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Jan. 28, 2026 Get Citation Alerts Download PDF Add Note

Blue Ridge Environmental Defense League v. SCDES

Supreme Court of South Carolina

• Citations: None known

• Docket Number: 2023-001351

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (4.6K)

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Syllabus

This is an appeal from an order of the administrative law court granting the water quality certification necessary for Dominion Energy to obtain a federal permit to construct a natural gas pipeline near the Great Pee Dee River in Florence County. We affirm.

Combined Opinion

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Blue Ridge Environmental Defense League, Appellant,

v.

South Carolina Department of Environmental Services
and Dominion Energy, Respondents.

Appellate Case No. 2023-001351

Appeal from the Administrative Law Court
Ralph King Anderson, III

Opinion No. 28315
Heard June 24, 2025 – Filed January 28, 2026

AFFIRMED

Jesse Sanchez, of The Law Office of Jesse Sanchez, LLC,
of Mount Pleasant; Stephen A. Spitz, of A Business Law
Firm, of Charleston, both for Blue Ridge Environmental
Defense League.

Elizabeth B. Partlow, of Law Offices of Elizabeth B.
Partlow, LLC, of Columbia; Brooks M. Smith, of
Troutman Pepper Locke, LLP, of Richmond, Virginia,
both for Dominion Energy; Bennett W. Smith, Karen
Christine Ratigan, and Christopher Patrick Whitehead, of
South Carolina Department of Environmental Services, of
Columbia, all for South Carolina Department of
Environmental Services.
Elizabeth B. Partlow, of Law Offices of Elizabeth B.
Partlow, LLC, of West Columbia; and Brooks M.
Smith, of Troutman Pepper Hamilton Sanders, LLP, of
Richmond, VA, both for Respondent Dominion
Energy, Inc. Emily Wyche and Susan Ness Carlson, of
Charleston, Amici Curiae for American Rivers, Black-
Sampit Riverkeeper, Catawba Riverkeeper,
Charleston Waterkeeper, Congaree Riverkeeper,
Friends Of The Edisto, Pee Dee-Lynches Project
Coordinator, Savannah Riverkeeper, Save Our Saluda,
Waccamaw Riverkeeper and Winyah Rivers Alliance.

PER CURIAM: This is an appeal from an order of the administrative law court
(ALC) granting the water quality certification necessary for Dominion Energy to
obtain a federal permit to construct a natural gas pipeline near the Great Pee Dee
River in Florence County. We affirm.

I. Facts, Regulatory Framework, and Procedural History

Since the 1960's, Dominion Energy and its corporate predecessors have operated an
8-inch natural gas pipeline starting at River Neck Road east of the City of Florence
where Dominion Energy receives natural gas from its suppliers. The pipeline
proceeds in a southeasterly direction within a 40-foot right-of-way between Old
River Road and the Great Pee Dee River to the Town of Kingsburg. At Kingsburg,
the pipeline splits into multiple smaller pipelines, including one heading east to the
Conway/Myrtle Beach area. According to Dominion Energy's witnesses, the
existing pipeline from River Neck Road to Kingsburg is no longer adequate to serve
the increasing demand for natural gas due to residential and commercial growth in
the market the pipeline serves. Thus, Dominion Energy is required to supplement
the amount of product it can deliver through the pipeline with compressed or
liquified natural gas delivered by truck. To accommodate current and anticipated
future natural gas demand, Dominion Energy proposed a project to build a new, 16-
inch pipeline running parallel with the existing pipeline, within the existing right-of-
way after widening it by ten feet.

Under section 404 of the federal Clean Water Act, a permit issued by the U.S. Army
Corps of Engineers is required for any activity involving the discharge "of dredged
or fill material into the navigable waters." 33 U.S.C. § 1344 (a). The pipeline is set
to be constructed through or under several tributaries to the Great Pee Dee River,1
including Jeffries Creek—a "navigable water"—requiring the discharge of dredged
or fill material. Under section 401 of the Clean Water Act, "a certification from the
State in which the discharge originates or will originate" is required as part of a
section 404 permit application. 33 U.S.C. § 1341 (a)(1). This state-level
certification—a "401 Water Quality Certification"—is based on state-established
procedures that ensure a project complies with the federal Clean Water Act. Id.; see
also 40 C.F.R. § 131.12 (2015) ("The State shall develop and adopt a statewide
antidegradation policy."). Thus, for Dominion Energy to obtain the necessary permit
from the Corps of Engineers, it must first receive a 401 Water Quality Certification
from the State of South Carolina.

