H 3094 Session 109 (1991-1992)
H 3094 General Bill, By T.F. Rogers, J.M. Baxley, R.S. Corning, J.L.M. Cromer,
H.H. Keyserling, C.Y. Waites and L.S. Whipper
A Bill to amend Title 44, Code of Laws of South Carolina, 1976, by adding
Chapter 40 so as to enact the Freshwater Wetlands Protection Act and to
provide penalties for violations.
12/27/90 House Prefiled
12/27/90 House Referred to Committee on Agriculture, Natural
Resources and Environmental Affairs
01/08/91 House Introduced and read first time HJ-63
01/08/91 House Referred to Committee on Agriculture, Natural
Resources and Environmental Affairs HJ-63
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 AND TO
PROVIDE PENALTIES FOR VIOLATIONS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited as the "Freshwater
Wetlands Protection Act".
SECTION 2.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 3. The 1976 Code is amended by adding:
"CHAPTER 40
FRESHWATER WETLANDS PROTECTION ACT
Section 48-40-10. As used in this chapter:
(1) `Commission' means the agency designated to manage the
freshwater wetlands program created by this chapter.
(2) `Freshwater wetlands' means those areas, excluding wetlands
within the critical area of the coastal zone, that are inundated or
saturated by surface water 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. In delineating a wetland, the commission shall use the
hydrology, soils, and vegetation approach enumerated in the `Federal
Manual for Identifying and Delineating Jurisdictional Wetlands', January
1989.
(3) `Freshwater wetlands permit' means a permit to engage in a
regulated activity issued pursuant to the provisions of this chapter.
(4) `Regulated activity' means any dredging, excavation or other
removal of soils or other materials, dumping, discharge, filling or other
deposition of materials, erection or placement of any structure,
placement of any obstruction, driving of pilings, destruction of plant life,
or hydrology alteration including draining, flooding, or other disturbance
of the water level or water table occurring within a freshwater wetland.
(5) `Materials' means any solid substance, including, but not
limited to, soil, sediment, aggregate, land, gravel, clay, sand, refuse, or
waste.
(6) `Person' means an individual, firm, partnership, association,
public or private institution, municipality or political subdivision, federal
or state governmental agency, or private or public corporation organized
under the laws of this State or any other state or county.
(7) `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 of
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 greater quality and functions.
(8) `Feasible alternative' means other choices available and
capable of accomplishing the overall project purposes with less damage
to wetlands and the environment. The feasibility of an alternative must
be determined by the commission based upon the best available
information, including, but not limited to, technical input from other
state and federal agencies and consideration of economic,
environmental, social, and legal factors bearing on the suitability of the
proposed activity and its alternatives, taking into consideration cost,
existing technology, and logistics in light of overall project proposes.
A feasible alternative may include use of an area not owned by the
applicant which reasonably could have been or which could be obtained,
utilized, expanded, or managed in order to fulfill the basic purpose of the
proposed activity. It also includes the concepts of reasonableness and
likelihood of success in achieving the purpose. `Feasible alternative'
applies to both locations or sites and to methods of design of
construction and includes a `no action' alternative.
Section 48-40-20. (A) The General Assembly declares that the
public policy of this State is to protect and conserve freshwater wetlands
and the values and benefits derived therefrom through regulation of their
use and development in a manner consistent with the general welfare
and economic and social development of the State.
(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; and
(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
must be undertaken:
(1) All state and local agencies shall adopt the state's `no net
loss' goal for all their wetland activities.
(2) Land-holding state and local agencies, with the assistance
of natural resource agencies, shall identify wetlands and develop
management plans to protect wetlands on their properties.
(3) The legislature shall develop and implement enabling
legislation which grants real estate tax incentives for landowners
protecting wetlands.
(4) A detailed Wetland Conservation Action Plan must be
undertaken which identifies and protects the most significant wetlands
resources and systems in the State. The plan would assist developers in
the identification of areas to be protected, target wetlands for purchase
by agencies and land trusts, encourage donation of preservation by
landowners, and suggest mitigation opportunities. A rehabilitation or
restoration program for altered wetlands must be a part of the plan.
Section 48-40-30. (A) After the effective date of this chapter, no
person may undertake a regulated activity within a freshwater wetland
until a freshwater wetlands permit is obtained from the commission.
(B) The commission shall issue a permit if, after considering the
comments of interested persons, agencies, and local governments, and
after evaluation of biological and economic considerations and
conducting such inquiries as it considers appropriate, it finds that an
application for a freshwater wetlands permit is not contrary to the
policies specified in this chapter. The permit may be conditioned upon
the applicant amending the proposal to take whatever measures the
commission determines are necessary to protect the public interest.
