1. Administrative Law_whole record test_dam proposal_water quality standards not
violated
The trial court properly chose the whole record test where the question was whether there
was substantial evidence that DENR had provided reasonable assurance that the proposed
Randleman Dam and Reservoir would not violate water quality standards. This matter was filed
before N.C.G.S. § 150B-51(c) became applicable.
2. Environmental Law_water quality_substantial evidence_discrepancies for agency
The trial court properly concluded that there was substantial competent evidence to
support the Environmental Management Commission's determination that DENR had provided
reasonable assurance that water quality standards would not be violated by the proposed dam and
reservoir. Petitioner's argument merely raises discrepancies in the evidence; under the whole
record test, the reviewing court must not substitute its evaluation of the evidence for that of the
agency. Moreover, the court had substantial evidence that the State can impose additional
restrictions if water quality standards are actually threatened.
Cunningham, Dedmond, Petersen & Smith, LLP, by Marsh Smith,
and Terris, Pravlik & Millian, LLP, by Bruce J. Terris and
Demian A. Schane, for petitioners-appellants.
Attorney General Roy Cooper, by Special Deputy Attorney
General Kathryn Jones Cooper and Special Deputy Attorney
General Francis W. Crawley, for respondent-appellee.
Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, by George
W. House, and Linda A. Miles, for respondent-intervenor City
of Greensboro, and Hunton & Williams, by Charles D. Case and
Julie Beddingfield, for respondent-intervenor Piedmont Triad
Regional Water Authority.
TIMMONS-GOODSON, Judge.
American Canoe Association, Inc. and Deep River Citizens'
Coalition, Inc. (“petitioners”) appeal the judgment and order of
the trial court granting summary judgment in favor of the North
Carolina Department of Environment and Natural Resources (“DENR”),
City of Greensboro (“Greensboro”) and Piedmont Triad Regional Water
Authority (“Water Authority”) (collectively hereinafter
“respondents”). For the reasons stated herein, we affirm the
decision of the trial court.
Since May of 1999, petitioners have contested the Randleman
Dam and Reservoir construction project through various legal
petitions and court hearings. In September 2000, the instant case
was brought before the Environmental Management Commission (the
“EMC”). Petitioners moved the EMC for summary judgment, and
respondents filed a cross-motion for summary judgment. The EMC
granted summary judgment for defendants. Petitioners appealed to
the Superior Court. In September 2002, the Superior Court also
granted summary judgment for respondents, finding that DENR (1)
properly issued a 401 Water Quality Certification (“401
Certification”) for the project; (2) substantially proved that the
Randleman Dam project would not violate the State's water quality
standards; and (3) did not violate the North Carolina Environmental
Policy Act (“NCEPA”) by issuing the 401 Certification before a
final environmental impact statement (“FEIS”) was complete. It is
from this summary judgment that petitioners now appeal. Further
facts are set out in the opinion as necessary.
______________________________________________________ Petitioners argue that the trial court erred by (1) applying
the whole record test rather than the de novo standard in reviewing
the EMC's decision; (2) denying petitioners' motion for summary
judgment because respondents failed to reasonably assure the EMC
that the project would not violate the State's water standards; and
(3) upholding the 401 Certification although it was issued before
a FEIS was complete. For the reasons stated herein, we affirm the
trial court's order.
[1] By their first assignment of error, petitioners argue the
trial court erred by applying the whole record test to one of the
sub-issues presented on appeal. We examine the trial court's
affirmance of the EMC's decision to determine “(1) whether the
trial court exercised the appropriate standard of review; and (2)
whether the trial court properly applied the standard of review.”
Clark Stone Co. v. N.C. Dep't of Env't & Natural Res., 164 N.C.
App. 24, 31, 594 S.E.2d 832, 837 (2004); Town of Wallace v. N.C.
Dep't of Env't & Natural Res., 160 N.C. App. 49, 52, 584 S.E.2d
809, 812-13 (2003). This Court's scope of review is the same as
that utilized by the trial court. Clark Stone Co., 164 N.C. App.
at 31, 594 S.E.2d at 837. The trial court may reverse or modify an
agency's final decision if
the substantial rights of the petitioners may
have been prejudiced because the agency's
findings, inferences, conclusions, or
decisions are:
(1) In violation of constitutional provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence
admissible under G.S. 150B-29(a), 150B-30, or
150B-31 in view of the entire record as
submitted; or
(6) Arbitrary, capricious, or an abuse of
discretion.
N.C. Gen. Stat. § 150B-51(b) (2001). The trial court reviews de
novo any alleged errors of law. County of Wake v. N.C. Dep't of
Env't, 155 N.C. App. 225, 233, 573 S.E.2d 572, 579 (2002), disc.
review denied, 357 N.C. 62, 579 S.E.2d 387 (2003). However, “if
the petitioner contends the agency decision was not supported by
the evidence, N.C.G.S. § 150B-51(5), or was arbitrary, capricious,
or an abuse of discretion, N.C.G.S. § 150B-51(6), the whole record
test is utilized.” Id. Under the whole record test, the trial
court examines all of the evidence before the agency in order to
determine whether the decision has a rational basis in the
evidence. Town of Wallace, 160 N.C. App. at 54, 584 S.E.2d at 813.
