H 3883 Session 112 (1997-1998)
H 3883 General Bill, By Miller, Battle, Bowers, Breeland, G. Brown, J. Brown,
Cobb-Hunter, J.L.M. Cromer, Gourdine, Govan, Harvin, Inabinett, Kelley, Kennedy,
Lee, Littlejohn, Lloyd, Mack, Maddox, Martin, McCraw, McMahand, Moody-Lawrence,
V.T. Mullen, J.H. Neal, Neilson, Parks, Phillips, Pinckney, Rodgers, Scott,
Sheheen, F. Smith, J. Smith, Trotter, Whipper and Wilkes
Similar(S 469)
A BILL TO AMEND SECTION 1-30-45, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO THE AGENCIES TRANSFERRED TO THE SOUTH CAROLINA DEPARTMENT OF
HEALTH AND ENVIRONMENTAL CONTROL PURSUANT TO GOVERNMENT RESTRUCTURING; TO
AMEND SECTION 3-5-130, AS AMENDED, RELATING TO RESPONSIBILITIES OF THE COASTAL
DIVISION OF THE SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL.-SHORT TITLE
04/09/97 House Introduced and read first time HJ-47
04/09/97 House Referred to Committee on Judiciary HJ-48
A BILL
TO AMEND SECTION 1-30-45, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO THE AGENCIES
TRANSFERRED TO THE SOUTH CAROLINA DEPARTMENT
OF HEALTH AND ENVIRONMENTAL CONTROL PURSUANT
TO GOVERNMENT RESTRUCTURING; TO AMEND SECTION
3-5-130, AS AMENDED, RELATING TO RESPONSIBILITIES OF
THE COASTAL DIVISION OF THE SOUTH CAROLINA
DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL; TO AMEND SECTION 49-6-30, AS AMENDED,
RELATING TO THE AQUATIC PLANT MANAGEMENT
COUNCIL, ITS MEMBERSHIP, POWERS, AND DUTIES; TO
AMEND CHAPTER 39, TITLE 48, RELATING TO COASTAL
TIDELANDS AND WETLANDS; TO AMEND SECTION
48-55-10, AS AMENDED, RELATING TO THE SOUTH
CAROLINA ENVIRONMENTAL AWARENESS AWARD; TO
AMEND SECTION 50-17-390, AS AMENDED, RELATING TO
JURISDICTION OVER NATURAL SHELLFISH DEPOSITS, ALL
SO AS TO RECREATE THE SOUTH CAROLINA COASTAL
COUNCIL AND TO TRANSFER ALL POWERS AND DUTIES
FROM THE COASTAL DIVISION OF THE SOUTH CAROLINA
DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL TO THE SOUTH CAROLINA COASTAL COUNCIL;
AND PURSUANT TO CHAPTER 39, TITLE 48 TO REVISE THE
APPOINTMENT PROCESS FOR MEMBERS OF THE COASTAL
COUNCIL; TO CLARIFY ADVERTISEMENT PROCEDURES
FOR PERMIT PUBLIC NOTICE; TO REQUIRE PERMIT
APPLICANTS OF MARINA AND COMMERCIAL DOCK
FACILITIES TO DEMONSTRATE A NEED FOR THE
FACILITIES BEFORE THE APPLICATION IS CONSIDERED; TO
REVISE PERMIT CONSIDERATIONS AFFECTING SHELLFISH
AND MARINE LIFE AND WILDLIFE; AND TO REQUIRE THE
COUNCIL TO HOLD A PUBLIC HEARING ON A PERMIT
APPLICATION IF REQUESTED BY A MEMBER OF THE
GENERAL ASSEMBLY.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Section 1-30-45 of the 1976 Code, as added by Act
181 of 1993, is amended to read:
"Section 1-30-45. Effective on July 1, 1994, the following
agencies, boards, and commissions, including all of the allied,
advisory, affiliated, or related entities as well as the employees,
funds, property and all contractual rights and obligations associated
with any such agency, except for those subdivisions
specifically included under another department, are hereby
transferred to and incorporated in and shall be administered as part of
the Department of Health and Environmental Control and to
include a coastal division:
(A) Department of Health and Environmental Control, formerly
provided for at Section 44-1-10, et seq.;
(B) South Carolina Coastal Council, formerly provided
for at Section 48-39-10, et seq.;
(C)(B) State Land Resources Conservation
Commission regulatory division, formerly provided for at Section
48-9-10, et seq.;
(D)(C) Water Resources Commission regulatory
division, formerly provided for at Section 49-3-10, et seq."
SECTION 2. Section 3-5-130 of the 1976 Code, as last amended
by Act 181 of 1993, is further amended to read:
"Section 3-5-130. Staff of the Coastal Division
Council of the Department of Health and Environmental
Control shall make a determination of the amount of actual
damage."
SECTION 3. Chapter 39, Title 48 of the 1976 Code is amended to
read:
"CHAPTER 39
Coastal Tidelands and Wetlands
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 Coastal Council' or 'council' means
the South Carolina Coastal Division
Council of the South Carolina Department of Health and
Environmental Control.
(D) 'CDPS CCPS' means Coastal Division
Council 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 council 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 council 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 oceanfront sand dunes' means those dunes which
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.
Section 48-39-20. The General Assembly finds that:
(A) The coastal zone is rich in a variety of natural, commercial,
recreational and industrial resources of immediate and potential value
to the present and future well-being of the State.
(B) The increasing and competing demands upon the lands and
waters of our coastal zone occasioned by population growth and
economic development, including requirements for industry,
commerce, residential development, recreation, extraction of mineral
resources and fossil fuels, transportation and navigation, waste
disposal and harvesting of fish, shellfish, and other living
marine resources have resulted in the decline or loss of living marine
resources, wildlife, nutrient-rich areas, permanent and adverse
changes to ecological systems, decreasing open space for public use
and shoreline erosion.
(C) A variety of federal agencies presently operate land use
controls and permit systems in the coastal zone. South Carolina can
only regain control of the regulation of its critical areas by
developing its own management program. The key to accomplishing
this is to encourage the state and local governments to exercise their
full authority over the lands and waters in the coastal zone.
(D) The coastal zone and the fish, shellfish, other living marine
resources and wildlife therein, may be ecologically fragile and
consequently extremely vulnerable to destruction by man's
alterations.
(E) Important ecological, cultural, natural, geological and scenic
characteristics, industrial, economic and historical values in the
coastal zone are being irretrievably damaged or lost by ill-planned
development that threatens to destroy these values.
(F) In light of competing demands and the urgent need to protect
and to give high priority to natural systems in the coastal zone while
balancing economic interests, present state and local institutional
arrangements for planning and regulating land and water uses in
such these areas are inadequate.
Section 48-39-30. (A) The General Assembly declares the basic
state policy in the implementation of this chapter is to protect the
quality of the coastal environment and to promote the economic and
social improvement of the coastal zone and of all the people of the
State.
(B) Specific state policies to be followed in the implementation of
this chapter are:
(1) To promote economic and social improvement of the
citizens of this State and to encourage development of coastal
resources in order to achieve such improvement with due
consideration for the environment and within the framework of a
coastal planning program that is designed to protect the sensitive and
fragile areas from inappropriate development and provide adequate
environmental safeguards with respect to the construction of facilities
in the critical areas of the coastal zone;
(2) To protect and, where possible, to restore or enhance the
resources of the state's coastal zone for this and succeeding
generations;
(3) To formulate a comprehensive tidelands protection program;
(4) To formulate a comprehensive beach erosion and protection
policy including the protection of necessary sand dunes.