Regulation 61-101 of the South Carolina Code of Regulations (Supp. 2025)
establishes the "procedures and policies for implementing State water quality
certification requirements of Section 401 of the Clean Water Act." Regs. 61-
101(A)(1). Regulation 19-450 of the South Carolina Code of Regulations (Supp.
2025) outlines specific technical requirements for projects involving "navigable
waters . . . of the state." Regs. 19-450.9. The South Carolina Department of
Environmental Services2 is the agency responsible for reviewing applications and
issuing 401 Water Quality Certifications. Regs. 61-101(A)(2). After public notice
and a hearing, the Department issued the 401 Water Quality Certification for the
project. Blue Ridge requested the Department Board conduct a review of the
decision, which it declined to do. Blue Ridge then requested a contested case hearing
before the ALC. Following a three-day hearing, the ALC issued an order granting
the 401 Water Quality Certification. 3

1
The pipeline will be installed under Jeffries Creek and through "Mills Branch,
Bigham Branch, Briar Branch, Barfield Mill Creek, Bullock Branch, and other
wetlands and unnamed tributaries."
2
In 2023, the General Assembly created the South Carolina Department of
Environmental Services to perform the services formerly handled by the South
Carolina Department of Health and Environmental Control. Act No. 60, 2023 S.C.
Acts 302.
3
See S.C. Code Ann. § 1-23-600 (G) (Supp. 2025) ("[T]he Administrative Law Court
has jurisdiction to review and enforce an administrative process issued by an agency
or by a department of the executive branch of government.").
Blue Ridge appealed the ALC's order to the court of appeals. While the appeal was
pending, the Corps of Engineers issued Dominion Energy the necessary permit for
the project. At the request of the court of appeals, this Court certified the case for
our review pursuant to Rule 204(b), SCACR.

II. Mootness

Dominion Energy argues the Corps of Engineers' issuance of its permit renders this
appeal moot. Dominion Energy argues that federal law does not require the Corps
of Engineers to take any action when a state withdraws its 401 Water Quality
Certification for substantive reasons after the effective date of the federal permit.
Rather, the Corps of Engineers "will review those reasons and consider whether
there is substantial basis for suspension, modification, or revocation of the" federal
permit. 33 C.F.R. § 330.4 (c)(7) (2013). Under this regulation, the Corps of
Engineers may determine "such attempted state withdrawal is not effective," and
Corps of Engineers "will consider the state certification to be valid." Id. Dominion
Energy argues that because a decision by this Court to revoke or reverse the 401
Water Quality Certification does not require the Army Corps of Engineers to
withdraw the permit, the appeal is moot. See S.C. Pub. Int. Found. v. S.C. Dep't of
Transp., 421 S.C. 110, 121, 804 S.E.2d 854, 860 (2017) ("A case becomes moot
when judgment, if rendered, will have no practical legal effect upon the existing
controversy." (quoting Sloan v. Greenville Cnty., 380 S.C. 528, 535, 670 S.E.2d
663, 667 (Ct. App. 2009))). We decline to resolve the appeal on the basis of
mootness.

III. 401 Water Quality Certification

Blue Ridge's substantive arguments that we should reverse the ALC are based
entirely on its contention that key factual findings by the ALC are not supported by
substantial evidence. See S.C. Code Ann. § 1-23-610 (B) (Supp. 2025) ("The court
may not substitute its judgment for the judgment of the administrative law judge as
to the weight of the evidence on questions of fact. The court . . . may reverse or
modify the decision if the substantive rights of the petitioner have been prejudiced
because the finding, conclusion, or decision is: . . . clearly erroneous in view of the
reliable, probative, and substantial evidence on the whole record."); MRI at Belfair,
LLC v. S.C. Dep't of Health & Env't Control, 379 S.C. 1, 6, 664 S.E.2d 471, 474
(2008) ("As to factual issues, judicial review of administrative agency orders is
limited to a determination whether the order is supported by substantial evidence.").
In particular, Blue Ridge argues substantial evidence does not support the ALC's
findings that (1) there is a need for the project and feasible alternatives were
considered; (2) water quality impacts from the project will be temporary; (3) there
are no federally threatened or endangered species in the project area that will be
affected by the project; (4) the project will impact only one state navigable water
(Jeffries Creek); and (5) "environmental justice" concerns were considered. As we
discuss below, the record is replete with evidence to support the ALC's factual
findings. See Kiawah Dev. Partners, II v. S.C. Dep't of Health & Env't Control, 411
S.C. 16, 28, 766 S.E.2d 707, 715 (2014) ("In determining whether the ALC's
decision was supported by substantial evidence, the Court need only find, looking at
the entire record on appeal, evidence from which reasonable minds could reach the
same conclusion as the ALC."). Thus, we disagree with Blue Ridge and affirm the
ALC.