Where there is substantial competent evidence in the record to
support the findings, the agency decision must stand, as the trial
court may not weigh the evidence presented to the agency or
substitute its own judgment for that of the agency. See Clark
Stone Co., 164 N.C. App. at 31-32, 594 S.E.2d at 837.
(See footnote 1)
Petitioners contend the trial court should have applied denovo review to the issue of whether there was substantial evidence
that DENR provided reasonable assurance that the proposed Randleman
Dam and Reservoir would not violate applicable water quality
standards. We disagree. Section 150B-51 of the General Statutes
clearly mandates that the trial court must review a petitioner's
allegation of insufficient evidence to support an agency decision
“in view of the entire record as submitted.” N.C. Gen. Stat. §
150B-51(b)(5). We conclude that the trial court properly applied
the whole record test to this issue.
[2] Petitioners further argue the trial court erred by finding
and concluding there was substantial competent evidence to support
the EMC's determination that the Randleman Dam and Reservoir would
not violate certain water quality standards. Specifically,
petitioners argue there was insufficient evidence that the proposed
project would not violate the State's water quality standards for
chlorophyll a. The governing standard applicable to all fresh
surface waters in North Carolina provides that the amount of
chlorophyll a should not exceed
40 .g/l for lakes, reservoirs, and other
waters subject to growths of macroscopic or
microscopic vegetation not designated as trout
waters, and not greater than 15 .g/l for
lakes, reservoirs, and other waters subject to
growths of macroscopic or microscopic
vegetation designated as trout waters (not
applicable to lakes and reservoirs less than
10 acres in surface area); the Commission or
its designee may prohibit or limit any
discharge of waste into surface waters if, in
the opinion of the Director, the surface
waters experience or the discharge would
result in growths of microscopic or
macroscopic vegetation such that the standards
established pursuant to this Rule would be
violated or the intended best usage of the
waters would be impaired . . . .
15A N.C. Admin. Code tit. 15A, r. 2B.0211(3)(a). Petitioners
contend the trial court erred in finding and concluding there were
adequate assurances that chlorophyll a levels would not be violated
by the proposed Randleman Reservoir.
In the recommended decision ultimately adopted by the EMC, the
administrative law judge found, inter alia, that
21. Based upon earlier eutrophication
modeling done for the [Piedmont Triad
Regional Water] Authority by Tetra Tech,
[the Division of Water Quality] requested
additional eutrophication modeling by
Research Triangle Institute. Research
Triangle Institute's final report
entitled Eutrophication Modeling for the
Randleman Lake Project delivered to the
DENR Division of Water Quality on
September 30, 1998 generally supported
the findings in Tetra Tech's analysis.
The Research Triangle Institute report
includes nutrient response modeling
output that predicted future
concentrations of chlorophyll a in the
upper two segments (1 and 2) of the
proposed Randleman Lake in excess of 40
.g/l during the summer growing season
under certain sets of assumptions.
22. To address the modeling predictions and
to add further protection against
eutrophication in Randleman Lake, the
EMC, at the request of the Director of
[the Division of Water Quality],
promulgated nutrient controls in excess
of the controls usually applied to WS-IV
waters. . . . The Randleman Rules include
aggressive steps to affect both point
source and nonpoint source nutrient loads
and would consequently limit chlorophyll
a concentrations. After a September 1,
1998 Public Hearing, the Hearing
Officers' Report to the EMC . . .
concluded that the combination of the
Randleman Rules with other control
measures available to the [Division of
Water Quality] will prevent average
chlorophyll a concentrations in excess
[of] 40 .g/l in all segments of RandlemanLake under the various modeling scenarios
considered, including the most
conservative scenario of the summer
growing season.
. . . .
25. Historically, the chlorophyll a standard
has not been used to prevent the creation
of water supply lakes . . . but has been
used as a trigger or indicator of the
need for management strategies to protect
nutrient-impaired waters.
26. At the time the Director made the
decision to issue the 401 Water Quality
Certification to the Authority, he was
aware of nutrient response models that
predicted instantaneous chlorophyll a
[excesses] of 40.g/l under certain
scenarios in Water Quality Segments 1 and
2 of the proposed reservoir at certain
times. . . .
27. On March 11, 1999, the Director of the
Division of Water Quality signed Water
Quality Certification No. 970722 for the
Proposed Randleman Reservoir. At the
time the Director made this 401 Water
Quality Certification determination, he
specifically considered the existing
Randleman Lake Water Supply Watershed
Nutrient Management Strategy and the
opportunity that the State would have to
impose additional restrictions on
nutrient sources in the event of actual
or threatened water quality standard
violations after the reservoir is
constructed.
