             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-712

                                Filed: 2 June 2020

Beaufort County, No. 15 CVS 262

Carteret County, No. 16 CVS 1272

SOUND RIVERS, INC. and NORTH CAROLINA COASTAL FEDERATION, INC.,
Petitioners,

            v.

N.C. DEPARTMENT OF ENVIRONMENTAL QUALITY, DIVISION OF WATER
RESOURCES, Respondent, MARTIN MARIETTA MATERIALS, INC., Respondent-
Intervenor.


      Appeal by respondent North Carolina Department of Environmental Quality,

Division of Water Resources, respondent-intervenor Martin Marietta Materials, Inc.,

and cross-appeal by petitioners Sound Rivers, Inc. and North Carolina Coastal

Federation, Inc., from orders entered 13 November 2015 by Judge W. Douglas

Parsons in Superior Court, Beaufort County, 30 October 2017, 4 December 2017, and

20 December 2017 by Judge Joshua W. Willey, Jr in Superior Court, Carteret County.

Heard in the Court of Appeals 22 May 2019.


      Southern Environmental Law Center, by Geoffrey R. Gisler, Blakely E.
      Hildebrand, and Jean Zhuang, for petitioner-appellees.

      Attorney General Joshua H. Stein, by Assistant Attorney General Asher P.
      Spiller and Assistant Attorney General Scott A. Conklin, for respondent-
      appellant.

      Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Matthew B.
      Tynan, George W. House, Alexander Elkan and V. Randall Tinsley, for
      respondent-intervenor-appellant.
                    SOUND RIVERS, INC. V. NC DEP’T OF ENVTL. QUALITY

                                          Opinion of the Court



        STROUD, Judge.


        This case arises from the issuance of a National Pollutant Discharge

Elimination System Permit (“Permit”) by respondent North Carolina Department of

Environmental Quality, Division of Water Resources (“DEQ”) to respondent-

intervenor Martin Marietta Materials, Inc., (“Martin Marietta”) allowing respondent

Martin Marietta to discharge wastewater from Vanceboro Quarry (“quarry”) into

“unnamed tributaries to Blounts Creek[.]” The Administrative Law Judge (“ALJ”) of

the Office of Administrative Hearings (“OAH”) entered a final decision affirming the

issuance of the Permit. Petitioners Sound Rivers, Inc. and North Carolina Coastal

Federation, Inc. (“Petitioners”) filed a petition for judicial review with the superior

court.1 The superior court reversed the ALJ’s final decision based upon a failure to

“ensure reasonable compliance with the biological integrity standard” (“biological

integrity standard”) found in the North Carolina Administrative Code (“Code”) but

concluded that the Permit was in compliance with other water quality standards,

including “swamp waters supplemental classification and the state antidegradation

rule” (“swamp waters”) and pH (“pH standards”).




1 Petitioner Sound Rivers, Inc. was known as the Pamlico-Tar River Foundation when the original
petition for a contested case hearing was filed; it noted its name had changed to Sound Rivers, Inc.
effective 1 April 2015 in its 20 April 2015 petition for judicial review. For simplicity, we will refer to
the petitioner throughout this opinion as Sound Rivers.

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      Respondent Martin Marietta and respondent DEQ appeal from the superior

court’s order reversing the ALJ’s order due to its conclusion on biological integrity

standards. Petitioners cross-appeal from the superior court’s order based upon its

conclusion that the Permit reasonably ensured compliance with water quality

standards regarding swamp waters and pH standards. We note at the outset that at

all stages of the proceedings, the parties have filed numerous documents, including

briefs, motions, proposed drafts of orders, responses, and exhibits; in this opinion we

will mention only those documents relevant to the issue on appeal as the documents

are so voluminous, but we have reviewed all of the documents before us and after

review of the briefs, record, and transcripts, we affirm the superior court’s order as to

swamp waters and pH standards and reverse as to the biological integrity standard.

                     I.     Factual and Procedural Background

      In September of 2013, Sound Rivers and North Carolina Coastal Federation

filed a petition for a contested case hearing on DEQ’s issuance of the Permit on 24

July 2013 to Martin Marietta. According to the petition, the Permit authorized

Martin Marietta to “the discharge of 12 million gallons of mine wastewater into

tributaries of Blounts Creek each day.”       Petitioners alleged the Permit violated

“applicable laws” attached and incorporated into the petition.

      The Permit was issued under the provisions of North Carolina General Statute

§ 143-215.1 and “other lawful standards and regulations promulgated and adopted



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                                          Opinion of the Court



by the North Carolina Environmental Management Commission, and the Federal

Water Pollution Control Act, as amended[.]” The Permit was effective on 1 September

2013 and would expire on 31 August 2018.2 The Permit allowed Martin Marietta to

discharge water pumped from its quarry “from two pit clarification ponds” identified

on an attached map into “receiving waters designated as unnamed tributaries to

Blounts Creek in the Tar-Pamlico River Basin in accordance with effluent limitations,

monitoring requirements, and other conditions set forth in Parts I, II, and III” of the

Permit.     The supplement to the Permit cover sheet noted that the “unnamed

tributary” into which the wastewater would be discharged was “classified as C-

Swamp NSW waters in the Tar-Pamlico River Basin.” In this opinion, we will refer

to the waters into which wastewater from the quarry would be discharged as “Blounts

Creek.”

        In September of 2013, respondent DEQ submitted a prehearing statement

identifying the issues to be resolved as


2 No party has argued this case may be moot based upon the fact that the Permit as issued would have
expired in 2018. “A case is ‘moot’ when a determination is sought on a matter which, when rendered,
cannot have any practical effect on the existing controversy. Thus, the case at bar is moot if an
intervening event had the effect of leaving plaintiff with no available remedy. A moot claim is not
justiciable, and a trial court does not have subject matter jurisdiction over a non-justiciable claim.
Moreover, if the issues before the court become moot at any time during the course of the proceedings,
the usual response is to dismiss the action for lack of subject matter jurisdiction.” Cumberland Cnty.
Hosp. Sys., Inc. v. N.C. Dep’t of Health & Human Servs., 242 N.C. App. 524, 528-29, 776 S.E.2d 329,
333 (2015) (citations, quotation marks, brackets omitted). But an exception to the mootness doctrine
applies to this case because it is “capable of repetition, yet evading review[.]” Id. at 529, 776 S.E.2d at
333-34 (“Two elements are required for the capable of repetition, yet evading review exception to apply:
(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or
expiration, and (2) there is a reasonable expectation that the same complaining party would be
subjected to the same action again.” (citations, quotation marks, and brackets omitted)).

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                                  Opinion of the Court



             [(1)] whether Respondent, properly issued the Permit
             pursuant to Article 21, Chapter 143 of the North Carolina
             General Statutes and the applicable rules promulgated
             thereunder, including but not limited to 15A NCAC
             2B.0200 et. seq.; and [(2)] whether Respondent, in issuing
             the Permit substantially prejudiced Petitioner’s rights and
             erred in one or more of the five ways enumerated in N.C.
             Gen. Stat. § 150B-23(a).

      Martin Marietta, who had intervened, also submitted a prehearing statement

contending the Permit “would not violate water quality standards” and noted that

the Permit had been issued “after years of pre-permitting work, the submission of

engineering, economic, and ecological studies and materials by Martin Marietta, and

extensive review and analysis by DWR [, Division of Water Resources,] and other

state and federal government agencies.” Martin Marietta contended state and federal

regulatory personnel had thoroughly analyzed the proposed permit over about

eighteen months, including “site visits, field work, numerous communications and

meetings, the further submission of materials and studies by Martin Marietta, and

public comment and a public hearing, in which Petitioners and their members and

counsel participated.” Thus, Martin Marietta contended state and federal regulatory

personnel had already considered the “claims asserted by Petitioners in this contested

case” and DEQ “correctly concluded that the proposed discharge allowed by the NPDS

Permit would not violate water quality standards and lawfully and appropriately

issued the NPDES Permit.”

      On 6 November 2013, Petitioners filed their prehearing statement contending


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                                  Opinion of the Court



that the Permit did not comply with biological integrity standards, protection of

swamp waters, and pH standards, and identifying the issues as:

            1.     The Clean Water Act and state laws implementing
                   it prohibit discharges that violate any water quality
                   standard. State water quality standards for waters
                   like Blounts Creek prohibit any discharge that will
                   make a waterbody unsuitable for native plants and
                   animals, violating its “biological integrity.” Martin
                   Marietta’s proposed discharge of 12 million gallons
                   of mine wastewater per day into Blounts Creek
                   would displace native fish, macroinvertebrates
                   (insects, mollusks, crayfish, etc.) and plants. Did
                   DWR exceed its authority, act erroneously, fail to
                   use proper procedure, act arbitrarily or capriciously
                   or fail to act as required by rule or law “err”) by
                   authorizing the discharge?

            2.     The Clean Water Act and state laws implementing
                   it prohibit discharges that violate any water quality
                   standard. The state water quality standard for pH
                   is the normal pH for the waterbody receiving a
                   discharge, which is between 4.0 and 5.5 in Blounts
                   Creek. Did DWR err by authorizing a discharge that
                   would raise the pH in the creek to a minimum of 6.3
                   to 6.9?

            3.     The Clean Water Act and state laws implementing
                   it require classification of waters to protect existing
                   uses. North Carolina has classified Blounts Creek
                   as swamp waters to protect characteristics unique to
                   these waters, including low flow and velocity, low
                   pH, and high tannin levels. Did DWR err by issuing
                   a permit for a discharge that will cause Blounts
                   Creek to have higher flow and velocity, near neutral
                   pH, and low tannin levels, thereby no longer
                   qualifying as swamp waters?

      In November of 2014 Petitioners filed a motion for summary judgment on the


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                                    Opinion of the Court



issues of whether Petitioners were “persons aggrieved” under North Carolina’s

Administrative Procedure Act and whether DWR had exceeded its authority or failed

to act as required by law based upon failure to ensure compliance with the biological

integrity water quality standard, the pH water quality standard, and Blounts Creek’s

swamp waters classification.      Petitioners also submitted numerous affidavits to

support their motion. On 25 November 2014, Martin Marietta filed a motion for

summary judgment.

      On 23 March 2015, the ALJ entered an order granting summary judgment for

respondents.     The order stated at length the undisputed facts and concluded

“Petitioners are not ‘Persons Aggrieved[;]’” “Respondent’s Decision to Issue the

Permit was Not in Violation of N.C. Gen. Stat. § 150B-23(a)[;]” “Respondent Ensured

Compliance with Biological Integrity Standard[;]” “Respondent Ensured Compliance

with pH Water Quality Standards[;]” and “Respondent Protected Existing Uses[.]”

The ALJ also noted the “Re-opener Provision” of the Permit:

                      The permit issued to the Respondent-Intervenor
               allows the Respondent to re-open and modify the permit if
               water quality standards are threatened or other monitored
               data cause concern. Even if Petitioner provided evidence
               of specific and particularized potential violations of water
               quality standards, the re-opener provision assures
               reasonable compliance with those standards.

      In summary, the ALJ concluded,

                    There is no evidence that Petitioners’ rights have
               been substantially prejudiced, or that Respondent


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                                  Opinion of the Court



             exceeded its authority or jurisdiction, acted erroneously,
             failed to use proper procedure, acted arbitrarily or
             capriciously, or failed to act as required by law or rule.

                   For the reasons discussed herein, there is no genuine
             issue as to any material fact. Respondent’s Motion for
             Summary Judgment is allowed; Respondent-Intervenor’s
             Motion for Summary Judgment is allowed. Petitioners’
             Motion for Summary Judgment is denied, and Petitioners
             are not entitled to the relief requested in the petition.

      On 20 April 2015, Petitioners filed a petition for judicial review of the summary

judgment order contesting the ALJ’s determinations.         On 20 May 2015, Martin

Marietta responded to and filed a motion to dismiss petitioners’ petition for judicial

review, arguing the superior court did not have subject matter jurisdiction because

petitioners are not “persons aggrieved” and therefore not entitled to judicial review.

On 13 November 2015, the superior court entered its order denying Martin Marietta’s

motion to dismiss and denying petitioner’s petition on all grounds except for the issue

of “persons aggrieved.”    The superior court concluded petitioners were persons

aggrieved and remanded the matter back to OAH for a “full plenary hearing[.]”

      After a “hearing on the merits May 31, 2016 through June 9, 2016[,]” on 30

November 2016, the ALJ issued a 62-page final decision. The final decision addressed

four primary issues:

             Issue 1: “pH Claim”: Whether Petitioners have met their
             burden of proving that Respondent exceeded its authority
             or jurisdiction, acted erroneously, failed to use proper
             procedure, acted arbitrarily or capriciously, or failed to act
             as required by law or rule in determining the NPDES


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                                 Opinion of the Court



            Permit reasonably ensures compliance with the pH water
            quality standard.

            Issue 2: “Swamp Waters Claim”: Whether Petitioners
            have met their burden of proving that Respondent
            exceeded its authority or jurisdiction, acted erroneously,
            failed to use proper procedure, acted arbitrarily or
            capriciously, or failed to act as required by law or rule in
            determining the NPDES Permit reasonably ensures
            compliance with water quality standards and regulations
            related to      the “Swamp Waters” supplemental
            classification.

            Issue 3:     “Biological Integrity Claim”: Whether
            Petitioners have met their burden proving that Respondent
            exceeded its authority or jurisdiction, acted erroneously,
            failed to use proper procedure, acted arbitrarily or
            capriciously, or failed to act as required by law or rule in
            determining the NPDES Permit reasonably ensures
            compliance with the biological integrity water quality
            standard.

            Issue 4: Substantial Prejudice: Whether Petitioners
            have met have their burden of proving that Respondent
            substantially prejudiced Petitioners’ rights in issuing the
            NPDES Permit.

      The ALJ made 311 findings of fact; we will address some of these findings of

fact below in detail in our discussion of the challenged findings applicable to each

issue. The order ultimately denied Petitioners’ claims based upon two alternative

and independent grounds: First, “Petitioners failed to meet their burden of proving

by a preponderance of evidence that Respondent DWR exceeded its authority or

jurisdiction, acted erroneously, acted arbitrarily and capriciously, used improper

procedure, or failed to act as required by law or rule in issuing the NPDES Permit.”


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                                  Opinion of the Court



Second, as an independent and alternative basis for the ruling, “Petitioners failed to

carry their burden of proof by a preponderance of the evidence that their rights have

been substantially prejudiced by Respondent DWR’s issuance of the NPDES Permit.”

      In December of 2016, Petitioners filed a petition in superior court for judicial

review of the ALJ’s final decision. Petitioners alleged the order was in error in that

“The Final Decision Contains Findings of Fact Unsupported by Substantial Evidence,

Findings That Are Arbitrary, Capricious, or an Abuse Of Discretion, and Findings

Affected By Other Errors Of Law[;]” “The ALJ’s Conclusion That Petitioners Are Not

Substantially Prejudiced Is Erroneous[;]” “The ALJ’s Grant of Deference to DWR

Staff And [Martin Marietta] Consultants Is An Error Of Law[;]” “The ALJ’s

Conclusion That DWR Complied with the Biological Integrity Standard Is

Erroneous[;]” “The ALJ’s Conclusion That DWR Complied with the pH Standard Is

Erroneous[;]” “The ALJ’s Conclusions of Law Regarding the Swamp Waters

Classification And Antidegradation Rules Are Erroneous[;]” and “The ALJ’s

Conclusion That the Required Reopener Provision Ensures Compliance With Water

Quality Standards Is Erroneous[.]”

      On 30 January 2017, Martin Marietta filed a motion to dismiss the petition

under North Carolina General Statute § 150B-46 and North Carolina Rule of Civil

Procedure 12 because the petition for judicial review was not timely served. On 30

October 2017, the superior court denied Martin Marietta’s motion to dismiss. On 4



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                                    Opinion of the Court



December 2017, the superior court denied Martin Marietta’s motion to dismiss for

failure to state a claim under North Carolina Rule of Civil Procedure 12(b)(6).

      On 20 December 2017, the superior court entered its order on petition for

judicial review. The superior court noted these issues:

             I.       Did the ALJ err in admitting, considering, or
                      determining the credibility or weight of evidence?

             II.      Did the ALJ err in upholding DWR’s issuance of the
                      Permit as reasonably ensuring compliance with:
                      A.     The      swamp      waters      supplemental
                      classification and antidegradation rule;
                      B.     The water quality standard for pH; and
                      C.     The water quality standard for biological
                      integrity?

             III.     Did the ALJ err in holding that the Permit’s
                      monitoring and reopener provisions further
                      reasonably ensure compliance with state water
                      quality standards?

             IV.      Did the ALJ err in holding that Petitioners failed to
                      prove their rights were substantially prejudiced?

The superior court entered its order in paragraph form with no numbered findings of

fact and with two conclusions of law.        Ultimately, the superior court concluded

Petitioners were “substantially prejudiced by the issuance of the Permit and are

entitled to the relief sought.” On the substantive issues regarding water quality

standards, the superior court concluded that DEQ “did not ensure reasonable

compliance with the biological integrity standard as set forth in 15A N.C.A.C. 02B




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                                    Opinion of the Court



.211(2), 0220(2), and 0202(11)” and therefore reversed the final decision of the ALJ

and vacated the Permit.

      Over the course of 10 days, all parties filed written notices of appeal and cross-

appeal, seeking review of the following orders:

1.    13 November 2015 order granting summary judgment to Petitioners regarding
      being “persons aggrieved” and denying all other matters;

2.    27 February 2017 ruling from the superior court denying Martin Marietta’s
      motion to dismiss and granting Petitioners’ motion for extension of time;

3.    30 October 2017 order memorializing 27 February 2017 ruling that denied
      Martin Marietta’s motion to dismiss and granted Petitioners’ motion for
      extension of time;

4.    4 December 2017 order denying Martin Marietta’s motion to dismiss, and

5.    20 December 2017 superior court order on the petition for judicial review
      vacating the Permit.

                              II.     Preliminary Issues

      We begin our analysis by addressing preliminary issues.

A.    Martin Marietta’s Motion to Dismiss

      On 30 January 2017, Martin Marietta filed a motion to dismiss the petition for

judicial review under North Carolina General Statute § 150B-46 and North Carolina

Rule of Civil Procedure 12 because it was not timely served on Martin Marietta. On

30 October 2017, the superior court denied Martin Marietta’s motion to dismiss.

North Carolina General Statute § 150B-46 (2017) provides, “Within 10 days after the

petition is filed with the court, the party seeking the review shall serve copies of the


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                                   Opinion of the Court



petition by personal service or by certified mail upon all who were parties of record to

the administrative proceedings.” According to the motion, the petition was filed on

28 December 2016, but Martin Marietta was not actually served until 17 January

2017. On 30 October 2017, the superior court denied Martin Marietta’s motion to

dismiss and extended the time for service.