(C) No permit for the permanent alteration of freshwater wetlands
may be granted unless the proposed activity requires access to,
proximity to, or siting within wetlands or destruction of wetlands to
fulfill its basic function.
(D) No permit for the permanent alteration of freshwater wetlands
may be granted, regardless of whether the proposed activity is water
dependent, if there is a feasible alternative to the proposed activity.
(E) No permit for the permanent alteration of freshwater wetlands
may be granted unless the applicant has demonstrated that the proposed
activity constitutes an overriding public interest when compared to the
public interest in protecting wetlands.
(F) In determining whether a permit application is approved or
denied, the commission shall base its decision on the individual merits
of each application, the policies, and requirements specified in this
chapter and must be guided by the following general considerations:
(1) the public interest in preservation of natural resources and
the private interest of the property owners;
(2) the public and private need for the activity;
(3) the economic costs and benefits from preservation of an
area in its unaltered state;
(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, fish and wildlife, hydrology, water quality, 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 of the wetland where the activity is to be located
and the amount of remaining wetland in the watershed;
(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, and the value and enjoyment of adjacent owners;
(9) the extent to which the proposed activity is primarily
dependent upon being located in a wetland;
(10) the extent to which the proposed activity could affect the
habitats for rare and endangered species of wildlife or irreplaceable
historic and archeological sites;
(11) the extent of any adverse environmental impact which cannot
be avoided by reasonable safeguards.
(G) All permits must comply with the mitigation requirements of
Section 48-40-80.
(H) No permit may be issued for a project that is inconsistent with
Section 404 of the Clean Water Act or any regulation promulgated under
the act by the United States Environmental Protection Agency and the
United States Army Corps of Engineers.
(I) The commission may issue a permit where the applicant clearly
has demonstrated that the applicant's property will have virtually no
economic use unless a permit is issued for the proposed activity.
(J) Permits must be issued for a length of time determined by the
commission to be appropriate to the permitted project, not to exceed ten
years. Construction authorized by the permit must be completed within
three years of the date of issuance or a shorter time if set by the
commission.
(K) Permits may be renewed by following the same procedure as
applicable to the initial issuance of a permit. All permits may be
modified, suspended, or revoked for cause after giving the permittee and
the public due notice and an opportunity to be heard. Permits may be
transferred subject to public notice and opportunity for hearing. The
time limit for construction may be extended for good cause showing that
due diligence toward completion of the work has been made as
evidenced by significant work progress, after public notice and
opportunity for hearing.
Section 48-40-40. (A) An application for a permit must be filed
with the commission on forms provided by the commission,
accompanied by a fee as established by the commission. No fee may be
required from a public agency within the State.
(B) The application must include:
(1) the name and address of the applicant; if the applicant is
a partnership or corporation, the application must include the name and
address of the managing agent of the applicant and of the agent of the
applicant having primary responsibility for the permit;
(2) a description of the proposed activity, its location, purpose
and intended use, method of construction, and the types and amount of
freshwater wetlands to be altered or potentially affected, or both altered
and potentially affected;
(3) a drawing of the structures proposed including size
specifications;
(4) 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;
(5) evidence of ownership or the consent of the owners of the
wetland on which any part of the projected activity will be located;
(6) the names and addresses of adjacent property owners;
(7) a certification that all information submitted with the
application is true, accurate, and complete;
(8) additional information as may be necessary for the
commission to assess the benefits and detriments of the projected
activity. When considered appropriate by the commission or its staff,
they may require additional information, studies, or analyses.
Section 48-40-50. (A) Upon determining that a complete
application has been submitted, the commission shall prepare a public
notice which must include a description of the proposed activity and its
location and a statement that all interested agencies, all adjoining
landowners, local government units, and other interested persons have
forty-five days to file written comments upon the application. The
commission shall provide copies of the public notice to state agencies,
all adjoining landowners, local government entities in which the project
is located, and the general public.
(B) Public notice must be given at least once by advertisement in
state and local newspapers of general circulation in the area concerned.
(C) A person who desires notification of pending permit
applications may notify the commission in writing. The commission
shall mail copies of all public notices to these persons on at least a
biweekly basis.
(D) A person or agency may comment on a permit application.
Comments, or written requests for extension of time to comment, must
be submitted to the commission within forty-five days from the date of
issuance of the public notice.
Section 48-40-60. (A) The commission shall hold a public
hearing on a permit application if a hearing is considered necessary to
receive information from the public or obtain public comment. If within
the public comment period the commission receives twenty written
comments requesting a public hearing, the commission shall conduct a
public hearing. 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.
(B) Notice of public hearings must be given in the same manner
as public notices of permit applications pursuant to Section 48-40-50.