First, Blue Ridge argues the ALC's findings concerning project need and
consideration of feasible alternatives are not supported by substantial evidence. At
oral argument before this Court, Blue Ridge argued "there was zero expert testimony
as to projected growth" and "zero evidence as to project need." The ALC determined
the project was needed to serve Dominion Energy's current and anticipated natural
gas demand. This factual finding is consistent with Dominion Energy's 401 Water
Quality Certification application. Further, Dominion Energy project manager
Robert Priester testified during the hearing that Dominion Energy must supplement
the 8-inch pipeline to meet current gas demands. Priester also testified—"based on
Dominion's experience"—to the anticipated growth of the area and the future need
for natural gas. 4 While Blue Ridge argues Dominion Energy failed to present
evidence of the number of trucks it uses to supplement the 8-inch pipeline or how
often it must supplement the existing pipeline, this does not negate the ample
evidence in the record that supports the ALC's finding that the project is needed.

Blue Ridge also argued at oral argument that the Department should have conducted
"its own evaluation" concerning the need for the project. Subsection (F) of
regulation 61-101 outlines the Department's review procedures for a 401 Water
Quality Certification application. There is no requirement set forth in that regulation
or otherwise that the Department conduct its own evaluation concerning need for a

4
Because Blue Ridge did not object to the testimony concerning project need as
improper lay witness testimony at the hearing, we do not address its argument that
"there was zero expert testimony as to projected growth." See Brown v. S.C. Dep't
of Health & Env't Control, 348 S.C. 507, 519, 560 S.E.2d 410, 417 (2002) ("[I]ssues
not raised to and ruled on by the AL[C] are not preserved for appellate
consideration.").
project. Rather, the following factors are considered when assessing "water quality
impacts" of a project: "(a) whether the activity is water dependent and the intended
purpose of the activity; (b) whether there are feasible alternatives to the activity;
and all potential water quality impacts of the project, both direct and indirect."
Regs. 61-101(F)(3). Here, we have no difficulty agreeing with the ALC there is a
need for this project, as it is frankly obvious the demand for natural gas in the area
served by the pipeline has grown over the years and will continue to grow as this
area continues to develop.

The ALC determined feasible alternatives for pipeline location were considered,
including rejection of the "No Action" alternative—meaning the pipeline would not
be constructed. The ALC rejected the "No Action" alternative because it would not
meet Dominion Energy's needs and, therefore, was not a feasible alternative for the
project. The ALC considered feasible alternatives for pipeline installation, including
the use of open trench excavation and horizontal directional drilling at water
crossings.5 Specifically, the ALC determined the use of horizontal directional
drilling to cross under Jeffries Creek and open trench excavation at other water
crossings decreased the overall environmental impact of the project. These findings
are consistent with the staff assessment, which demonstrates the Department and
Dominion Energy discussed various installation methods for the project. Priester
also testified about the environmental and operational considerations of these
installation methods. Thus, we hold the ALC's findings are supported by substantial
evidence.

Second, Blue Ridge argues the ALC's finding that water quality impacts from the
project will be temporary is not supported by substantial evidence. The staff
assessment demonstrates the Department determined water quality impacts will be
temporary and "will be minimized and should not contravene the water quality
standards" outlined in regulation 61-68 of the South Carolina Code of Regulations
(Supp. 2025). See Regs. 61-68 (establishing state water quality standards). This is
consistent with Department representative Charles Hightower's testimony that "a
temporary increase in turbidity levels"—or cloudiness—during construction is "not
unusual" and "ambient conditions" should resume after construction. Further,
regulation 61-101(C)(3) states the Department "may require . . . water quality
monitoring data." Use of the word "may" signifies a discretionary act. See State v.