      Martin Marietta relies upon In re State ex rel. Employment Security

Commission, 234 N.C. 651, 68 S.E.2d 311 (1951), arguing Petitioner’s appeal must be

dismissed due to late service of the notice:

             There is no inherent or inalienable right of appeal from an
             inferior court to a Superior Court or from a Superior Court
             to the Supreme Court.
                    A fortiori, no appeal lies from an order or decision of
             an administrative agency of the State or from the
             judgments of special statutory tribunals whose proceedings
             are not according to the course of the common law, unless
             the right is granted by statute. If the right exists, it is
             brought into being, and is a right granted, by legislative
             enactment.
                    There can be no appeal from the decision of an
             administrative agency except pursuant to specific
             statutory provision therefor.
                    Obviously then, the appeal must conform to the
             statute granting the right and regulating the procedure.
                    The statutory requirements are mandatory and not
             directory. They are conditions precedent to obtaining a
             review by the courts and must be observed. Noncompliance
             therewith requires dismissal.
                    ....
                    This statement of the grounds of the appeal must be
             filed within the time allowed for appeal. Its purpose is to
             give notice to the Commission and adverse parties of the
             alleged errors committed by the Commission and limit the


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                                  Opinion of the Court



             scope of the hearing in the Superior Court to the specific
             questions of law raised by the errors assigned. Clearly it
             was intended, and must be construed, as a condition
             precedent to the right of appeal. Noncompliance therewith
             is fatal.

Id. at 653-54, 68 S.E.2d at 312 (emphasis added). Although the petition for judicial

review was timely filed, Martin Marietta contends because Petitioners failed to serve

the notice of appeal upon Martin Marietta within 10 days under North Carolina

General Statute § 150B-46, the superior court never obtained subject matter

jurisdiction. The superior court thus had no jurisdiction to extend the time for

service, so Martin Marietta’s motion to dismiss should have been allowed for lack of

subject matter jurisdiction.

      We review a motion to dismiss for lack of subject matter jurisdiction de novo.

See Hardy ex rel. Hardy v. Beaufort Cty. Bd. of Educ., 200 N.C. App. 403, 408, 683

S.E.2d 774, 778 (2009) (“Subject matter jurisdiction is a prerequisite for the exercise

of judicial authority over any case or controversy. The standard of review on a motion

to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction is de novo.

(citation omitted)). While the file stamp is not legible on the petition for judicial

review, Martin Marietta concedes that the petition was filed with the superior court

on 28 December 2016, and thus within the time period established by North Carolina

General Statute § 150B-45 to invoke jurisdiction from the final decision entered on




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                                      Opinion of the Court



30 November 2016. See N.C. Gen. Stat. § 150B-45 (2017)3 (“To obtain judicial review

of a final decision under this Article, the person seeking review must file a petition

within 30 days after the person is served with a written copy of the decision.”). In NC

Department of Public Safety v. Owens, this Court held “that the superior court has

the authority to grant an extension in time, for good cause shown, to a party to serve

the petition beyond the ten days provided for under G.S. 150B–46.” 245 N.C. App.

230, 234, 782 S.E.2d 337, 340 (2016). Under Owens, the superior court had subject

matter jurisdiction and properly extended the time for service and thus denied the

motion to dismiss. See id. Because Martin Marietta raises only the issue of subject

matter jurisdiction in its brief, and not the substance of the good cause shown, we end

our analysis here. This argument is overruled.

B.     Standing of Petitioners as “Persons Aggrieved”

       Martin Marietta next contends that the superior court erred in determining

that petitioners were substantially prejudiced by DEQ’s issuance of the Permit.

                     At the outset, we must determine our standard of
              review. That standard of review will depend upon the
              nature of the error alleged in the petition for judicial
              review. If errors of law are alleged, our review is de novo.
              If the alleged error is that the final agency decision is not
              supported by the evidence, we employ the whole record
              test.

Curtis v. N.C. Dep’t of Transp., 140 N.C. App. 475, 478, 537 S.E.2d 498, 501 (2000)


3North Carolina General Statute § 150B-45 was amended in 2018; the amendment does not affect this
case. See N.C. Gen. Stat. § 150B-45 (2018).

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(citations and quotation marks omitted).

          North Carolina General Statute § 150B-23 provides,

                        (a)     A contested case shall be commenced by
                 paying a fee in an amount established in G.S. 150B-23.2
                 and by filing a petition with the Office of Administrative
                 Hearings and, except as provided in Article 3A of this
                 Chapter, shall be conducted by that Office. The party who
                 files the petition shall serve a copy of the petition on all
                 other parties and, if the dispute concerns a license, the
                 person who holds the license. A party who files a petition
                 shall file a certificate of service together with the petition.
                 A petition shall be signed by a party, an attorney
                 representing a party, or other representative of the party
                 as may specifically be authorized by law, and, if filed by a
                 party other than an agency, shall state facts tending to
                 establish that the agency named as the respondent has
                 deprived the petitioner of property, has ordered the
                 petitioner to pay a fine or civil penalty, or has otherwise
                 substantially prejudiced the petitioner’s rights and that the
                 agency:
                        (1)     Exceeded its authority or jurisdiction;
                        (2)     Acted erroneously;
                        (3)     Failed to use proper procedure;
                        (4)     Acted arbitrarily or capriciously; or
                        (5)     Failed to act as required by law or rule.
                        The parties in a contested case shall be given an
                 opportunity for a hearing without undue delay. Any person
                 aggrieved may commence a contested case hereunder.

N.C. Gen. Stat. § 150B-23(a) (2013) (emphasis added).4 Petitioners have not alleged

they were deprived of property or were ordered to pay a fine or civil penalty, and thus

they must show substantial prejudice. See id. North Carolina General Statute §




4   Subsection(f) was amended in 2018. See N.C. Gen. Stat. § 150B-23 (2018).

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150B-29 provides, “The party with the burden of proof in a contested case must

establish the facts required by G.S. 150B-23(a) by a preponderance of the evidence.”

N.C. Gen. Stat. § 150B-29 (2013). Thus, in this case, petitioners had to establish

substantial prejudice by a preponderance of the evidence. See N.C. Gen. Stat. §§

150B-23, -29.

      In Empire Power Co. v. North Carolina Department of Environmental Health

and Natural Resources, our Supreme Court discussed the meaning of the term

“person aggrieved” in a case with a similar context, arising from issuance of a draft

air quality permit for a proposed turbine electric generating station. 337 N.C. 569,

572, 447 S.E.2d 768, 770 (1994). As explained in Empire Power Co.,

                    Under the NCAPA, any “person aggrieved” within
             the meaning of the organic statute is entitled to an
             administrative hearing to determine the person’s rights,
             duties, or privileges. N.C.G.S. § 150B–23(a). “‘Person
             aggrieved’ means any person or group of persons of
             common interest directly or indirectly affected
             substantially in his or its person, property, or employment,
             by an administrative decision.” N.C.G.S. § 150B–2(6).
             Under the predecessor judicial review statute, which did
             not define the term, the Court gave it an expansive
             interpretation:
                           The expression “person aggrieved” has
                    no technical meaning. What it means depends
                    on the circumstances involved. It has been
                    variously defined: “Adversely or injuriously
                    affected; damnified, having a grievance,
                    having suffered a loss or injury, or injured;
                    also having cause for complaint.           More
                    specifically the word(s) may be employed
                    meaning adversely affected in respect of legal


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        rights, or suffering from an infringement or
        denial of legal rights.”
In re Assessment of Sales Tax, 259 N.C. at 595, 131 S.E.2d
at 446 (quoting 3 C.J.S. Aggrieved, at 509 (1973)). For the
following reasons, we conclude that Clark is a “person
aggrieved” as defined by the NCAPA within the meaning
of the organic statute.
        Clark alleged that DEHNR issued the permit
allowing construction and operation of air emission sources
at the LCTS in violation of its statutory and regulatory
duties: to act on all permit applications “so as to effectuate
the [legislative] purpose . . . by reducing existing air
pollution and preventing, so far as reasonably possible, any
increased pollution of the air from any additional or
enlarged sources,” N.C.G.S. § 143–215.108(b); to reduce
levels of ozone pollution in the Mecklenburg County area;
to assess fully the impact of emissions of air pollutants
from the LCTS on levels of ozone pollution in Mecklenburg
County; to assess fully the impact of sulfur dioxide
emissions from the LCTS; to require air pollution control
technology adequate to control the emission of potentially
harmful pollutants from the LCTS; and to require Duke
Power to cause air quality offsets. Clark also alleged that
DEHNR issued the permit in violation of its statutory duty
to adequately address comments filed by Clark and other
members of the public during the public comment period.
        Clark further alleged that, as the owner of property
immediately adjacent to and downwind of the site of the
proposed LCTS—which will emit tons of harmful air
pollutants if constructed and operated in accordance with
its air quality permit—he and his family will suffer injury
to their health, the value of their property, and the quality
of life in their home and their community.
        In enacting the air pollution control provisions, the
General Assembly, as noted above, declared its intent
        to achieve and to maintain for the citizens of
        the State a total environment of superior
        quality. Recognizing that the water and air
        resources of the State belong to the people, the
        General Assembly affirm[ed] the State’s


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       ultimate responsibility for the preservation
       and development of these resources in the
       best interest of all its citizens and declare[d]
       the prudent utilization of these resources to
       be essential to the general welfare.
N.C.G.S. § 143-211. To further that intent, the General
Assembly mandated that standards of water and air purity
be designed, and programs implemented to achieve those
standards,
       to protect human health, to prevent injury to
       plant and animal life, to prevent damage to
       public and private property, to insure the
       continued enjoyment of the natural
       attractions of the State, to encourage the
       expansion of employment opportunities, to
       provide a permanent foundation for healthy
       industrial development and to secure for the
       people of North Carolina, now and in the
       future, the beneficial uses of these great
       natural resources.
Id. (emphasis added).
       Clearly, Clark alleged sufficient injury in fact to
interests within the zone of those to be protected and
regulated by the statute, and rules and standards
promulgated pursuant thereto, the substantive and
procedural requirements of which he asserts the agency
violated when it issued the permit. As an adjacent property
owner downwind of the LCTS, Clark may be expected to
suffer from whatever adverse environmental consequences
the LCTS might have. In addition, a judgment in favor of
Clark would substantially eliminate or redress the injury
likely to be caused by the decision to permit Duke Power to
build the LCTS. Clark therefore is a “person aggrieved”
within the meaning and intent of the air pollution control
act. See Orange County v. Dept. of Transportation, 46 N.C.
App. 350, 360–62, 265 S.E.2d 890, 898–99, disc. rev. denied,
301 N.C. 94 (1980) (plaintiffs were all “aggrieved,” within
the meaning of the NCAPA provision, by a decision of the
State Board of Transportation on the location of an
interstate highway where the individual plaintiffs were


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                                   Opinion of the Court



             property owners within the proposed corridor of the
             highway, the members of plaintiff non-profit corporation
             were citizens and taxpayers who lived in or near the
             proposed highway corridor, plaintiff county’s tax base and
             planning jurisdiction would be affected, and individual
             plaintiffs would be affected as taxpayers; further, the
             “procedural injury” implicit in the failure of an agency to
             prepare an environmental impact statement was itself a
             sufficient “injury in fact” to support standing as an
             “aggrieved party” under former N.C.G.S. § 150A–43, as
             long as such injury was alleged by a plaintiff having
             sufficient geographical nexus to the site of the challenged
             project that he might be expected to suffer whatever
             environmental consequences the project might have); State
             of Tennessee v. Environmental Management Comm., 78
             N.C. App. 763, 766–67, 338 S.E.2d 781, 783 (1986) (a
             consent special order issued by respondent agency to a
             corporation allowing it to discharge effluents into a river
             was issued without a hearing and by its own terms
             purported to take precedence over the terms of a proposed
             National Pollutant Discharge Elimination System permit
             to the corporation, so that the right of petitioner to be heard
             was impaired; petitioner therefore qualified as an
             “aggrieved person” for purposes of judicial review; further,
             petitioner alleged that its property rights in the river were
             affected, and these allegations also established petitioner's
             “aggrieved person” status); see generally 2 Am. Jur. 2d
             Administrative Law §§ 443–50 (1994) (“Persons Adversely
             Affected or Aggrieved”).

Id. at 588-90, 447 S.E.2d at 779-81 (alterations in original) (emphasis added).

      Here, similar to Empire Power Co. and the cases quoted within Empire,

Petitioners alleged substantial prejudice in that the Permit was issued without

compliance with applicable regulations in that Martin Marietta’s “proposed discharge

of 12 million gallons of mine wastewater per day into Blounts Creek would displace



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                                  Opinion of the Court



native fish, macroinvertebrates (insects, mollusks, crayfish, etc.) and plants[,]” and

the wastewater would cause “higher flow and velocity, near neutral pH, and low

tannin levels” meaning Blounts Creek would no longer qualify as swamp waters. See

generally id.

      More specifically, one of the individuals who filed an affidavit in support of

Petitioners, Mr. Jimmy Daniels, averred that he was a member of the Pamlico-Tar

River Foundation and both his “home and business, [“Cotton Patch Landing, a boat

ramp and marina,”] are right on the banks of Blounts Creek.” Mr. Daniels described

in detail the biodiversity in Blounts Creek and how it draws people “from all across

the state[.]” Mr. Daniels averred that he boated “a couple of times a week” and

enjoyed the wildlife diversity; through Cotton Patch Landing, he sells fishing

supplies, stores and maintains boats, and engages in commercial activities involving

his boat ramp. Mr. Daniels also noted the hundreds of thousands of dollars he has

invested into his business and stated that based on his experience with Blounts

Creek, he believed Martin Marietta’s wastewater being dumped “into the

headwaters” “will change the way the whole system works.” Mr. Daniels explained

specifically why and how the wastewater would affect his business and personal

interests and noted “word of mouth concerning the discharge” had already had a

negative effect on Cotton Patch Landing when a fishing tournament previously held

at Cotton Patch Landing was moved due to fears over how the wastewater would



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                                   Opinion of the Court



impact fishing for the tournament. Mr. Daniels noted Cotton Patch Landing lost

approximately $5,000 from the tournament move. Again, Mr. Daniels is but one of

many affiants noting similar issues with the wastewater being dumped into Blounts

Creek. We view the interests of Mr. Daniels and other affiants about wastewater in

Blounts Creek to be similar to the complainant in Empire Power Co., who alleged,

             as the owner of property immediately adjacent to and
             downwind of the site of the proposed LCTS—which will
             emit tons of harmful air pollutants if constructed and
             operated in accordance with its air quality permit—he and
             his family will suffer injury to their health, the value of
             their property, and the quality of life in their home and
             their community.

Id. at 589, 447 S.E.2d at 780.

      While Martin Marietta contends that Petitioner’s alleged prejudice amounts

only to speculation as to the effects of the discharge of water allowed by the Permit,

allegations as to potential prejudice here are no different from the allegations of

potential air pollution in Empire Power Co., as the actual effects cannot be known for

certain until the discharge occurs. See generally id., 337 N.C. 569, 447 S.E.2d 768.

In addition, this Court has clarified that in a challenge based upon an alleged failure

of an agency or department of the State to follow its own guidelines, the prejudice

standard differs from that in other types of civil cases. See, e.g., N.C. Forestry Ass’n

v. N.C. Dep’t of Env’t & Natural Res., Div. of Water Quality, 357 N.C. 640, 644, 588

S.E.2d 880, 882–83 (2003) (“In general, individuals adversely affected by a



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                                   Opinion of the Court



discretionary agency decision generally have standing to complain that the agency

based its decision upon an improper legal ground.” (citation and quotation marks

omitted)). Otherwise the burden of showing substantial prejudice would be “nearly

impossible”:

               Because the substance of those policies required the
               Department to consider a number of discretionary factors,
               however, we pointed out that a showing of prejudice would
               be “nearly impossible” for the petitioner to achieve.
               Specifically, we observed that
                       to show prejudice from failure to follow policy,
                       the petitioner would have to show, not only
                       how he stood in relation to other employees in
                       the same class as to type of appointment,
                       length of service, and work performance, but
                       he would have to show the weight which the
                       Department would attribute to each of those
                       factors. The Commission and the reviewing
                       court would be relegated to speculating how
                       the Department would weigh each factor.
               Therefore, we held that it was sufficient to show prejudice
               for the petitioner to establish that the Department failed
               to follow the mandatory policies of the Commission, which
               had been promulgated pursuant to statutory authority. A
               separate showing of prejudice was unnecessary in that
               circumstance.

Surgical Care Affiliates, LLC v. N.C. Dep’t of Health & Human Servs., 235 N.C. App.

620, 627, 762 S.E.2d 468, 473 (2014) (citations and brackets omitted).

      Here, Petitioners alleged that the Division of Water Resources violated its own

applicable regulations by issuing the Permit to Martin Marietta which authorized

“the discharge of 12 million gallons of mine wastewater into tributaries of Blounts



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                                          Opinion of the Court



Creek each day.” Petitioners have alleged DEQ failed to follow its own policies in

issuing the Permit and that the discharge of wastewater into Blounts Creek, if done

in a manner not in compliance with the applicable regulations, would damage the

water quality, the fish and other biota in Blounts Creek, and the personal and

commercial benefits derived from Blounts Creek. Petitioners are “within the zone of

those to be protected and regulated by the statute, and rules and standards

promulgated pursuant thereto, the substantive and procedural requirements of

which he asserts the agency violated when it issued the permit.” Empire Power Co.,

337 N.C. at 589, 447 S.E.2d at 780. The superior court did not err in concluding

Petitioners demonstrated their rights were substantially prejudiced and thus they

are “person[s] aggrieved[.]”          Id. at 590, 447 S.E.2d at 780.               This argument is

overruled.5




5 Implicit in this holding is also a rejection of Martin Marietta’s argument that “North Carolina courts
have held that only the state, and not individual plaintiffs, can enforce public trust rights” such as
interests in fishing, boating, and recreation. As DEQ acknowledges, the cases Martin Marietta cites
for this proposition are inapposite. This is not a claim under public trust doctrine or any other common
law action, see Town of Nags Head v. Cherry, Inc., 219 N.C. App. 66, 723 S.E.2d 156 (2012); Fish House,
Inc. v. Clarke, 204 N.C. App. 130 (2010), but instead a request for review of an agency action pursuant
to the North Carolina Administrative Procedure Act. In such an action, the organic statute at issue
defines the rights, duties, and privileges that provide the grounds for the administrative hearing.
Empire Power Co., 337 N.C. at 583, 447 S.E.2d at 583. North Carolina’s water quality statutes and
associated rules specifically protect water quality for recreational uses. See, e.g., N.C. Gen. Stat. §
143-214.1(3) (year) (directing adoption of water quality standards and classifications that consider the
use and value of waters of the state for “recreation”); 15A NCAC 02b.0101(c)(1) (stating Class C are
freshwaters protected for “secondary recreation” and “fishing”). Petitioners “interests in the waters
affected” by the discharge at issue “are discrete and particular to [its] certain members who live near,
or who visit, fish, or shellfish in the affected waters, and are not merely a generalized public interest.”
Holly Ridge Assoc., LLC v. N.C. Dept’ of Env’t & Natural Resources, 176 N.C. App. 594, 603, 627 S.E.2d
326, 333 (2006), rev’d on other grounds, 361 N.C. 531, 648 S.E.2d 830 (2007).

