ent in favor of Broilers and the Department (collectively, Respondents) , concluding an NPDES permit was not required and the Department was not required to dete rmine whether the facilities had no potential to discharge.

Although the ALC found "the plain la nguage of [regulation] 61-9.122.23 define[d]" Broilers as concentrated animal feeding operations (CAFOs), it concluded "the Department's application of [regulation] 61-43 part 200 in keeping with the regulation of CAFOs under the NPDES provisions [wa]s entitled to deference." Specifically, the ALC deferred to the Department's interpretation of regulations 61-43.200 and 61-9.122.23 that by issuing an agricultural permit pursuant to regulation 61-43.200, the Depart ment also determined the facility had no potential to discharge into the waters of the state under regulation 61-9.122.23. The ALC reasoned that because permits issued pursuant to regulation 61-43.200 were "no-discharge" permits—and as such did not allow the facilities to discharge pollutants—there was an inherent determin ation the facilities ha d "no potential to discharge." See Regs. 61-43.200.20(B) ("Permits issued under this regulation are

3 Regs. 61-9.122.23(d)(2) (providing "[ a]n owner or operator of a Large [concentrated animal feeding operation (C AFO)] need not seek coverage under an NPDES permit otherwise required by this section once the owner or operator has received from the Department notificati on of a determinati on under paragraph (f)
of this section that the CAFO has 'no potential to discharge' manure, litter, or process wastewater").no-discharge permits."). The ALC thus c oncluded the permits prohibited Broilers from discharging pollutants into waters of the state and because Broilers did not seek to discharge pollutants into waters of the state, they were not required to apply for or obtain an NPDES permit as a matte r of law. Additionally, the ALC opined, "Even if facts later reflect that [Broilers] are obligated to seek or obtain an NPDES permit because they are 'new source' CAFO s, that obligation would not occur until 'at least 180 days prior to the time that the CAFO[s] commenc e[d] operation'" and therefore, this issue was not ripe fo r consideration. The ALC considered Appellants' remaining arguments and affi rmed the Department's issuance of the permits. The ALC found the Departme nt complied with the regulatory requirements in reviewing and issuing th e permits. However, the ALC increased
the setbacks of the facilities to move them farther from the Little River. 4 Finally, the ALC added a condition to the permits that provided, "The Permits shall be conditioned upon each of the permittees obtaining a stormwater permit that
addresses whether the setback limi tation should exceed the minimum requirements." This appeal followed.

ISSUES ON APPEAL

1. Did the ALC err in deferring to the Department's interpretation of regulations 61-9 and 61-43 in concluding Broilers we re not required either to obtain an NPDES permit or request a determination by the Department that their operations had "no potential to discharge"?

2. Did the ALC err in deferring to the Department's interpretation of regulation 61-43 that allowed the Department to a void mandated aspects of permit evaluation, thus precluding meaningful review of agricultural permit applications?

3. Did the ALC err in imposing a burden upon Appellants to prove actual discharges of pollutants into waters of the state by existing agricultural permittees?

4 To address the complaints Basel—one of the property owners—raised during the public comment period, Chaplin required David Coggins and Jim Young to move their proposed facilities farther from Basel 's property, which would have resulted in the facilities being closer to the Little River. The ALC's ruling reversed this accommodation and required the facilities to be moved back to their originally proposed location, farthe r from the Little River.STANDARD OF REVIEW

This court may reverse a decision of th e ALC "if the substantive rights of the petitioner have been prejudiced because the finding, conclusion, or decision is . . . affected by [an] error of law . . . [or is] arbitrar y or capricious or characterized by abuse of discretion or clear ly unwarranted exercise of discretion."

S.C. Code Ann. § 1-23-610(B)(d),(f) (Supp. 2021). This court reviews questions
of law de novo. S.C. Dep't of Revenue v. Blue Moon of Newberry, Inc. , 397 S.C. 256, 260, 725 S.E.2d 480, 483 ( 2012). "The constructi on of a regulation is a question of law . . . ." Id. (quoting 2 Am. Jur. 2d Administrative Law § 245). "[W]e will reject [an] agency's interpreta tion if it is contrary to the regulation's plain language." Id. at 261, 725 S.E.2d at 483.

