H 3414 Session 109 (1991-1992)
H 3414 General Bill, By C.L. Sturkie, R.A. Barber, D.M. Beasley, H. Brown,
R.S. Corning, P.W. Derrick, R.C. Fulmer, H.M. Hallman, Haskins, J.H. Hodges,
J.R. Klapman, J. Rama, Meacham, Vaughn, D.A. Wright and R.M. Young
A Bill to amend Title 48, Code of Laws of South Carolina, 1976, by adding
Chapter 40 so as to enact the Freshwater Wetlands Protection Act of 1991, to
provide penalties for violations, and to provide a tax credit for wetland
acreage.
01/31/91 House Introduced and read first time HJ-467
01/31/91 House Referred to Committee on Agriculture, Natural
Resources and Environmental Affairs HJ-467
A BILL
TO AMEND TITLE 48, CODE OF LAWS OF SOUTH CAROLINA,
1976, BY ADDING CHAPTER 40 SO AS TO ENACT THE
FRESHWATER WETLANDS PROTECTION ACT OF 1991, TO
PROVIDE PENALTIES FOR VIOLATIONS, AND TO PROVIDE A
TAX CREDIT FOR WETLAND ACREAGE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The General Assembly finds that:
(1) The freshwater wetlands of the State of South Carolina are an
invaluable and vulnerable natural resource which provide the following
for the benefit of all citizens of the State:
(a) control of peak flood levels by storing and gradually releasing
stormwater runoff from watershed lands;
(b) essential habitat and food chain elements for fish, wildlife,
and plant populations including important commercial, recreational, and
endangered species;
(c) improvement of water quality by removing toxic substances,
trapping sediment, and other suspended materials, and retaining
nutrients introduced to the waterway from watershed and upstream
sources;
(d) buffers to control shoreline erosion caused by flooding,
wind-generated wave action, and wakes from watercraft;
(e) areas for recreational activities including boating, fishing,
hunting, wildlife observation, and other water-related recreational
pursuits;
(f) sites for public education and academic and applied research
in the fields of biology, ecology, fisheries and wildlife management, and
environmental protection;
(g) areas of aesthetic, historic, cultural, and wilderness value;
(h) recharge and discharge areas for groundwater which
provide sources of public and private water supply.
(2) The freshwater wetlands within the State are being affected
adversely, and will continue to be affected adversely, by escalating
alteration of and construction within these areas, caused by increased
population growth and resultant development. Systematic review of
development activities in freshwater wetlands is necessary to protect and
preserve the valuable benefits provided by these areas.
(3) The State has acted for the public benefit to protect coastal
saltwater wetland areas, but it has not provided similar protection to
freshwater wetland areas.
(4) The protection and management of freshwater wetlands within
South Carolina is a matter of statewide concern and is in the best interest
of all present and future citizens of the State.
SECTION 2. Title 48 of the 1976 Code is amended by adding:
"CHAPTER 40
Freshwater Wetlands Protection
Section 48-40-10. This chapter may be cited as the `Freshwater
Wetlands Protection Act of 1991'.
Section 48-40-20. (A) The South Carolina General Assembly
declares that it is the policy of this State to achieve a goal of no overall
net loss of regulated wetlands, based on function and value, to be
accomplished through a program of wetland classification and
mitigation.
(B) Specific state policies to be followed in the implementation of
this chapter are:
(1) to achieve an interim goal of no overall net loss of the
state's remaining wetland base and to achieve a long-term goal of
increasing the quantity and quality of the state's wetland resource base.
In pursuing these policies, the state's remaining wetland base must be
defined both in terms of acreage and wetland function;
(2) to protect and, where possible, to restore or enhance the
freshwater wetland resources of this State for this and succeeding
generations.
(C) To implement these state policies the following initiatives are
recommended:
(1) State agencies are encouraged to adopt the state's `no net
loss' goal for all their wetland activities, to identify and manage wetlands
on their own properties, and to restore previously impacted areas.