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                                     Opinion of the Court



                       III.   Substantive Issues regarding Permit

         We now turn to the substantive issues regarding issuance of the Permit.

A.       Standard of Review

         Petitioners raised three arguments regarding DEQ’s failure to ensure

compliance with applicable water quality standards. The superior court determined

that the ALJ’s order was in error only as to the findings and conclusion regarding

that DEQ ensured “reasonable compliance with the biological integrity standard as

set forth in 15A N.C.A.C. 02B .211(2), 0220(2), and 0202(11)[,]” and DEQ and Martin

Marietta appeal this determination. The superior court affirmed the ALJ’s findings

and conclusions regarding the other standards – swamp waters and pH standards–

and Petitioners cross-appealed these determinations. We will therefore address the

arguments as to each substantive issue in the order as addressed by the superior

court.

                      The North Carolina Administrative Procedure Act
               (APA), codified at Chapter 150B of the General Statutes,
               governs trial and appellate court review of administrative
               agency decisions. The APA provides a party aggrieved by
               a final decision in a contested case a right to judicial review
               by the superior court. N.C. Gen. Stat. §§ 150B–43 and –50
               (2017). A party to the review proceeding in superior court
               may then appeal from the superior court’s final judgment
               to the appellate division. N.C. Gen. Stat. § 150B–52 (2017).
               The APA sets forth the scope and standard of review for
               each court.

EnvironmentaLEE v. Dept of Environment, 258 N.C. App. 590, 595, 813 S.E.2d 673,



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677 (2018).

                     When a superior court exercises judicial review over
              an agency’s final decision, it acts in the capacity of an
              appellate court. The APA limits the scope of the superior
              court’s judicial review as follows:
                     (b)    The court reviewing a final decision may
                     affirm the decision or remand the case for further
                     proceedings. It may also reverse or modify the
                     decision if the substantial rights of the petitioners
                     may have been prejudiced because the findings,
                     inferences, conclusions, or decisions are:
                            (1)    In     violation     of    constitutional
                            provisions;
                            (2)    In excess of the statutory authority or
                            jurisdiction of the agency or administrative
                            law judge;
                            (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 (2017). The superior court’s
              standard of review is dictated by the nature of the errors
              asserted. The APA sets forth the standard of review to be
              applied by the superior court as follows.
                     (c)    In reviewing a final decision in a contested
                     case, the court shall determine whether the
                     petitioner is entitled to the relief sought in the
                     petition based upon its review of the final decision
                     and the official record. With regard to asserted
                     errors pursuant to subdivisions (1) through (4) of
                     subsection (b) of this section, the court shall conduct
                     its review of the final decision using the de novo
                     standard of review. With regard to asserted errors
                     pursuant to subdivisions (5) and (6) of subsection (b)
                     of this section, the court shall conduct its review of


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                  the final decision using the whole record standard of
                  review.
            N.C. Gen. Stat. § 150B–51(c).

Id. at 595-96, 813 S.E.2d at 677–78 (citations, quotation marks, and brackets

omitted).

            Our Supreme Court has observed that the first four
            grounds enumerated under this section may be
            characterized as law-based inquiries, whereas the final two
            grounds may be characterized as fact-based inquiries.
            Moreover, it is well settled that in cases appealed from
            administrative tribunals, questions of law receive de novo
            review, whereas fact-intensive issues such as the
            sufficiency of the evidence to support an ALJ’s decision are
            reviewed under the whole record test.
                   Under the de novo standard of review, the Court
            considers the matter anew and freely substitutes its own
            judgment. However, our Supreme Court has made clear
            that even under our de novo standard, a court reviewing a
            question of law in a contested case is without authority to
            make new findings of fact. Under the whole record test,
            the reviewing court may not substitute its judgment for the
            ALJ’s as between two conflicting views, even though it
            could reasonably have reached a different result had it
            reviewed the matter de novo. Instead, we must examine
            all the record evidence—that which detracts from the ALJ’s
            findings and conclusions as well as that which tends to
            support them—to determine whether there is substantial
            evidence to justify the ALJ’s decision.         Substantial
            evidence is relevant evidence a reasonable mind might
            accept as adequate to support a conclusion. We undertake
            this review with a high degree of deference because it is
            well established that
                   in an administrative proceeding, it is the
                   prerogative and duty of the ALJ, once all the
                   evidence has been presented and considered,
                   to determine the weight and sufficiency of the
                   evidence and the credibility of the witnesses,


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                   to draw inferences from the facts, and to
                   appraise conflicting and circumstantial
                   evidence. The credibility of witnesses and the
                   probative value of particular testimony are for
                   the ALJ to determine, and the ALJ may
                   accept or reject in whole or part the testimony
                   of any witness.

N. Carolina Dep’t of Pub. Safety v. Ledford, 247 N.C. App. 266, 286–87, 786 S.E.2d

50, 63–64 (2016) (citations, quotation marks, and brackets omitted).

      This Court reviews the superior court’s order to determine if the superior court

applied the correct standard of review based upon the “grounds for reversal or

modification” argued before the superior court. EnvironmentaLEE, 258 N.C. App. at

598, 813 S.E.2d at 678-79.

             [I]n reviewing a superior court order examining an agency
             decision, an appellate court must determine whether the
             agency decision (1) violated constitutional provisions; (2)
             was in excess of the statutory authority or jurisdiction of
             the agency; (3) was made upon unlawful procedure; (4) was
             affected by other error of law; (5) was unsupported by
             substantial admissible evidence in view of the entire
             record; or (6) was arbitrary, capricious, or an abuse of
             discretion.    N.C. Gen. Stat. § 150B–51 (2001). In
             performing this task, the appellate court need only
             consider those grounds for reversal or modification raised
             by the petitioner before the superior court and properly
             assigned as error and argued on appeal to this Court.

Id.

B.    Applicable Regulations and Definitions




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                                         Opinion of the Court



        North Carolina General Statute § 143-214.1 directs the North Carolina

Environmental Management Commission to classify all bodies of water6 in the state

and to adopt standards for each classification. See N.C. Gen. Stat. § 143-214.1 (2013),

see also N.C. Gen. Stat. § 143-212 (2013). One body of water may include areas with

different primary classifications and supplemental classifications, depending upon

“the existing or contemplated best usage of the various streams and segments of

streams in the basin, as determined through studies and evaluations and the holding

of public hearings for consideration of the classifications proposed.” 15A N.C.A.C.

2B.0301 (2013). The water quality standards applicable to a body of water are

determined by the classification. See generally 15A N.C.A.C. 2B.0301 (2013). The

primary classification of the portion of Blounts Creek at issue is Class C along with

supplemental classifications of Sw (“swamp waters”) and NSW (“nutrient sensitive

waters”). See generally 15A N.C.A.C. 2B.0101, .0301 (2013).

        Class C classification is appropriate for “freshwaters protected for secondary

recreation, fishing, aquatic life including propagation and survival, and wildlife. All

freshwaters shall be classified to protect these uses at a minimum.” 15A N.C.A.C.

2B.0101 (2013). Sw classification applies to “waters which have low velocities and




6 “(6) ‘Waters’ means any stream, river, brook, swamp, lake, sound, tidal estuary, bay, creek, reservoir,
waterway, or other body or accumulation of water, whether surface or underground, public or private,
or natural or artificial, that is contained in, flows through, or borders upon any portion of this State,
including any portion of the Atlantic Ocean over which the State has jurisdiction.” N.C. Gen. Stat. §
143-212(6) (2013).

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                                  Opinion of the Court



other natural characteristics which are different from adjacent streams.” Id. NSW

classification applies to “waters subject to growths of microscopic or macroscopic

vegetation required limitations on nutrient inputs.” Id. More specifically, as to

supplemental classifications, Sw is defined to “mean those waters which are classified

by the Environmental Management Commission and which are topographically

located so as to generally have very low velocities and other characteristics which are

different from adjacent streams draining steeper topography.”           15A N.C.A.C.

2B.0202. Nsw is defined to “mean those waters which are so designated in the

classification schedule in order to limit the discharge of nutrients (usually nitrogen

and phosphorus).” Id.

      As for the broader classification of Class C, those water quality standards are

provided in 15A N.C.A.C. 2B.0211, entitled “FRESH SURFACE WATER QUALITY

STANDARDS FOR CLASS C WATERS[.]” See 15A N.C.A.C. 2B.0211. For Class C

waters, pH “shall be normal for the waters in the area, which range between 6.0 and

9.0 except that swamp waters may have a pH as low as 4.3 if it is the result of natural

conditions[.]” Id. The “Best Usage” of Class C waters is “aquatic life propagation and

maintenance of biological integrity (including fishing and fish), wildlife, secondary

recreation, agriculture, and any other usage except for primary recreation or as a

source of water supply for drinking, culinary, or food processing purposes[.]” Id.

“Conditions Related to Best Usage” note “the waters shall be suitable for aquatic life



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                                  Opinion of the Court



propagation and maintenance of biological integrity, wildlife, secondary recreation,

and agriculture. Sources of water pollution which preclude any of these uses on either

a short-term or long-term basis shall be considered to be violating a water quality

standard.” Id.

C.    Biological Integrity

      The trial court reversed the portion of the ALJ’s final decision regarding DEQ’s

compliance with the biological integrity standards. Martin Marietta contends the

superior court “Failed To Defer to DWR, Misinterpreted the Biological Integrity

Standard, and Improperly Found Facts[.]” In other words, respondents argue the

trial court made an error of law by misinterpreting the requirements of the applicable

regulations as to “biological integrity;” misunderstood the science behind the

applicable regulations; and failed to use the proper standard of review in addressing

the issues before it. Martin Marietta specifically contends,

                    The Superior Court failed to defer to DWR as it is
             required to do, misunderstood the permitting rules and
             what DWR did, and reversed the ALJ’s holding on
             biological integrity under the following erroneous analysis:
             (1) “DWR must protect the indigenous community”; (2) the
             “plain language” of the standard establishes “base line
             metrics” that must be “determined” or “measured” to apply
             the standard properly; and (3) without “determining the
             base line metrics,” DWR “could not ensure reasonable
             compliance” [sic] with the standard.

(Ellipses omitted.)




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        Petitioners argue the superior court correctly interpreted the biological

integrity standard:

                       The issue before the Court is one of law: does the
                biological integrity standard require DWR to measure the
                terms in the rule and to protect the indigenous community
                of fish, insects, and other animals that live in Blounts
                Creek? The Superior Court recognized that under the
                lawful interpretation of the rule, DWR must measure the
                terms in the standard and establish specific reference
                conditions before issuing a permit.

As the interpretation of the biological integrity standard applied by the superior court

is an issue of law, we review this determination de novo. N. Carolina Dep’t of Pub.

Safety, 247 N.C. App. at 286, 786 S.E.2d at 63.

        This issue requires consideration of how DEQ measures and evaluates

“biological integrity” as part of its general duties in protecting water quality and in

the context of issuance of a Permit. The ALJ made extensive findings of fact and

conclusions of law on this issue,7 many of which Petitioners challenge:


                44.    Petitioners claim that, in issuing the NPDES
                Permit, DWR failed to reasonably ensure compliance with
                the biological integrity standard.


7 In Petitioners’ brief to the superior court Petitioners challenge the findings of fact and conclusions of
law in such a manner that it is difficult to keep track of what actually is at issue before the court. For
instance, in paragraph 81 of Petitioners’ brief they challenge findings of fact “19, 23-25,” and then in
paragraph 82 they challenge findings of fact “17-20, 22-25[,]” the latter which obviously encompasses
the former and broadens it; this is but one of many such examples. Petitioners have divided their
challenges based upon the topic they deem to be at issue, but for this Court’s purposes we simply note
that Petitioners challenged many of the ALJ’s substantive findings of fact and conclusions of law as to
biological integrity, but the challenges were so extensive we have not listed all of them, although we
have considered all.

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45.    Under applicable North Carolina rules, one of the
existing uses of all classified surface waters is
“maintenance of biological integrity.” See 15A NCAC 02B
.0211(1) (2013) (freshwater), and 02B .0220(1) (2013)
(saltwater).

46.   The term “biological integrity” is defined in 15A
NCAC 02B .0202(11) as follows: “the ability of an aquatic
ecosystem to support and maintain a balanced and
indigenous community of organisms having species
composition, diversity, population densities and functional
organization similar to that of reference conditions.”

47.   The biological integrity standards applicable to
upper and lower Blounts Creek state:
      the waters shall be suitable for aquatic life
      propagation and maintenance of biological
      integrity . . . . Sources of water pollution
      which preclude any of these uses on either a
      short-term or long-term basis shall be
      considered to be violating a water quality
      standard . . . .
15A NCAC 02B .0211(2) (2013) (freshwater standard). See
also 15A NCAC 02B .0220(2) (2013) (same standard for
saltwater).

48.    DWR interprets the applicable rules and definitions
to mean that an NPDES permit complies with the
biological integrity standard if the permit’s terms and
conditions reasonably ensure that the permitted discharge
will not preclude maintenance of the ability of an aquatic
ecosystem to support and maintain a balanced and
indigenous community of organisms having species
composition, diversity, population densities and functional
organization similar to that of reference conditions.

49.   The biological integrity standard is administered by
DWR and relates to a highly technical and scientific subject
area within DWR’s expertise.



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50.   As required by North Carolina case law and the
APA, the undersigned accords deference and gives due
regard to DWR’s interpretation of its own rules.

51.    Even if the undersigned were not required to defer
to DWR’s interpretation of the biological integrity standard
rules, the undersigned finds that DWR’s interpretation is
longstanding, is reasonable, and is consistent with and
supported by the plain language of the rules, and therefore
the undersigned will decide Petitioners’ biological integrity
claim based on DWR’s interpretation of the rules.

52.    The preponderance of the evidence shows that, in
evaluating and determining whether the NPDES Permit
reasonably ensures compliance with the biological
integrity standard, DWR (through its staff) applied its
knowledge and expertise, and:
       a.     identified the Blounts Creek system, meaning
       Blounts Creek and its tributaries, as the appropriate
       “aquatic ecosystem”;
       b.     determined that the appropriate “reference
       conditions” were the existing conditions of the
       Blounts Creek system before the proposed
       discharge;
       c.     studied and assessed the existing, pre-
       discharge ecological resources of the Blounts Creek
       system;
       d.     determined the degree and geographic scope
       of potential physical and chemical impacts of the
       proposed discharge;
       e.     determined the predicted changes to the
       ecosystem and ecological resources from the
       proposed discharge to be limited; and
       f.     concluded that the effects predicted to occur
       as a result of the permitted discharge would not
       violate the standard, and, in fact, a violation would
       not occur unless the impacts to the Blounts Creek
       aquatic ecosystem were much greater in degree and
       geographic scope than those predicted to occur.



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53.   Petitioners’ arguments that DWR misinterpreted
and misapplied key aspects of the biological integrity
standard and understated the effects of the permitted
discharge present questions of law and fact, and mixed
questions of law and fact. Petitioners’ arguments have
been thoroughly considered and rejected by the
undersigned as unpersuasive and unsupported by the
preponderance of evidence.

“Aquatic Ecosystem”

54.   Petitioners have asserted that the relevant “aquatic
ecosystem” should be defined more narrowly and that DWR
must use a single stream segment as the ecosystem unit for
assessing compliance. See Petition at 3.

55.   The term “aquatic ecosystem” is not defined by
North Carolina statute or rule.

56.    The determination and application of “aquatic
ecosystem” in a specific context is complex and requires
significant scientific expertise and judgment, and should be
accorded deference. See County of Durham v. N.C. Dept.
of Environment and Natural Resources, 131 N.C. App. at
396-97, 507 S.E.2d at 311 (1998), disc. rev. denied, 350 N.C.
92, 528 S.E.2d 361 (1999).

57.   DWR’s interpretation and application of this term
are reasonable, rational, and in accordance with the
language and purpose of the biological integrity standard.

58.    To the extent DWR’s selection of an appropriate
aquatic ecosystem is considered a factual determination, it
is one which falls directly within the agency’s expertise and
is therefore entitled to “due regard” pursuant to the APA.

“Reference Conditions”

59.   Petitioners have asserted that DWR failed to
conduct a biological integrity analysis by inadequately


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sampling for “species composition, diversity, population
densities and functional organization” throughout the
Blounts Creek aquatic ecosystem.

60.    The determination and application of “reference
conditions” in a specific context is complex and requires
significant scientific expertise and judgment, and should be
accorded deference.

61.   DWR’s interpretation and application of this term
are reasonable, rational, and in accordance with the
language and purpose of the biological integrity standard.

62.    To the extent DWR’s selection of appropriate
“reference   conditions”    is    considered     a    factual
determination, it is one which falls directly within the
agency’s expertise and is therefore entitled to “due regard”
pursuant to the APA.

63.    The preponderance of the evidence shows that
Blounts Creek aquatic ecosystem’s existing conditions
(“reference conditions”) are dynamic, vary over time and
geographic location, and can be affected by many
environmental factors.

64.   The preponderance of the evidence shows that DWR
had sufficient information such that the biological
sampling efforts Petitioners sought were unnecessary.

65.    Before issuing the Permit, DWR determined that:
(a) the proposed discharge likely would not cause
significant erosion or sedimentation; (b) pH likely would
not exceed 6.9 in the upper Blounts Creek and was unlikely
to change significantly in lower Blounts Creek; (c) relative
salinity impacts would likely be on the order of 1 ppt and
salinities would remain within the variability of the
system; (d) shifts in macrobenthic invertebrates would
likely be toward an increase in diversity and would be
geographically limited to the upper reaches of Blounts
Creek; and (e) the proposed discharge is not likely to


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adversely impact fish communities of the Blounts Creek
aquatic ecosystem. These determinations by DWR are
reasonable and supported by the preponderance of the
evidence.

66.   DWR determined that the likely effects of the
permitted discharge are limited in degree, limited in
geographic scope, and not deleterious.

67.   The preponderance of the evidence supports DWR’s
conclusion and shows that the permitted discharge will not
have any significant detrimental effect on the Blounts
Creek aquatic ecosystem, including the many miles of C
and Sw stream segments of other tributaries of Blounts
Creek.

Impacts of the Proposed Discharge

68.    Petitioners argued that DWR underestimated or
understated the effects the proposed discharge will likely
have on the Blounts Creek aquatic ecosystem, including
effects on flow, pH, salinity, benthos, fish, and the existing
biological community of Blounts Creek.

