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, 2022 
 

REVERSED AND REMANDED 

Robert Guild, of Robert Guild, Attorney at Law, of 

Columbia, for Appellants. 

Mitchell Willoughby and Tracey 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 Control, 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 Law Court (the ALC) affirming the South 

Carolina Department of Health and Environmental Control's (the Department's) 

issuance of agricultural permits to David Coggins Broilers, Heath Coggins 

Broilers, and Jim Young Broilers (collectively, Broilers). Appellants argue the 

ALC erred in (1) deferring to the Department's interpretation of regulations 

61-9.122 and 61-43 Part 200 of the South Carolina Code1

 and concluding that, as a 

matter of law, Broilers were not required to apply for a separate National Pollutant 

Discharge Elimination System (NPDES) permit or obtain an exemption from the 

Department; (2) deferring to the Department's interpretation of regulation 61-43 

that allowed it to avoid mandated aspects of permit evaluation and precluded a 

meaningful review of the permit application; 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 Elimination 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 agricultural facilities other than swine). 
 

FACTS AND PROCEDURAL HISTORY 

In 2016, Broilers each submitted an application to the Department for new 

agricultural animal facilities permits to construct and operate their proposed broiler 

facilities. Broilers collectively proposed to construct eighteen broiler houses on a 

255-acre tract located in the Little River watershed in the Mountville area of 

Laurens County. David Coggins Broilers' facility proposed to house 162,000 

broilers, and Heath Coggins Broilers and Jim Young Broilers each proposed to 

house 237,600 broilers in their 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 Mountville citizens, the Department held public meetings in 

September and October of 2016. Blackmon 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 Practices" 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 and contained a special condition that 

required Broilers to "[o]perate and maintain [a] waste management system in 

accordance with State and Federal law so as to prevent discharges to the 

environment." Public notices were circulated in a local publication after the 

Department issued the permits. 

After the Department declined Appellants' requests to hold a final review 

conference as to Broilers' permits, Appellants 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 purposes 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 discharge of pollutants into the waters of 

the state. Broilers asserted the Department was therefore not required to follow the 

2

 Appellants challenged each of the permits on five grounds. The only ground 

raised on appeal concerns the discharge of pollutants into waters of the state. 
 

procedure set forth in regulation 61-9.122.23(d)(2)3 for determining whether the 

facilities had "no potential 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 Broilers' permit applications; and Christopher Mosley, a staff 

member of Agri-Waste Technology, Inc., 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, and conducted site visits. 

The CNMPs provided the number of broilers to be housed at the facilities, the 

amount of litter that would be produced, Broilers' plan for disposing of that litter, 

and the setback distances for the facilities. 

The ALC accepted proposed orders from Appellants, Broilers, and the Department. 

The ALC granted partial summary judgment in favor of Broilers and the 

Department (collectively, Respondents), concluding an NPDES permit was not 

required and the Department was not required to determine whether the facilities 

had no potential to discharge. 

Although the ALC found "the plain language 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 Department 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 determination the facilities had "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 (CAFO)] need not seek coverage under an 

NPDES permit otherwise required by this section once the owner or operator has 

received from the Department notification of a determination 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 concluded 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 matter 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' CAFOs, that obligation would not occur until 

'at least 180 days prior to the time that the CAFO[s] commence[d] operation'" and 

therefore, this issue was not ripe for consideration. The ALC considered 

Appellants' remaining arguments and affirmed the Department's issuance of the 

permits. The ALC found the Department complied with the regulatory 

requirements in reviewing and issuing the 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 limitation 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 were 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 avoid 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, farther from the Little River. 
STANDARD OF REVIEW 

This court may reverse a decision of the 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] arbitrary or capricious or 

characterized by abuse of discretion or clearly 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 construction of a regulation is a 

question of law . . . ." Id. (quoting 2 Am. Jur. 2d Administrative Law § 245). 