(2) Local governments are encouraged to preserve wetland
acreage through the following mechanisms:
(a) identify wetlands and potential alterations;
(b) educate constituents of wetlands value and function;
(c) encourage wetland trust funds;
(d) encourage incentives such as transfer of development
rights, cluster development, and planned unit development.
(3) A single state agency should be identified to inventory all
wetland acreage in the State. The National Wetlands Inventory is the
preferred inventory methodology. State appropriations, as available,
should be used for a cost-share completion of the National Wetlands
Inventory, in cooperation with the United States Fish and Wildlife
Service, and for digitization of the inventory for the State of South
Carolina as soon as practicable. County soil surveys should be used in
the interim until a more detailed wetland inventory is completed.
Inventories of wetland gains and losses should be updated every ten
years and published every five years for the benefit of the General
Assembly and the public.
(4) Conservation plans for the State's most significant wetland
resources and systems to assist developers in the identification of areas
to be protected should be identified. Wetlands should be targeted for
purchase by agencies and land trusts, to encourage donations or
preservation by landowners, and to suggest mitigation possibilities.
Section 48-40-30. As used in this chapter:
(1) `Commission' means the agency designated by the General
Assembly to manage the freshwater wetlands program created by this
chapter.
(2) `Freshwater wetlands' means those areas that are inundated or
saturated by surface or groundwater at a frequency and duration
sufficient to support, and that under normal circumstances do support,
a prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands must possess three essential characteristics: (a)
hydrophytic vegetation, (b) hydric soils, and (c) wetland hydrology.
These areas do not include fresh or saltwater wetlands found in the
coastal zone as defined in Section 48-39-10.
(3) `Regulated freshwater wetlands' includes all contiguous and
isolated freshwater wetlands of the State as defined in item (2) of this
section which are located outside of the coastal zone as defined in
Section 48-39-10.
(4) `Freshwater wetlands permit' means a permit to engage in a
regulated activity issued pursuant to the provisions of this chapter.
(5) `Regulated activity' means dredging or removal of materials,
deposition of materials, erection of a structure, placement of an
obstruction, or hydrologic alteration including draining or flooding
occurring within a regulated freshwater wetlands.
(6) `Materials' means a solid substance including, but not limited
to, soil, sediment, aggregate, gravel, clay, sand, refuse, or waste.
(7) `Person' means an individual, firm, partnership, association,
public or private institution, municipality, political subdivision, federal
or state governmental agency, or private or public corporation organized
under the laws of this State or any other state or country.
(8) `Mitigation' means:
(a) avoiding an adverse impact by not taking a certain action or
parts of an action;
(b) minimizing an adverse impact by limiting the degree or
magnitude of the action and its implementation;
(c) rectifying an adverse impact by repairing, rehabilitating, or
restoring the affected environment;
(d) reducing or eliminating an adverse impact over time by
preservation and maintenance operations during the life of the action; or
(e) compensating for the adverse impact by replacing or providing
substitute resources or environments of equal or greater quality and
function.
(9) `Compensatory mitigation' means the replacement of wetland
acreage damaged or destroyed by permitted activities and includes
restoration of degraded wetlands, creation of new wetlands if technically
feasible, enhancement of existing wetlands, preservation of existing
nonregulated wetlands, and cash payments to be used for wetland
conservation.
Section 48-40-40. Freshwater wetlands must be classified in
accordance with the following classification system:
Class 1: Wetlands Adjacent to Navigable Streams. Wetlands that
are located adjacent to and are contiguous hydrologically with navigable
waterways as defined by Regulation 19-450.2C. .
Class 2: Wetlands Adjacent to Nonnavigable Streams. Wetlands
that are located adjacent to and are contiguous hydrologically with
streams which flow into navigable waters.
Class 3: Isolated Wetlands. Wetlands that are not contiguous
hydrologically with the surface water tributary system discharging into
a lake, pond, river, stream, or other surface water feature.
Class 4: Manmade Wetlands. Wetlands that are constructed in
areas that were not wetlands in their natural state and natural isolated
wetlands less than one acre in size. This class does not include wetlands
constructed for mitigation purposes or wetlands adjacent to and
hydrologically contiguous with manmade impoundments on navigable
waterways.