LAW AND ANALYSIS

I. NPDES Permits

Regulation 61-9.122.1(b)(1) defines the scope of the NPDES permit requirement and provides it "requires permits for the di scharge of 'pollutants' from any 'point
source' into 'waters of the State.'" Regs. 61-9.122.1 (b)(1). Paragraph (b)(4) provides that a "concentrated animal fe eding operation [(CAFO )] as defined in section 122.23" is a "point source[]" that requires an NPDES permit "for discharges." Regs. 61-9. 122.1(b)(4)(i). Regulati on 61-9.122.23(a) provides CAFOs, as defined in regulation 61-9.12 2.23(b), are point sources "that require NPDES permits for discharges or potential discharges ," and regulation 61-9.122.21(a)(1) states, "All [CAFOs] . . . have a duty to seek coverage under an NPDES permit, as described in s ection 122.23(d)." (emphasis added); see also Regs. 61-9.122.2(b) (stating a "[d]is charge of a pollutant" means "[a]ny addition of any pollutant or combination of pollutants to waters of the State from any point source"); id. (providing a "point source" includes "any . . . [CAFO] from which pollutants are or may be discharged " (emphasis added)); id. ("'Point source discharge' means a discharge [that] is re leased to the waters of the State by a discernible, confined and discrete c onveyance, including but not limited to

a . . . [CAFO] . . . from which waste is or ma y be discharged.").

Paragraph (d) of this regulation states a CAFO owner or operator "must seek coverage under an NPDES permit" unle ss it has "received from the Department
notification of a determina tion under paragraph (f)" that it "has 'no potential to discharge' manure, litter, or process wastewater." Regs. 61-9.122.23(d)(1)-(2).Paragraph (f)(1) provides,

The Department, upon request , may make a case-specific
determination that a Large CAFO has "no potential to discharge" pollutants to waters of the State. In making this determination, the Department must consider the potential for discharges from both the production area and any land application areas. . . . For purposes of this section, the term "no potentia l to discharge" means that
there is no potential for any CAFO ma nure, litter, or process wastewater to be added to waters of the State under any circumstance or climatic condition . A
determination that there is " no potential to discharge" for purposes of this section only relates to discharges of manure, litter, and process wastewater covered by this
section.

Regs. 61-9.122.23(f)(1) (emphases added).

The CAFO owner or operator must seek c overage under an NP DES permit at least 180 days before commencing operations and must include the information specified in regulations 61-9.122.21(f) a nd 61-9.122.21(i)(1)(i) to (ix) with its
request. See Regs. 61-9.122.23(f)(2), (g)(4); Regs. 61-9.122.21(f),(i). Regulation 61-9.122.21(f) requires basic informati on concerning the CAFO's geographical location, its contact information, its busin ess activities, its principal products or services, and any permits or construction approvals it ha s received or for which it has applied. Regulation 61-9. 122.21(i)(1)(i) to (ix) re quires that a CAFO provide the following in addition to basic contact information:

(iii) Latitude and longitude of the production area (entrance to production area);

(iv) A topographic map of the geographic area in which the CAFO is located showing the specific location of the production area . . . ;

(v) Specific information about the number and type of animals, whether in open c onfinement or housed under roof . . . ;(vi) The type of containment and storage . . . and total capacity for manure, litter, and process wastewater
storage . . . ;

(vii) The total number of acres under control of the applicant available for land application of manure, litter,
or process wastewater;

(viii) Estimated amounts of manure, litter, and process wastewater generated per y ear (tons/gallons); [and]

(ix) Estimated amounts of manure, litter, and process wastewater transferred to other persons per year (tons/gallons) . . . .

The NPDES permitting requirements also speci fy that a "'no potential to discharge'
determination does not relieve the CAFO from the consequences of an actual discharge." Regs. 61-9.122.23(f)(5). Furt her, the Department retains the authority to subsequently require an NPDES permit if circumstances at the facility change.

See Regs. 61-9.122.23(f)(6).

Part 200 of Regulation 61-43 governs the permitting of animal facilities. "Permits issued under this regulation are no-discha rge permits." Regs. 61-43.200.20(B). In making permitting decisions, "The Department shall act on all permits to prevent, so far as reasonably possible considering re levant standards unde r state and federal laws, an increase in pollution of the waters and air of the [s]tate from any new or enlarged sources." Regs. 61-43.200.70(E).