69.    DWR’s findings and inferences regarding the
predicted effects of the proposed discharge fall within
“specialized knowledge of the agency.” As such, the
undersigned is required to give such facts and inferences
“due regard” pursuant to the APA. N.C. Gen. Stat. § 150B-
34(a).

70.    The preponderance of the evidence demonstrates
that DWR applied its knowledge and expertise in its
collection and review of the data and reports obtained
during the permitting process, and drew reasonable
inferences and conclusions based on those data and
reports.

71.   The preponderance of the evidence demonstrates
that DWR reasonably evaluated and adopted the findings


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of the Kimley Horn reports (Exs. R13, R15) and the CZR
report (Ex. R16) after satisfying itself of the reliability of
these studies.

72.    The preponderance of the evidence demonstrates
that: (a) DWR applied its discretion and expertise in its
review of the comments it received from the public
(including Petitioners[]), EPA, and other state agencies
during the permitting process; and (b) the substantive
comments were considered and accounted for by DWR
based on DWR’s expertise, judgment, and rational
evaluation of the comments and other evidence.

73.     To the extent Petitioners contend that DWR acted
arbitrarily and capriciously in its evaluation of the
evidence, its gathering and evaluation of relevant data and
information, its interpretation and application of the
biological integrity standard, and its conclusion that the
NPDES Permit reasonably ensures compliance with the
biological integrity standard, Petitioners failed to present
any evidence that DWR acted “whimsically” or in “bad
faith.”

74.   The undersigned finds that DWR’s evaluation of the
NPDES permit application, reports and data submitted
during the permit process, the data independently collected
by DWR, and the comments received from the public, state
agencies and EPA was reasonable, rational, thorough,
supported by a preponderance of the evidence in the record,
and undertaken in good faith.

75.   The undersigned finds the evidence and expert
opinion testimony as well as the lay opinion testimony,
even if admitted, presented by Petitioners, does not
overcome DWR’s determinations, with respect to the likely
impacts and effects of the permitted discharge, which were
thoroughly evaluated based on DWR’s knowledge,
expertise, and judgment, and well-supported by a
preponderance of the evidence.



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76.   The undersigned has considered all of the evidence
of potential impacts presented by Petitioners and their
experts, and finds, based on a preponderance of the
evidence, that Petitioners’ evidence either does not
contradict DWR’s determinations or is not persuasive and
not sufficient to overcome the data, studies, and other
information reasonably considered and relied on by DWR
in evaluating compliance with the biological integrity
standard.

77.   Petitioners failed to present evidence sufficient to
overcome the presumption that DWR acted appropriately
in determining the NPDES Permit reasonably ensures
compliance with the biological integrity standard.

78.   The preponderance of the evidence demonstrates
that DWR:
      a.     reasonably     interpreted    the   biological
      integrity standard;
      b.     reasonably and rationally applied the
      biological integrity standard to the relevant
      information and facts regarding the proposed
      discharge;
      c.     reasonably determined that, although certain
      changes are predicted to occur as a result of the
      proposed discharge, the predicted effects would not
      preclude the ability of the relevant aquatic
      ecosystem to support and maintain a balanced and
      indigenous community of organisms having species
      composition, diversity, population densities and
      functional organization similar to that of reference
      conditions; and
      d.     reasonably and rationally determined that
      the NPDES Permit reasonably ensures compliance
      with the biological integrity standard.

79.   Petitioners failed to meet their burden of proving by
a preponderance of the evidence that DWR exceeded its
authority or jurisdiction, acted erroneously, failed to use
proper procedure, acted arbitrarily or capriciously, or failed


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                                       Opinion of the Court



               to act as required by law or rule in determining the NPDES
               Permit reasonably ensures compliance with the biological
               integrity water quality standard. See 15A NCAC 02B.
               0202(11), 15A NCAC 02B .0211(2) (2013), and 15A NCAC
               02B .0220(2) (2013).

               80.   DWR’s decision that the NPDES Permit reasonably
               ensures compliance with the biological integrity water
               quality standard is affirmed.

       The superior court did not determine that any of the findings of fact made by

the ALJ were unsupported by the record, but instead determined on de novo review

that DWR’s interpretation of the “biological integrity standard rules and related

definitions” was not reasonable and was “contrary to the language of the standard

and definitions.” The superior court rejected both DEQ’s and the ALJ’s interpretation

of the biological integrity standard, and Martin Marietta and DEQ challenge this

conclusion on appeal as reflected in their arguments that the superior court “Failed

To Defer to DWR, Misinterpreted the Biological Integrity Standard, and Improperly

Found Facts[:]8”

                      Class C waters must be “suitable for aquatic life
               propagation and maintenance of biological integrity”
               among other uses. 15A NCAC 02B.0211(2) The term
               “Biological Integrity” is defined by 15A NCAC 02B.202(11)
               as “the ability of an aquatic ecosystem to support and
               maintain a balanced and indigenous community of
               organisms having species composition, diversity,
               population densities and functional organization similar to
               that of reference conditions”.
                             The rules do not define the terms “species

8 The following quote from the superior court order arguably includes some findings of fact, but the
superior court stated its decision as based upon de novo review of a legal issue.

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composition”, “diversity”, “population densities” or
“functional organization”. Dr. Overton was offered and
accepted by the AU as an expert in the field of fisheries
ecology, larval fish ecology, fisheries management, and fish
sampling methods and analysis. He testified that species
composition counts the number of species in a system.
Species diversity counts the number species present and
the relative abundance of each species. Population density
describes how many individuals are in a defined area and
functional organization describes the organization of
biological community.
       Tom Reeder with DWR testified that he did not
know if there was such a thing as a biological integrity
analysis; that he had never really heard of such a thing.
He further testified that no statutes or rules set forth
numeric standards or explicit methods or metrics by which
DWR must make a determination that a NPDES permit
reasonably ensures compliance with the biological
integrity standard. Rather, the standard requires DWR to
exercise its discretion, expertise and professional judgment
to determine whether the anticipated impacts of a proposed
discharge are such that the discharge will preclude the
ability of an “aquatic ecosystem” to support and maintain
a balanced and indigenous community of organisms having
species composition, diversity, population densities, and
functional organization “similar” to that of “reference
conditions”. DWR staff conceded that the agency did not
evaluate species composition, diversity, population
density, or functional organization in Blounts Creek. Mr.
Reeder justified the failure to evaluate these metrics by
saying that he considered the impact of the permitted
discharge to be de minimus. In essence the agency reached
the ultimate conclusion that the impact of the permitted
discharge was de minimus first, without evaluating species
composition, diversity, population density, and functional
organization, and then used the ultimate conclusion to
conclude that evaluation of the metrics was unnecessary.
       With respect to questions of law, the reviewing court
employs a de novo review. When applying de novo review,
the Court may freely substitute its judgment for that of the


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agency. In re Appeal of N. C. Sav. & Loan League, 302 N.
C. 458 (1981) Incorrect statutory interpretation is an error
of law which allows the court to apply a de novo review.
Brooks v. Rebarco, 91 N.C. App. 459 (1988) However even
when reviewing a case de novo courts recognize the
longstanding tradition of according deference to an
agency’s interpretation of its rules. A reviewing Court
should defer to agency’s interpretation of a statutes or
rules it administers so long as the agency interpretation is
reasonable and based upon a permissible construction of
the statute or rule. County of Durham v. N.C. Dep’t of Env’t
and Natural Res., 131 N.C. App. 395 (1998).
Interpretations that conflict with the clear intent and
purpose of the law are entitled to no deference. Burgess v.
Your House of Raleigh, Inc., 326 N.C. 205 (1990) An
agency’s interpretation of its own regulations will be in
enforced unless clearly erroneous or inconsistent with the
regulation’s plain language. WASCO LLC. V. N.C. Dep’t of
Env’t & Natural Res., 799 S.E. 2nd 405 (2017)
       The terms “species composition, diversity,
populations densities, and functional organization” used in
the biological integrity standard must be given meaning.
Kyle v. Holston Group, 188 N.C. App. 686 (2008) The
standard requires DWR to maintain the indigenous
biological community by insuring that the post discharge
“species composition, diversity, population densities, and
functional organization are similar to that of reference
conditions” determined before the discharge is permitted.
The rule is clear that referenced conditions must be
evaluated on the basis of and as defined in those terms. Yet
the DWR staff conceded that they did not measure any of
the biological integrity metrics in Blounts Creek when
evaluating the permit’s compliance with the standard.
Thus, DWR failed to determine the base line metrics
required by 15A NCAC 02B.0202(11) and could not,
therefore, ensure reasonable compliance with the biological
integrity standard.
       The Biological integrity standard is clear; DWR
must protect the indigenous community by determining
reference conditions in terms of an evaluated impacts on


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                                           Opinion of the Court



                  the community’s species composition, diversity, population
                  density and functional organization. Reference conditions
                  must be specific enough to allow the agency to apply the
                  biological integrity standard properly. DWR failed to apply
                  the plain language of the biological integrity standard.
                  Therefore DWR did not “reasonably ensure compliance
                  with” the biological integrity standard. Consequently the
                  agency exceeded its authority and erred as a matter of law
                  when issuing the permit. Based upon a de novo review of
                  the biological integrity standard rules and related
                  definitions the Court concludes that DWR’s interpretation
                  of the rule is not reasonable and is contrary to the language
                  of the standard and definitions.
                         Conclusions of law 51 through 53, 61, 62, 64 through
                  67,70, 75, 77 through 80, 110 through 112 are reversed. 9

          Ultimately, the superior court determined, contrary to the ALJ’s conclusion,

that DEQ’s interpretation of the biological integrity standard was not reasonable and

was contrary to the language of the standard and definitions. The superior court did

not determine that the ALJ’s findings of fact were unsupported by substantial

evidence but instead found legal error as to the meaning and application of the

biological integrity standard. The primary difference between the ALJ’s order and

the superior court’s order is its determination of the “clear” meaning of the biological

integrity standard and its resulting determination not to defer to agency expertise.

          Again, the superior court concluded that

                        [t]he Biological integrity standard is clear; DWR
                  must protect the indigenous community by determining
                  reference conditions in terms of an evaluated impacts on
                  the community’s species composition, diversity, population


9   This section is quoted as it was in the record before us, including spacing and punctuation.

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                                   Opinion of the Court



             density and functional organization. Reference conditions
             must be specific enough to allow the agency to apply the
             biological integrity standard properly. DWR failed to apply
             the plain language of the biological integrity standard.

      But as the superior court notes, many of the operative words in the applicable

regulations are not defined.     Despite the superior court’s conclusion that “the

Biological integrity standard is clear[,]” it could be clear only to the extent the

operative terms in the standard are defined. However, the superior court applied

“clear” definitions where the regulations simply do not provide definitions. The

superior court defined the biological integrity standard to mean that “DWR must

protect the indigenous community by determining reference conditions in terms of an

evaluated impacts on the community’s species composition, diversity, population

density and functional organization.” But this is not the standard as defined by the

applicable regulations.    Again, classification is determined by “the existing or

contemplated best usage of the various streams and segments of streams in the basin,

as determined through studies and evaluations and the holding of public hearings for

consideration of the classifications proposed.” 15A N.C.A.C. 2B.0301 (2013)

(emphasis added). The North Carolina Administrative Code (“Code”) contemplates

the existing state of the water or its possible best usage. See id. The “Best Usage” of

Class C waters is “aquatic life propagation and maintenance of biological integrity

(including fishing and fish), wildlife, secondary recreation, agriculture, and any other

usage except for primary recreation or as a source of water supply for drinking,


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                                 Opinion of the Court



culinary, or food processing purposes[.]” 15A N.C.A.C. 2B.0211. “Conditions Related

to Best Usage” note “the waters shall be suitable for aquatic life propagation and

maintenance of biological integrity, wildlife, secondary recreation, and agriculture.

Sources of water pollution which preclude any of these uses on either a short-term or

long-term basis shall be considered to be violating a water quality standard.” Id.

(emphasis added).

      The Code does not require the biological integrity of an aquatic ecosystem to

remain exactly or even substantially the same as it had once been, for example, prior

to discharge. See generally 15A N.C.A.C. 2B.0301.        To violate a water quality

standard, the discharge of water must “preclude any of these uses on either a short-

term or long-term basis[.]” 15A N.C.A.C. 2B.0211. “Preclude” is not defined in the

statute, but its ordinary meaning is to “close” and “to make impossible by necessary

consequence: rule out in advance[.]” Merriam-Webster’s Collegiate Dictionary 977

(11th ed. 2003). In other words, to violate a water quality standard the discharge of

water must make “aquatic life propagation and maintenance of biological integrity,

wildlife, secondary recreation, and agriculture” nearly impossible. 15A N.C.A.C.

2B.0211; see generally Merriam-Webster’s Collegiate Dictionary 977.

      Further, the superior court did not reverse the ALJ’s findings of fact as to

DEQ’s expertise applying the regulations which ultimately led to the contested

conclusion by the ALJ that DEQ had complied with the biological integrity standard:



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                                  Opinion of the Court



             131. Mr. Reeder testified that with the assistance of DWR
             staff, he used his best professional judgment, experience
             and expertise to determine that the appropriate “aquatic
             ecosystem” was the watershed system of Blounts Creek
             and its tributaries. (Reeder, Tr. Vol. 7 pp. 1149-1150)

             132. Mr. Reeder considered “reference conditions” to be
             the existing conditions in the Blounts Creek aquatic
             ecosystem without the proposed discharge. (Reeder, Tr.
             Vol. 7 pp. 1142-1144, 1149-1150; Reeder, Tr. Vol. 4 pp. 662-
             663; Fleek, Tr. Vol. 6 pp. 992-993)

             ....

             136. Mr. Reeder took into consideration and weighed Mr.
             Fleek’s opinions regarding the effects of the proposed
             discharge on benthos in the upper reaches immediately
             downstream of the proposed discharge outfalls. (Reeder,
             Tr. Vol. 4 pp. 660-661)

             137. Mr. Reeder understood Mr. Fleek’s professional
             opinion to be that benthic macroinvertebrates would likely
             become more diverse near the discharge outfalls and that
             farther downstream any such impacts would lessen or
             dissipate. (Reeder, Tr. Vol. 4 pp. 660-661)

             138. Mr. Reeder also understood that the many other
             tributaries of the Blounts Creek aquatic ecosystem, and the
             biota inhabiting those areas, would be unaffected by the
             permitted discharge. (Reeder, Tr. Vol. 7 pp. 1142-1151,
             1162-1165, 1172; Reeder, Tr. Vol. 4 pp. 658-671; Ex. R23;
             Ex. R1; Ex. R16)

Despite these findings of fact, Petitioners argued, and the Superior Court found, that

DEQ’s interpretation of the regulations and process for evaluation of the impact of

the proposed discharge were not “reasonable” and thus not subject to deference.

       One of respondents’ main contentions before this Court is that the superior


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court failed to apply the correct legal standard in deferring to DEQ as to the

interpretation and application of the biological integrity standards. The superior

court determined “DWR failed to determine the base line metrics required by 15A

NCAC 02B.0202(11) and could not, therefore, ensure reasonable compliance with the

biological integrity standard,” but, according to Mr. Reeder, “no statutes or rules set

forth numeric standards or explicit methods or metrics by which DWR must make a

determination that a NPDES permit reasonably ensures compliance with the

biological integrity standard.” As DEQ explains,

             the Superior Court’s “plain language” interpretation is not
             based on the plain language of applicable regulations at all.
             By stepping outside the plain language of the regulations
             and dictating what information the agency’s biologists and
             engineers must consider when evaluating compliance with
             a technical environmental standard, the Superior Court
             improperly substituted its judgment for that of the agency
             . . . [, and]
                       ....
                       As a pure question of regulatory interpretation, the
             Superior Court’s “plain language” reading is flatly
             incorrect. The “plain language” of the standard says
             nothing about what process the agency must go through or
             what information the agency must collect to reasonably
             ensure compliance with the standard.             Rather, the
             regulations leave this determination to the “reasonabl[e]”
             discretion of DWR’s environmental scientists to be
             evaluated on a case-by-case basis. 15A NCAC 2H.0112(c).

      The superior court considered a few lines of testimony of Mr. Reeder, “Tom

Reeder with DWR testified that he did not know if there was such a thing as a

biological integrity analysis; that he had never really heard of such a thing.” But this


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                                   Opinion of the Court



interpretation takes the testimony out of context and is not supported by the whole

record as noted by the next sentence in the order noting he further testified accurately

“that no statutes or rules set forth numeric standards or explicit methods or metrics

by which DWR must make a determination that a NPDES permit reasonably ensures

compliance with the biological integrity standard.” In fact, the superior court did not

determine that the ALJ’s findings regarding DEQ’s investigation of the expected

effects of the water discharge on biological integrity were not supported by the whole

record, but relied upon this statement by Mr. Reeder along with an erroneous

definition of “biological integrity” to conclude that

             DWR staff conceded that the agency did not evaluate
             species composition, diversity, population density, or
             functional organization in Blounts Creek. Mr. Reeder
             justified the failure to evaluate these metrics by saying
             that he considered the impact of the permitted discharge to
             be de minimus. In essence the agency reached the ultimate
             conclusion that the impact of the permitted discharge was
             de minimus first, without evaluating species composition,
             diversity, population density, and functional organization,
             and then used the ultimate conclusion to conclude that
             evaluation of the metrics was unnecessary.

      But DEQ certainly did not “concede[]” that it “did not evaluate specifies

composition, diversity, population density, or functional organization[]” despite the

portions of Mr. Reeder’s testimony the superior court and Petitioners take out of

context.    DEQ simply did not perform evaluations to Petitioners’ desired

specifications, but this is vastly different from failing to evaluate at all. The question



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                                   Opinion of the Court



for the superior court, and for this Court, is not whether DEQ could have done more

or different testing or analysis or whether the ALJ could have found different facts.

The questions before us are whether the ALJ’s findings of fact are supported by the

whole record; N. Carolina Dep’t of Pub. Safety, 247 N.C. App. at 286, 786 S.E.2d at

64; whether DEQ evaluated the Permit application in accord with the applicable

regulations; and whether DEQ’s interpretation of those regulations was reasonable.

