Reference is to the bill as introduced.
Amend the bill, as and if amended, SECTION 3, by striking Section 48-39-10(I) and inserting:
/ (I) 'Primary
ocean front oceanfront sand
dunes dune' means those dunes
which the dune or dunes that constitute the
front row of dunes adjacent to the Atlantic Ocean.
/
Amend the bill further by striking SECTIONS 4 through 6 and inserting:
/ SECTION 4. Section 48-39-280 of the 1976 Code is amended to read:
"Section 48-39-280.
(A) A forty-year policy of retreat
from the shoreline is established. The department must implement
this policy and utilize the best available scientific and
historical data in the implementation. The department must
establish a baseline that parallels the shoreline for each
standard erosion zone and each inlet erosion zone. Subject to
Section 48-39-290(D), the baseline established pursuant to this
section must not move seaward from its position on December 31,
2017.
(1)
The baseline for each standard erosion zone is established
at the location of the crest of the primary oceanfront sand dune
in that zone. In standard erosion zones in which the shoreline
has been altered naturally or artificially by the construction
of erosion control devices, groins, or other manmade
alterations, the baseline must be established by the
department using the best scientific and historical data, as
where the crest of the primary oceanfront sand
dunes dune for that zone would be
located if the shoreline had not been altered.
(2)
The baseline for inlet erosion zones that are not
stabilized by jetties, terminal groins, or other structures must
be determined by the department as the most landward point of
erosion at any time during the past forty years, unless the best
available scientific and historical data of the inlet and
adjacent beaches indicate that the shoreline is unlikely to
return to its former position. In collecting and utilizing the
best scientific and historical data available for the
implementation of the retreat policy, the department, as part of
the State Comprehensive Beach Management Plan provided for in
this chapter, among other factors, must consider historical
inlet migration, inlet stability, channel and ebb tidal delta
changes, the effects of sediment bypassing on shorelines
adjacent to the inlets, and the effects of nearby beach
restoration projects on inlet sediment budgets.
(3)
The baseline within inlet erosion zones that are
stabilized by jetties, terminal groins, or other structures must
be determined in the same manner as provided for in item (1).
However, the actual location of the crest of the primary
oceanfront sand dunes dune of that
erosion zone is the baseline of that zone, not the location if
the inlet had remained unstabilized.
(B) To implement the
retreat policy provided for in subsection (A), a setback line
must be established landward of the baseline a distance which is
forty times the average annual erosion rate or not less than
twenty feet from the baseline for each erosion zone based upon
the best historical and scientific data adopted by the
department as a part of the State Comprehensive Beach Management
Plan.
(C) The
department, before July 3, 1991, must establish a final baseline
and setback line for each erosion zone based on the best
available scientific and historical data as provided in
subsection (B) and with consideration of public input. The
baseline and setback line must not be revised before July 1,
1998, nor later than July 1, 2000. Between the
establishment cycle of January 1, 2016, and December 31, 2019,
the department must use the established baselines and setback
lines that were established by January 31, 2012. After December
31, 2023, the department must initiate baselines and setback
lines for all geographic areas where baselines and setback lines
were established by January 31, 2012. After that
revision, The baseline and setback
line lines must be
revised established anew during
establishment cycles that are not less than every seven
years but not more than every ten years after each
preceding revision following the establishment cycle
and must be based upon the best available data. The
department shall establish the baseline and setback line for all
locations where the baseline and setback line were established
on or before January 31, 2012. Nothing in this section allows
the seaward movement of the baseline after December 31, 2017.
In the establishment and revision of the baseline and
setback line, the department must transmit and otherwise make
readily available to the public all information upon which its
decisions are based for the establishment of the final baseline
and setback line. The department must hold one public hearing
before establishing the final baseline and setback
lines. Until the department establishes new baselines
and setback lines for a geographic area, the existing
baselines and setback lines for the geographic area must
be used. The department may stagger the revision of the
baselines and setback lines of the erosion zones so long as
every zone is revised in accordance with the time guidelines
established in this section.
(D)(1) In
each new establishment cycle of the baselines and setback lines,
the department must:
(a)
stagger the establishment of the baselines and
setback lines by geographic area and provide a tentative
schedule of establishment for each geographic area on the
department's website at least one hundred twenty days prior to
beginning a new establishment cycle;
(b)
publish proposed locations of baselines and
setback lines for a geographic area on the department's website
for public input at least one hundred twenty days prior to
establishing the baselines and setback lines for the geographic
area;
(c)
on the date of the publication of the proposed
locations of baselines and setback lines for a geographic area:
(i)
provide notice of the publication in a newspaper
of general statewide circulation and a newspaper of local
circulation in the geographic area; and
(ii)
make readily available to the public, including
on the department's website, the information and raw data the
department used in making its decision and an explanation for
the decision;
(d)
hold at least one public hearing in the county
or municipality of a geographic area at least ninety days prior
to establishing the baselines and setback lines for the
geographic area; and
(e)
accept and review data up to thirty days prior
to establishing baselines and setback lines for a geographic
area to determine if a proposed baseline or setback line for the
geographic area should be revised.