Section 48-40-50. No person may undertake a regulated activity
within a regulated freshwater wetland unless a permit first is obtained
from the commission. No permit is required for activities that take place
in Class 4 wetlands unless endangered species or critical ecological
habitat is impacted.
Section 48-40-60. (A) No permit is required from the
commission for:
(1) normal farming or ranching, using `Best Management
Practices';
(2) normal silviculture, using `Best Management Practices';
(3) maintenance of currently serviceable structures;
(4) maintenance of farm or stock ponds;
(5) maintenance of drainage ditches and irrigation canals;
(6) construction of temporary sedimentation basins at
construction sites;
(7) construction or maintenance of temporary roads for
moving mining equipment, using `Best Management Practices';
(8) repair, rehabilitation, or replacement of previously
authorized, currently serviceable structures or fill;
(9) fish and wildlife harvesting devices and structures, including
deer stands, duck blinds, and traps;
(10) normal maintenance and repair of functional rice fields and
wildlife management impoundments, including dikes and water control
structures, using `Best Management Practices';
(11) activities associated with routine maintenance of existing
public and private highways, roads, streets, and bridges, or replacement
of, or minor improvements to structurally deficient or functionally
obsolete structures located in regulated freshwater wetlands, where the
improvements are necessary to meet current design and safety standards.
These activities must be implemented in accordance with approved `Best
Management Practices' to assure the protection of freshwater wetland
functions and values. Maintenance, replacement, or minor
improvements includes adding extra lanes or increasing the right-of-way
for public roads within a regulated wetland only where five acres or less
of wetlands are impacted a project;
(12) with notification to the primary permitting agency, emergency
activity commenced under an emergency order to protect the public's
health and safety when ordered by either the Governor, the chairman of
the county council of the county in which the activity is to take place, or
the mayor of the municipality in which the activity is to occur, or their
designees;
(13) routine and emergency repair, maintenance, and replacement
of, or minor improvements to, systems serving the public including
electricity, natural gas, communications, water and sewer, and railroad
systems;
(14) fishing, trapping, hunting, swimming, boating, and hiking;
(15) maintenance, repair, or operation of gas or oil pipelines using
`Best Management Practices';
(16) maintenance of drinking water supply impoundments;
(17) federal, state, or local government mosquito control activities;
(18) activity for which an individual Section 404 or National
Pollutant Discharge Elimination System permit is required.
(B) `Best Management Practices' for all exempted activities must
be formulated and approved by the Best Management Practices
Advisory Committee. This committee must be appointed by the
commission chairman and must have equal representation of persons
representing exempted activities and environmental concerns. The
committee shall adopt `Best Management Practices' for all exempted
activities and shall review and update these practices annually, if
needed. After adoption by the advisory committee, `Best Management
Practices' must then be adopted by the commission before an exempted
activity may take place.
Section 48-40-70. (A) A person proposing to engage in a
regulated activity, not otherwise exempted by this chapter, first must
obtain a wetlands permit from the commission. Nothing in this chapter
relieves a person from the requirement of obtaining a permit from other
state and federal agencies. An application for a permit must be filed
with the commission on forms provided by the commission and
accompanied by a fee as established by the commission. There must be
one standard application filed by the applicant to be used by all the state
agencies reviewing the proposed activity. Within thirty days after the
effective date of this chapter, the commission shall call a meeting of all
relevant natural resources agencies to approve a standard application
form to be used by all agencies. No fee is required from a public agency
within the State.
(B) The application must include:
(1) the name and address of the applicant;
(2) a brief description of the proposed activity, its location,
purpose, and intended use, including a drawing of the type of structures
proposed and method of construction including size specifications;
(3) a plan and elevation drawing showing the general and
specific site locations and character of all proposed activities, with an
appropriate map of the area;
(4) evidence of ownership or the consent of the owners of the
wetlands on which a part of the projected activity may be located;
(5) the names and addresses of adjacent property owners;
(6) verification that notice has been published in a newspaper
of general circulation in the county where the activity is proposed, at
least once in each of two consecutive weeks, to facilitate public review
and comment on the proposed activity, and a minimum of thirty days for
the review and comment for the application must be provided;
(7) when considered appropriate and reasonably necessary by
the commission or its staff, additional information, studies, or analyses
related to the proposed activity may be required to be supplied to the
commission by the applicant.