"[W]e will reject [an] agency's interpretation 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 discharge 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 feeding 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). Regulation 61-9.122.23(a) provides 

CAFOs, as defined in regulation 61-9.122.23(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 section 122.23(d)." (emphasis added); see 

also Regs. 61-9.122.2(b) (stating a "[d]ischarge 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 released to the waters of the State by a 

discernible, confined and discrete conveyance, including but not limited to 

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

Paragraph (d) of this regulation states a CAFO owner or operator "must seek 

coverage under an NPDES permit" unless it has "received from the Department 

notification of a determination 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 potential to discharge" means that 

there is no potential for any CAFO manure, 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 coverage under an NPDES permit at least 

180 days before commencing operations and must include the information 

specified in regulations 61-9.122.21(f) and 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 information concerning the CAFO's geographical 

location, its contact information, its business activities, its principal products or 

services, and any permits or construction approvals it has received or for which it 

has applied. Regulation 61-9.122.21(i)(1)(i) to (ix) requires 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 confinement 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 year (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 specify 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). Further, 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-discharge 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 relevant standards under 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 Department's interpretation 

that its issuance of a "no-discharge" permit pursuant to part 200 of regulation 

61-43 constituted "an inherent determination that the facilities 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 CAFOs 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 that the issue was not ripe for judicial 

determination. We agree. 
 

"[O]ur deference doctrine provides that courts 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 (2005)). "We defer to an agency 

interpretation unless it is 'arbitrary, capricious, or manifestly 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 "construction 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 based alone on one's will 

and not upon any course of reasoning and 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. Dep'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 construction 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 definite meaning, interpretation of the 

regulation is unnecessary 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 address Respondents' procedural arguments. We reject 

Respondents' assertions that Appellants failed to preserve the arguments they raise 

on appeal and that the issues are not ripe for judicial determination. As to 

preservation, Appellants advanced their arguments to the ALC that Broilers were 

required to either seek an NPDES permit or obtain an exception from the 

Department and that the Department improperly interpreted its regulations and 

failed to conduct a site-specific evaluation 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 require CAFOs to apply 

for an NPDES permit at least 180 days before the CAFO begins operation; 

however, nothing prevents a party from applying sooner. See 

Regs. 61-9.122.23(g). Further, Respondents contend Broilers were not required to 

apply for such permit, regardless of timing. 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 erred in deferring to the Department's 

interpretation of regulation 61-9.122 and 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 Broilers 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. According 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 Large CAFO or as a Medium CAFO by the 

terms of this paragraph," or that the Department designates as a CAFO); 

Regs. 61-9.122.23(b)(4)(x) (providing a large 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 permit 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 determination from the Department pursuant to 

regulation 61-9.122.23(f) that they have "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 potential 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) (emphasis added). The Department's 
conclusion 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 regulation 61-9.122.23(f) that the facility has "no potential to 

discharge" is manifestly contrary to the 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-discharge 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 added to the waters of the State "under any circumstance 

or climactic condition." See id. Simply because the no-discharge permit 

prohibited Broilers from discharging pollutants 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 required to evaluate Broilers' 

proposed facilities to determine whether there was any potential to discharge. 

Thus, we conclude the ALC erred in deferring 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 regulation 61-9.122.23 to require a large 

CAFO to obtain an NPDES permit and that 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 'discharge of any pollutant,' there is no 

violation of the [Clean Water] Act, and point sources are, accordingly, . . . [not] 

statutorily obligated to seek or obtain an NPDES permit." Id. at 504. The court 

explained that "in the absence of an actual 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 NPDES regulations but also upon the South 

Carolina Pollution Control Act, which specifically authorizes the Department to 

"prevent pollution." See Regs. 61-9.122.1(a)(1) (stating "[t]he regulatory 

provisions contained in [regulations] 61-9.122 and 124 implement 

the . . . []NPDES[] Program under . . . the 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 South Carolina's Pollution Control Act); 

§ 48-1-20 (declaring it is "the public policy of the State to maintain reasonable 

standards of purity of the air and water resources of the State" and authorizing the 
 