5
Here, open trench excavation involves installing the pipeline at a depth of four to
five feet and horizontal directional drilling involves drilling under a creek bed at a
greater depth to install the pipeline.
Hill, 314 S.C. 330, 332, 444 S.E.2d 255, 256 (1994) ("The word 'may' ordinarily
'signifies permission and generally means the action spoken of is optional or
discretionary.'" (quoting Robertson v. State, 276 S.C. 356, 358, 278 S.E.2d 770, 771
(1981))). Thus, we hold the ALC's findings are supported by substantial evidence.

Third, Blue Ridge argues the ALC's finding that federally threatened or endangered
species located in the project area will not be affected by the project is not supported
by substantial evidence. Blue Ridge members expressed general concerns about
how the project would impact federally protected species during the notice periods.
South Carolina Department of Natural Resources employee Greg Mixon also
submitted a letter to the Department outlining several areas of concern and
recommendations. The staff assessment demonstrates the Department considered
Mixon's letter and the public comments by incorporating several conditions in the
401 Water Quality Certification and Mixon testified the conditions satisfied the
Department of Natural Resources' concerns. The ALC noted "the U.S. Fish and
Wildlife Service determined the Project would have 'no effect' on federally
threatened or endangered species," and the ALC found "there is no evidence" the
project "will negatively 'affect the habitats of rare and endangered species of
wildlife,'" quoting regulation 19-450.9(A)(3) of the South Carolina Code of
Regulations (Supp. 2025). At oral argument before this Court, Blue Ridge could
point to no evidence in the record to demonstrate how the project would affect
threatened or endangered species. Thus, we hold the ALC's findings are supported
by substantial evidence.

Fourth, Blue Ridge argues the ALC's finding that the project will not impact state
navigable waters is not supported by substantial evidence because it presented
"unrebutted testimony" that waters the pipeline must cross in addition to Jeffries
Creek are state navigable waters. "[N]avigable waters of the state" subject to
regulation 19-450 are defined as, "waters which are now navigable, or have been
navigable at any time, or are capable of being rendered navigable by the removal of
accidental obstructions, by rafts of lumber or timber or by small pleasure or sport
fishing boats. Navigability shall be determined by the Department." Regs. 19-
450.1(A); 19-450.2(C). The staff assessment indicates the Department determined
Jeffries Creek is the only state navigable water the project will cross. This is
consistent with the Department's Water Quality Certification and Wetlands Project
Manager William Wenerick's testimony during the hearing. While Blue Ridge
member Gail Andrews testified during the hearing that she previously rode on a
"fishing boat with a motor on it" on multiple bodies of water the project will cross,
she did not testify that she rode in the exact location of the project area. Regardless,
navigability under regulation 19-450 is determined by the Department. See Regs.
19-450.2(C). Further, because Dominion Energy will use horizontal directional
drilling to cross under Jeffries Creek instead of open trenching through Jeffries
Creek, the project will not impact navigability of the state navigable water. See
Regs. 19-450.4(A)(7) (2011) ("The permitted activities shall not block or obstruct
navigation or the flow of any waters . . . ."). Thus, we hold the ALC's finding is
supported by substantial evidence.

Fifth, Blue Ridge argues the ALC's findings that "environmental justice" concerns
were considered are not supported by substantial evidence. "The purpose of an
environmental justice analysis is to determine whether a project will have a
disproportionately adverse effect on minority and low income populations." Mid
States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520, 541 (8th Cir. 2003).
While the ALC determined "environmental justice" concerns were considered, it
also noted such concerns are not required when reviewing a 401 Water Quality
Certification. Neither regulation 19-450 nor regulation 61-101 requires
consideration of "environmental justice" concerns. Thus, we hold the ALC
appropriately determined "environmental justice" considerations are not required.

IV. Conclusion

For the reasons explained above and the abundant evidence in the record, we affirm
the ALC.

AFFIRMED.

FEW, Acting Chief Justice, JAMES, HILL, VERDIN, JJ., and Acting Justice
Grenville D. Morgan, Jr., concur.