401 Water Quality Certifications in South Carolina: Substantial-Evidence Deference, Agency Navigability Determinations, and No Mandatory Environmental-Justice Review

Introduction

In Blue Ridge Environmental Defense League v. South Carolina Department of Environmental Services and Dominion Energy, the Supreme Court of South Carolina reviewed an Administrative Law Court (ALC) order granting a state Clean Water Act § 401 Water Quality Certification needed for Dominion Energy to secure a federal Clean Water Act § 404 permit from the U.S. Army Corps of Engineers to construct a 16-inch natural gas pipeline near the Great Pee Dee River in Florence County.

The Appellant (Blue Ridge Environmental Defense League) challenged the certification largely on factual grounds—arguing the ALC’s key findings lacked substantial evidence—while the Respondents (South Carolina Department of Environmental Services and Dominion Energy) defended the certification. The case also presented a threshold question of mootness after the Corps issued the federal permit during the appeal.

The Court affirmed and, in doing so, reinforced several practical rules governing § 401 certification litigation in South Carolina: (1) strong appellate deference to ALC factfinding under the substantial-evidence test; (2) the Department’s discretion and primacy in certain technical determinations (including state navigability under Regulation 19-450); and (3) the absence of any requirement in the cited South Carolina regulations to perform an “environmental justice” analysis as part of § 401 certification review.

Summary of the Opinion

Disposition: The Supreme Court affirmed the ALC’s order granting the § 401 Water Quality Certification.
Mootness: Although Dominion Energy argued the federal permit’s issuance mooted the appeal, the Court declined to resolve the case on mootness grounds.
Merits: The Court held the record contained substantial evidence supporting the ALC’s findings on (i) project need and alternatives, (ii) temporary water-quality impacts, (iii) threatened/endangered species, (iv) navigable waters, and (v) environmental justice considerations (and that such considerations were not required by the governing regulations).

Analysis

Precedents Cited

S.C. Pub. Int. Found. v. S.C. Dep't of Transp. (and Sloan v. Greenville Cnty.) — Mootness and “Practical Legal Effect”

Dominion Energy invoked S.C. Pub. Int. Found. v. S.C. Dep't of Transp., which quotes Sloan v. Greenville Cnty. for the core principle that a case becomes moot when a judgment “will have no practical legal effect upon the existing controversy.” The Court did not reject that doctrine; instead, it exercised restraint by declining to decide the appeal on mootness, leaving open how South Carolina appellate courts should treat mootness arguments when a federal agency has already acted on a permit dependent on a state § 401 certification.

MRI at Belfair, LLC v. S.C. Dep't of Health & Env't Control and Kiawah Dev. Partners, II v. S.C. Dep't of Health & Env't Control — Substantial Evidence and Deference to the ALC

These cases supplied the decision’s central administrative-law framework: appellate review of agency/ALC factual determinations is limited to whether the order is supported by “substantial evidence,” and the reviewing court need only find evidence from which “reasonable minds” could reach the ALC’s conclusion. The Court leaned on this standard repeatedly to reject Blue Ridge’s fact-based attacks on the ALC’s findings, emphasizing the record was “replete” with supporting evidence.

Brown v. S.C. Dep't of Health & Env't Control — Issue Preservation

Blue Ridge argued there was “zero expert testimony” about projected growth, but the Court cited Brown v. S.C. Dep't of Health & Env't Control to note the group failed to object at the hearing and therefore did not preserve that evidentiary argument for appellate review. This reinforces a recurring theme in administrative appeals: evidentiary and procedural objections must be raised and ruled upon in the ALC to be available on appeal.

State v. Hill (quoting Robertson v. State) — “May” as Discretionary Authority

In addressing Blue Ridge’s suggestion that the Department had to require monitoring data, the Court cited State v. Hill (quoting Robertson v. State) for the interpretive canon that “may” ordinarily denotes discretion rather than a mandate. Applying that principle, the Court treated Regulation 61-101(C)(3)’s statement that the Department “may require … water quality monitoring data” as permissive and thus not a basis to overturn the certification.

Mid States Coal. for Progress v. Surface Transp. Bd. — Defining Environmental Justice Analysis

The Court cited Mid States Coal. for Progress v. Surface Transp. Bd. for a general definition: environmental justice analysis asks whether a project will have a disproportionately adverse effect on minority and low-income populations. But the Court then made the key doctrinal move: regardless of what environmental justice analysis entails as a concept, the controlling South Carolina regulations for § 401 certification (Regulations 61-101 and 19-450) do not require it.

Legal Reasoning

1) The Court chose merits review over mootness resolution

Dominion Energy argued that even if South Carolina withdrew the § 401 certification after the federal permit issued, the Corps would only “consider” whether to suspend/modify/revoke the permit under 33 C.F.R. § 330.4(c)(7), and could deem the state withdrawal ineffective—suggesting the Court’s decision would have no practical effect. Despite this, the Court explicitly “decline[d] to resolve the appeal on the basis of mootness” and proceeded to the merits, signaling a willingness to adjudicate the validity of state certification decisions even when federal permitting has advanced.