(C) Public hearings must be open to all citizens of the State.
Public hearings conducted for the purpose of gathering comments and
information before an initial permit decision must be nonadversarial;
persons speaking may not be subjected to cross-examination; and the
hearing does not constitute a contested case hearing.
(D) When a public hearing is held, the public comment period
must remain open for at least fifteen days after the hearing.
Section 48-40-70. (A) The commission shall develop a
procedure for coordinating review of freshwater wetlands permit
applications with other state and federal agencies in order to simplify
and streamline the overall wetlands permitting program.
(B) A state agency objecting to a project activity shall forward its
objections to the applicant and the commission within the public
comment period. The objecting agency shall attempt to reconcile its
objection in conciliation negotiations with the applicant. No action may
be taken by the commission on a permit application to which an
objection has been made until it has received notice from the agency that
the objection has been resolved or that efforts to resolve the objection
have failed and further negotiation would be of no benefit.
(C) 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 would
not violate applicable water quality standards and, where applicable,
certification from the South Carolina Coastal Council that the proposed
activity does not contravene the Coastal Zone Management Plan.
(D) The commission is authorized to enter, in its discretion, into
agreements with other state and federal agencies whereby applications
for regulated activities in regulated freshwater wetlands may be used
jointly by the agencies and the commission. Separate applications are
not required. The commission shall review the application pursuant to
the provisions of this chapter and the commission may request the
applicant to provide information to supplement its application, as
necessary.
Section 48-40-80. (A)The commission shall notify the applicant
that a proposal must be submitted to replace or compensate for the long
and short-term economic, environmental, and natural resource benefits
that would be lost by the proposed activity, if the commission
determines that:
(1) the proposed activity is likely to produce an 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 prevent the adverse impact;
(3) the proposed activity will provide public benefit relative
to the adverse impact; and
(4) the proposed activity otherwise meets the standards for
permit issuance.
(B) The applicant shall submit a proposal for mitigation within
thirty days of the notification by the commission. If no proposal is
submitted, the application must be denied.
(C) The commission shall provide public notice of the mitigation
proposal under the same procedure as public notice of permit
applications. Agency and public comments on the proposal must be
submitted to the commission within forty-five days of this notice.
(D) If, after completing its review of the mitigation proposal and
all agency and public comments thereon, the commission determines
that the proposed mitigation measures are sufficient to compensate for
the adverse wetland impacts of the proposed activity, a permit may be
issued.
(E) The commission must not consider mitigation until after
making the determinations required in subsection (A) of this section.
Section 48-40-90. (A) The commission shall notify the applicant
of the permit decision and give written notice to all who commented on
the application and requested notification of the decision. If the permit
is denied, the commission shall state the reason or the denial. The
decision becomes final if no request for a contested hearing is filed
within fifteen days as provided in this section.
(B) An applicant whose permit is denied or conditionally issued,
or a person who is affected adversely by the permit, may demand a
contested case hearing on the commission decision pertaining to permit
issuance, denial, or issuance with terms and conditions by filing a Notice
of Demand for Contested Case Hearing with the commission within
fifteen days of notice of the permit decision.
(C) If a contested case hearing demand is filed, the hearing must
be conducted in accordance with the requirements of the South Carolina
Administrative Procedures Act. A hearing officer may be appointed to
preside over the appeal.
(D) The commission shall coordinate its appeals process with
appeals from the certification decisions of the Department of Health and
Environmental Control and Coastal Council. Where an application is
appealed at more than one state agency, the agencies shall consolidate
the appeals process and all agencies with certification or permitting
authority, or both, shall cooperate in the selection of one or more hearing
officers and in the conduct of the consolidated appeals. Notwithstanding
the consolidated hearings, each certification and permitting agency shall
render its own final decision in accordance with the law applicable to the
particular agency decision.
(E) An appeal stays the issuance of the permit pending the final
agency decision on the appeal.
(F) Judicial review is available to the parties after the final
decision of the commission.
Section 48-40-100. (A) The commission, using the above
procedures, may issue general or block permits for certain described
categories of work or substantially similar structures in a particular area,
if the work or structures are consistent with all goals and policies of this
chapter. General permits may not be issued for any activities which
involve the discharge of dredged or fill material or which would convert
a wetland to a nonwetland area. Once the general or block permit is
issued individual permits for those activities or structures are not
required; however, a person operating under a general or block permit
must report the authorized activity or structure to the commission before
its undertaking and provide all information required by the commission
regulations promulgated under this chapter.