Section 48-40-80. (A) The commission shall provide notice to
state natural resource agencies and to other relevant state agencies of
wetland permit applications submitted. These agencies may comment
on a permit application regarding matters within their area of statutory
responsibility or primary interest. Comments or written requests for
extension of time to comment as set forth in this subsection, must be
submitted to the commission within thirty days from the date of issuance
of the notice to the agencies. Failure to comment or to request
certification within thirty days of the date of issuance of the notice to
agencies is considered to be certification or no objection to the activity.
The commission may refuse a request for an extension of time.
(B) No freshwater wetlands permit may be issued by the
commission without certification from the South Carolina Department
of Health and Environmental Control that the proposed activity does not
violate the Water Classifications and Standards System provisions.
(C) A person, other than a state agency, who desires notification
of pending permit applications may make an annual request to the
commission accompanied by a reasonable fee set by the commission
which must be credited to the general fund of the State. The commission
must provide notice of all permit applications received to those persons
requesting notice at the same time the notice is provided to state
agencies. Notice must be provided to all adjoining landowners.
Section 48-40-90. (A) The commission shall make every effort
to enter into agreements with other state and federal agencies having
permitting authority over regulated activities in regulated freshwater
wetlands in which the commission either may utilize the permit
application procedures of the other agencies or may certify that the
proposed activity is consistent with the provisions of this chapter. If the
commission uses the permit application procedures of the other agencies,
no separate application to the commission is required. If the commission
has certification authority over proposed activities regulated by the other
agencies, no separate permit may be required by the commission.
Review of the application and permit or certification actions by the
commission must be conducted in accordance with the provisions of
Article 3, Chapter 23 of Title 1 and review criteria and administrative
procedures of this chapter.
(B) Mining activities conducted pursuant to the requirements of
the South Carolina Mining Act and permitted by the South Carolina
Land Resources Conservation Commission, and which affect regulated
wetlands as defined in this chapter, must be certified by the commission
to be consistent with the provisions of this chapter.
Section 48-40-100. The commission may hold public hearings if
hearings are considered necessary to receive information from the public
to obtain public comment. If a hearing is held, it must be held after at
least fifteen days' notice and, if possible, must be held in the county
where the project is to be located. Notice must be given of the hearing
by publication in a local newspaper of general circulation.
Section 48-40-110. (A) In determining whether to permit a
proposed activity, the commission shall consider the comments of the
reviewing agencies, the comments of the public, the findings and
policies specified by the General Assembly, and all other requirements
of this chapter, including the following general considerations:
(1) the public interest in preservation of natural resources and
the interest of the property owners;
(2) the public and private need for the activity;
(3) the economic benefits to the public and the State that result
from the activity;
(4) available feasible and prudent alternative locations and
methods to accomplish the expected benefits of the activity;
(5) the extent and permanence of impacts, both beneficial and
detrimental, to historic, cultural, scenic, ecological, and recreational
values, to fish and wildlife, endangered species, hydrology, water
quality, public health and safety, and to the public and private uses of
the wetland;
(6) the value and benefits of nature-related uses of freshwater
wetlands, including aquaculture, waterfowl and wading bird
management, and game and nongame wildlife protection projects;
(7) the size and type of the wetland where the activity is to be
located;
(8) the extent to which the long-range, cumulative effects of
the activity, including the cumulative effects of existing and anticipated
activities in the watershed, may affect adjacent wetlands and navigable
waters;
(9) the extent to which the proposed activity is dependent
upon being located in a wetland.