Appellants contend the ALC erred by deferring to the De partment's interpretation that its issuance of a "no-discharge" pe rmit pursuant to part 200 of regulation
61-43 constituted "an inherent determination that the fa cilities ha[d] no 'potential to discharge'" in keeping with regulation 61-9.122.23(f). Appellants argue that because the plain language of regulations 61-9 and part 200 of 61-43 are contrary to the Department's interpretation, this court should reverse the ALC's decision. They assert that, by definition, large CA FOs have a potential to discharge and the Department's interpretation that Broilers were not large CAFOs was contrary to the plain language of regulation 61-9. In addition, Appellants argue the ALC erred by finding as an additional sustaining ground th at the issue was not ripe for judicial determination. We agree."[O]ur deference doctrine provides that co urts defer to an administrative agency's interpretations with respect to the statutes entrusted to its administration or its own regulations 'unless there is a compelling reason to differ.'" Kiawah Dev. Partners, II v. S.C. Dep't of Health & Envtl. Control , 411 S.C. 16, 34, 766 S.E.2d 707, 718 (2014) (quoting S.C. Coastal Conservation League v. S.C. Dep't of Health & Envtl.
Control , 363 S.C. 67, 75, 610 S.E.2d 482, 486 (2 005)). "We defer to an agency interpretation unless it is 'a rbitrary, capricious, or ma nifestly contrary to the

statute.'" Id. at 34-35, 766 S.E.2d at 718 (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council Inc. , 467 U.S. 837, 844 (1984)); see also Murphy v. S.C. Dep't of
Health & Envtl. Control , 396 S.C. 633, 640-41, 723 S.E.2d 191, 195 (2012) (deferring to the Department's "constructi on and application" of a regulation when
it was "both reasonable and consistent with the plain language of the regulation"). "A decision is arbitrary if it is without a rational basis, is ba sed alone on one's will and not upon any course of reasoning an d exercise of judgment, is made at pleasure, without adequate determining principles, or is governed by no fixed rules
or standards." Converse Power Corp. v. S.C. De p't of Health & Envtl. Control

, 350 S.C. 39, 47, 564 S.E.2d 341, 345 (Ct. App. 2002) (quoting Deese v. State Bd. of Dentistry , 286 S.C. 182, 184-85, 332 S.E.2d 539, 541 (Ct. App. 1985)).

"Regulations are interpreted using the same rules of construction as statutes." Murphy , 396 S.C. at 639, 723 S.E.2d at 195. "When interpreting a regulation, we look for the plain and ordinary meaning of the words of the regulation, without
resort to subtle or forced construc tion to limit or expand the regulation's operation." Id. at 639-40, 723 S.E.2d at 195 (quoting Converse Power Corp. , 350

S.C. at 47, 564 S.E.2d at 346)). "Whe[n] the language of a regulation is plain, unambiguous, and conveys a clear and defi nite meaning, interpretation of the regulation is unnecessa ry and improper." Kiawah Dev. Partners, II , 411 S.C. at 39, 766 S.E.2d at 720-21. "However, if applying the regulation's plain language would lead to an absurd result, we will interpret the regulation in a manner which avoids the absurdity." Blue Moon of Newberry, Inc. , 397 S.C. at 261, 725 S.E.2d

at 483.

As an initial matter, we a ddress Respondents' procedural arguments. We reject Respondents' assertions that Appellants faile d to preserve the arguments they raise on appeal and that the issues are not ripe for judicial determination. As to preservation, Appellants advanced their ar guments to the ALC that Broilers were required to either seek an NPDES permit or obtain an exception from the Department and that the Department im properly interpreted its regulations and failed to conduct a site-specific evaluati on to determine whether Broilers had a potential to discharge and thus contribute to the pollution of waters of the state.The ALC ruled on these issues. We therefore conclude Appellants' arguments are preserved for our review. Herron v. Century BMW , 395 S.C. 461, 465, 719 S.E.2d 640, 642 (2011) ("[I]ssue preservation requires that an issue be raised to and ruled upon by the trial judge."). As to ripeness, the regulations requi re CAFOs to apply for an NPDES permit at least 180 days before the CAFO begins operation; however, nothing prevents a pa rty from applying sooner. See Regs. 61-9.122.23(g). Furthe r, Respondents contend Broile rs were not required to apply for such permit, regardless of timi ng. Thus, we find the issue is ripe for judicial determination. See Waters v. S.C. Land Res. Conservation Comm'n , 321 S.C. 219, 227, 467 S.E.2d 913, 917-18 (1996) ("A justiciable controversy is a real and substantial controversy which is ripe and appropriate for judicial determination, as distinguished from a contingent, hypothetical or abstract dispute." (quoting Pee Dee Elec. Coop., Inc. v. Carolina Power & Light Co. , 279 S.C. 64, 66, 301 S.E.2d 761, 762 (1983)).