(B) General permits are issued for the following activities,
provided that these general permits do not apply to any activity in a
regulated freshwater wetland which involves discharging dredged or fill
material or bringing an area of the wetland into a use to which it was not
subject previously:
(1) normal farming activities which are part of an established
and ongoing farming operation, including plowing, seeding, cultivating,
and harvesting;
(2) normal silviculture activities carried out for the purpose of
growing, harvesting, and regenerating forest stands which are part of an
established and ongoing silviculture operation and conducted in
accordance with Best Management Practices developed by the South
Carolina Forestry Commission with provisions pertaining to wetland
values and functions;
(3) activities associated with routine maintenance of existing
state-owned highways, roads, streets, and bridges or replacement of or
minor improvements to structurally deficient or functionally obsolete
structures located in freshwater wetlands where the improvements are
necessary to meet current design and safety standards. These activities
must be implemented under conditions and Best Management
Procedures as approved by the commission. Maintenance, replacement,
or minor improvement does not include adding extra lanes or increasing
the right-of-way within a freshwater wetland;
(4) duck blinds;
(5) normal maintenance and repair of a permitted structure or
a structure constructed before the effective date of this chapter that is
currently serviceable, intact, and has been maintained in good working
order since the date it was permitted or constructed if the normal
maintenance and repairs on these structures do not alter the dimensions
or change the purpose, scope, or use of the structure or adversely affect
the values and functions of the wetland. These structures include
impoundments and their associated water control structures.
Pursuant to regulations promulgated under this chapter, the
commission is authorized to place conditions upon the general permits
specifically authorized in this subsection to achieve the goals and carry
out the policies of this chapter.
(C) Parties contesting a general or block permit, except for the
permits authorized in subsection (B) of this section, may appeal the
permit either upon initial issuance or within thirty days of notice of an
activity for which permission is claimed under the general or block
permit.
Section 48-40-110. (A) A person violating a provision of this
chapter is guilty of a misdemeanor and, upon conviction for a first
offense, must be imprisoned not more than six months or fined not more
than five thousand dollars, or both, and for each subsequent offense,
must be imprisoned not more than one year or fined not more than ten
thousand dollars, or both.
(B) A person the commission determines is in violation of a
provision of this chapter is liable and may be assessed by the
commission for payment of damages to cover all injuries to the natural
resources in the public domain and all costs of investigation and
prosecution, or may be assessed a civil penalty of not less than one
hundred dollars nor more than one thousand dollars a day of violation,
or both.
(C) 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 compliance, 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 48-40-120. (A) No person is allowed to apply for a permit
for a regulated activity which the person has commenced already, until
the person has paid a fine equal to the costs to the commission and other
state agencies for investigation of the unpermitted activity.
(B) After-the-fact permit applications must be reviewed under the
same procedure as other applications.
(C) If work on the activity is incomplete at the time of the
application, all work must cease pending permit review unless the
commission determines that the public interest would be best served by
the applicant taking interim action as the commission determines
appropriate.
(D) All after-the-fact permits must be conditioned upon the
applicant's payment of or secured agreement to provide compensation
or mitigation for all damages to natural resources, or both.
Section 48-40-130. (A) A citizen may petition the commission
requesting that enforcement action be brought against a person alleged
to be in violation of this chapter or requesting that the commission take
other action as may be required by this chapter. Within thirty days of
receipt of the petition, the commission shall either deny the petition in
writing, stating its reasons for denial, or shall initiate the action
requested in the petition.
(B) A citizen may intervene in a civil enforcement proceeding or
action brought by the commission to enforce this chapter.
(C) If the commission denies a citizen's petition under subsection
(A) of this section, the citizen may commence a civil action on his or her
own behalf against:
(1) a person who is alleged to be in violation of a provision of
this chapter or in violation of a permit condition or order issued by the
commission; or
(2) the commission where there is an alleged failure of the
commission to perform any act or duty which is not discretionary with
the commission.
(D) No citizen may bring an action in circuit court without first
petitioning the commission as provided in subsection (A) of this section;
and no citizen action may be brought in circuit court if the commission
has commenced and is diligently prosecuting a civil or criminal action
to require compliance with this chapter, a permit condition, or an order.
(E) The circuit court has jurisdiction to enforce the provisions of
this chapter, to enforce permit conditions and orders issued by the
commission, to order the commission to perform an act or duty as may
be necessary, and to apply appropriate civil penalties authorized by this
chapter.
Section 48-40-150. (A) The commission has authority to apply
for and accept responsibility for management of the federal permitting
program under Section 404 of the Federal Clean Water Act.
(B) In the event of new federal legislation establishing a new
federal freshwater wetlands permitting program, the commission is
authorized to apply for and accept responsibility for management of the
program.
Section 48-40-160. The commission may promulgate regulations to
implement this chapter."
SECTION 3. This act takes effect upon approval by the Governor.
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