(B) If, after completing its review, the commission finds that the
activity would not result in an unreasonable adverse impact on the
freshwater wetland values and functions and is consistent with the state's
policy, it shall issue a permit for the activity. The commission may
impose conditions on a permit it considers necessary to minimize or
mitigate adverse impacts upon wetland functions. Construction
authorized by the permit must be completed within three years of the
date of issuance or another time as the commission may set. All permits
issued under the provisions of this chapter may be renewable or subject
to extensions of time, and all permits may be modified, suspended, or
revoked for cause after giving the permittee notice and an opportunity
to be heard. Permits may be transferred subject to reasonable
requirements specified in regulations promulgated by the commission.
(C) Decisions of permit issuance, denial, or issuance with
conditions must be made by the commission within ninety days of
submission of a completed permit application if a hearing is not held, no
objection is made by a commenting agency, no extension of the review
period is requested, or a proposal for mitigation is not submitted. If
there is a hearing, objection, request for extension of time, or mitigation
proposal, the commission shall issue, deny, or issue the permit with
conditions within sixty days from the conclusion thereof.
Section 48-40-120. (A) The commission shall request the
applicant to submit a compensatory mitigation proposal to address the
long and short-term economic, environmental, and natural resources
benefits that may be lost by the proposed activity, if, after completing
the review procedure described in Section 48-40-110, the commission
determines that:
(1) the proposed activity is likely to produce a significant
adverse impact on the quality and value of the wetland where the project
is to be located or of the adjacent navigable waterway;
(2) the applicant has proposed or taken all reasonable and
feasible measures to avoid, minimize, rectify, reduce, or eliminate the
adverse impact; and
(3) the proposed activity otherwise meets the standards set
forth in this chapter.
(B) The applicant shall inform the commission within fifteen days
if it intends to submit a proposal for compensatory mitigation.
Submission of a compensatory mitigation proposal does not insure that
the permit will be issued. If no proposal is submitted the permit must be
denied. If a proposal is submitted, it must be in a form specified by the
commission.
(C) The commission shall transmit the compensatory mitigation
proposal to all commenting agencies and other persons for review and
comment. Agency and public comments on the compensatory
mitigation proposal must be submitted to the commission within fifteen
days, or such other time as may be set. Failure to comment within this
time is considered to be a waiver of objection. The conciliation process
provided in this chapter may be used if the commission finds it may
expedite review of the proposal. If, after completing its review of the
proposal and all state agency and public comments, the commission
determines that the proposed compensatory mitigation is sufficient, a
permit may be issued.
(D) Acceptable forms of compensatory mitigation are restoration
of degraded wetlands, creation of new wetlands if technically feasible,
enhancement of existing wetlands, preservation of existing nonregulated
wetlands, and cash payments to be used for wetlands conservation. In
most cases, a minimum ratio of one to one acreage replacement of
wetlands is required to compensate for wetlands loss. However, this
ratio may be greater where the functional values of the area being
impacted are demonstrably high. Conversely, the ratio may be less than
one to one for areas where the functional values associated with the area
being impacted are demonstrably low and the likelihood of success
associated with the mitigation proposal is high. Compensatory actions
must be undertaken, when practicable, in areas adjacent or contiguous
to the proposed activity site. If this compensatory mitigation is not
practicable, off-site compensatory mitigation must be undertaken in the
same geographic area, which includes close physical proximity and, to
the extent possible, the same watershed. In determining compensatory
mitigation, the functional values lost by the resource to be impacted
must be considered. Nothing in this section requires a person to mitigate
for functional losses greater than those caused by the proposed activity.
Section 48-40-130. The commission shall notify the applicant of the
permit decision and give written notice to all who commented on the
application or mitigation proposal and requested notification of the
decision. The decision becomes final if not appealed within fifteen days
of a notification to the applicant. An applicant for a wetlands permit, a
state agency, or a person who is affected by the permit may appeal the
decision of the commission pertaining to permit issuance, denial, or
issuance with terms and conditions, to the commission by filing a notice
of appeal with the commission within fifteen days. A hearing officer
may be appointed to preside over the hearing. The certification
determinations by the Department of Health and Environmental Control
are a part of this chapter, and no separate adjudicatory hearing may be
conducted by the Department of Health and Environmental Control with
respect to a certification or denial. All matters relating to certifications
appropriate for an adjudicatory hearing must be considered in one
hearing conducted by the commission pursuant to this section following
its final determination on a permit application. The Department of
Health and Environmental Control must be made a party to any
adjudicatory hearing in which an issue is raised concerning a
certification by that agency. Review is available to the parties after the
final decision of the commission as provided in Article 3, Chapter 23 of
Title 1.