See Hilliard v. N.C. Dep’t of Corr., 173 N.C. App. 594, 598, 620 S.E.2d 14, 17 (2005)

(“On judicial review, an agency’s interpretation of its own regulations will be enforced

unless clearly erroneous or inconsistent with the regulation’s plain language.”); see

generally N. Carolina Dep’t of Pub. Safety v. Ledford, 247 N.C. App. 266, 286–87, 786

S.E.2d 50, 63–64 (2016) (“[O]ur Supreme Court has made clear that even under our

de novo standard, a court reviewing a question of law in a contested case is without

authority to make new findings of fact. Under the whole record test, the reviewing

court may not substitute its judgment for the ALJ’s as between two conflicting views,

even though it could reasonably have reached a different result had it reviewed the

matter de novo. Instead, we must examine all the record evidence—that which

detracts from the ALJ’s findings and conclusions as well as that which tends to

support them—to determine whether there is substantial evidence to justify the

ALJ’s decision. Substantial evidence is relevant evidence a reasonable mind might

accept as adequate to support a conclusion. We undertake this review with a high



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degree of deference because it is well established that in an administrative proceeding,

it is the prerogative and duty of the ALJ, once all the evidence has been presented

and considered, to determine the weight and sufficiency of the evidence and the

credibility of the witnesses, to draw inferences from the facts, and to appraise

conflicting and circumstantial evidence. The credibility of witnesses and the probative

value of particular testimony are for the ALJ to determine, and the ALJ may accept or

reject in whole or part the testimony of any witness.” (emphasis added)).

      The whole record supports the ALJ’s findings that DEQ evaluated species

composition, diversity, population density, and functional organization in accord with

its established procedures and expertise. Mr. Reeder was “the acting director of the

Division of Water Quality and the director of the Division of Water Resources” when

the Permit was approved; eventually the two divisions were merged. Mr. Reeder

approved the Permit, but he was by no means the only employee of DEQ involved in

the consideration of the Permit. Many employees of DEQ, as well as consultants

including CZR Incorporated (“CZR”) and Kimley-Horn and Associates (“Kimley

Horn”), performed the actual sampling and analysis of water quality, fish, and

benthos in Blounts Creek.        Mr. Reeder testified at length regarding DEQ’s

investigation and analysis of “biological integrity” in Blount’s Creek. As a whole, in

context, Mr. Reeder testified “biological integrity” is a narrative standard, not a

numeric standard:



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                                   Opinion of the Court



                    Well, I mean you can’t go to an [Standard Operating
             Procedure]—there’s no [Standard Operating Procedure]
             that says biological integrity analysis. Like I couldn’t call
             Eric Fleek on the phone and say, “Hey, Eric, go out and do
             a biological integrity analysis.”
                    What you do is you go out and do exactly what Eric
             did, is you do a biological assessment and you look at the
             technical memorandum, and according to that you make a
             decision based upon your best professional judgment and
             all the data as to whether you think this narrative
             standard for biological integrity will be violated or not.

Mr. Eric Fleek was an environmental supervisor at DEQ. Mr. Fleek testified his

branch, the Biological Assessment Branch, evaluated water quality by “sampling for

fish. We also do sampling for benthic macroinvertebrates. And by assessing a water

body and the biology that lives there, you can use them as proxies to determine what

the water quality is like there.” Mr. Fleek also testified that there were “protocols for

doing that sampling” of Blounts Creek in reference to the Standard Operating

Procedure.

      Our record contains one of Petitioners’ exhibits in arguing DEQ failed to

comply with its own standards, DEQ’s “STANDARD OPERATING PROCEDURE

BIOLOGICAL MONITORING[,] STREAM FISH COMMUNITY ASSESSMENT

PROGRAM[,]” (“Standard Operating Procedures”) and

             the purpose of this manual [is] to provide details on
             standard operating procedures of the Biological
             Assessment Unit of the Division of Water Quality (DWQ or
             Division) for the collection and analysis of stream fish
             community assessment data.          Consistency in data
             collection and analysis is the cornerstone for evaluating


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            biological integrity.   The procedures provided are a
            synthesis of widely used methods and methods developed
            from the experience of personnel within the Unit. These
            methods have been shown to provide repeatable and useful
            data for water quality evaluation.
                   ....
                   The Stream Fish Community Assessment Program
            was designed as an additional basinwide assessment tool
            and has been in existence since 1991. It’s core mission is
            to sample a set of fixed sites on lower Strahler order
            wadeable creeks, streams, and rivers on a five-year
            rotating basis to support the DWQ’s Basinwide
            Management Plan Program.

      While the Standard Operating Procedures address “biological integrity[,]” they

do not require a particular type of analysis to be done for a Permit application;

instead, the staff of DEQ uses its expertise to determine what types of testing or

sampling need to be done for each application, depending upon its unique

circumstances.

      The Standard Operating Procedures also describe the “NORTH CAROLINA

INDEX OF BIOTIC INTEGRITY” which has been in use since the early 1990s:

            The Division has been monitoring the biological integrity
            of stream fish communities since the early 1990s. The
            biological monitoring tool that is used is referred to as the
            North Carolina Index of Biological Integrity (NCIBI). The
            NCIBI method was developed for assessing a stream’s
            biological integrity by examining the structure and health
            of its fish community. The North Carolina Administrative
            Code defines Biological Integrity as: “. . . the ability of an
            aquatic ecosystem to support and maintain a balanced and
            indigenous community of organisms having species
            composition, diversity, population densities, and functional
            organization similar to that of reference conditions” (15A


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      NCAC 02B .0200; NCAC 2004).             The NCIBI is a
      modification of the Index of Biotic Integrity (IBI) initially
      proposed by Karr (1981) and Karr, et al. (1986).

      The NCIBI incorporates information about species
      richness and composition, trophic composition, fish
      abundance, and fish condition. The NCIBI summarizes the
      effects of all classes of factors influencing aquatic faunal
      communities such as water quality, energy source, habitat
      quality, flow regime, and biotic interactions. While any
      change in a fish community can be caused by many factors,
      certain aspects of the community are generally more
      responsive to specific influences. Species composition
      measurements reflect habitat quality effects. Information
      on trophic composition reflects the effect of biotic
      interactions and energy supply. Fish abundance and
      condition information indicates additional water quality
      effects. It should be noted, however, that these responses
      may overlap. For example, a change in fish abundance may
      be due to decreased energy supply or a decline in habitat
      quality, not necessarily a change in water quality.

      The scores derived from this index are a measure of the
      ecological health of the waterbody and may not directly
      correlate to water quality. For example, a stream with
      excellent water quality, but with poor or fair fish habitat,
      may not be rated excellent with this index. However, a
      stream which rated excellent on the NCIBI should be
      expected to have excellent water quality.

Further, the NCIBI sets out specific metrics to assess biological integrity:

      The NCIBI incorporates information about species
      richness and composition, pollution indicator species,
      trophic composition, fish abundance, fish condition, and
      reproductive function by the cumulative assessment of 12
      parameters or metrics (Tables 1-3). Each metric is
      designed to contribute unique information to the overall
      assessment. The values provided by the metrics are
      converted into scores on a 1, 3, and 5 scale. A score of 5


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              represents conditions commonly associated with
              undisturbed reference streams in the specific river basin or
              ecoregion. A score of 1, however, indicates that conditions
              deviate greatly from those typically observed in
              undisturbed streams of the region. All metrics for each of
              the three regions were calibrated using regional reference
              sites.

              The scores for all metrics are then summed to obtain the
              overall NCIBI score, an even number between 12 and 60.
              The score is then used to determine the biological integrity
              class of the stream (i.e., Poor, Fair, Good-Fair, Good, or
              Excellent) (Karr 1981 , Karr, et al. 1986). A fish community
              rated Excellent is comparable to the best situations with
              minimal human disturbance; all regionally expected
              species for the habitat and stream size, including the most
              intolerant forms, are present along with a full array of size
              classes and a balanced trophic structure. Conversely, a
              fish community rated Poor deviates greatly from the
              reference condition. The number of fish is fewer than
              expected, usually fewer than expected number of species,
              an absence of intolerant species, and an altered trophic
              structure. Communities rated Good, Good-Fair, or Fair fall
              within this disturbance gradient.

              Currently, if a fish community is rated Excellent, Good, or
              Good-Fair it is deemed to be Fully Supporting its Aquatic
              Life Use Support stream classification. If a fish community
              is rated Fair or Poor it is deemed to be Not Supporting its
              Life Use Support stream classification and the water
              quality standard is not being met. Waters that have an
              Excellent fish community rating are also eligible for
              reclassification to a[n] Outstanding Resource Waters or to
              a High Quality Waters supplemental classifications.

The Standard Operating Procedures set forth twelve metrics, grouped into five

categories:

              1.     Species richness and composition (Metric Nos. 1 and


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                      3-5)
               2.     Indicator species (Metric Nos. 6 and 7)
               3.     Trophic function (Metric Nos. 8-10)
               4.     Abundance and condition (Metric Nos. 2 and 11)
               5.     Reproductive function (Metric No. 12)

The particular metrics used may vary depending upon the type of water and region

of the state. For example, the species of fish measured metric number 4 are different

in mountain streams than in and around coastal waters. The Standard Operating

Procedures also set out sampling procedures and instructions for laboratory

processing for samples. To assess the quality of a stream, information obtained from

sampling is compared to reference conditions. “The scores for all 10 or 12 metrics are

then summed to obtain the overall NCIBI score. Finally, the score (an even number

between 12 and 60) is then used to determine the biological integrity class of the

stream from which the sample was collected[.]”

         Regarding permits, the Standard Operating Procedures provide, “The location

of permitted dischargers should be reviewed, using the database provided by the

Division’s Basinwide Information Management System” and notes that “[w]atershed-

specific special study sites that are designed to address a specific, short-term question

(e.g.,   Use Attainability,    impacts from         a permitted discharger,   watershed

modifications, etc.) are usually sampled only once and may be sampled anytime

between March and December.” (Emphasis added.)




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      As part of its analysis of the permit application, CZR did sampling and

prepared a report addressing the metrics noted in the Standard Operating

Procedures regarding fish and benthos. This report noted that fish surveying was

done “in accordance with NCDWQ 2006 Standard Operating Procedure, Stream Fish

Community Assessment Program (NCDENR 2006a).” “Benthic invertebrate

sampling occurred on 11 April 2011 following the swamp stream method as described

in NCDWQ 2006 Standard Operating Procedures for collection of benthic

invertebrates in the Level IV Ecoregion Swamp Region B of the coastal plain of North

Carolina NCDENR 2006b.”

      DEQ initially reviewed Martin Marietta’s application for the Permit, then

requested additional information to address several questions:

            1.     Please define a zone of impact (ZOI) and show that
            it is not degraded, considering hydraulic, biota, & saline
            water impacts as discussed below.
                   Hydraulic: The point downstream at which the
                   proposed discharge can be considered insignificant.
                   Consider the frequency of bank overflow and the
                   effects of increased water levels, velocity changes,
                   and erosion. Impacts should be based on a major
                   rainfall event such as an 80th percentile (two in 10-
                   year) storm, and a base flow.
                   Biota: The point at which the proposed discharge is
                   considered to be insignificant, relative to
                   anadromous fish (e.g. finfish) changes in velocity,
                   pH, temperature DO. Evaluate effects during
                   documented spawning times (as per the NC Wildlife
                   Resources Commission and the National Marine
                   Fisheries Service) and during periods of lower
                   stream flows.


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                   Saline Water:       The point at which the
                   freshwater impact of the proposed discharge is
                   considered insignificant. Using the ZOI identified
                   for the hydraulic component, determine the distance
                   to a downstream point of saline stability and
                   evaluate impacts
            2.     Please provide a process flow diagram for the mine
            dewatering and stormwater discharge, including the flow
            around the proposed stockpile area.           What is the
            approximate size and capacity of the settling pond that will
            be located next to the mining pit?
            3.     What is the size and capacity of the closed loop
            settling system and the future overburden storage area?
            4.     Please    provide    an    expanded     Engineering
            Alternatives Analysis (EAA). This should include the
            alternatives of reinjection of pit drainage and the
            treatment and conveyance of this discharge for potable or
            other reusable purposes. The EAA must be performed
            according to the guidelines in the Division’s website. This
            includes a 20-year present worth analysis of all feasible
            options.

      In answer to these questions, Martin Marietta provided a Technical

Memorandum prepared by Kimley Horn summarizing “the results of several analyses

performed to address comments regarding stream stability, potential flooding, and

water quality issues associated with the proposed discharge[,]” including “the

predicted zones of potential impact[;]” a revised NPDES Water Flow Map showing

“the process flow diagram for mine dewatering and stormwater discharge[;] and

“expanded Engineering Alternatives Analysis (EAA) dated September 14, 2012,

prepared by Groundwater Management Associates, Inc. . . . according to the

guidelines in the DWQ website and includ[ing] a 20-year present worth analysis of



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all feasible options.” Further, in October of 2012, CZR also prepared a Technical

Memorandum addressing “potential direct and indirect effects on identified fish

populations from predicted changes in Blounts Creek water quality as identified by”

Kimley Horn’s Technical Memorandum.

      In summary, hundreds of pages of the record on appeal and hundreds of pages

of testimony address the analysis of “biological integrity,” as well as salinity, pH, and

many other factors evaluated by DEQ to determine whether the Permit should be

issued. To the extent that the superior court made a finding of fact in noting that

                    Tom Reeder with DWR testified that he did not
             know if there was such a thing as a biological integrity
             analysis; that he had never really heard of such a thing.
             He further testified that no statutes or rules set forth
             numeric standards or explicit methods or metrics by which
             DWR must make a determination that a NPDES permit
             reasonably ensures compliance with the biological
             integrity standard[,]

this finding is technically supported by the record because Mr. Reeder did so testify.

But neither the superior court nor this Court may substitute its findings of fact for

those of the ALJ; we review the ALJ’s findings of fact only to determine if they are

supported by the whole record. See Ledford, 247 N.C. App. at 286–87, 786 S.E.2d at

63–64. The ALJ’s findings are supported by the whole record, as discussed above.

Contrary to the superior court’s conclusions, Mr. Reeder’s testimony indicated the

thorough and extensive evaluation that DEQ undertook to ensure biological integrity,

although this cannot be neatly summed up as one official analysis plainly laid out in


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a specific standard operating procedure. The ALJ’s findings as to the biological

integrity analysis are supported by the whole record. The superior court therefore

erred by essentially substituting its own findings of fact regarding Mr. Reeder’s

testimony and by making legal conclusions as to biological integrity based upon a

misinterpretation of the standard. Therefore, as to DEQ’s and Martin Marietta’s

main contention on appeal we agree that the trial court erred in reversing the ALJ’s

order as to the biological standard, and we now turn to address Petitioners’ issues on

cross-appeal.

D.    Swamp Waters Classification

      Petitioners cross-appealed from the superior court’s order based upon its

determination that DEQ’s approval of the Permit violated the water quality

standards set forth for swamp water classification. DEQ and Martin Marietta argue

we should affirm the findings and conclusions of the ALJ and superior court regarding

swamp waters.      As noted above, a body of water may have a supplemental

classification in addition to its primary classification. See generally 15A N.C. Admin.

Code 2B.0301.     The portions of Blounts Creek at issue have a supplemental

classification of “swamp waters” which again is defined as “those waters which are

classified by the Environmental Management Commission and which are

topographically located so as to generally have very low velocities and other

characteristics which are different from adjacent streams draining steeper



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topography.” 15A N.C.A.C. 2B.0202. Swamp water classification applies to “waters

which have low velocities and other natural characteristics which are different from

adjacent streams.” 15A N.C.A.C. 2B.0101.

       The ALJ identified the issue regarding swamp waters as follows:

              Issue 2: “Swamp Waters Claim”: Whether Petitioners
              have met their burden of proving that Respondent
              exceeded its authority or jurisdiction, acted erroneously,
              failed to use proper procedure, acted arbitrarily or
              capriciously, or failed to act as required by law or rule in
              determining the NPDES Permit reasonably ensures
              compliance with water quality standards and regulations
              related to      the “Swamp Waters” supplemental
              classification.

       The ALJ made the following findings regarding the swamp water

classification:

              18.   Contrary to Petitioners’ assertions, the evidence
              demonstrates that the “swamp method” and the term
              “swamp stream” in the SOP are unrelated to the “swamp
              waters” supplemental classification. (Fleek, Tr. Vol. 7 pp.
              1103-1105; Ex. R34, p.6; Fleek, Tr. Vol. 6 pp. 980-981; Ex.
              P58; Ex. P59)

              19.    Mr. Fleek reviewed the CZR Habitat Assessment
              and provided input to Mr. Belnick. In Mr. Fleek’s
              evaluation, he concluded that there could be an increase in
              diversity and population of benthos near the proposed
              discharge outfalls because the discharge would lead to less
              stressful conditions. (Fleek, Tr. Vol. 7 pp. 1108-1111, 1114-
              1116; Ex.R4; Ex. 51)

              ....

              Petitioners’ Swamp Waters Claim


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81.   Petitioners claim that the NPDES Permit does not
reasonably ensure compliance with what Petitioners
characterize as a requirement to “protect” swamp waters
“characteristics.” Petition 4-5.

82.    “Swamp Waters” are defined as “waters which are
classified by the Environmental Management Commission
and which are topographically located so as to generally
have very low velocities and other characteristics which are
different from adjacent streams draining steeper
topography.” 15A NCAC 02B.0202(62). See also 15A
NCAC 02B.0101(e)(2) and 02B .0301(c).

83.   Petitioners claim that DWR has a duty to preserve
swamp waters in their existing condition, and they objected
to the predicted changes in physical and chemical
parameters in upper Blounts Creek, specifically dissolved
oxygen, pH, flow velocity, and tannins. Petitioners have
characterized the predicted changes to these parameters as
unlawfully eliminating swamp waters characteristics and
uses.

84.    DWR disagrees with Petitioners in that DWR has a
duty under the applicable rules and laws to preserve
waters with the supplemental classification “swamp
waters” in their existing condition.         DWR asserts,
consistent with its longstanding interpretation and past
practices, that the only effect of the Sw supplemental
classification is to modify the water quality standards for
dissolved oxygen and pH by lowering the minimum limits
otherwise required for Class “C” waters. See 15A NCAC
02B .0211(3)(b) and (3)(g) (2013).

85.   Petitioners failed to identify any statute or rule that
expressly protects “low tannins”, “low pH”, “low dissolved
oxygen”, or “low velocity” attributes of swamp waters.

86.    Petitioners have not cited a law or rule that requires
additional protection or use for waters with the


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supplemental classification “swamp waters.”

87.   The swamp waters supplemental classification and
the water quality standards administered by DWR relate
to a highly technical and scientific subject area within
DWR’s expertise.

88.    As the agency delegated the responsibility for
NPDES permitting and enforcement of North Carolina’s
water quality standards, DWR’s interpretation and
application of the State’s water quality standards, and its
surface     water    classifications   and   supplemental
classifications are entitled to deference. Hilliard v. N.C.
Dept. of Corrections, 173 N.C. App. 594, 598, 620 S.E.2d
14, 17-18 (2005).

89.    DWR’s interpretation and application of the highly
technical rules it administers, including the swamp waters
and antidegradation rules, are reasonable, longstanding,
in accord with past DWR practices, and consistent with and
supported by the plain language of the relevant rules.

90.    Petitioners have presented no evidence, authority,
or argument that persuades the undersigned to overrule
DWR’s rational interpretation and application of the
State’s swamp waters and antidegradation laws and rules.