(5) To encourage and assist state agencies, counties,
municipalities and regional agencies to exercise their responsibilities
and powers in the coastal zone through the development and
implementation of comprehensive programs to achieve wise use of
coastal resources giving full consideration to ecological,
cultural, and historic values as well as to the needs for
economic and social development and resources conservation.
(C) In the implementation of the chapter, no government agency
shall adopt a rule or regulation or issue any order that is unduly
restrictive so as to constitute a taking of property without the
payment of just compensation in violation of the Constitution of this
State or of the United States.
(D) Critical areas shall be used to provide the combination of uses
which will insure ensure the maximum benefit to the
people, but not necessarily a combination of uses which will generate
measurable maximum dollar benefits. As such, the
The use of a critical area for one or a combination of like
uses to the exclusion of some or all other uses shall be consistent with
the purposes of this chapter.
(E) It shall be the policy of the State to coordinate the coastal
planning and management program effort with other coastal states
and organizations of coastal states.
Section 48-39-35. The Coastal Division of the Department of
Health and Environmental Control is created July 1, 1994.
Section 48-39-40. (A) On July 1, 1994, there
There is created the South Carolina Coastal
Zone Management Appellate Panel Council which
consists of fourteen members, which shall act as an advisory
council to the Department of Health and Environmental Control. The
members of the panel shall be constituted as follows: eight
members, one from each coastal zone county, to be elected by a
majority vote of the members of the House of Representatives and a
majority vote of the Senate members representing the county from
three nominees submitted by the governing body of each coastal zone
county, each House or Senate member to have one vote; six
members, one from each of the congressional districts of the State, to
be elected by a majority vote of the members of the House of
Representatives and a majority vote of the members of
the Senate representing the counties in that district, each House
or Senate member to have one vote. The panel
council shall elect a chairman, vice-chairman, and other
officers it considers necessary.
(B) Terms of all members are for four years and until successors
are appointed and qualify. Members from congressional districts
serve terms of two years only as determined by lot at the first meeting
of the panel. Vacancies must be filled in the original manner of
selection for the remainder of the unexpired term.
(C) On July 1, 1994, members of the South Carolina
Coastal Council, become members of the South Carolina Coastal
Zone Appellate Panel and continue to serve until their terms expire.
Upon the expiration of their terms, members must be selected as
provided within this section.
Section 48-39-50. The South Carolina Department of Health
and Environmental Control Coastal Council shall
have the following has these powers and duties:
(A) To employ the CDPS CCPS consisting of, but
not limited to, the following professional members: an administrator
and other staff members to include those having expertise in biology,
civil and hydrological engineering, planning, environmental
engineering, and environmental law.
(B) To apply for, accept and expend financial assistance from
public and private sources in support of activities undertaken
pursuant to this chapter and the Federal Coastal Zone Management
Act of 1972.
(C) To undertake the related programs necessary to develop and
recommend to the Governor and the General Assembly a
comprehensive program designed to promote the policies set forth in
this chapter.
(D) To hold public hearings and related community forums and
afford participation in the development of management programs to
all interested citizens, local governments and relevant state and
federal agencies, port authorities, and other interested
parties.
(E) To promulgate necessary rules and regulations to carry
out the provisions of this chapter.
(F) To administer the provisions of this chapter and all rules,
regulations, and orders promulgated under it.
(G) To examine, modify, approve, or deny applications
for permits for activities covered by the provisions of this chapter.
(H) To revoke and suspend permits of persons who fail or refuse
to carry out or comply with the terms and conditions of the permit.
(I) To enforce the provisions of this chapter and all rules
and regulations promulgated by the department
council and institute or cause to be instituted in courts of
competent jurisdiction of legal proceedings to compel compliance
with the provisions of this chapter.
(J) To manage estuarine and marine sanctuaries and regulate all
activities therein, including the regulation of the use of the coastal
waters located within the boundary of such the
sanctuary.
(K) To establish, control, and administer pipeline
corridors and locations of pipelines used for the transportation of any
fuel on or in the critical areas.
(L) To direct and coordinate the beach and coastal shore erosion
control activities among the various state and local governments.
(M) To implement the state policies declared by this chapter.
(N) To encourage and promote the cooperation and assistance of
state agencies, coastal regional councils of government, local
governments, federal agencies, and other interested parties.
(O) To exercise all incidental powers necessary to carry out the
provisions of this chapter.
(P) To coordinate the efforts of all public and private agencies and
organizations engaged in the making of tidal surveys of the coastal
zone of this State with the object of avoiding unnecessary duplication
and overlapping.
(Q) To serve as a coordinating state agency for any program of
tidal surveying conducted by the federal government.
(R) To develop and enforce uniform specifications and regulations
for tidal surveying.
(S) To monitor, in coordination with the South Carolina
Department of Natural Resources, the waters of the State for oil
spills. If such department the South Carolina
Department of Natural Resources observes an oil spill in
such these waters it shall immediately report
such the spill to the South Carolina Department
of Health and Environmental Control Coastal Council,
the United States Coast Guard, and Environmental
Protection Agency. This in no way negates the responsibility of the
spiller to report a spill.
(T) To direct, as the designated state agency to provide liaison to
the regional response team, pursuant to Section 1510.23 of the
National Contingency Plan, state supervised removal operations of
oil discharged into the waters within the territorial jurisdiction of this
State and entering such the waters after being
discharged elsewhere within the State, and to seek reimbursement
from the National Contingency Fund for removal operations cost
expended by it and all other agencies and political subdivisions
including county, municipal, and regional governmental
entities in removing such oil as provided for in Section
311(C)(2) of the Federal Water Pollution Control Act.
(U) To act as advocate, where the department deems such
council considers this action appropriate, on behalf of any
person who is granted a permit for a specific development by the
department council but is denied a permit by a
federal agency for the same specific development.
(V) To delegate any of its powers and duties to the CDPS
CCPS.
Section 48-39-60. When requested by the department
council, the South Carolina Department of Natural
Resources shall provide additional staff for the department
council, including any additional enforcement officers,
necessary to administer the provisions of this chapter and for which
funds are available.
Section 48-39-70. (A) All other state and local agencies and
commissions shall cooperate with the department
council in the administration of enforcement of this chapter.
All agencies currently exercising regulatory authority in the coastal
zone shall administer such authority in accordance with the
provisions of this chapter and rules and regulations
promulgated thereunder.
(B) The department council, in the discharge of its
duties may administer oaths and affirmations, take depositions and
issue subpoenas to compel the attendance of witnesses and the
production of books, papers, correspondence, memoranda,
and other records deemed necessary in connection with the work of
the department council. The only exception shall
be, that information considered proprietary by the applicant.
If in the opinion of the department council a proper
decision cannot be rendered without the submission of such
proprietary information, the department council
shall must be empowered to execute an agreement on
confidentiality with the applicant and such the
information shall not be made a part of the public record of current
or future proceedings.
(C) In case the contumacy by any person or refusal to obey a
subpoena issued to any person, any circuit court of this State or
circuit judge thereof within the jurisdiction of which such
the person guilty of contumacy or refusal to obey is found,
resides, or transacts business, upon application by the
department council, may issue to such
the person an order requiring him to appear before the
department council to produce evidence if so ordered
or give testimony touching the matter under investigation. Any
failure to obey an order of the court may be punished as a contempt
hereof. Subpoenas shall be issued in the name of the
department council and signed by the
department council director. Subpoenas shall be
issued to such persons as the department
council may designate.