28. The Water Quality Certification's
conditions include the following specific
reference to maintain at a minimum the
high level of protection currently
provided by the Randleman Lake Water
Supply Watershed Nutrient Management
Strategy:
If any changes are made to 15A NCAC
2B.0248, .0249, .0250, .0251 adopted
by the Environmental Management
[Commission] on November 12, 1998,
that are not equal or more
protective than these rules, thenthis Certification is voided and new
401 Certification with public notice
is required.
In its review of the final agency decision, the trial court found
that the record contained
more than adequate and substantial evidence to
uphold the EMC's Decision's conclusion that
there were adequate assurances that the
chlorophyll a standard will be met. For
example, as discussed there, the most recent
computer models predicted that chlorophyll a
average for all water quality segments of the
Randleman Reservoir will be below the number
specified in the rule. As discussed there,
the eutrophication modeling, Second DEIS,
Second FEIS, Third DEIS, the Review Document,
the 1998 hearing Officers' Report, the
Randleman Lake Water Supply Watershed Nutrient
Management Strategy rules, and the condition
designed to maintain the level of protection
from nutrients established by the management
strategy rules all constitute substantial
evidence which support the conclusion by the
EMC that there were reasonable assurances that
the chlorophyll a water quality standard would
not be violated when the 401 Certification was
issued.
In support of their argument, petitioners direct this Court to
computer models used by the EMC in predicting the effects the
Randleman project will have on resulting chlorophyll a levels. Two
of the three models predict levels of chlorophyll a in excess of
the water quality standard of 40 .g/l, while the third model
predicts an average value of chlorophyll a below 40 .g/l.
Petitioners also contend the computer models were flawed and
unreliable. Petitioners argue there was therefore insufficient
evidence that future violations of chlorophyll a levels will not
occur, contrary to the trial court's findings. Respondents argue
that the first two models were preliminary, and that the third
model most accurately predicts future chlorophyll a levels. Inasmuch as petitioners' argument raises mere discrepancies in the
evidence, the resolution of which was for the agency, the trial
court properly concluded there was substantial competent evidence
to support the EMC's determination that DENR provided reasonable
assurance that the State's water quality standards would not be
violated by the proposed project. See King v. N.C. Envtl.
Management Comm'n, 112 N.C. App. 813, 817-18, 346 S.E.2d 865, 869
(1993) (stating that, “[u]nder the whole record test, the probative
value of testimony is for the agency to determine, and the
reviewing court must not substitute its evaluation of the evidence
for that of the agency.”).
Petitioners argue, however, that the 40 .g/l standard
represents a daily maximum rather than an average value, and that
the third model, which predicts average levels below 40 .g/l, will
nevertheless result in actual violations of the standard.
Petitioners contend, therefore, that the trial court lacked
substantial evidence that violations of the water quality standards
would not occur. Petitioners concede, however, that “DENR is [not]
prohibited from issuing a 401 Certification whenever a computer
model predicts levels above 40 .g/l.” Further, the evidence tended
to show, and the EMC found that “[h]istorically, the chlorophyll a
standard has not been used to prevent the creation of water supply
lakes . . . but has been used as a trigger or indicator of the need
for management strategies to protect nutrient-impaired waters.” As
further found by the EMC, at the time the Director of the Division
of Water Quality issued the 401 Certification, he was aware of the
potential for water quality standard violations and “specificallyconsidered the existing Randleman Lake Water Supply Watershed
Nutrient Management Strategy and the opportunity that the State
would have to impose additional restrictions on nutrient sources in
the event of actual or threatened water quality standard violations
after the reservoir is constructed.” We agree with respondents
that “no one will know precisely whether or to what extent
exceedances [sic] of the Standard will occur until construction of
the dam and impoundment of the lake have been completed” but that
mere “[k]nowledge of the potential for exceedances [sic]of the
chlorophyll a standard was not sufficient to preclude [DENR] from
issuing the 401 Certification.” The trial court therefore had
before it substantial and competent evidence that, in the event
water quality standards were actually threatened, the State could
impose additional restrictions to avoid chlorophyll a violations.
We conclude the trial court did not err in concluding that DENR
provided reasonable assurance that the State's water quality
standards would not be violated by the proposed project.
By their final assignment of error, petitioners argue DENR was
required to wait until the FEIS was complete before it issued the
401 Certification. Assuming arguendo that petitioners are correct,
this issue has nevertheless been rendered moot by the subsequent
issuance of the FEIS. See Richmond Co. v. N.C. Low-Level
Radioactive Waste Mgmt. Auth., 108 N.C. App. 700, 708-09, 425
S.E.2d 468, 473, affirmed, 335 N.C. 77, 436 S.E.2d 113 (1993);
accord, Warren County v. North Carolina, 528 F. Supp. 276, 286
(E.D.N.C. 1981) (noting that the failure to prepare and publish an
EIS as required by North Carolina law was rendered moot as a causeof action by the subsequent filing of such a statement). We
therefore do not address this assignment of error.
For the reasons stated herein, the judgment and order of the
trial court is
AFFIRMED.
Judges HUNTER and ELMORE concur.
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