2) The controlling lens was substantial-evidence deference to ALC factfinding

The Court anchored its analysis in S.C. Code Ann. § 1-23-610(B), reiterating that it may not substitute its judgment on factual questions and may reverse only if findings are clearly erroneous in view of reliable, probative, and substantial evidence. The opinion then applied this standard issue-by-issue, repeatedly concluding the record supported the ALC.

3) Project need and feasible alternatives: the Department need not conduct an independent “need” study

Blue Ridge framed “need” as unsupported, but the Court pointed to (i) the application, (ii) testimony from Dominion’s project manager Robert Priester about current supplementation of the existing 8-inch line and anticipated growth, and (iii) the regulatory structure of Regulation 61-101(F)(3), which treats purpose, water-dependency, and feasible alternatives as factors when assessing water-quality impacts. Importantly, the Court rejected the claim that the Department must perform its “own evaluation” of need, reasoning that no such requirement exists in Regulation 61-101(F) or elsewhere.

4) Water-quality impacts: temporary turbidity and discretionary monitoring

The Court credited the staff assessment and testimony that construction-related turbidity increases are temporary and ambient conditions should resume after construction. It also emphasized that Regulation 61-101(C)(3) makes monitoring discretionary (“may”), undermining any argument that the Department’s failure to impose further monitoring necessarily renders the certification defective.

5) Threatened/endangered species: reliance on interagency assessment and record silence from challengers

The Court highlighted that the U.S. Fish and Wildlife Service determined the project would have “no effect” on federally threatened or endangered species. It also emphasized the Department incorporated conditions responsive to South Carolina Department of Natural Resources input, and that Blue Ridge could not identify record evidence showing negative effects on protected species or habitat. Under the substantial-evidence standard, generalized concern could not overcome documented agency review.

6) Navigable waters under Regulation 19-450: navigability is determined by the Department

Blue Ridge relied on testimony that additional waters were boatable, but the Court focused on the regulations: “Navigability shall be determined by the Department.” The staff assessment and agency testimony supported the conclusion that Jeffries Creek was the only state navigable water implicated. The Court also reasoned that because Dominion would use horizontal directional drilling under Jeffries Creek rather than open trenching through it, the project would not “block or obstruct navigation” under Regulation 19-450.4(A)(7).

7) Environmental justice: not a required element of § 401 review under the cited South Carolina regulations

Even though the ALC found environmental justice concerns were considered, the Supreme Court took the additional step of clarifying they are not required for a § 401 certification under Regulations 61-101 and 19-450. This is a legally consequential holding: it forecloses attempts to invalidate a § 401 certification solely because the administrative record lacks an environmental justice analysis, at least under the regulatory scheme as presented in the opinion.

Impact

Elevated importance of the ALC record: Because substantial-evidence review is highly deferential, challengers must build a robust factual record in the ALC, including timely objections (as reinforced via Brown v. S.C. Dep't of Health & Env't Control).
Agency primacy in technical classifications: The opinion strengthens the Department’s interpretive authority on “navigable waters of the state” for Regulation 19-450 purposes, reducing the likelihood that lay testimony about boat use will control over the Department’s determination.
Streamlined § 401 scope (as applied here): By stating environmental justice review is not required by Regulations 61-101 or 19-450, the Court narrows one potential litigation avenue in § 401 challenges unless the regulatory text changes.
Mootness remains unsettled in this posture: The Court’s refusal to decide mootness leaves future litigants without definitive South Carolina guidance on whether issuance of a federal permit dependent on § 401 certification moots a pending state appeal.

Complex Concepts Simplified

Clean Water Act § 404 permit: A federal permit (here, from the U.S. Army Corps of Engineers) generally required for discharges of dredged or fill material into “navigable waters.”
Clean Water Act § 401 Water Quality Certification: A state certification required before certain federal permits (including many § 404 permits) can issue, confirming the project will comply with applicable water-quality requirements.
Substantial evidence: A deferential review standard: the court asks whether there is enough reliable evidence that reasonable decision-makers could reach the ALC’s conclusion; it does not reweigh evidence or decide which side’s evidence is “better.”
Mootness: A doctrine under which courts decline to decide cases when their decision would not have a real-world legal effect on the dispute.
Horizontal directional drilling: A trenchless method of installing a pipeline by drilling beneath a waterbody (as opposed to digging directly through the creek bed), often used to reduce direct disturbance to the channel and navigation.
Environmental justice (as referenced by the Court): An assessment of whether a project disproportionately burdens minority and low-income communities; here, the Court treated it as not required by the governing South Carolina § 401 regulations.

Conclusion

The Supreme Court of South Carolina’s decision affirms a § 401 Water Quality Certification for Dominion’s pipeline project and, more broadly, consolidates a practical set of rules for future certification disputes: appellate courts will give strong deference to ALC factual findings under the substantial-evidence standard; the Department’s regulatory determinations—particularly on “navigability”—carry decisive weight; discretionary regulatory language (“may”) will not be converted into mandatory duties on appeal; and environmental justice analysis, while potentially relevant as a policy matter, is not a required component of § 401 certification review under Regulations 61-101 and 19-450 as applied in this case.