(2)
Baselines and setback lines for a geographic
area are in effect upon the date of establishment and are
subject to review pursuant to the provisions of subsection (F).
(E)(1) In order
to locate the baseline and the setback line
baselines and the setback lines, the department must
establish monumented and controlled survey points in each county
fronting the Atlantic Ocean. The department must acquire
sufficient surveyed topographical information on which to locate
the baseline baselines.
(2)
Surveyed topographical data typically must be
gathered at two thousand foot intervals. However, in areas
subject to significant near-term development and in areas
currently developed, the interval, at the discretion of the
department, may be more frequent. The resulting surveys must
locate the crest of the primary oceanfront sand
dunes dune to be used as the baseline
for computing the forty-year erosion rate. In cases where no
primary oceanfront sand dunes exist dune
exists, a study conducted by the department is required to
determine where the upland location of the crest of the primary
oceanfront sand dune would be located if the shoreline had not
been altered.
(3)
The department, by regulation, may exempt
specifically described portions of the coastline from the survey
requirements of this section when, in its judgment, the portions
of coastline are not subject to erosion or are not likely to be
developed by virtue of local, state, or federal programs in
effect on the coastline which would preclude significant
development, or both.
(E)(F)(1)
A landowner claiming ownership of property
adversely affected who feels that the final or
revised setback line, baseline, or erosion rate as adopted is in
error, by the establishment of a baseline or setback
line, upon submittal of substantiating evidence, must be
granted a review of the baseline or setback line,
baseline, or erosion rate, or a review of all three.
Alternatively, the municipality or county in which the
property is situated, acting on behalf of the landowner with his
written authorization, or an organization acting on behalf of
the landowner with his written authorization, upon submittal of
substantiating evidence, must be granted a review of the
baseline and setback line. The requests must be
forwarded to A review is initiated by filing a
request for a review conference with the department board
in accordance with Section 44-1-60, and the final
decision of the board may be appealed to the Administrative Law
Court, as provided in Chapter 23 of Title 1 via
certified mail within one year of the establishment of the
baseline or setback line and must include a one hundred dollar
review fee per property.
(2)
The initial decision to establish a baseline or
setback line must be a department staff decision.
(3)
No later than sixty calendar days after the
receipt of a request for review, the board must:
(a)
decline to schedule a review conference in
writing; or
(b)
conduct a review conference in accordance with
the provisions of item (4).
(4)
A review conference may be conducted by the
board, its designee, or a committee of three members of the
board appointed by the chair. The board shall set the place,
date, and time for the conference; give twenty calendar days'
written notice of the conference; and advise the landowner or
the county, municipality, or organization acting on behalf of
the landowner that evidence may be presented at the conference.
The review conference must be held as follows:
(a)
Review conferences are open to the public;
however, the officers conducting the conference may meet in
closed session to deliberate on the evidence presented at the
conference. The burden of proof in a conference is upon the
landowner or the county, municipality, or organization acting on
behalf of the landowner. During the course of the review
conference, the staff must explain the staff decision and the
materials relied upon to support its decision. The landowner or
the county, municipality, or organization acting on behalf of
the landowner shall state the reasons for contesting the staff
decision and may provide evidence to support amending the staff
decision. The staff may rebut information and arguments
presented by the landowner or the county, municipality, or
organization acting on behalf of the landowner, and the
landowner or the county, municipality, or organization acting on
behalf of the landowner may rebut information and arguments
presented by the staff. Any review conference officer may
request additional information and may question the landowner or
the county, municipality, or organization acting on behalf of
the landowner and the staff.
(b)
After the review conference, the board, its
designee, or a committee of three members of the board appointed
by the chair shall issue, based upon the evidence presented, a
written decision to the landowner or the county, municipality,
or organization acting on behalf of the landowner via certified
mail no later than thirty calendar days after the date of the
review conference. The written decision must explain the basis
for the decision and inform the landowner or the county,
municipality, or organization acting on behalf of the landowner
of the right to request a contested case hearing before the
Administrative Law Court.
(5)
A landowner or the county, municipality, or
organization acting on behalf of the landowner may file a
request with the Administrative Law Court, in accordance with
Chapter 23, Title 1, for a contested case hearing within thirty
calendar days after:
(a)
written notice is received by the landowner or
the county, municipality, or organization acting on behalf of
the landowner that the board declines to hold a review
conference;
(b)
the sixty-calendar-day deadline to hold the
review conference has lapsed and no conference has been held;
or
(c)
the final agency decision resulting from the
review conference is received by the landowner or the county,
municipality, or organization acting on behalf of the
landowner."
SECTION 5. Notwithstanding the time guidelines established in Section 48-39-280(C), the Department of Health and Environmental Control shall initiate new baselines and setback lines in accordance with the provisions of this act by no later than December 31, 2023.
SECTION 6. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 7. This act
takes effect upon approval by the Governor.
/
Renumber sections to conform.
Amend title to conform.