 

 

 

Department to "abate, control[,] and prevent pollution" (emphasis added)). We 

acknowledge the CAFO regulation in the federal NPDES section of the Clean 

Water Act has since been amended 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 CAFOs. South Carolina's NPDES regulations 

therefore remain in effect and Waterkeeper and the subsequent revisions to the 

federal regulations did not abrogate or otherwise repeal them.5 

We acknowledge regulation 61-9.122.23 provides 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 compliance with the no-discharge permit. The Pollution 

Control Act provides for criminal and civil 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 the [s]tate" unless that discharge 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 Department that Broilers had no potential to 

discharge, which our regulations 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 concluding Broilers were not required to 

apply for an NPDES permit because the issuance of a no-discharge permit 

constituted a determination by the Department that Broilers had no potential to 

discharge. We therefore reverse as to this issue and remand to the Department for 

further evaluation pursuant to regulation 61-9. 

5

 As to the Department's contention the regulations contained in regulation 

61-9.122 are unenforceable because they were enacted without legislative 

approval, the Department raises this argument for the first time on appeal. 

Therefore, we decline to consider 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 appellate court is likely to ignore it."). 
 

 

II. Permit Evaluation 

Appellants next contend the ALC erred by accepting DHEC's interpretation of 

certain provisions within part 200 of regulation 61-43 and requiring Appellants to 

show actual discharges from other facilities. Appellants assert that in 2004, the 

Department issued a "Total Maximum Daily Load" (TMDL) for the Little River 

because its watershed had impaired water quality due to excessive levels of fecal 

bacteria and it identified poultry facilities as possible contributors to the 

impairment. Appellants argue the Department 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 because "ag[riculatural] facilities are not 

considered as contributors to TMDL." Appellants contend 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 the 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 additional 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 Department 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 application 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 intermittent 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 protection. Facilities and manure 

utilization areas located within a state approved 

source water protection area. 

2. 303(d) Impaired Waterbodies 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 standards under state and federal laws, an 

increase in pollution of the waters and air 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 summaries reflect, that in making the permitting 

decision, the Department considered the proximity of the projects to the Little 

River—an impaired waterbody located downstream from the proposed facilities. 

Chaplin testified, however, that agricultural facilities were not considered to 

contribute to the TMDL and therefore he determined no additional requirements or 

setbacks were needed because Broilers' facilities would not increase pollution of 

the waters of the state. As the ALC recognized, the regulations require the 

Department to evaluate sensitive areas, including areas on the impaired water 

bodies list, to determine if more stringent requirements or setbacks are needed. See 

Regs. 61-43.200.140(C)(2). The Department bypassed this case-specific 

evaluation by concluding agricultural facilities are not considered to contribute to 

the TMDL. This interpretation was arbitrary because the regulations required the 

Department to evaluate specific factors to determine whether additional setbacks 
 

 

 

were required or additional or more stringent 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 prevent, so far as reasonably possible, . . . an 

increase in pollution of the waters and air 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 ALC erred in affirming the Department's 

issuance of the agricultural permits when it failed to consider all factors set forth in 

part 200 of regulation 61-43 in evaluating Broilers' permit applications. We 

therefore reverse and remand to the Department 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 Broilers and remand to the Department for 

further evaluation pursuant to regulations 61-9 and 61-43. 

REVERSED AND REMANDED. 

KONDUROS and MCDONALD, JJ., concur. 

7

 We acknowledge Broilers' facilities, as proposed, comply with the minimum 

setback requirements. Thus, we question whether Appellants' arguments 

concerning additional setbacks are now moot under the current regulatory scheme. 

This amendment, however, did not affect Appellants' arguments concerning 

whether additional or more stringent requirements 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 existing permitted facilities actually increased 

pollution to waters of the State" because our decisions as to the prior issues are 

dispositive. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 

613, 518 S.E.2d 591, 598 (1999) (stating the court need not address the appellant's 

remaining issues when the disposition of a prior issue is dispositive).