Section 48-39-80. The department council shall
develop a comprehensive coastal management program, and
thereafter have the responsibility for enforcing and administering the
program in accordance with the provisions of this chapter and any
rules and regulations promulgated under this chapter. In
developing the program the department council shall:
(A) Provide a regulatory system which the department
council shall use in providing for the orderly and beneficial
use of the critical areas.
(B) In devising the management program the department
council shall consider all lands and waters in the coastal
zone for planning purposes. In addition, the department
council shall:
(1) Identify present land uses and coastal resources.
(2) Evaluate these resources in terms of their quality,
quantity, and capability for use both now and in the future.
(3) Determine the present and potential uses and the present and
potential conflicts in uses of each coastal resource.
(4) Inventory and designate areas of critical state concern within
the coastal zone, such as including port areas,
significant natural and environmental, industrial, and
recreational areas.
(5) Establish broad guidelines on priority of uses in critical
areas.
(6) Provide for adequate consideration of the local, regional,
state and national interest involved in the siting of facilities for the
development, generation, transmission and distribution of energy,
adequate transportation facilities, and other public services
necessary to meet requirements which are other than local in nature.
(7) Provide for consideration of whether a proposed activity of
an applicant for a federal license or permit complies with the state's
coastal zone program and for the issuance of notice to any concerned
federal agency as to whether the State concurs with or objects to the
proposed activity.
(8) Provide for a review process of the management plan and
alterations thereof that involves local, regional, state,
and federal agencies.
(9) Conduct other studies and surveys as may be required,
including the beach erosion control policy as outlined in this chapter.
(10) Devise a method by which the permitting process shall be
streamlined and simplified so as to avoid duplication.
(11) Develop a system whereby the department
council shall have the authority to review all state and
federal permit applications in the coastal zone, and to certify that
these do not contravene the management plan.
(C) Provide for a review process of the management program and
alterations that involve interested citizens as well as local, regional,
state, and federal agencies.
(D) Consider the planning and review of existing water quality
standards and classifications in the coastal zone.
(E) Provide consideration for nature-related uses of critical areas,
such as aquaculture, mariculture, waterfowl and wading bird
management, game and nongame habitat protection projects,
and endangered flora and fauna.
Section 48-39-85. (A) In order to promote safe and clean
litter-free beaches, the department council shall
develop a program to be known as 'Adopt-A-Beach', whereby an
industry or a private civic organization may adopt one mile, or other
feasible distance, of South Carolina beach for the sole purpose of
controlling litter along that section of beach.
(B) Included in the responsibilities of any industry or private civic
organization which chooses to participate in the program shall be the
following:
(1) development of a functional plan to influence and encourage
the public to improve the appearance of the adopted section of beach;
(2) a general cleanup of the area at least twice a year; and
(3) assistance to the department council in
securing media coverage for the program.
Section 48-39-90. (A) The department council,
on thirty days' notice, shall hold statewide public hearings on the
proposed coastal zone management plan to obtain the views of all
interested parties, particularly all interested citizens, agencies, local
governments, regional organizations and port authorities.
(B) All department council documents associated
with such these hearings shall be conveniently
available to the public for review and study at least thirty days prior
to a hearing. A report on each hearing shall be prepared and made
available to the public within forty-five days of such
the hearing.
(C) After sufficient hearings and upon consideration of the views
of interested parties the department council shall
propose a final management plan for the coastal zone to the Governor
and the General Assembly.
(D) Upon review and approval of the proposed management plan
by the Governor and General Assembly, the proposed plan shall
become the final management plan for the state's coastal zone.
(E) Any change in or amendment to the final management plan
shall be implemented by following the procedures established in
subsections (A), (B), (C) and (D) of this section and upon the review
and approval of the Governor and the General Assembly.
Section 48-39-100. (A) The management program specified in
Section 48-39-90 shall be developed in complete cooperation with
affected local governments in the coastal zone. This cooperation
shall include, but not be limited to:
(1) Involvement of local governments or their designees in the
management program.
(2) Provision of technical assistance and grants to aid local
governments in carrying out their responsibilities under this chapter.
(3) Dissemination of improved informational data on coastal
resources to local and regional governmental units.
(4) Recommendations to local and regional governmental units
as to needed modifications or alterations in local ordinances that
become apparent as a result of the generation of improved and more
comprehensive information.
(B) Any city or county that is currently enforcing a zoning
ordinance, subdivision regulation or building code, a part of which
applies to critical areas, shall submit the elements of such
these ordinances and regulations applying to critical areas to
the department council for review. The
department council shall evaluate such
these ordinances and plans to determine that they meet the
provisions of this chapter and rules and regulations
promulgated hereunder under this chapter. Upon
determination and approval by the department
council, such these ordinances and
regulations shall be adopted by the department
council, followed by the department council
in meeting its permit responsibilities under this chapter and integrated
into the Department's council's Coastal Management
Program. Any change or modification in the elements of approved
zoning ordinances, subdivision regulations, or building
codes applying to critical areas shall be disapproved by the
department council if it is not in compliance with the
provisions of this chapter and rules and regulations
promulgated hereunder under this chapter.
(C) Any city or county that is not currently enforcing ordinances
or regulations on the critical areas within its jurisdiction at its option
may elect to develop a management program for such
these critical areas by notifying the department
council of its intent within one hundred and eighty days
following the twenty-fourth day of May, 1977. Such
These proposed ordinances and regulations applying to
critical areas shall be subject to the process specified in Section
48-39-100(B).
(D) Any county or city may delegate some or all of its
responsibilities in developing a coastal management program for
critical areas under its jurisdiction to the regional council of
government of which it is a part, provided the county or city has
notified the department council in writing at least
thirty days prior to the date on which such the action
is to be taken.
Section 48-39-110. The South Carolina State Ports Authority
shall prepare and submit to the department council
a management plan for port and harbor facilities and navigation
channels. Upon approval by the department council
of such the management plan it shall become part of the
comprehensive coastal management program developed by the
department council. The South Carolina State Ports
Authority shall include in the management plan a designation of the
geographical area appropriate for use by public and private port and
harbor facilities and military and naval facilities and submit this to
the department council for approval.
Section 48-39-120. (A) The department council
shall develop and institute a comprehensive beach erosion control
policy that identifies critical erosion areas, evaluates the benefits and
costs of erosion control structures funded by the State, considers the
dynamic littoral and offshore drift systems, sand dunes, and
like items.
(B) The department council for and on behalf of
the State may issue permits for erosion control structures following
the provisions of this section and Sections 48-39-140 and 48-39-150,
on or upon the tidelands and coastal waters of this State as it may
deem most advantageous. Provided, however, that no property
rebuilt or accreted as a result of natural forces or as a result of a
permitted structure shall exceed the original property line or
boundary. Provided, further, that no person or governmental agency
may develop oceanfront property accreted by natural forces or as the
result of permitted or nonpermitted structures beyond the mean
high-water mark as it existed at the time the oceanfront property was
initially developed or subdivided, and such the
property shall remain the property of the State held in trust for the
people of the State.
(C) The department council shall have the
authority to remove all erosion control structures which have an
adverse effect on the public interest.
(D) The department council is authorized for and
in behalf of the State to accept such federal monies for
beach or shore erosion control in areas to which the public has full
and complete access as are available and to sign all necessary
agreements and to do and perform all necessary acts in connection
therewith to effectuate the intent and purposes of such federal
aid.