91.    Some supplemental classifications may trigger
protection or uses in addition to the protections or uses for
Class C waters. For example, the “Outstanding Resource
Waters” supplemental classification states that such
waters “require special protection to maintain existing
uses.” 15A NCAC 02B .0101(e)(4).

92.    The specificity of additional protections and uses
explicitly applicable by rule to some supplemental
classifications is further evidence that, if the “swamp
waters” supplemental classification was intended to
provide additional protections, the rules would have
specifically provided for such protections.      See, e.g.,


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Mangum v. Raleigh Bd. Of Adjustment, 196 N.C. App. 249,
255, 674 S.E.2d 742, 747 (2009) (“One of the longstanding
rules of interpretation and construction in this state is
expressio unius est exclusio alterius, the expression of one
thing is the exclusion of another.”) (citations omitted).

93.    The term “swamp waters” is a regulatory term that
guides the assignment of the Sw supplemental
classification to particular stream segments; and once the
assignment is made by rule, the only regulatory effect of
the assignment of the swamp waters supplemental
classification is to lower the acceptable minimum values
for pH and dissolved oxygen. See 15A NCAC 02B
.0211(3)(b) and (3)(g) (2013). Upper Blounts Creek, for
example, has been assigned the “Sw” supplemental
classification by formal rulemaking. 15A NCAC 02B
.0316(a) (Index Number 29-9-1-(1)).

94.    Petitioners’ arguments that DWR misinterpreted
and misapplied the swamp waters supplemental
classification present questions of law and fact, and mixed
questions of law and fact. Petitioners’ arguments have
been thoroughly considered and rejected by the
undersigned as unpersuasive and unsupported by the
preponderance of evidence.

95.    Petitioners rely on a sentence from the State’s
antidegradation policy: “Existing uses, as defined by Rule
.0202 of this Section, and the water quality to protect such
uses shall be protected by properly classifying surface
waters and having standards sufficient to protect these
uses.” 15A NCAC 02B .0201(b). See Petition at 4-5.

96.    According to its plain language, this provision is
implemented by formal rulemaking that establishes
classifications, uses and water quality standards, and that
assign classifications, uses and standards to individual
surface water segments. See, e.g., 15A NCAC 02B .0211
(2013) (uses and standards for Class C waters, including
waters with the supplemental “Sw” classification), 15A


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NCAC 02B .0316(a) (Index Number 29-9-1-(1) (assignment
of classifications to upper Blounts Creek).

97.   There are antidegradation permitting procedures
that did apply to DWR’s evaluation and issuance of the
NPDES Permit, but Petitioners have not argued that these
applicable procedures were not followed.

98.    The preponderance of the evidence demonstrates
that DWR reasonably interpreted the laws and rules
governing swamp waters and the state’s antidegradation
policy, and reasonably applied those laws and rules to the
data, studies, and other information submitted or obtained
during the course of DWR’s NPDES permitting review and
decision.

99.    Petitioners failed to present evidence sufficient to
overcome the presumption that DWR acted appropriately
in determining the NPDES Permit reasonably ensures
compliance with water quality standards or regulations
related to      the “Swamp Waters” supplemental
classification.

100. Petitioners failed to meet their burden of proving by
a preponderance of the evidence that DWR exceeded its
authority or jurisdiction, acted erroneously, failed to use
proper procedure, acted arbitrarily or capriciously, or failed
to act as required by law or rule in determining that the
laws and rules do not require protection of the existing
conditions or characteristics of surface waters with the
supplemental classification “swamp waters” and that the
NPDES Permit reasonably ensures compliance with water
quality standards and rules related to the “Swamp Waters”
supplemental classification.

101. DWR’s decision that the NPDES Permit reasonably
ensures compliance with all applicable water quality
standards and rules, including those relating to the swamp
waters supplemental classification, is affirmed.



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....

110. Petitioners failed to present evidence sufficient to
overcome the presumption that DWR acted appropriately
in issuing the Permit.

111. Petitioners failed to meet their burden of proving
Respondent DWR exceeded its authority or jurisdiction,
acted erroneously, acted arbitrarily and capriciously, used
improper procedure, or failed to act as required by law or
rule in issuing the NPDES Permit.

112.   DWR’s issuance of the NPDES Permit is affirmed in
       all respects.

....

119. Petitioners contend that the NPDES Permit is
unlawful because the Permit does not reasonably ensure
compliance with what Petitioners characterize as a
requirement to “protect” swamp waters “characteristics,”
which they contend include “low velocity,” “low dissolved
oxygen,” “low pH,” and “high tannins.” (Petition 4-5)

120. “Swamp Waters” are defined as “waters which are
classified by the Environmental Management Commission
and which are topographically located so as to generally
have very low velocities and other characteristics which are
different from adjacent streams draining steeper
topography.” 15A NCAC 2B.0202(62). See also 15A NCAC
2B .0101(e)(2) and 2B .0301(c).

121. The “swamp waters” supplemental classification
modifies the water quality standards for dissolved oxygen
and pH in the upper Blounts Creek segment by lowering
the minimum pH and dissolved oxygen values otherwise
required for Class “C” waters:

       (b) Dissolved oxygen: . . . for non-trout waters, not
       less than a daily average of 5.0 mg/1 with a


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      minimum instantaneous value of not less than 4.0
      mg/1; swamp waters, lake coves or backwaters, and
      lake bottom waters may have lower values if caused
      by natural conditions;

      ....

      (g)    pH: shall be normal for the waters in the
      area, which generally shall range between 6.0 and
      9.0 except that swamp waters may have a pH as low
      as 4.3 if it is the result of natural conditions[.]

15A NCAC 2B .0211(3)(b), (g) (2013)

122. Under DWR’s longstanding interpretation of the
statutes and rules that it administers, the supplemental
classification of swamp waters does not provide any
additional protections to water bodies to which it is
assigned; and low flow and velocity, low pH, low dissolved
oxygen, and high tannins are not uses, standards,
characteristics, or parameters of swamp waters that are
required to be maintained or protected. (Reeder, Tr. Vol. 7
pp. 1154-1157; Reeder, Tr. Vol. 4 pp. 653-657; Belnick, Tr.
Vol. 4 pp. 523-524, 557-558; Reeder, Tr. Vol. 4 pp. 653-657;
Belnick, Tr. Vol. 6 pp. 1059-1060)

123. The CZR report states that with the proposed
discharge, upper Blounts Creek may no longer exhibit
intermittent flow, low dissolved oxygen concentrations,
and high tannins. (Ex. R16 p. 10)

124. The report also states that, with the proposed
discharge, the use of the swamp stream sampling method
may no longer be appropriate to evaluate benthic
macroinvertebrates. (Ex. R16 p. 10)

125. The report does not state that the swamp waters
supplemental classification requires the preservation or
maintenance of low dissolved oxygen, high tannins, low
velocities, and low pH as contended by Petitioners. (Ex.


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             R16 p. 10)

             126. Based on the evidence before it, DWR concluded that
             the Permit reasonably ensures compliance with all
             applicable water quality standards, including those
             applicable to upper Blounts Creek, which has a C primary
             classification and a Sw supplemental classification.

(Alterations in original.)

      The superior court affirmed the ALJ’s final decision as to the swamp water

classification issue. The superior court stated the issue as follows

             II.     Did the ALJ err in upholding DWR’s issuance of the
                     Permit as reasonably ensuring compliance with:

                     A.      The       swamp      waters     supplemental
                             classification and antidegradation rule[.]

The superior court addressed Petitioners’ swamp water claim as follows:

                    North Carolina’s water quality regulations protect
             North Carolina’s surface waters by: (1) establishing
             surface water classifications based primarily on the “best
             uses” of surface waters, see 15A NCAC 02B .0101; N.C.
             Gen. Stat. § 143-214.1(b); (2) establishing water quality
             standards that protect assigned uses of “primary
             classifications,” see, e.g., 15A NCAC 02B .0211 (water
             quality standards for Class C waters); and (3) assigning
             classifications to individual segments of surface waters
             throughout the State, see 15A NCAC 02B .0201 et seq.
             Some segments are also assigned “supplemental
             classifications,” which may alter water quality standards
             otherwise applicable. See 15 NCAC 02B .0101(e). The
             state antidegradation rule provides that “[e]xisting uses . .
             . and the water quality to protect such uses shall be
             protected by properly classifying surface waters and
             having standards sufficient to protect these uses.” 15A
             NCAC 02B .0201(b).


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       The Permit authorizes Martin Marietta to discharge
commingled stormwater and groundwater from two
settling basins at its proposed quarry into the upper
reaches of Blounts Creek. The parties do not dispute the
primary classification and supplemental classifications
assigned to Blounts Creek. Blounts Creek from its source
to Herring Run (referred to by the parties as “upper
Blounts Creek”) is assigned the primary classification of
Class C and the supplemental classifications of Swamp
Waters (“Sw”) and Nutrient Sensitive Waters (“NSW”).
       Petitioners argue that assignment of the swamp
waters supplemental classification to upper Blounts Creek
affixed “swamp water habitat” as a “special use” of that
portion of the Creek; in turn, Petitioners argue, the
antidegradation rule requires DWR to protect certain
“natural characteristics” of swamp waters such as “low
flow,” “low velocity,” and “dark color.”
       The ALJ rejected Petitioners’ argument, concluding
that the swamp waters supplemental classification does
not provide any additional protections to swamp waters
beyond the water quality standards for protecting the uses
of Class C waters. The ALJ concluded the only effect of the
swamp waters supplemental classification is to make the
water quality standards for pH and dissolved oxygen less
stringent than otherwise required for Class C waters.
Final Decision Conclusion of Law (“COL”) ¶ 93.
       The Court reviews the ALJ’s conclusions of law and
statutory and regulatory interpretations de novo and
findings of fact under the whole record test.
       “Swamp waters” are defined as “those waters which
are classified by the Environmental Management
Commission and which are topographically located so as to
generally have very low velocities and other characteristics
which are different from adjacent streams draining steeper
topography,” 15A NCAC 02B .0202(62), or “waters which
have low velocities and other natural characteristics which
are different from adjacent streams.” 15A NCAC 02B
.0101(e)(2). DWR interprets state water quality rules to
require no additional protection for water segments
assigned the swamp waters supplemental classification


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(beyond the protections required by the standards for the
primary water quality classification, which in this case is
Class C), an interpretation the ALJ considered de novo and
upheld as reasonable and consistent with the plain
language of North Carolina’s water quality standards.
Final Decision COL ¶¶88-90, 98.
       The Court reviews this regulatory interpretation
issue de novo and affirms the ALJ conclusion.
       Interpretation of administrative regulations
“properly begins with the plain words” of the regulation.
Cole v. N.C. Dep’t of Pub. Safety, 800 S.E.2d 708, 714 (N.C.
Ct. App.), disc. rev. denied, 803 S.E.2d 156 (2017). The
Court’s de novo review of the antidegradation rule and
rules governing the swamp waters supplemental
classification shows that no “plain words” identify or
protect a swamp waters “use” or identify or protect swamp
waters “characteristics.”     15A NCAC 02B .0202(62),
.0101(e)(2), .0211(6), .0211(14), .0220(5), .0220(12),
.0301(c).
       The Court’s de novo review of the water quality rules
as a whole indicates that if the North Carolina
Environmental Management Commission (“EMC”) intends
to protect a particular attribute or condition or use of
surface waters, it does so in the text of its rules. With
respect to uses of a surface water, the rules explicitly
identify the uses associated with primary surface water
classifications and, in some cases, supplemental
classifications, and state narrative and numeric water
quality standards to protect such uses. See, e.g., 15A
NCAC 02B .0101(c)-(e), .0211(1), .0212(1), .0214(1), .216(1),
.0218(1), .0219(1), .0220(1), .0221(1), .0222(1), .0231(a).
There is no such identification of uses for the swamp
waters supplemental classification and no effect on
applicable water quality standards except to make less
stringent the standards for pH and dissolved oxygen that
would otherwise apply. The plain language and structure
of the water quality rules indicates there is no intent to
protect any alleged “use” particular to the swamp waters
supplemental classification. See, e.g., Mangum v. Raleigh
Bd. of Adjustment, 196 N.C. App. 249, 255, 674 S.E.2d 742,


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747 (2009) (“One of the long-standing rules of
interpretation and construction in this state is expressio
unius est exclusio alterius, the expression of one thing is
the exclusion of another.”).
       Similarly, with respect to characteristics of a water
body, the rules show that the EMC knows how to protect a
specific characteristic if it so desires. For example, the
water quality rules establish explicit flow requirements for
high quality waters. 15A NCAC 02B .0224(1)(v) (setting
maximum volume of wastewater discharge into high
quality waters). There is no text in the swamp waters
supplemental classification rules (or elsewhere in the
water quality rules) requiring protection of particular
“swamp water characteristics.” With the exception of “low
velocity,” the characteristics cited by Petitioners —
“periods of low or no flow, low velocity, low pH, low
dissolved oxygen, and high tannin levels” — do not appear
in any water quality rule. References in the rules to “low
velocity” pertain only to a quality that swamp waters
“generally have,” 15A NCAC 02B .0202(62), not to a quality
those waters must have. Significantly no rules protect or
assure that waters with the swamp waters supplemental
classification will have low velocity, periods of low or no
flow, or high tannin levels. The Court is not vested with
rule making authority. The water quality standards for pH
and dissolved oxygen applicable to Class C waters are
made less stringent for water bodies with the swamp
waters supplemental classification, and this appears to the
Court to be the only effect of that supplemental
classification. 15A NCAC 02B .0211(3)(b), (g) (2013).
       Even if Petitioners’ interpretation of the swamp
waters and antidegradation rules could be characterized as
reasonable, DWR’s interpretation nonetheless is
reasonable and is affirmed. The Court notes that, as found
by the ALJ, and supported by substantial evidence in the
record as a whole, DWR’s interpretation is longstanding
and consistent with the plain language and the structure
of the water quality rules. The Court gives deference to
DWR’s interpretation that the water quality rules do not
create special protections for characteristics such as “low


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            flow, low velocity, and dark color,” or otherwise.
                   The Court also notes that the state’s water quality
            rules provide a means by which the EMC may classify
            waters as High Quality Waters or classify unique and
            special surface waters of the state as Outstanding Resource
            Waters, and thereby provide a means of protecting certain
            characteristics of those waters that are not otherwise
            protected by water quality standards. 15A NCAC 02B
            .0225(a)(2). The record evidence does not show that
            Petitioners have sought such regulatory protections for
            Blounts Creek. 15A NCAC 02B .0225.
                   The Court is not persuaded that PUD No. 1 v.
            Washington Department of Ecology, 511 U.S. 700 (1994),
            supports Petitioners’ Swamp Waters Claim. Petitioners
            have not shown that there is any designated use associated
            with the “swamp waters” supplemental classification that
            is required to be maintained or protected under North
            Carolina’s water quality rules or otherwise.
                   The Court has reviewed the Final Decision findings
            in relation to Petitioners’ Swamp Waters Claim, see, e.g,
            Final Decision FOF ¶¶119-126, 158-202, and based on its
            review of the whole record, the Court concludes that
            substantial evidence supports these findings.         These
            findings support the ALJ’s conclusion that Petitioners
            failed to carry their burden before OAH to prove DWR
            acted erroneously or arbitrarily or otherwise unlawfully in
            determining that the Permit reasonably ensures
            compliance with all applicable water quality standards,
            including the swamp waters supplemental classification
            and the state antidegradation rule.
                   The Final Decision findings of fact and conclusions
            of law and holding that Petitioners failed to carry their
            burden and that the Permit reasonably ensures compliance
            with the swamp waters supplemental classification and the
            state antidegradation rule are affirmed and upheld.

      Petitioners do not challenge the facts as found by the ALJ or discussed by the

superior court regarding swamp waters but rather argue “[t]he issue before the Court



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is one of law: does Blounts Creek’s classification as swamp waters protect the creek’s

use as a unique habitat?” Petitioners contend that DEQ and the superior court

interpreted the swamp water secondary classification as serving only “to weaken the

creek’s protections, to allow for more pollution in Blounts Creek,” and if the

classification were interpreted properly, the swamp waters classification “is like all

other water classifications in North Carolina--it protects our creeks and rivers.”

Petitioners further contend the swamp waters classification actually gives

“additional protection for waterways that have special characteristics found in

swamp waters and, as a result provides habitat for the fish, insects, and other

animals that are well suited to that environment.” Thus, Petitioners argue that the

secondary classification of swamp waters requires that the natural characteristics of

swamp water to remain essentially unchanged and that DEQ’s “extreme

interpretation” of the swamp waters classification as accepted by the ALJ and

superior court, “does not provide any protection at all” and “only weakens . . .

standards to allow for more pollution in Blounts Creek.”

      Martin Marietta contends that neither North Carolina law nor the Clean

Water Act (“CWA”) require “‘natural’ conditions or characteristics” of a body of water

to remain unchanged. Martin Marietta contends both state and federal law recognize

the need to balance many interests and needs related to use of water and water




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quality, including public health, fish and wildlife, recreation, industry, and

agriculture:

                      The CWA requires each State to adopt and
               implement water quality standards, which “consist of the
               designated uses of the navigable waters involved and the
               water quality criteria for such waters based upon such
               uses.” 33 U.S.C.A. § 1313(c)(2)(A).
                      Such standards shall be such as to protect the
                      public health or welfare, enhance the quality
                      of water and serve the purposes of this
                      chapter. Such standards shall be established
                      taking into consideration their use and value
                      for public water supplies, propagation of fish
                      and wildlife, recreational purposes, and
                      agricultural, industrial, and other purposes,
                      and also taking into consideration their use
                      and value for navigation.
               33 U.S.C. § 1313(c)(2)(A) (emphasis added); see PUD
               No. 1, 511 U.S. at 704.

Martin Marietta argues that

                     [t]he very existence of the NPDES program refutes
               the theory that the CWA requires “natural” conditions or
               characteristics to remain unchanged.       The program
               provides for the issuance of permits that authorize
               discharge of wastewater into waters of the U.S. 33 U.S.C.
               § 1342. By introducing wastewater into a water body, the
               quality and quantity of the water in the receiving water
               body necessarily changes.

      Petitioners counter that DEQ has previously taken a position contrary to its

position in this case as it “enforced against a polluter for not adequately protecting

swamp waters” in the case of House of Raeford Farms, Inc. v. North Carolina

Department of Environmental and Natural Resources, 242 N.C. App. 294, 774 S.E.2d


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911 (2015). Petitioners, quoting House of Raeford, contend that DEQ’s previous

interpretation of the swamp waters classification was “that ‘the designated uses for

the swamp waters . . . were deemed to be impaired.’” But House of Raeford does not

contradict DEQ’s action in this case.