Section 48-40-140. The commission may issue general permits for
a category of activities, following a review of the proposed activity
consistent with the applicable requirements of Sections 48-40-70 and
48-40-110. Consideration of a general permit for any category of
activity may be commenced upon the application of a person or at the
instigation of the commission. General permits may be issued to a
particular person or to the public generally in the name of the State, and
the permits may be issued for activities in a specified area of the State
or statewide. Following the issuance of a general permit, no individual
permit may be required for the activity covered by the general permit.
A person conducting an activity under a general permit shall report the
activity to the commission before its undertaking. When the
commission determines on a case-by-case basis that the concerns for the
aquatic environment so indicate, the commission may exercise
discretionary authority to override the general permit and require an
individual permit application and review.
Section 48-40-150. (A) A person violating a provision of this
chapter is guilty of a misdemeanor and, upon conviction for a first
offense, must be imprisoned for not more than six months or fined not
more than five thousand dollars, or both, and for each subsequent
offense, by imprisonment for not more than one year or fined not more
than ten thousand dollars, or both.
(B) A person determined to be in violation of a provision of this
chapter by the commission is liable for, and may be assessed by the
commission, a civil penalty of not less than one hundred dollars nor
more than one thousand dollars for each day of violation. If the
commission determines that a person is in violation of a permit,
regulation, standard, or requirement under this chapter, the commission
may issue an order requiring the person to comply with the permit,
regulation, standard, or requirement, including an order requiring
restoration when considered environmentally appropriate by the
commission. In addition, the commission may bring a civil enforcement
action and may seek injunctive relief.
Section 48-40-160. A person proposing to engage in regulated
activity under this chapter shall determine if the proposed location is
within a regulated wetland or a portion of it and may request that the
commission assist in inspecting the property on which the activity is to
be located for purposes of determining whether the property contains
regulated freshwater wetlands. The commission shall make those
determinations as expeditiously as possible and shall furnish the person
requesting the determination with a written statement of the findings.
The `Federal Manual for Identifying and Delineating Jurisdictional
Wetlands', adopted by the United States Corps of Engineers, United
States Environmental Protection Agency, United States Fish and
Wildlife Service, and United States Soil Conservation Service on
January 10, 1989, and subsequent amendments to this manual must be
used as the technical basis for identifying and delineating wetlands in
South Carolina.
Section 48-40-170. The commission, in its annual report to the
General Assembly, shall report application processing times for
wetlands permits reviewed in the past reporting year.
Section 48-40-180. (A) There is created within the commission
a Freshwater Wetlands Permit Assistance Office. A permit assistant
must be designated by the commission to carry out the functions of the
office. The permit assistant shall provide a person proposing to engage
in a regulated activity with information, services, and assistance as
appropriate pertaining, but not limited to:
(1) technical assistance from the various state and private
agencies and institutions involved in freshwater wetlands research;
(2) informational assistance throughout the entire permit
process and information concerning changes to state or federal law or
regulations which may affect the outcome of a permit application or
change the permitting process;
(3) application forms.
(B) In order to educate the public of the values and functions of
freshwater wetlands the permit assistance office shall establish the
following:
(1) a comprehensive bibliography of all relevant wetlands
publications from federal, state, and private sources;
(2) a speaker's bureau represented by qualified persons across
the State to speak on wetlands issues. The list of available speakers
must be made available to the news media and other groups including,
but not limited to, teachers of kindergarten through grade twelve, local
government officials, sector based representatives, landowners, and
special interest groups seeking presentations on wetlands topics;
(3) a publication describing South Carolina wetlands and their
functions and protection needs. The publication must be widely
distributed throughout the State and also must be made available at all
county extension offices and the State Library.