(E) If a beach or shore erosion emergency is declared by the
department council, the State, acting through the
department council, may spend whatever state funds
are available to alleviate beach or shore erosion in areas to which the
public has full and complete access, including any funds which may
be specifically set aside for such these purposes.
(F) The department council, for and on behalf of
the State, may issue permits not otherwise provided by state law, for
erosion and water drainage structure in or upon the tidelands,
submerged lands and waters of this State below the mean high-water
mark as it may deem most advantageous to the State for the purpose
of promoting the public health, safety and welfare, the protection of
public and private property from beach and shore
destruction, and the continued use of tidelands, submerged
lands, and waters for public purposes.
Section 48-39-130. (A) Ninety days after July 1, 1977, no person
shall utilize a critical area for a use other than the use the critical area
was devoted to on such this date unless he has first
obtained a permit from the department council.
(B) Within sixty days of July 1, 1977, the department
council shall publish and make available the interim rules
and regulations it will follow in evaluating permit applications.
These interim rules and regulations shall be used in evaluating and
granting or denying all permit applications until such
the time as the final rules and regulations are adopted in
accordance with this section and Chapter 23 of Title 1. Within one
hundred and twenty days of July 1, 1977, the
department council shall publish and make available
to local and regional governments and interested citizens for review
and comment a draft of the final rules and regulations it will follow
in evaluating permit applications. Sixty days after making
such these guidelines available the
department council shall hold a public hearing
affording all interested persons an opportunity to comment on
such these guidelines. Following the public hearing
the department council, pursuant to the
Administrative Procedures Act, shall in ninety days publish final
rules and regulations. Provided, however, the interim rules and
regulations shall not be subject to the provisions of Chapter 23 of
Title 1.
(C) Ninety days after July 1, 1977, no person shall fill,
remove, dredge, drain or erect any structure on, or in any
way alter any critical area without first obtaining a permit from the
department council. Provided, however, that a
person who has legally commenced a use such as those
evidenced by a state permit, as issued by the Budget and Control
Board, or a project loan approved by the rural electrification
administration or a local building permit or has received a United
States Corps of Engineers or Coast Guard permit, where applicable,
may continue such this use without obtaining a
permit. Any person may request the department
council to review any project or activity to determine if he
is exempt under this section from the provisions of this chapter. The
department council shall make such
determinations within forty-five days from the receipt of any
such request.
(D) It shall not be necessary to apply for a permit for the following
activities:
(1) The accomplishment of emergency orders of an appointed
official of a county or municipality or of the State, acting to protect
the public health and safety, upon notification to the
department council. However, with regard to the
beach/dune critical area, only the use of sandbags, sandscraping, or
renourishment, or a combination of them, in accordance with
guidelines provided by the department council is
allowed pursuant to this item.
(2) Hunting, erecting duckblinds, fishing, shellfishing,
and trapping when and where otherwise permitted by law; the
conservation, repletion, and research activities of state
agencies and educational institutions or boating or other recreation
provided that such these activities cause no material
harm to the flora, fauna, physical, or aesthetic resources of
the area.
(3) The discharge of treated effluent as permitted by law;
provided, however, that the department council shall
have the authority to review and comment on all proposed permits
that would affect critical areas.
(4) Dredge and fill performed by the United States Corps of
Engineers for the maintenance of the harbor channels and the
collection and disposal of the materials so dredged; provided,
however, that the department council shall have
authority to review and certify all such proposed dredge and
fill activities.
(5) Construction of walkways over sand dunes in accordance
with regulations promulgated by the department
council.
(6) Emergency repairs to an existing bank, dike, fishing pier, or
structure, other than oceanfront erosion control structures or devices,
which has have been erected in accordance with
federal and state laws or provided for by general law or acts passed
by the General Assembly, if notice is given in writing to the
department council within seventy-two hours from
the onset of the needed repairs.
(7) Maintenance and repair of drainage and sewer facilities
constructed in accordance with federal or state laws and normal
maintenance and repair of any utility or railroad.
(8) Normal maintenance or repair to any pier or walkway
provided that such the maintenance or repair not
involve dredge or fill.
(9) Construction or maintenance of a major utility facility where
the utility has obtained a certificate for such the
facility under 'The Utility Facility Siting and Environmental
Protection Act', Chapter 33 of Title 58 of the 1976 Code. Provided,
however, that the South Carolina Public Service Commission shall
make the department council a party to certification
proceedings for utility facilities within the coastal zone.
Section 48-39-140. (A) Any person who wishes may submit
development plans to the department council for
preliminary review. If a permit is necessary, the department
council will make every effort to assist the applicant in
expediting the permit application.
(B) Each application for a permit shall be filed with the
department council and shall include:
(1) Name and address of the applicant.
(2) A plan or drawing showing the applicant's proposal and the
manner or method by which the proposal shall be accomplished.
(3) A plat of the area in which the proposed work will take
place.
(4) A copy of the deed, lease or other instrument under which
the applicant claims title, possession or permission from the owner of
the property, to carry out the proposal.
(5) A list of all adjoining landowners and their addresses or a
sworn affidavit that with due diligence such this
information is not ascertainable.
(C) The department council within thirty days of
receipt of an application for a permit shall notify, in writing,
interested agencies, all adjoining landowners, local government units
in which the land is located and other interested persons of the
application and shall indicate the nature of the applicant's proposal.
Public notice shall be given at least once by advertisement in state
and local newspapers of greatest general circulation in the
area concerned. The department council may hold
a public hearing on applications which have any effect on a critical
area if it deems a hearing necessary. The public hearing shall be held
in the county where the land is located and if in more than one county
the department council shall determine in which
county to hold the hearing or may hold hearings in both counties.
Provided, all interested agencies, all adjoining landowners, local
government units and other interested persons shall have thirty days
to file a written comment to such the application
after receipt of any such notice by the department
council.
Section 48-39-145. (A) The department council
may charge an administrative fee upon application for a permit for
alteration of a critical area as defined in Section 48-39-10.
Applications for permits which are noncommercial/nonindustrial in
nature and provide personal benefits that have no connection with a
commercial/industrial enterprise must be charged an administrative
fee not to exceed fifty-one dollars. A reasonable fee, determined by
the department council, must be charged for permit
applications when the planned or ultimate purpose of the activity is
commercial or industrial in nature.
(B) Permit applicants for construction of marina and commercial
dock facilities pursuant to this section are not required to
demonstrate a need for the facilities before consideration of the
application.
Section 48-39-150. (A) In determining whether a permit
application is approved or denied the department
council shall base its determination on the individual merits
of each application, the policies specified in Sections 48-39-20 and
48-39-30 and be guided by the following general considerations:
(1) The extent to which the activity requires a waterfront
location or is economically enhanced by its proximity to the water.
(2) The extent to which the activity would harmfully obstruct
the natural flow of navigable water. If the proposed project is in one
or more of the state's harbors or in a waterway used for commercial
navigation and shipping or in an area set aside for port development
in an approved management plan, then a certificate from the South
Carolina State Ports Authority declaring the proposed project or
activity would not unreasonably interfere with commercial navigation
and shipping must be obtained by the department
council prior to issuing a permit.
(3) The extent to which the applicant's completed project or
activity would affect the production of fish, shrimp, oysters,
crabs, or clams or any marine life or wildlife, or
other natural resources in a particular area including, but not
limited to, water, and oxygen supply,
and noise.
(4) The extent to which the activity could cause erosion,
shoaling of channels, or creation of stagnant water.