      In House of Raeford, DEQ investigated pollution in a creek, ultimately tracing

the source to House of Raeford’s chicken processing facility.         See id.     DEQ

representatives found that

             “the creek was just full of sludge from bank to bank and as
             far as the eye could see. It was an unbelievable site.”
                    She testified the sludge was fresh because it was a
             light tan color: “It starts out looking like a milkshake and
             then as it decomposes, it gets darker because of the
             septicity.” The sludge adhered to the shorelines and was so
             thick on the surface of the water that it had formed ridges.
             The sludge was darker and thinner downstream from the
             House of Raeford.

Id. at 297, 774 S.E.2d at 914 (brackets omitted). “[F]ecal samples from Cabin Branch

Creek, directly behind the House of Raeford facility . . . confirmed a fecal coliform

density greater than 60,000 colonies per 100 milliliters” and based upon this

contamination, “the designated uses for the swamp waters below the House of

Raeford facility were deemed to be impaired.” Id. at 297-98, 774 S.E.2d at 914.

      Contrary to Petitioner’s argument, House of Raeford demonstrates that swamp

waters do have protection, but that protection is consistent with the water quality




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standards established for Class C waters. See id. at 300, 774 S.E.2d at 916. In House

of Raeford, DEQ

             assessed civil penalties against House of Raeford as
             follows:
                    $25,000 for violation of N.C. Gen. Stat. § 143–
                    215.1(a)(6); causing or permitting waste to be
                    discharged to or in any manner intermixed
                    with the waters of the State in violation of the
                    water quality standards applicable to the
                    assigned classifications or in violation of any
                    effluent standards or limitations established
                    for any point source, unless allowed as a
                    condition of any permit, special order or other
                    appropriate instrument issued or entered into
                    by the Commission under the provisions of
                    the Article.

                    $25,000 for violation of 15A N.C.A.C.
                    2B.0211(3)(b); violating the dissolved oxygen
                    water quality standard for Class C–Sw waters
                    of the State.

                    $25,000 for violation of 15A N.C.A.C.
                    2B.0211(3)(c); by allowing settleable solids
                    and sludge in excess of the water quality
                    standard for Class C–Sw waters of the State.

Id. at 308, 774 S.E.2d at 920. Thereafter,

                   The ALJ found the imposition of civil penalties
             under 15A N.C.A.C. 2B.0211(3)(b) and 15A N.C.A.C.
             2B.0211(3)(c) were erroneous, but upheld the imposition of
             the $25,000.00 fine under N.C. Gen. Stat. § 143–
             215.1(a)(6).    The     [Environmental      Management
             Commission] imposed a total maximum civil penalty of
             $50,000.00 against House of Raeford for violation of N.C.
             Gen. Stat. § 143–215.1(a)(6) and 15A N.C.A.C.
             2B.0211(3)(c).


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                   The superior court assessed a civil penalty of
             $25,000.00 for violation of N.C. Gen. Stat § 143–215.1(a)(6)
             for causing or permitting waste to be discharged into or
             intermixed with the waters of the State in violation of the
             water quality standard set forth in 15A N.C.A.C.
             2B.0211(3)(c).

Id. at 308, 774 S.E.2d at 920–21.

      House of Raeford addressed penalties for discharge of waste in violation of

water quality standards in a manner not allowed by a permit and as such was an

enforcement action for a water quality violation and not a proceeding for a permit

application as presented by this case. See id., 242 N.C. App. 294, 774 S.E.2d 911.

North Carolina General Statute 143-215.1 recognizes that some discharges of waste

which may otherwise not be allowed under applicable water quality standards may

be allowed as provided by a permit:

             (a)    Activities for Which Permits Required. -- Except as
             provided in subsection (a6) of this section, no person shall
             do any of the following things or carry out any of the
             following activities unless that person has received a permit
             from the Commission and has complied with all conditions
             set          forth           in          the          permit:
                    ....
                    (6)    Cause or permit any waste, directly or
                           indirectly, to be discharged to or in any
                           manner intermixed with the waters of the
                           State in violation of the water quality
                           standards applicable to the assigned
                           classifications or in violation of any effluent
                           standards or limitations established for any
                           point source, unless allowed as a condition of
                           any permit, special order or other appropriate
                           instrument issued or entered into by the


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                          Commission under the provisions of this
                          Article.

N.C. Gen. Stat. § 143-215.1 (2013) (emphasis added).

      We agree with Martin Marietta’s and DEQ’s interpretation of the law in that

protection does not require that Blounts Creek remain entirely the same. Further,

as the ALJ determined and the superior court affirmed, “DWR concluded that the

Permit reasonably ensures compliance with all applicable water quality standards,

including those applicable to upper Blounts Creek, which has a C primary

classification and a Sw supplemental classification.” The findings of fact establish

that the discharge of water into Blounts Creek may change some areas of the aquatic

ecosystem and the changes will vary based upon distance from the outfall. For

example, “there could be an increase in diversity and population of benthos near the

proposed discharge outfalls because the discharge would lead to less stressful

conditions.” The superior court acknowledges the discharge of water will change

Blounts Creek, but keeping that change within acceptable limits is the purpose of the

Permit. The Permit allows changes to the waters of Blounts Creek in accord with the

limitations and provisions of the Permit, and those limitations are in accord with

water quality standards applicable to Class C waters.        On de novo review of

Petitioners’ issue “of law[,]” the ALJ and superior Court correctly concluded that

DEQ’s issuance of the Permit did not violate water quality standards as applicable to

“swamp waters” of Blounts Creek.


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E.    pH Water Quality Standards

      Much like the previous argument, Petitioners’ argument as to pH is based in

large part on the characteristics of the secondary classification of swamp waters.

Petitioners argue that the ALJ and superior court erred in approving the Permit

because the wastewater will increase the pH in Blounts Creek to “to levels that do

not occur naturally and are not characteristic of swamp waters.”            Essentially,

Petitioners argue that the water quality standards for pH mandate that the swamp

waters retain all of their characteristics, including low pH. Petitioners contend that

                    [l]ow pH is a defining characteristic of swamp waters
             and is essential to maintaining habitat that is protected by
             the swamp waters classification. The permit allows Martin
             Marietta to increase pH in Blounts Creek to levels that do
             not occur naturally and are not characteristic of swamp
             waters. Under existing conditions, pH in Blounts Creek is
             as low as 4.37 and is almost always below 6.0. (T2 p 342:15-
             17, 357:8-358:15 [App. 24, 25-26]); (see also R p 1199). The
             permit allows Martin Marietta to increase pH to 8.5. (See
             R p 1589-1615).
                    The issue before the Court is one of law: does the pH
             standard protect the normal, natural pH of Blounts Creek?

      Martin Marietta contends that if the regulations were interpreted and applied

as Petitioners argue

             it would: (1) transform a straightforward water quality
             standard for pH into a byzantine and costly regulatory
             maze consisting of thousands of different sets of mandatory
             pH values or ranges; (2) force DWR to implement an
             expensive, time-consuming, and essentially unworkable
             site-by-site regulatory scheme to establish separate
             “normal” pH for each stream segment; and (3) create a new


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      source of regulatory uncertainty, cause delay in permitting
      and enforcement, and impose the expense of sampling and
      analysis anytime there is a need to know the pH standard
      applicable to a water body segment. Such an exorbitantly
      resource-intensive agency activity is not feasible, not
      necessary, and not dictated by the language of the pH
      standard.

The ALJ made the following findings regarding pH:

      106. The water quality standard governing pH for upper
      Blounts Creek requires that pH “shall be normal for the
      waters in the area, which generally shall range between 6.0
      and 9.0 except that swamp waters may have a pH as low
      as 4.3 if it is the result of natural conditions.” 15A NCAC
      2B .0211(3)(g) (2013).

      107. DWR’s longstanding interpretation of the pH
      standard for Class C water bodies is that the pH must be
      6.0 to 9.0; but if the water body has a supplemental
      classification of swamp waters (Sw), the lower range of pH
      can be extended down to 4.3 (if the low pH is caused by
      natural conditions). Thus, the pH standard for a C, Sw
      water body would be 4.3 to 9.0. (Belnick, Tr. Vol. 4 pp. 524,
      632; Reeder, Tr. Vol. 4 pp. 653-657)

      108. No evidence was presented that DWR has ever
      interpreted the pH standard differently.

      109. No evidence was presented that DWR has ever
      interpreted or applied the pH standard to require that low
      pH must be maintained in Sw waters. (Belnick, Tr. Vol. 4
      pp. 524, 631-632; Reeder, Tr. Vol. 4 pp. 653-657)

      110. DWR does not interpret the standard to require site-
      specific sampling and analysis. (Belnick, Tr. Vol. 4 p. 562)

      111. Rather the standard itself defines “normal” pH to be
      6.0 to 9.0 in Class C waters, with permissible lower values
      (down to 4.3) in Sw waters if the lower values are caused


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                 by natural conditions. (Reeder, Tr. Vol. 4 pp.653-657)

                 112. DWR’s longstanding interpretation is also reflected
                 in NPDES permits issued across the State and in DWR’s
                 assessment of waters for impairment. (Reeder, Tr. Vol. 4
                 pp. 653-657)

                 113. Available data indicate that the existing pH in upper
                 Blounts Creek ranges from approximately 4.5 downstream
                 from the outfalls to approximately 5.3 to 6.5 at Dr. Bean’s
                 upstream sampling site. (Ex. P12; Ex. P23)

                 114. The expected pH of the discharge effluent is
                 approximately 6.9; and the pH in upper Blounts Creek with
                 the permitted discharge is expected to range from
                 approximately 6.3to 6.9. (Ex. R1 p.4; Ex. P21)

                 115. Dr. Bean agreed with the Kimley Horn report
                 prediction that the pH of upper Blounts Creek would not
                 exceed 6.94 at full discharge.10 (Ex. P12 p. 36)

                 116. The Permit requires that the pH of the permitted
                 discharge be within the range of 5.5 to 8.5. Thus, the pH
                 of upper Blounts Creek with the permitted discharge is
                 predicted and required to remain within the range of 4.3 to
                 9.0. (Ex. R29)

                 117. Petitioners’ attorneys conceded that the pH of
                 neither the discharge nor the effluent would be in excess of
                 9 or below 4.3. (Tr. Vol. 4 p. 657)

                 118. Based on the evidence before it, DWR concluded that
                 the Permit reasonably ensures compliance with the pH
                 water quality standard.




10   Dr. Eban Bean was a witness for Petitioners.

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      The superior court affirmed the ALJ’s findings and conclusions as to pH, as

follows:

                   At the time the Permit was issued, the pH standard
            for Class C waters applicable to upper Blounts Creek read
            as follows:
                   pH: shall be normal for the waters in the
                   area, which generally shall range between 6.0
                   and 9.0 except that swamp waters may have
                   a pH as low as 4.3 if it is the result of natural
                   conditions.
            15A NCAC 02B .0211(3)(g) (2013).
                   In their pH Claim, Petitioners argue that the rule
            required DWR to undertake site-specific sampling to
            determine what “normal” pH is for the receiving waters in
            the area of the proposed discharge, which, in turn, must be
            maintained. Petitioners argue that: DWR did not
            determine “normal” pH for upper Blounts Creek; the
            Permit pH limit of 5.5 to 8.5 allows the permitted discharge
            to cause upper Blounts Creek to exceed its “normal” pH;
            and the Permit therefore fails to reasonably ensure
            compliance with the pH standard.
                   DWR interprets the pH standard as setting a
            maximum allowable pH of 9.0 and a minimum allowable
            pH of 6.0, except that the lower limit may be as low as 4.3
            in swamp waters, if pH below 6.0 is the result of natural
            conditions. DWR interprets the rule as not requiring site-
            specific sampling or testing. Based on its interpretation of
            the pH rule, DWR established a Permit limit for pH of the
            discharge effluent of 5.5 to 8.5.
                   The ALJ concluded that DWR’s interpretation is
            reasonable and consistent with the plain language of the
            rule, and rejected Petitioners’ pH claim because the
            Permit’s pH limits reasonably ensure compliance with the
            pH standard.
                   The Court reviews the ALJ’s factual determinations
            under the whole record test and asserted legal errors and
            interpretation of rules de novo.
                   The Court is not persuaded that the pH rule creates


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or requires a site-specific standard for pH in receiving
waters.      First, the interpretation of administrative
regulations “properly begins with the plain words” of the
regulation. Cole, 800 S.E.2d at 714. The “plain words” of
the pH rule do not require a site-specific standard or site-
specific sampling to determine a site-specific standard.
The rule states that pH “shall be normal for the waters in
the area,” and then provides that: (a) “normal for the
waters in the area” “generally shall range between 6.0 and
9.0,” and (b) a lower pH may be allowed (to a minimum of
4.3) “if it is the result of natural conditions.” DWR
interprets the rule itself to define what “normal” pH is for
a stream segment that has been assigned the
classifications Class C-Sw: 6.0 to 9.0, or 4.3 to 9.0 if the
lower pH results from natural conditions.
        Second, as noted in the Final Decision, this
interpretation is supported by the EMC’s 2014 technical
amendment, which deleted the words “generally shall”
from the pH standard. 15A NCAC 02B .0211(14) (2015).
This technical amendment further clarifies that “normal
for waters in the area” is defined by the numerical range
set forth in the text of the rule. Moreover, the current text
of the pH rule is consistent with the language of other
water quality standards that explicitly state the numeric
limits required. See, e.g., 15A NCAC 02B .0211(3), (5), (6),
(9), (11). The only exception to the applicable pH range is
in swamp waters, where the lower limit may be decreased
— made less stringent — if low pH is the result of natural
conditions.
        Third, the state’s water quality standards make
clear that site-specific standards are the exception, not the
norm, and are explicitly set forth where they exist. E.g.,
15A NCAC 02B .0110 (requiring site-specific strategies for
waters providing habitat for federally listed threatened
and endangered species), .0211(11) (allowing creation of
site-specific standard for metals), .0226 (providing that
“site-specific water quality standards may be granted by
the Commission on a case-by- case basis”). No site-specific
standards for pH are described or required in the water
quality rules applicable here.


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                   Fourth, even if Petitioners’ proposed interpretation
            of the pH standard were reasonable, in reviewing agency
            regulatory interpretations, the Court agrees with the ALJ’s
            determination that DWR’s interpretation is reasonable and
            consistent with the plain language of the regulation. The
            Court accords deference to that interpretation.
                   Based on the Court’s de novo interpretation of the
            pH rule, the Court upholds DWR’s interpretation of the pH
            rule and declines to accept Petitioners’ claim that the rule
            requires site-specific assessment.
                   The Court has reviewed the Final Decision findings
            in relation to Petitioners’ pH Claim, see, e.g., FOF ¶¶90,
            104-118, 145-151, 164-170, and based on its review of the
            whole record, the Court concludes that substantial
            evidence supports these findings, and that Petitioners
            failed to carry their burden before OAH to prove DWR
            acted erroneously or arbitrarily or otherwise unlawfully in
            determining that the Permit reasonably ensures
            compliance with the pH standard.
                   The Final Decision findings of fact and conclusions
            of law and holding that Petitioners failed to carry their
            burden and that the Permit reasonably ensures compliance
            with the pH standard are affirmed and upheld.

      The Superior Court correctly addressed each of the Petitioners’ arguments. As

the ALJ and Superior Court determined, the DEQ’s interpretation of the pH rules is

reasonable and consistent with the regulations. The regulations do not require that

the pH of swamp waters stay the same as they currently are and that no new

discharges be allowed if the discharge would change the pH. Again, the law requires

the balancing of many interests and expertise in analyzing the conditions of the

waters affected by each permit application. On de novo review of Petitioners’ issue




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“of law[,]” the ALJ and superior court correctly concluded that DEQ’s issuance of the

Permit did not violate pH water quality standards of Blounts Creek.

F.    Reopener Provision

      Petitioners last argue that the “required reopener provision does not authorize

DWR to issue a permit expected to violate water quality standards.” (Original in all

caps.) Petitioner notes that

                     [f]or unexpected water quality standard violations
              that occur after a permit is issued, DWR has the authority
              to reopen and modify a permit—a condition that is
              memorialized in standard conditions for all discharge
              permits. See 15A N.C. Admin. Code 02H .0114(a) [App.
              140]; 40 C.F.R. §§ 122.41(a) and 122.41(f) [App. 105-6] (R
              p 1603). This standard condition has been referred to as a
              “reopener provision.”

(Emphasis added.) Petitioners contend the superior court erred by determining that

the reopener provision “can absolve the agency of its obligation to deny a permit

without ensuring compliance with either the swamp waters classification or the pH

water quality standard.”

      Martin Marietta argues that the premise of Petitioner’s argument is erroneous

because “the Permit reasonably ensures compliance with and does not violate any

water quality standards, and Petitioners failed to carry their burden of proof to show

otherwise.”   As already noted, we agree.         Neither the ALJ nor superior court

determined that a reopener provision can “absolve” DEQ of compliance with water

quality standards. Instead, the ALJ determined the Permit reasonably ensures


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                                  Opinion of the Court



compliance with the water quality standards, and the superior court determined the

Permit reasonably ensured compliance with all water quality standards except

“biological integrity,” but we have reversed that conclusion.

      The Permit was issued based upon predictions of the expected impact of the

discharge of wastewater into Blounts Creek, but if those predictions prove to be

wrong, DEQ has authority to modify or revoke the Permit. To ensure compliance

with water quality standards, the ALJ found the Permit requires monitoring of

Blounts Creek after discharge of water from the quarry begins:

             145. On July 24, 2013, DWR issued the final NPDES
             Permit in the same form as it had been presented to the
             EPA. (Belnick, Tr. Vol. 6 pp. 1053-1054; Ex. R29; Ex. R27).