On the merits, we find the ALC erre d in deferring to the Department's interpretation of regulation 61-9.122 a nd part 200 of regulation 61-43 and in concluding Broilers were not required to apply for an NPDES permit or obtain an exemption. See § 1-23-610(B) (providing this court may reverse the decision of
the ALC when the decision is affected by an error of law). The Department
determined that because it issued Broile rs a no-discharge permit—which prohibits Broilers from discharging pollutants into the waters of the state—Broilers were neither required to apply for an NPDES permit nor request a determination that they had no potential to discharge. Ac cording to the plain language of the regulations, Broilers are large CAFOs by definition because they proposed to house between 162,000 and 237, 000 broiler chickens, using a dry manure handling
system. See Regs. 61-9.122.23(b)(2) (stating a CAFO means an animal feeding operation (AFO) "that is defined as a La rge CAFO or as a Medium CAFO by the terms of this paragraph," or that th e Department designates as a CAFO); Regs. 61-9.122.23(b)(4)(x) (providing a la rge CAFO is an AFO that stables or confines 125,000 chickens or more and uses other than a liquid manure handling system). Regulation 61-9.122.2 states a CAFO comprises a point source and thus requires an NPDES perm it for discharges. See Regs. 61-9.122.1(b)(4)(i). Under regulation 61-9.122.23(d), large CAFOs are required to apply for an NPDES permit unless they obtain a determina tion from the Department pursuant to regulation 61-9.122.23(f) that they ha ve "no potential to discharge."

See Regs. 61-9.122.23(d)-(f). Paragraph (f) provides "the term 'no potential to discharge' means that there is no potentia l for any CAFO manure , litter, or process
wastewater to be added to waters of the State under any circumstance or climactic
condition ." Regs. 61-9.122.23(f)(1) (em phasis added). The Department'sconclusion that a "no discharge" permit—which prohibits a facility from discharging pollutants into the waters of the state—is the equivalent of a determination under regulati on 61-9.122.23(f) that the fa cility has "no potential to discharge" is manifestly contrary to th e language of the regulation, which requires the Department to make a case-specific evaluation. See Regs. 61-9.122.23(f)(1). The Department's issuance of a no-di scharge permit did not satisfy this requirement because the Department did not specifically consider whether there was no potential for any CAFO manure, litter, or process wastewater from Broilers ' proposed facilities to be adde d to the waters of the State "under any circumstance
or climactic condition." See id. Simply because the no-discharge permit prohibited Broilers from discharging pollutan ts into the waters of the state did not mean they had no potential to discharge pollutants within the meaning of regulation 61-9. Rather, the Department was require d to evaluate Broilers' proposed facilities to determ ine whether there was any potential to discharge. Thus, we conclude the ALC erred in deferr ing to the Department's interpretation of regulation 61-9 and in finding Broilers had "no potential to discharge" because the Department issued them no-discharge permits.

Further, we reject the Department's argument that as a result of the Waterkeeper decision, it no longer has authority under re gulation 61-9.122.23 to require a large CAFO to obtain an NPDES permit and th at such CAFOs have no obligation to seek the Department's determination that the CAFO has no potential to discharge.

See Waterkeeper All., Inc. v. U.S. Envtl. Prot. Agency , 399 F.3d 486 (2d Cir. 2005). In Waterkeeper , the Second Circuit Court of Appeals concluded that, with respect to CAFOs, "unless there is a 'd ischarge of any pollutant,' there is no violation of the [Clean Wate r] Act, and point sources ar e, accordingly, . . . [not] statutorily obligated to seek or obtain an NPDES permit." Id. at 504. The court explained that "in the absence of an actua l addition of any pollutant to navigable waters from any point, there is no point source discharge, no statutory violation, . . . and no statutory obligation of point sources to seek or obtain an NPDES permit in the first instance." Id. at 505. The South Carolina regulations at issue are based not only on the federal NP DES regulations but also upon the South Carolina Pollution Control Act, which specif ically authorizes the Department to "prevent pollution." See Regs. 61-9.122.1(a)(1) (s tating "[t]he regulatory provisions contained in [regulations] 61-9.122 and 124 implement the . . . []NPDES[] Program under . . . th e Clean Water Act . . . and the South Carolina Pollution Control Act"); see also S.C. Code Ann. §§ 48-1-10 to -350 (2008 & Supp. 2021) (setting forth So uth Carolina's Pollution Control Act); § 48-1-20 (declaring it is "the public polic y of the State to maintain reasonable standards of purity of the air and water re sources of the State" and authorizing theDepartment to "a bate, control[,] and prevent pollution" (emphasis added)). We acknowledge the CAFO regulation in the federal NPDES section of the Clean
Water Act has since been am ended and now provides that a CAFO must seek an NPDES permit only if it either discharges or proposes to discharge a pollutant. 40