(5) The extent to which the development could affect existing
public access to tidal and submerged lands, navigable waters and
beaches, or other recreational coastal resources.
(6) The extent to which the development could affect the
habitats for rare and endangered species of wildlife or irreplaceable
historic and archeological sites of South Carolina's coastal zone.
(7) The extent of the economic benefits as compared with the
benefits from preservation of an area in its unaltered state.
(8) The extent of any adverse environmental impact which
cannot be avoided by reasonable safeguards.
(9) The extent to which all feasible safeguards are taken to
avoid adverse environmental impact resulting from a project.
(10) The extent to which the proposed use could affect the value
and enjoyment of adjacent owners.
(B) After considering the views of interested agencies, local
governments and persons, and after evaluation of biological and
economic considerations, if the department council
finds that the application is not contrary to the policies specified in
this chapter, it shall issue to the applicant a permit. The permit may
be conditioned upon the applicant's amending the proposal to take
whatever measures the department council feels are
necessary to protect the public interest. At the request of twenty
citizens or residents of the county or counties affected or a
member of the General Assembly representing the county or counties
affected, the department council shall hold a
public hearing on any application which has an effect on a critical
area, prior to issuing a permit. Such The
public hearings shall be open to all citizens of the State. When
applicable, joint public hearings will be held in conjunction with any
such hearings required by the U. S. Army Corps of Engineers.
On any permit application pertaining to a specific development which
has been approved by the department council, the
department council may support the applicant with
respect to any federal permit applications pertaining to the same
specific development.
(C) The department council shall act upon an
application for a permit within ninety days after the application is
filed. Provided, however, that in the case of minor developments, as
defined in Section 48-39-10, the department council
shall have the authority to approve such these
permits and shall act within thirty days. In the event a permit is
denied the department council shall state the reasons
for such denial and such the reasons must be
in accordance with the provisions of this chapter.
(D) Any applicant having a permit denied or any person adversely
affected by the granting of the permit has the right of direct appeal
from the decision of the administrative law judge to the Coastal
Zone Management Appellate Panel Council. Any
applicant having a permit denied may challenge the validity of any
or all reasons given for denial.
(E) Any permit may be revoked for noncompliance with or
violation of its terms after written notice of intention to do so has
been given the holder and the holder given an opportunity to present
an explanation to the department council.
(F) Work authorized by permits issued under this chapter must be
completed within five years after the date of issuance. The time limit
may be extended for good cause showing that due diligence toward
completion of the work has been made as evidenced by significant
work progress. An extension only may be granted if the permitted
project meets the policies and regulations in force when the extension
is requested or the permittee agrees to accept additional conditions
which would bring the project into compliance. The time periods
required by this subsection must be tolled during the pendency of an
administrative or a judicial appeal of the permit issuance.
Section 48-39-160. The circuit court of the county in which the
affected critical area or any part thereof lies shall have jurisdiction to
restrain a violation of this chapter at the suit of the department
council, the Attorney General or any person adversely
affected. In the event the affected critical area lies in more than one
county, jurisdiction shall be in the circuit court of any county in
which any part of the area lies. In the same action the circuit court
having jurisdiction over the affected area may require such
the area to be restored to its original condition, if possible,
and environmentally desirable. In the alternative, the
department council may complete the restoration at
the expense of the person altering the area in which case suit for
recovery of the amount so expended may be brought in any court
having jurisdiction to restrain a violation. No bond shall be required
as a condition of the granting of a temporary restraining order under
this section, except that the court may in its discretion require that a
reasonable bond be posted by any person requesting the court to
restrain a violation of this chapter.
Section 48-39-170. (A) Any person violating any provision of
this chapter is guilty of a misdemeanor and, upon conviction, must be
imprisoned not more than six months or fined not more than five
thousand dollars, or both, for the first offense, and imprisoned not
more than one year, or fined not more than ten thousand dollars, or
both, for each subsequent offense.
(B) Any violation of any provision of this chapter involving five
yards square (225 square feet) or less of critical area may be treated
as a minor violation, the penalty for which shall be a fine of not less
than fifty dollars nor more than two hundred dollars. The
enforcement officers of the Natural Resources Enforcement Division
of the South Carolina Department of Natural Resources may serve
warrants under this provision and otherwise enforce this chapter. The
magistrates of this State have jurisdiction over minor violations of
this chapter. Each day of noncompliance with any order issued
relative to a minor violation or noncompliance with any permit,
regulation, standard, or requirement relative to a minor violation shall
constitute a separate offense; provided, however, that violations
which involve the construction or repair of water control structures
shall not be considered minor violations regardless of the area
involved.
(C) Any person who is determined to be in violation of any
provision of this chapter by the department council
shall be liable for, and may be assessed by the department
council for, a civil penalty of not less than one hundred
dollars nor more than one thousand dollars per day of violation.
Whenever the department council determines that
any person is in violation of any permit, regulation, standard, or
requirement under this chapter, the department
council may issue an order requiring such
the person to comply with such the permit,
regulation, standard, or requirement, including an order requiring
restoration when deemed environmentally appropriate by the
department council; in addition, the
department council may bring a civil enforcement
action under this section as well as seeking an appropriate injunctive
relief under Section 48-39-160.
(D) All penalties assessed and collected pursuant to this section
shall be deposited in the general fund of the State.
Section 48-139-180. Any applicant whose permit application has
been finally denied, revoked, suspended, or approved subject
to conditions of the department by the Coastal Zone
Management Appellate Panel Council, or any person
adversely affected by the permit, may, within twenty days after
receiving notice thereof, file petition in the circuit court having
jurisdiction over the affected land for a review of the
department's council's action 'de novo' or to
determine whether the department's council's action
so restricts or otherwise affects the use of the property as to deprive
the owner of its existing practical use and is an unreasonable exercise
of the state's police power because the action constitutes the
equivalent of taking without compensation. If the court finds the
action to be an unreasonable exercise of the police power it shall
enter a finding that the action shall not apply to the land of the
plaintiff, or in the alternative, that the department
council shall pay reasonable compensation for the loss of use
of the land. The use allowed by any permit issued under this chapter
may, in the discretion of the court, be stayed pending decision on all
appeals that may be taken. The circuit court may in its discretion
require that a reasonable bond be posted by any person. It is
specifically intended that any person whose permit application has
been denied may have such the permit issued by the
circuit court having jurisdiction if such the person
can prove the reasons given for denial to be invalid.
Section 48-39-190. Nothing in this chapter shall affect the status
of the title of the State or any person to any land below the mean
highwater high-water mark. The State shall in no
way be liable for any damages as a result of the erection of permitted
works.
Section 48-39-210. (A) The department council
is the only state agency with authority to permit or deny any
alteration or utilization within the critical area except for the
exemptions granted under Section 48-39-130(D) and the application
for a permit must be acted upon within the time prescribed by this
chapter.
(B) A critical area delineation for coastal waters or tidelands
established by the department council is valid only
if the line is depicted on a survey performed by a professional
surveyor, the line is reviewed by department council,
department the council validates the location of the
boundaries of the coastal waters or tidelands critical area on the
survey by affixing a stamp and date to the survey, and the survey
contains clearly on its face in bold type the following statement:
'The area shown on this plat is a general representation of Coastal
Council permit authority on the subject property. Critical areas by
their nature are dynamic and subject to change over time. By
generally delineating the permit authority of the Coastal Council, the
Coastal Council in no way waives its right to assert permit
jurisdiction at any time in any critical area on the subject property,
whether shown hereon or not.'