             146. The Permit terms include discharge controls,
             effluent and instream monitoring, and benthic biological
             monitoring requirements. (Ex. R29)

             147. Effluent monitoring requirements include flow, total
             suspended solids, total iron, turbidity, settleable solids,
             total nitrogen, total phosphorus, temperature, and pH.
             (Ex. R29 pp.3-4)

             148. The Permit also requires instream monitoring at two
             downstream stations (D1 and D2) for pH, salinity,
             temperature, and turbidity. (Ex. R29)

             149. The Permit requires benthic sampling at four
             locations, the results of which must be submitted at least
             six months prior to the expiration of the permit (which
             expires every five years). (Belnick, Tr. Vol. 6 pp. 1054-
             1055; Fleek, Tr. Vol. 7 pp. 1123-1128; Ex. R29)

             150.   The    benthic   monitoring          provision   requires


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                SOUND RIVERS, INC. V. NC DEP’T OF ENVTL. QUALITY

                                  Opinion of the Court



             submission of a sampling plan to DWR for approval prior
             to sampling, and requires compliance with DWR sampling
             protocols. (Fleek, Tr. Vol. 7 pp. 1123-1128; Ex. R29)

In addition, the Permit requires Martin Marietta “to obtain other state authorizations

for its proposed quarry” which also address “potential impacts on water quality,”

including “a certification under Section 401 of the Clean Water Act and a consistency

concurrence from the North Carolina Division of Coastal Management (“DCM”).” The

ALJ order also found:

             153. On May 15, 2013, DWR issued Water Quality
             Certification DWQ #11-1013 (“401 Certification”) to
             Respondent-Intervenor. (Ex. MMM46)

             154. The 401 Certification requires, among other things:
             (a) that construction activities must follow best
             management practices “so that no violations of state water
             quality standards, statutes, or rules occur”; (b) a
             monitoring plan for some of the same concerns raised and
             addressed in the NPDES permit process, including:
             “measures to monitor physical and chemical stability of
             headwater streams to ensure that the project does not
             result in violation of water quality standards,” and an
             annual report summarizing the monitoring results; and (c)
             that Martin Marietta conduct the authorized activities
             “consistent with State water quality standards.” (Ex.
             MMM46 pp. 4-6)

             155. DWR is authorized to modify the 401 Certification,
             if needed, to ensure compliance. (Belnick, Tr. Vol. 6 pp.
             1064-1068; Ex. MMM46 p. 6)

             156. In February 2014, DCM issued Coastal
             Management Program Consistency Concurrence DCM
             #20120010 (“Coastal Consistency Concurrence”) that
             requires Respondent-Intervenor to, among other things: (a)


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                SOUND RIVERS, INC. V. NC DEP’T OF ENVTL. QUALITY

                                 Opinion of the Court



            coordinate with DCM to develop fisheries monitoring that
            will assess impacts of the proposed project on fish species
            and habitat in the Blounts Creek system; (b) coordinate
            with DCM to develop a monitoring protocol that will assess
            potential impacts of the proposed project on stream bank
            stability within the Blounts Creek system; (c) comply with
            the NPDES Permit and provide a copy of all benthic
            monitoring reports to DCM; and (d) comply with the 401
            Certification and provide a copy of all wetland hydrology
            monitoring reports to DCM. (Belnick, Tr. Vol. 6 pp. 1057-
            1059; Ex. R32 p. 2)

            157. DWR may revisit the NPDES Permit and modify or
            revoke it at any time based on information from the
            monitoring and reporting requirements of the Permit as
            well as information collected pursuant to the Coastal
            Consistency Concurrence and the 401 Certification.
            (Reeder, Tr. Vol. 7 pp. 1151-1153; Ex. R32; Belnick, Tr. Vol.
            6 pp. 1059; Ex. R32; Ex. R29)

      This Court addressed a similar argument regarding potential future water

quality violations in Deep River Citizens’ Coalition v. North Carolina Department of

Environment and Natural Resources, 165 N.C. App. 206, 598 S.E.2d 565 (2004). The

Petitioner argued the Environmental Management Commission (“EMC”) and trial

court erred by determining the Randleman Dam and Reservoir project “would not

violate certain water quality standards[,] specifically “water quality standards for

chlorophyll a.” Id. at 209, 598 S.E.2d at 567. Petitioners contended the computer

models used by EMC to predict the effects of the project on chlorophyll a level were

“flawed and unreliable.” Id. at 212, 598 S.E.2d at 569. Although some models




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                                  Opinion of the Court



predicted chlorophyll levels within the applicable standard, other computer models

predicted levels in excess. See id. This Court noted that when

             the Director of the Division of Water Quality issued the 401
             Certification, he was aware of the potential for water
             quality standard violations and “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.” We agree with respondents that “no one will
             know precisely whether or to what extent exceedances . . .
             of the Standard will occur until construction of the dam and
             impoundment of the lake have been completed” but that
             mere “knowledge of the potential for exceedances . . . 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.

Id. at 213, 598 S.E.2d at 569 (brackets omitted).

      Just as in Deep River, “no one will know precisely whether or to what extent”

violations of various water quality standards, including standards not addressed in

this opinion, may occur until after discharge of wastewater begins. Id. The ALJ and

superior court determined that the Permit reasonably ensures compliance with water

quality standards, but the Permit requires specific monitoring and reports, and if a

violation does occur, DEQ can modify or revoke the Permit to prevent further


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                 SOUND RIVERS, INC. V. NC DEP’T OF ENVTL. QUALITY

                                  Opinion of the Court



violations of water quality standards. The reopener provision in no way allows DEQ

“to issue a permit expected to violate water quality standards” as Petitioner contends.

This argument is without merit.

                                     IV.     Conclusion

      Ultimately, we affirm the superior court’s order as to the ALJ’s conclusions on

compliance with pH standards and swamp water and reverse the superior court’s

order as to the ALJ’s findings and conclusions on compliance with the biological

integrity standards. As a practical matter, this means the ALJ correctly determined

the Permit was properly and validly issued in accord with applicable regulations.

      AFFIRMED in part; REVERSED in part.

      Judge BROOK concurs in part and concurs in the result in part with separate

opinion.

      Judge HAMPSON concurs in part and dissents in part with separate opinion.




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 No. COA18-712 – Sound Rivers, Inc. v. N.C. Dep’t of Envtl. Quality



      BROOK, Judge, concurring in part and concurring in the result in part.


      I agree with the lead opinion’s rejection of Martin Marietta’s motion to dismiss.

I further agree with the lead opinion’s conclusion that Petitioners demonstrated their

rights were substantially prejudiced and are thus “person[s] aggrieved” within the

meaning of Section 150B-23(a). And I agree with the lead opinion’s rejection of

Petitioners’ argument pertaining to the reopener provision. Accordingly, I join these

portions of the opinion in full.

      I also agree with the lead opinion that we must affirm the superior court’s order

as to DEQ’s compliance with the swamp waters supplemental classification and the

pH water quality standards. I further agree that we must reverse the superior court’s

order as to the ALJ’s findings and conclusions regarding compliance with the

biological integrity standard. I concur only in the result as to these issues, however,

because I would decide them strictly on the basis of the deference owed DEQ’s

interpretation of these regulations and the ALJ’s assessment of the record.

      As the lead opinion notes, the crux of the dispute is whether DEQ

misinterpreted the biological integrity, swamp water, and pH regulations and, as a

result, failed to engage in a sufficiently rigorous process.

      The scope of our review as to these issues is limited.         “[U]nless clearly

erroneous or inconsistent with the regulation’s plain language[,]” we defer to “an
                SOUND RIVERS, INC. V. N.C. DEP’T OF ENVTL. QUALITY
                  Brook, J., concurring in part and concurring in the result in part.



agency’s interpretation of its own regulations[.]” Hilliard v. N.C. Dep’t of Corr., 173

N.C. App. 594, 598, 620 S.E.2d 14, 17 (2005). And, in assessing whether the factual

record evinces compliance with the agency’s interpretation of its regulations, we are

similarly constrained:

             [O]ur Supreme Court has made clear that even under our
             de novo standard, a court reviewing a question of law in a
             contested case is without authority to make new findings
             of fact. Under the whole record test, the reviewing court
             may not substitute its judgment for the ALJ’s as between
             two conflicting views, even though it could reasonably have
             reached a different result had it reviewed the matter de
             novo. Instead, we must examine all the record evidence—
             that which detracts from the ALJ’s findings and
             conclusions as well as that which tends to support them—
             to determine whether there is substantial evidence to
             justify the ALJ’s decision. Substantial evidence is relevant
             evidence a reasonable mind might accept as adequate to
             support a conclusion. We undertake this review with a high
             degree of deference because it is well established that ‘[i]n
             an administrative proceeding, it is the prerogative and
             duty of the ALJ, once all the evidence has been presented
             and considered, to determine the weight and sufficiency of
             the evidence and the credibility of the witnesses, to draw
             inferences from the facts, and to appraise conflicting and
             circumstantial evidence. The credibility of witnesses and
             the probative value of particular testimony are for the ALJ
             to determine, and the ALJ may accept or reject in whole or
             part the testimony of any witness.’

N.C. Dep’t of Pub. Safety v. Ledford, 247 N.C. App. 266, 286-87, 786 S.E.2d 50, 63-64

(2016) (internal citations and marks omitted) (quoting City of Rockingham v. N.C.

Dep’t of Envt. & Natural Res., Div. of Water Quality, 224 N.C. App. 228, 239, 736

S.E.2d 764, 771 (2012)).



                                              2
                SOUND RIVERS, INC. V. N.C. DEP’T OF ENVTL. QUALITY
                   Brook, J., concurring in part and concurring in the result in part.



      These standards compel us to affirm the ALJ here. As discussed by the lead

opinion, the agency’s interpretations of its own regulations in question are not clearly

erroneous. Further, and again as chronicled by the lead opinion, there is evidence

(much of it unchallenged by Petitioners and thus binding on our Court) a reasonable

mind might accept as adequate to support the ALJ’s conclusions that DEQ complied

with its long-standing regulatory interpretations in issuing this permit.

      I write separately because, pursuant to the controlling case law and standard

of review, I would stop there. Whatever the merits of agency deference, it governs

our deliberation and, coupled with the deference owed to the ALJ, decides this case.

      I respectfully concur in part and concur in the result in part.




                                               3
 No. COA18-712 – Sound Rivers, Inc. v. N.C. Dep’t of Envtl. Quality


      HAMPSON, Judge, concurring in part and dissenting in part.


      I agree with the majority opinion’s conclusion Petitioners demonstrated their

rights were substantially prejudiced and are “person[s] aggrieved” within the

meaning of Section 150B-23(a). I also concur in the majority opinion’s conclusions

the trial court should be affirmed as to the ALJ’s conclusions on compliance with pH

standards and swamp water.          I dissent, however, from the majority opinion’s

conclusion the trial court erred by failing to give DWR’s interpretation of the

“biological integrity standard” appropriate deference. Rather, I would affirm the trial

court’s conclusion DWR did not demonstrate compliance with the biological integrity

standard. As such, I would affirm the trial court’s Order in full including, specifically,

the determination the ALJ’s Final Decision should be reversed and the Permit be

revoked.

               The role of an appellate court in reviewing a trial court’s order
           affirming a decision by an administrative agency is two-fold. We
           must: (1) determine the appropriate standard of review and, when
           applicable, (2) determine whether the trial court properly applied
           this standard. De novo review is applied where an error of law is
           alleged.

York Oil Co. v. N.C. Dep’t of Env’t, Health, & Natural Res., 164 N.C. App. 550, 554,

596 S.E.2d 270, 273 (2004) (citations and quotation marks omitted). As the majority

opinion notes, the issue before this Court is a question of law reviewed de novo. See

N.C. Dep’t of Pub. Safety v. Ledford, 247 N.C. App. 266, 286, 786 S.E.2d 50, 63 (2016).
                SOUND RIVERS, INC. V. N.C. DEP’T OF ENVTL. QUALITY
                   Hampson, J., concurring in part and dissenting in part.



      “ ‘When the issue on appeal is whether a state agency erred in interpreting a

regulatory term, an appellate court may freely substitute its judgment for that of the

agency and employ de novo review.’ ” York Oil Co., 164 N.C. App. at 554, 596 S.E.2d

at 273 (citing Britt v. N.C. Sheriffs’ Educ. and Training Stds. Comm’n, 348 N.C. 573,

576, 501 S.E.2d 75, 77 (1998)). “[A]n administrative agency’s interpretation of its

own regulation should be accorded due deference unless it is plainly erroneous or

inconsistent with the regulation.” Id. at 554-55, 596 S.E.2d at 273 (citation and

quotation marks omitted). Consequently, “[a]lthough the interpretation of a statute

by an agency created to administer that statute is traditionally accorded some

deference by appellate courts, those interpretations are not binding.” WASCO LLC

v. N.C. Dep’t of Env’t & Nat. Res., 253 N.C. App. 222, 228, 799 S.E.2d 405, 410-11

(2017) (citing Savings & Loan League v. Credit Union Comm., 302 N.C. 458, 465-66,

276 S.E.2d 404, 410 (1981) (quotation marks omitted)).

      “It is the public policy of the State to maintain, protect, and enhance water

quality within North Carolina.” N.C. Gen. Stat. § 143-211(b) (2019). Accordingly, the

North Carolina Environmental Management Commission is required to adopt water

quality standards for bodies of water throughout North Carolina. See N.C. Gen. Stat.

§§ 143-214.1, -212. As the majority opinion detailed, Blounts Creek is classified as a

Class C body of water with additional portions classified as Sw and NSW. Bodies of

water that fall under Class C classification are subject to the water quality standards

set forth in 15A N.C.A.C. 2B.0211. Notably, the best usage of Class C waters includes


                                             2
                SOUND RIVERS, INC. V. N.C. DEP’T OF ENVTL. QUALITY
                   Hampson, J., concurring in part and dissenting in part.



“aquatic life propagation and maintenance of biological integrity (including fishing

and fish), wildlife, secondary recreation, agriculture[.]” 15A N.C.A.C. 2B.0211(1)

(2018) (emphasis added).

      “Biological integrity” is defined as “the ability of an aquatic ecosystem to

support and maintain a balanced and indigenous community of organisms having

species composition, diversity, population densities and functional organization

similar to that of reference conditions.” 15A N.C.A.C. 2B.0202(11) (2018). Therefore,

as a Class C body of water, emissions into Blounts Creek must not impair the

biological integrity of the water body. See 15A N.C.A.C. 2B.0211(2) (“Sources of water

pollution that preclude any of these uses on either a short-term or long-term basis

shall be considered to be violating a water quality standard[.]”).

      I would affirm the trial court’s conclusion DWR “did not ensure reasonable

compliance with the biological integrity standard set forth in 15A N.C.A.C

02B.0211(2), 0220(2) and 0202(11).” I recognize this Court affords deference to an

agency’s interpretation of its own regulations; however, that necessarily means the

agency actually has an interpretation of the regulation. In the present case, the

Record does not indicate DWR had any interpretation for the “biological integrity

standard” that it employed when evaluating the water quality standards prior to

issuing the NPDES permit at issue to which deference is due. Instead—as the

majority opinion notes and the ALJ found—final decision maker and Director of DWR




                                             3
                 SOUND RIVERS, INC. V. N.C. DEP’T OF ENVTL. QUALITY
                    Hampson, J., concurring in part and dissenting in part.



          Mr. Reeder testified that he ‘[did not] know if there is such a thing’
          as a biological integrity analysis, and he ‘never really heard of
          such a thing’ in that there are no statutes or rules setting out
          numeric standards or explicit methods or metrics by which DWR
          must make a determination that an NPDES permit reasonably
          ensures compliance with the biological integrity standard.

Further, “Mr. Fleek provided review, input, and opinions as to potential biological

effects, Mr. Fleek was not asked to provide, nor did he provide, an opinion as to

whether proposed discharge would comply with the biological integrity standard.”

      The majority opinion here relies on the fact that there “are no statutes or rules

setting out numeric standards or explicit methods or metrics by which DWR must

make a determination” in concluding that DWR was entitled to our deference in its

interpretation of the biological integrity standard. Indeed, after the fact, DWR now

contends it complied with the biological integrity standard because the “Standard

Operating Procedure” encompasses the parameters defined in 15A N.C.A.C.

2B.0202(11) as supporting biological integrity.               However, this ignores the

requirement that the parameters supporting biological integrity be considered

together and before the issuance of the NPDES permit.

      In this regard, unlike the majority, I see no conflict between the ALJ’s findings

of fact and the trial court’s findings and legal conclusions. The ALJ documented the

actions taken by DWR in reviewing the Permit Application but yet accepts that none

of those actions were taken in the context of a specific analysis of biological integrity.

This is not in tension with the trial court’s decision. To the contrary, the trial court



                                              4
                   SOUND RIVERS, INC. V. N.C. DEP’T OF ENVTL. QUALITY
                       Hampson, J., concurring in part and dissenting in part.



determined, notwithstanding DWR’s efforts to retroactively justify its decision, the

regulation is clear: in reviewing a Permit Application, DWR is required to undertake

sufficient analysis to ensure the biological integrity standard (as that term is defined)

is met.11 It is just as clear on this Record, DWR did not undertake that analysis in

reviewing the application.12 Thus, as the trial court concluded, DWR was not entitled

to any deference in how it interpreted or analyzed a biological integrity standard that

it failed to interpret or analyze.           Put another way: interpreting the regulation

requiring DWR to reasonably ensure any discharge would not preclude the protected

use of Blounts Creek to maintain its biological integrity in a manner that allows DWR

to functionally ignore that very requirement during the permitting process would be



        11 I do not read the trial court’s decision as declaring every aspect of the biological integrity
standard, its component parts, or the specific measurements required to be clear and unambiguous
and not subject to any deference in its interpretation and application. Rather, I read the trial court’s
decision as concluding simply that the regulation expressly and clearly requires DWR, in reviewing
an application, to specifically undertake steps to ensure compliance with the biological integrity
standard, including analysis of the definitional components of that standard. It is no stretch to further
conclude that in order to ascertain whether or not a proposed application would preclude “the ability
of an aquatic ecosystem to support and maintain a balanced and indigenous community of organisms
having species composition, diversity, population densities and functional organization similar to that
of reference conditions[,]” 15A N.C.A.C. 2B.0202(11) (2018), an affirmative determination of the
“reference conditions” is necessarily required.
        12 Indeed, on this Record, there is reason to believe had DWR contemporaneously conducted

any type of analysis envisioned by the regulation, it may well have reached a different conclusion. For
example, the Record reflects email correspondence in which Mr. Fleek notes:
             The biota presently found in the Blounts Creek system is adapted to
             intermittent flow, low pH, and low dissolved oxygen. The proposed discharge
             will alter the natural physcio-chemcial [sic] parameters of this system . . . . As
             such, many of the taxa currently found in this system which are adapted to the
             natural condition will be replaced by taxa that are adapted to more permanent
             flows, higher pH, and higher dissolved oxygen levels. The taxa that are
             naturally occurring to this type of stream system will be replaced with taxa
             that are not typical to this type of system. . . . These types of streams, and the
             taxa which inhabit them, are not normally found in North Carolina’s coastal
             plain.

                                                   5
                SOUND RIVERS, INC. V. N.C. DEP’T OF ENVTL. QUALITY
                    Hampson, J., concurring in part and dissenting in part.



plainly inconsistent with the plain language of the regulation and, thus, DWR is not

entitled to any deference in such an interpretation. Pamlico Marine Co., Inc. v. N. C.

Dep’t of Natural Resources, 80 N.C. App. 201, 206, 341 S.E.2d 108, 112 (1986)

(“Ordinarily, an administrative agency’s interpretation of its own regulation is to be

given due deference by the courts unless it is plainly erroneous or inconsistent with

the regulation.”(citation omitted)).

      I therefore disagree with the majority opinion and would affirm the trial court’s

conclusion DWR did not reasonably demonstrate compliance with the biological

integrity standard. Accordingly, I would also affirm the trial court’s Order requiring

the Permit be revoked.




                                              6
