Reference is to Printer's Date 2/15/18-H.
Amend the bill, as and if amended, by striking all after the enacting language and inserting:
/SECTION 1. This act must be known and may be cited as the "Beachfront Management Reform Act".
SECTION 2. Section 48-39-10 of the 1976 Code, as last amended by Act 41 of 2011, is further amended to read:
"Section 48-39-10.
As used in this chapter:
(A) 'Applicant' means
any person who files an application for a permit under the
provisions of this chapter.
(B) 'Coastal zone'
means all coastal waters and submerged lands seaward to the
state's jurisdictional limits and all lands and waters in the
counties of the State which contain any one or more of the
critical areas. These counties are Beaufort, Berkeley,
Charleston, Colleton, Dorchester, Horry, Jasper, and
Georgetown.
(C) 'Division' means
the Coastal Division of the South Carolina Department of Health
and Environmental Control.
(D) 'CDPS' means
Coastal Division Permitting Staff.
(E) 'Saline waters'
means those waters which contain a measurable quantity of sea
water, at least one part chloride ion per thousand.
(F) 'Coastal waters'
means the navigable waters of the United States subject to the
ebb and flood of the tide and which are saline waters, shoreward
to their mean high-water mark. Provided, however, that the
department may designate boundaries which approximate the mean
extent of saline waters until such time as the mean extent of
saline waters can be determined scientifically.
(G) 'Tidelands' means
all areas which are at or below mean high tide and coastal
wetlands, mudflats, and similar areas that are contiguous or
adjacent to coastal waters and are an integral part of the
estuarine systems involved. Coastal wetlands include marshes,
mudflats, and shallows and means those areas periodically
inundated by saline waters whether or not the saline waters
reach the area naturally or through artificial water courses and
those areas that are normally characterized by the prevalence of
saline water vegetation capable of growth and reproduction.
Provided, however, nothing in this definition shall apply to
wetland areas that are not an integral part of an estuarine
system. Further, until such time as the exact geographic extent
of this definition can be scientifically determined, the
department shall have the authority to designate its approximate
geographic extent.
(H) 'Beaches' means
those lands subject to periodic inundation by tidal and wave
action so that no nonlittoral vegetation is established.
(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.
(J) 'Critical area'
means any of the following:
(1)
coastal waters;
(2)
tidelands;
(3)
beaches;
(4)
beach/dune system which is the area from the mean
high-water mark to the setback line as determined in Section
48-39-280.
(K) 'Person' means any
individual, organization, association, partnership, business
trust, estate trust, corporation, public or municipal
corporation, county, local government unit, public or private
authority and shall include the State of South Carolina, its
political subdivisions and all its departments, boards, bureaus
or other agencies, unless specifically exempted by this
chapter.
(L) 'Estuarine
sanctuary' means a research area designated as an estuarine
sanctuary by the Secretary of Commerce.
(M) 'Marine sanctuary'
means any water and wetland areas designated as a marine
sanctuary by the Secretary of Commerce.
(N) 'Minor development
activities' means the construction, maintenance, repair or
alteration of any private piers or erosion control structure,
the construction of which does not involve dredge
activities.
(O) 'Dredging' means
the removal or displacement by any means of soil, sand, gravel,
shells or other material, whether of intrinsic value or not,
from any critical area.
(P) 'Filling' means
either the displacement of saline waters by the depositing into
critical areas of soil, sand, gravel, shells or other material
or the artificial alteration of water levels or water currents
by physical structure, drainage ditches or otherwise.
(Q) 'Submerged lands'
means those river, creek, and ocean bottoms lying below mean
low-water mark.
(R) 'Oil' means crude
petroleum oil and all other hydrocarbons, regardless of specific
gravity, that are produced in liquid form by ordinary production
methods, but does not include liquid hydrocarbons that were
originally in a gaseous phase in the reservoir.
(S) 'Gas' means all
natural gas and all other fluid hydrocarbons not hereinabove
defined as oil, including condensate because it originally was
in the gaseous phase in the reservoir.
(T) 'Fuel' means gas
and oil.
(U) 'Emergency' means
any unusual incident resulting from natural or unnatural causes
which endanger the health, safety or resources of the residents
of the State, including damages or erosion to any beach or shore
resulting from a hurricane, storm or other such violent
disturbance.
(V) 'Department' means
the South Carolina Department of Health and Environmental
Control.
(W) 'Board' means the
board of the department.
(X) 'Maintenance
dredging' means excavation to restore the depth of underwater
lands or restore channels, basins, canals, or similar waterway
accesses to depths and dimensions that support and maintain
prior or existing levels of use that previously have been
dredged pursuant to a license issued by the department or an
exemption as provided in Section 48-39-130(D)(10) as added by
Act 41 of 2011."
SECTION 3. Section
48-39-280 of the 1976 Code, as last amended by Act 197 of 2016,
is further 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 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)(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 of 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 4. Notwithstanding the time guidelines established in Section 48-39-280(C), the Department of Health and Environmental Control shall establish new baselines and setback lines in accordance with the provisions of this act by no later than December 31, 2023. The department may extend the establishment of new baselines and setback lines if the implementation of Section 48-39-280(E) would otherwise cause the department to miss the time guideline in this section. Until new baselines and setback lines are established, the baselines and setback lines deemed in effect for landowners are the more seaward lines of the following: (1) the baselines and setback lines in effect on December 1, 2017, or (2) the baselines and setback lines proposed by the department on or about October 6, 2017.
SECTION 5. This act takes effect upon approval by the Governor. /
Renumber sections to conform.
Amend title to conform.