(C) Notwithstanding any other provision of this chapter, a critical
area line established pursuant to subsection (B) that affects
subdivided residential lots expires after three years from the
department date on the survey described in subsection (B).
For purposes of this section only, a critical area delineation existing
on the effective date of this act is valid until December 31, 1993.
(D) Exceptions to subsection (C) are eroding coastal stream banks
where it can be expected that the line will move due to the
meandering of the stream before the expiration of the three-year time
limit and where manmade alterations change the critical area line.
Section 48-39-220. (A) Any person claiming an interest in
tidelands which, for the purpose of this section, means all lands
except beaches in the coastal zone between the mean high-water mark
and the mean low-water mark of navigable waters without regard to
the degree of salinity of such the waters, may
institute an action against the State of South Carolina for the purpose
of determining the existence of any right, title or interest of
such a person in and to such the
tidelands as against the State. Service of process shall be made upon
the secretary of the State Budget and Control Board.
(B) Any party may demand a trial by jury in any such
action by serving upon the other party(s) a demand therefor in writing
at any time after the commencement of the action and not later than
ten (10) days after the service of the last pleading directed to
such the issue. Such A demand may
be endorsed upon a pleading of the party.
(C) Nothing contained in this chapter shall be construed to change
the law of this State as it exists on July 1, 1977, relative to the right,
title, or interest in and to such the tidelands, except
as set forth in this section.
(D) The Attorney General shall immediately notify the
department council upon receipt of any private suit
made under this section, his response to that suit, and the final
disposition of the suit. The department will council
shall publish all such notifications in the State Register.
Section 48-39-250. The General Assembly finds that:
(1) The beach/dune system along the coast of South Carolina is
extremely important to the people of this State and serves the
following functions:
(a) protects life and property by serving as a storm barrier
which dissipates wave energy and contributes to shoreline stability
in an economical and effective manner;
(b) provides the basis for a tourism industry that generates
approximately two-thirds of South Carolina's annual tourism industry
revenue which constitutes a significant portion of the state's
economy. The tourists who come to the South Carolina coast to
enjoy the ocean and dry sand beach contribute significantly to state
and local tax revenues;
(c) provides habitat for numerous species of plants and
animals, several of which are threatened or endangered. Waters
adjacent to the beach/dune system also provide habitat for many other
marine species;
(d) provides a natural healthy environment for the citizens of
South Carolina to spend leisure time which serves their physical and
mental well-being.
(2) Beach/dune system vegetation is unique and extremely
important to the vitality and preservation of the system.
(3) Many miles of South Carolina's beaches have been
identified as critically eroding.
(4) Chapter 39 of Title 48, Coastal Tidelands and Wetlands,
prior to 1988, did not provide adequate jurisdiction to the South
Carolina Coastal Council to enable it to effectively protect the
integrity of the beach/dune system.
Consequently, without adequate controls, development unwisely
has been sited too close to the system. This type of development has
jeopardized the stability of the beach/dune system, accelerated
erosion, and endangered adjacent property. It is in both the public
and private interests to protect the system from this unwise
development.
(5) The use of armoring in the form of hard erosion control
devices such as seawalls, bulkheads, and rip-rap to protect
erosion-threatened structures adjacent to the beach has not proven
effective. These armoring devices have given a false sense of security
to beachfront property owners. In reality, these hard structures, in
many instances, have increased the vulnerability of beachfront
property to damage from wind and waves while contributing to the
deterioration and loss of the dry sand beach which is so important to
the tourism industry.
(6) Erosion is a natural process which becomes a significant
problem for man only when structures are erected in close proximity
to the beach/dune system. It is in both the public and private interests
to afford the beach/dune system space to accrete and erode in its
natural cycle. This space can be provided only by discouraging new
construction in close proximity to the beach/dune system and
encouraging those who have erected structures too close to the
system to retreat from it.
(7) Inlet and harbor management practices, including the
construction of jetties which have not been designed to accommodate
the longshore transport of sand, may deprive downdrift beach/dune
systems of their natural sand supply. Dredging practices which
include disposal of beach quality sand at sea also may deprive the
beach/dune system of much needed sand.
(8) It is in the state's best interest to protect and to promote
increased public access to South Carolina's beaches for out-of-state
tourists and South Carolina residents alike.
(9) Present funding for the protection, management, and
enhancement of the beach/dune system is inadequate.
(10) There is no coordinated state policy for post-storm
emergency management of the beach/dune system.
(11) A long-range comprehensive beach management plan is
needed for the entire coast of South Carolina to protect and manage
effectively the beach/dune system, thus preventing unwise
development and minimizing man's adverse impact on the system.
Section 48-39-260. In recognition of its stewardship
responsibilities, the policy of South Carolina is to:
(1) protect, preserve, restore, and enhance the beach/dune
system, the highest and best uses of which are declared to provide:
(a) protection of life and property by acting as a buffer from
high tides, storm surge, hurricanes, and normal erosion;
(b) a source for the preservation of dry sand beaches which
provide recreation and a major source of state and local business
revenue;
(c) an environment which harbors natural beauty and
enhances the well-being of the citizens of this State and its visitors;
(d) natural habitat for indigenous flora and fauna including
endangered species;
(2) create a comprehensive, long-range beach management plan
and require local comprehensive beach management plans for the
protection, preservation, restoration, and enhancement of the
beach/dune system. These plans must promote wise use of the state's
beachfront to include a gradual retreat from the system over a
forty-year period;
(3) severely restrict the use of hard erosion control devices to
armor the beach/dune system and to encourage the replacement of
hard erosion control devices with soft technologies as approved by
the department council which will provide for the
protection of the shoreline without long-term adverse effects;
(4) encourage the use of erosion-inhibiting techniques which do
not adversely impact the long-term well-being of the beach/dune
system;
(5) promote carefully planned nourishment as a means of beach
preservation and restoration where economically feasible;
(6) preserve existing public access and promote the
enhancement of public access to assure full enjoyment of the beach
by all our citizens including the handicapped and encourage the
purchase of lands adjacent to the Atlantic Ocean to enhance public
access;
(7) involve local governments in long-range comprehensive
planning and management of the beach/dune system in which they
have a vested interest;
(8) establish procedures and guidelines for the emergency
management of the beach/dune system following a significant storm
event.
Section 48-39-270. As used in this chapter:
(1) Erosion control structures or devices include:
(a) seawall: a special type of retaining wall that is designed
specifically to withstand normal wave forces;
(b) bulkhead: a retaining wall designed to retain fill material
but not to withstand wave forces on an exposed shoreline;
(c) revetment: a sloping structure built along an escarpment
or in front of a bulkhead to protect the shoreline or bulkhead from
erosion.
(2) Habitable structure means a structure suitable for human
habitation including, but not limited to, single or multifamily
residences, hotels, condominium buildings, and buildings for
commercial purposes. Each building of a condominium regime is
considered a separate habitable structure but, if a building is divided
into apartments, then the entire building, not the individual
apartment, is considered a single habitable structure. Additionally,
a habitable structure includes porches, gazebos, and other attached
improvements.
(3) Department Council means the
Department of Health and Environmental Control South
Carolina Coastal Council.
(4) Beach nourishment means the artificial establishment and
periodic renourishment of a beach with sand that is compatible with
the existing beach in a way so as to create a dry sand beach at all
stages of the tide.
(5) The beach/dune system includes all land from the mean
high-water mark of the Atlantic Ocean landward to the setback line
described in Section 48-39-280.