Section 48-40-190. If the commission denies an application for a
freshwater wetlands permit, the owner of record of the property affected
may request the local tax assessor to take this denial into consideration
when the property is valued, assessed, and taxed for property tax
purposes, and upon request the local tax assessor must do so.
Section 48-40-200. (A) A refundable credit is allowed against
taxes levied by Section 12-7-210 and 12-7-230. The credit must be
calculated based upon the credit amounts allowed by subsection (B) and
in accordance with other provisions of the this chapter. The credit
allowed by this section is allowed only to freshwater wetlands and may
not be extended to saltwater wetlands.
(B) The refundable credit allowed by subsection (A) must be
calculated as follows based on the classes described in Section 48-40-40:
(1) forty-five dollars an acre for Class I wetlands;
(2) thirty dollars an acre for Class II wetlands;
(3) fifteen dollars an acre for Class III wetlands.
(C) In the case of an individual taxpayer, estate, or trust, the
maximum number of acres allowed for credit under this section is two
hundred fifty acres and for corporations the maximum number of acres
allowed is one thousand acres.
(D) Before a taxpayer is allowed the credit provided in this
section, certification by the commission is required. A copy of the
certification must be attached to the return. Failure to attach the
certification disallows the credit until the certification is provided. The
certification must include the number of acres which qualify and the
wetlands class. The Tax Commission may require other information it
considers necessary.
(E) The commission is responsible for the enrollment of acreage
under this chapter. In enrolling acreage under the chapter, the
commission may not enroll or qualify acreage in an amount which
exceeds one million dollars in credits a year, and at no time may the
qualifying acreage in total exceed five million dollars in credits. The
credits allowed under this section may not exceed the average original
purchase price an acre of qualifying acreage. At the time the credits
equal the original purchase price per acreage, the taxpayer may not be
allowed additional credits. If the taxpayer exceeds the allowed amount,
penalties and interest provided in subsection (F) apply to the excess
taken, in addition to repayment of the credit overage.
(F) If a taxpayer who has taken the credits provided in this section
breaches or does not comply with the provisions of the chapter, the
taxpayer is required to remit to the State an amount equal to the amount
received under subsection (B). In addition, interest must be calculated
from the date the credit was received by the taxpayer until payment is
made. Interest must be calculated at the rate provided for in Section
12-54-20. A twenty-five percent penalty must be assessed on the total
amount of credit taken by the taxpayer. The amount of credit, penalty,
and interest must be deposited to the credit of the general fund. The
credit recapture, penalty, and interest may not be waived or reduced.
(G) Upon the sale of wetlands for which a recorded easement has
been given under this chapter and a credit has been taken or is being
taken at the time the wetlands is sold, the credit is transferable to the
purchaser. In no event may the credit or any portion thereof be taken
twice on the same recorded easement. At the expiration of the recorded
easement, the taxpayer owning the wetlands may submit an application
for consideration by the commission to qualify for additional credits.
(H) Taxpayers qualifying under the Federal Wetlands Reserve
Program may not qualify for the credits allowed in this section.
(I) A conservation easement granted under this section must be in a
recordable form and must be for thirty years, permanent, or the
maximum duration allowed under applicable state law.
Section 48-40-210. There is created a State Wetlands Trust Fund to
be used for the acquisition, rehabilitation, and the restoration of
wetlands. The commission shall pursue sources of revenue for the fund,
including but not limited to, private sources, state and federal
appropriations, and federal and private grants."
SECTION 3. A person who has commenced physical on-site work
legally for a regulated activity before the effective date of this act has
ninety days to complete the regulated activity without obtaining a
permit. No freshwater wetlands permit is required by the commission
for a regulated activity authorized by a permit issued by another state or
federal agency before the effective date of this act.
SECTION 4. If federal funding is offered, the commission may apply
for and accept responsibility for management of the federal permitting
program under Section 404 of the Federal Clean Water Act.
SECTION 5. This act takes effect eighteen months after approval by
the Governor.
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