C.F.R. § 122.23 (2008). Here, the ALC determined Waterkeeper was not controlling, and as Broilers acknowledge, neither the Department nor the state has taken any action since the 2005 Waterkeeper decision to repeal or amend our state regulatory scheme with respect to CAFO s. South Carolina's NPDES regulations
therefore remain in effect and Waterkeeper and the subsequent revisions to the federal regulations did not abroga te or otherwise repeal them. 5

We acknowledge regulation 61-9.122.23 provi des that even when the Department determines there is no potential to discharge, Broilers would still be in violation of the regulation if they in fact contributed pollutants to the waters of the state. Regulation 61-43 likewise prohibits discharges and provides the Department authority to enforce comp liance with the no-discharg e permit. The Pollution Control Act provides for criminal and ci vil penalties when a person "throw[s], drain[s], run[s], or allow[s] to seep, or otherwise discharges organic or inorganic
matter into the waters of th e [s]tate" unless that discha rge is "in compliance with a permit issued by the [D]epartment." See § 48-1-90. Nevertheless, none of these measures equal a finding by the Departme nt that Broilers had no potential to discharge, which our regul ations require to excuse a CAFO from obtaining an NPDES permit.

Based on the foregoing, we find the ALC erred in deferring to the Department's interpretation of the regulations and in c oncluding Broilers were not required to apply for an NPDES permit because th e issuance of a no-discharge permit constituted a determination by the Departme nt that Broilers had no potential to discharge. We therefore reverse as to th is issue and remand to the Department for further evaluation pursuant to regulation 61-9.

5 As to the Department's contention th e regulations contained in regulation 61-9.122 are unenforceable because they were enacted without legislative approval, the Department raises this ar gument for the first time on appeal. Therefore, we decline to c onsider this argument as an additional sustaining ground. See I'On, L.L.C. v. Town of Mt. Pleasant , 338 S.C. 406, 421, 526 S.E.2d 716, 724 (2000) ("[A] respondent may raise an additional sustaining ground that was not even presented to the lower court, but the a ppellate court is likely to ignore it.").II. Permit Evaluation

Appellants next contend th e ALC erred by accepting DH EC's interpretation of certain provisions within part 200 of re gulation 61-43 and requiring Appellants to show actual discharges from other facilities. Appellants assert that in 2004, the Department issued a "Total Maximum Da ily Load" (TMDL) for the Little River because its watershed had impaired water quality due to excessive levels of fecal bacteria and it identified poultry fac ilities as possible contributors to the impairment. Appellants argue the Depart ment unreasonably interpreted regulation 61-43.200.70(F) and 61-43.200.140(B) to (C) when it concluded no additional requirements or setbacks were needed be cause "ag[riculatura l] facilities are not
considered as contributors to TMDL." Appellants conte nd the Department therefore failed to meaningfully evaluate the factors set forth in regulations 61-43.200.70(E) to (F) and 61-43.200.140(C) in issuing permits to Broilers and that the ALC erred by deferring to th e Department's interpretation of the regulations. We agree.

Part 200 of regulation 61-43 governs the permitting of animal facilities. Regulation 61-43.200.70(F) provided, 6

The setback limits given in this part are minimum siting requirements . . . On a case-by-case basis the Department may require add itional separation distances applicable to animal facilities . . . The Department shall evaluate the proposed site including, but not limited to,

6 In May 2021, part 200.70(F) was revised and now provides:

The setback limits given in Part 200 are siting requirements. The Depart ment shall evaluate the following factors to determine if any special conditions

are necessary:

1. Latitude and Longitude;

2. Down-wind receptors; and

3. Nutrient Management Plan.

S.C. Code Ann. Regs. 61- 43.200.70(F) (Supp. 2021).the following factors when determining if additional distances are necessary:

1. Proximity to 100-year floodplain;

2. Geography and soil types on the site;

3. Location in a watershed;

4. Classification or impairment of adjacent waters;

5. Proximity to a State Designated Focus Area; Outstanding Resource Water; Heritage Corridor; Historic Preservation District; State Approved Source Water Protection Area; state or national park or forest; state or federal research area; and privately-owned wildlife refuge, park, or trust
property;

6. Proximity to other known point source discharges and potential nonpoint sources;

7. Slope of the land;

8. Animal manure a pplication method and aerosols;

9. Runoff prevention;

10. Adjacent groundwater usage;

11. Down-wind receptors; and

12. Aquifer vulnerability.

Regulation 61-43.200.140 provides:

A. There shall be no discharge of pollutants from the operation into surface [w]aters of the [s]tate (including ephemeral and intermitt ent streams). . . .B. On a case-by-case basis, the Department may impose additional or more stringent requirements for the management, handling, treatment, storage, or utilization of animal manure and other animal by-products.

C. The following cases shall be evaluated for additional or more stringent requirements:

1. Source water protecti on. Facilities and manure
utilization areas located within a state approved source water protection area.

2. 303(d) Impaired Water bodies List. Facilities and manure utilization areas located upstream of an impaired waterbody.

. . . .

(emphases added); see also Regs. 61-43.200.70(E) (providing that, in making permitting decisions, "[t]he Department shall act on all permits to prevent, so far as reasonably possible considering relevant st andards under state a nd federal laws, an increase in pollution of the waters and ai r of the State from any new or enlarged sources").

Chaplin, the Department's permit reviewer, testified regarding his review of the proposed facilities. The record contains the checklist summaries he completed. Chaplin testified, and the checklist summar ies reflect, that in making the permitting decision, the Department considered the proximity of the projects to the Little River—an impaired waterbody located do wnstream from the proposed facilities. Chaplin testified, however, that agricu ltural facilities were not considered to
contribute to the TMDL and therefore he determined no additi onal requirements or
setbacks were needed because Broilers' facilities would not increase pollution of
the waters of the state. As the AL C recognized, the regulations require the Department to evaluate sensitive areas, including areas on the impaired water bodies list, to determine if more string ent requirements or setbacks are needed. See Regs. 61-43.200.140(C)(2). The Department bypassed this case-specific evaluation by concluding agricultural facilitie s are not considered to contribute to the TMDL. This interpreta tion was arbitrary because the regulations required the Department to evaluate specific factors to determine whether additional setbackswere required or additional or more st ringent requirements were needed. We therefore find the ALC erred in deferring to the Department's interpretation. The Department should have evaluated the factors set forth in regulations 61-43.200.70(F) and 61-43.200.140(C). See Regs. 61-43.200.70(E) ("The Department shall act on all permits to preven t, so far as reasonably possible, . . . an increase in pollution of the waters and ai r of the State from any new or enlarged sources."). 7 Thus, we conclude the ALC erred in finding the Department complied with the regulatory requirements in issuing the permits. 8

Based on the foregoing, we conclude the AL C erred in affirming the Department's issuance of the agricultural permits when it fa iled to consider all factors set forth in part 200 of regulation 61-43 in evaluati ng Broilers' permit applications. We therefore reverse and remand to the Depart ment for further evaluation pursuant to regulation 61-43.

CONCLUSION

For the foregoing reasons, we reverse the ALC's decision to uphold the Department's issuance of the permits to Br oilers and remand to the Department for further evaluation pursuant to regulations 61-9 and 61-43.

REVERSED AND REMANDED.

KONDUROS and MCDONA LD, JJ., concur.

7 We acknowledge Broilers' facilities, as proposed, co mply with the minimum setback requirements. Thus, we que stion whether Appellants' arguments concerning additional setbacks are now m oot under the current regulatory scheme. This amendment, however, did not aff ect Appellants' arguments concerning whether additional or more stringent re quirements were needed under regulation 61-43.200.140(C).

8 We decline to address Appellants' remaining argument the ALC erred in requiring "evidence proving that exis ting permitted facilities actually increased pollution to waters of the State" because our decisions as to the prior issues are dispositive. See Futch v. McAllister To wing of Georgetown, Inc. , 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (stating the c ourt need not address the appellant's remaining issues when the disposition of a prior issue is dispositive).