(6) A standard erosion zone is a segment of shoreline which is
subject to essentially the same set of coastal processes, has a fairly
constant range of profiles and sediment characteristics, and is not
influenced directly by tidal inlets or associated inlet shoals.
(7) An inlet erosion zone is a segment of shoreline along or
adjacent to tidal inlets which is influenced directly by the inlet and its
associated shoals.
(8) Master plan means a document or a map prepared by a
developer or a city as a policy guide to decisions about the physical
development of the project or community.
(9) Planned development means a development plan which has
received local approval for a specified number of dwelling and other
units. The siting and size of structures and amenities are specified or
restricted within the approval. This term specifically references
multifamily or commercial projects not otherwise referenced by the
terms, master plan, or planned unit development.
(10) Planned unit development means a residential, commercial,
or industrial development, or all three, designed as a unit and
approved by local government.
(11) Destroyed beyond repair means that more than sixty-six and
two-thirds percent of the replacement value of the habitable structure
or pool has been destroyed. If the owner disagrees with the appraisal
of the department council, he may obtain an
appraisal to evaluate the damage to the building or pool. If the
appraisals differ, then the two appraisers must select a third appraiser.
If the two appraisers are unable to select a third appraiser, the clerk
of court of the county where the structure lies must make the
selection. Nothing in this section prevents a court of competent
jurisdiction from reviewing, de novo, the appraisal upon the petition
of the property owner.
(12) Pool is a structure designed and used for swimming and
wading.
(13) Active beach is that area seaward of the escarpment or the
first line of stable natural vegetation, whichever first occurs,
measured from the ocean.
Section 48-39-280. (A) A forty-year policy of retreat from the
shoreline is established. The department council
must implement this policy and must utilize the best available
scientific and historical data in the implementation. The
department council must establish a baseline which
parallels the shoreline for each standard erosion zone and each inlet
erosion zone.
(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 council using the best
scientific and historical data, as where the crest of the primary
oceanfront sand dunes 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 council 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 council, 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 of that
erosion zone is the baseline of that zone, not the location if the inlet
had remained unstabilized.
(4) Notwithstanding any other provision of this section, where
a department-approved council-approved beach
nourishment project has been completed, the local government or the
landowners, with notice to the local government, may petition an
administrative law judge to move the baseline as far seaward as the
landward edge of the erosion control structure or device or, if there
is no existing erosion control structure or device, then as far seaward
as the post project baseline as determined by the department
council in accordance with Section 48-39-280(A)(1) by
showing that the beach has been stabilized by
department-approved council-approved beach
nourishment. If the petitioner is asking that the baseline be moved
seaward pursuant to this section, he must show an ongoing
commitment to renourishment which will stabilize and maintain the
dry sand beach at all stages of the tide for the foreseeable future. If
the administrative law judge grants the petition to move the baseline
seaward pursuant to this section, no new construction may occur in
the area between the former baseline and the new baseline for three
years after the initial beach nourishment project has been completed
as determined by the department council. If the
beach nourishment fails to stabilize the beach after a reasonable
period of time, the department council must move
the baseline landward to the primary oceanfront sand dune as
determined pursuant to items (1), (2), and (3) for that section of the
beach. Any appeal of an administrative law judge's decision under
this section may be made to the Coastal Zone Management
Appellate Panel Council.
(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
council as a part of the State Comprehensive Beach
Management Plan.
(C) The department council, 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. After that revision, the baseline and setback
line must be revised not less than every eight years but not more than
every ten years after each preceding revision. In the establishment
and revision of the baseline and setback line, the department
council 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 council must hold one public hearing
before establishing the final baseline and setback lines. Until the
department council establishes new baselines and
setback lines, the existing baselines and setback lines must be used.
The department council 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) In order to locate the baseline and the setback line, the
department council must establish monumented and
controlled survey points in each county fronting the Atlantic Ocean.
The department council must acquire sufficient
surveyed topographical information on which to locate the baseline.
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 council, may be
more frequent. The resulting surveys must locate the crest of the
primary oceanfront sand dunes to be used as the baseline for
computing the forty-year erosion rate. In cases where no primary
oceanfront sand dunes exist, a study conducted by the
department council 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. The
department council, 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) A landowner claiming ownership of property affected who
feels that the final or revised setback line, baseline, or erosion rate as
adopted is in error, upon submittal of substantiating evidence, must
be granted a review of the setback line, baseline, or erosion rate, or
a review of all three. The requests must be forwarded to the Coastal
Zone Management Appellate Panel Council and
handled in accordance with the department's
council's regulations on appeals.
Section 48-39-290. (A) No new construction or reconstruction
is allowed seaward of the baseline except:
(1) wooden walkways no larger in width than six feet;
(2) small wooden decks no larger than one hundred forty-four
square feet;
(3) fishing piers which are open to the public. Those fishing
piers with their associated structures including, but not limited to,
baitshops, restrooms, restaurants, and arcades which existed
September 21, 1989 may be rebuilt if they are constructed to the same
dimensions and utilized for the same purposes and remain open to the
public. In addition, those fishing piers with their associated
structures which existed on September 21, 1989, that were privately
owned, privately maintained, and not open to the public on this date
also may be rebuilt and used for the same purposes if they are
constructed to the same dimensions;
(4) golf courses;
(5) normal landscaping;
(6) structures specifically permitted by special permit as
provided in subsection (D);
(7) pools may be reconstructed if they are landward of an
existing, functional erosion control structure or device. A permit
must be obtained from the department council for
items (2) through (7).
(B) Construction, reconstruction, or alterations between the
baseline and the setback line are governed as follows:
(1) Habitable structures:
(a) New habitable structures: If part of a new habitable
structure is constructed seaward of the setback line, the owner must
certify in writing to the department council that the
construction meets the following requirements:
(i) The habitable structure is no larger than five thousand
square feet of heated space. The structure must be located as far
landward on the property as practicable. A drawing must be
submitted to the department council showing a
footprint of the structure on the property, a cross section of the
structure, and the structure's relation to property lines and setback
lines which may be in effect. No erosion control structure or device
may be incorporated as an integral part of a habitable structure
constructed pursuant to this section.
(ii) No part of the building is being constructed on the
primary oceanfront sand dune or seaward of the baseline.
(b) Habitable structures which existed on the effective date
of Act 634 of 1988 or constructed pursuant to this section:
(i) Normal maintenance and repair of habitable structures
is allowed without notice to the department council.
(ii) Additions to habitable structures are allowed if the
additions together with the existing structure do not exceed five
thousand square feet of heated space. Additions to habitable
structures must comply with the conditions of new habitable
structures as set forth in subitem (a).
(iii) Repair or renovation of habitable structures damaged,
but not destroyed beyond repair, due to natural or manmade causes
is allowed.
(iv) Replacement of habitable structures destroyed beyond
repair due to natural causes is allowed after notification is provided
by the owner to the department council that all of the
following requirements are met:
a. The total square footage of the replaced structure
seaward of the setback line does not exceed the total square footage
of the original structure seaward of the setback line. The linear
footage of the replaced structure parallel to the coast does not exceed
the original linear footage parallel to the coast.
b. The replaced structure is no farther seaward than the
original structure.
c. Where possible, the replaced structure is moved
landward of the setback line or, if not possible, then as far landward
as is practicable, considering local zoning and parking regulations.
d. The reconstruction is not seaward of the baseline
unless permitted elsewhere in Sections 48-39-250 through 48-39-360.
(v) Replacement of habitable structures destroyed beyond
repair due to manmade causes is allowed provided the rebuilt
structure is no larger than the original structure it replaces and is
constructed as far landward as possible, but the new structure must
not be farther seaward than the original structure.
(2) Erosion control devices:
(a) No new erosion control structures or devices are allowed
seaward of the setback line except to protect a public highway which
existed on the effective date of this act.
(b) Erosion control structures or devices which existed on the
effective date of this act must not be repaired or replaced if
destroyed:
(i) more than eighty percent above grade through June 30,
1995;
(ii) more than sixty-six and two-thirds percent above grade
from July 1, 1995 through June 30, 2005;
(iii) more than fifty percent above grade after June 30,
2005.
(iv) damage to seawalls and bulkheads must be judged on
the percent of the structure remaining intact at the time of damage
assessment. The portion of the structure or device above grade
parallel to the shoreline must be evaluated. The length of the
structure or device parallel to the shoreline still intact must be
compared to the length of the structure or device parallel to the
shoreline which has been destroyed. The length of the structure or
device parallel to the shoreline determined to be destroyed divided by
the total length of the original structure or device parallel to the
shoreline yields the percent destroyed. Those portions of the
structure or device standing, cracked or broken piles, whalers, and
panels must be assessed on an individual basis to ascertain if these
components are repairable or if replacement is required. Revetments
must be judged on the extent of displacement of stone, effort required
to return these stones to the prestorm event configuration of the
structure or device, and ability of the revetment to retain backfill
material at the time of damage assessment. If the property owner
disagrees with the assessment of a registered professional engineer
acting on behalf of the department council, he may
obtain an assessment by a registered professional engineer to
evaluate, as set forth in this item, the damage to the structure or
device. If the two assessments differ, then the two engineers who
performed the assessments must select a registered professional
engineer to perform the third assessment. If the first two engineers
are unable to select an engineer to perform the third assessment, the
clerk of court of the county where the structure or device lies must
make the selection of a registered professional engineer. The
determination of percentage of damage by the third engineer is
conclusive.
(v) the determination of the degree of destruction must be
made on a lot by lot basis by reference to county tax maps.
(vi) erosion control structures or devices must not be
enlarged, strengthened, or rebuilt but may be maintained in their
present condition if not destroyed more than the percentage allowed
in Section 48-39-290(B)(2)(b)(i), (ii), and (iii). Repairs must be
made with materials similar to those of the structure or device being
repaired.
(c) Erosion control structures or devices determined to be
destroyed more than the percentage allowed in Section
48-39-290(B)(2)(b)(i), (ii), and (iii) must be removed at the owner's
expense. Nothing in this section requires the removal of an erosion
control structure or a device protecting a public highway which
existed on the effective date of Act 634 of 1988.
(d) The provisions of this section do not affect or modify the
provisions of Section 48-39-120 (C).
(e) Subitem (a) does not apply to a private island with an
Atlantic Ocean shoreline of twenty thousand, two hundred ten feet of
which twenty thousand, ninety feet of shoreline is revetted with
existing erosion control devices and one hundred twenty feet of
shoreline is not revetted with existing erosion control devices.
Nothing contained in this subitem makes this island eligible for beach
renourishment funds.
(3) Pools, as defined in Section 48-39-270(12):
(a) No new pools may be constructed seaward of the setback
line unless the pool is built landward of an erosion control structure
or device which was in existence or permitted on the effective date
of this act and is built as far landward as practical.
(b) Normal maintenance and repair is allowed without notice
to the department council.
(c) If a pool, existing on July 1, 1988, is destroyed beyond
repair, as determined by the department council
pursuant to Section 48-39-270(11), it may be replaced if the owner
certifies in writing to the department council that:
(i) it is moved as far landward as practical. This
determination of practicality must include the consideration of local
zoning requirements.
(ii) it is rebuilt no larger than the destroyed pool.
(iii) it is constructed according to acceptable standards of
pool construction and cannot be reinforced in a manner so as to act
as an erosion control structure or device.
(d) If a pool is not destroyed beyond repair as determined by
the department council pursuant to Section
48-39-270(11) but the owner wishes to replace it, the owner may do
so if:
(i) The dimensions of the pool are not enlarged.
(ii) The construction conforms to sub-subitem (iii) of
subitem (c).
(4) All other construction or alteration between the baseline and
the setback line requires a department council
permit. However, the department council, in its
discretion, may issue general permits for construction or alterations
where issuance of the general permits would advance the
implementation and accomplishment of the goals and purposes of
Sections 48-39-250 through 48-39-360.
(C)(1) Notwithstanding the provisions relating to new construction,
a person, partnership, or corporation owning real property that is
affected by the setback line as established in Section 48-39-280 may
proceed with construction pursuant to a valid building permit issued
as of the effective date of this section. The person, partnership, or
corporation may proceed with the construction of buildings and other
elements of a master plan, planned development, or planned unit
development notwithstanding the setback line established in this
chapter if the person, partnership, or corporation legally has begun a
use as evidenced by at least one of the following:
(a) All building permits have been applied for or issued by a
local government before July 1, 1988.
(b) There is a master plan, planned development, or planned
unit development:
(i) that has been approved in writing by a local
government before July 1, 1988; or
(ii) where work has begun pursuant to approval as
evidenced by the completion of the utility and infrastructure
installation designed to service the real property that is subject to the
setback line and included in the approved master plan, planned
development, or planned unit development.
(2) However, repairs performed on a habitable structure built
pursuant to this section are subject to the guidelines for repairs as set
forth in this section.
(3) Nothing in this section prohibits the construction of fishing
piers or structures which enhance beach access seaward of the
baseline, if permitted by the department council.
(D) Special permits:
(1) If an applicant requests a permit to build or rebuild a
structure other than an erosion control structure or device seaward of
the baseline that is not allowed otherwise pursuant to Sections
48-39-250 through 48-39-360, the department
council may issue a special permit to the applicant
authorizing the construction or reconstruction if the structure is not
constructed or reconstructed on a primary oceanfront sand dune or on
the active beach and, if the beach erodes to the extent the permitted
structure becomes situated on the active beach, the permittee agrees
to remove the structure from the active beach if the
department council orders the removal. However, the
use of the property authorized under this provision, in the
determination of the department council, must not be
detrimental to the public health, safety, or welfare.
(2) The department's council's Permitting
Committee is the committee to consider applications for special
permits.
(3) In granting a special permit, the committee may impose
reasonable additional conditions and safeguards as, in its judgment,
will fulfill the purposes of Sections 48-39-250 through 48-39-360.
(4) A party aggrieved by the committee's decision to grant or
deny a special permit application may appeal to the full Coastal
Zone Management Appellate Panel Council pursuant
to Section 48-39-150(D).
(E) The provisions of this section and Section 48-39-280 do not
apply to an area in which the erosion of the beaches located in its
jurisdiction is attributed to a federally authorized navigation project
as documented by the findings of a Section 111 Study conducted
under the authority of the federal Rivers and Harbors Act of 1968, as
amended by the federal Water Resources Development Act of 1986,
and approved by the United States Army Corps of Engineers.
Nothing contained in this subsection makes this area ineligible for
beach renourishment funds. The baseline determined by the local
governing body and the department council is the
line of erosion control devices and structures and the
department council retains its jurisdiction seaward
of the baseline. In addition, upon completion of a department
council-approved beach renourishment project, including the
completion of a sand transfer system if necessary for long-term
stabilization, an area under a Section 111 Study becomes subject to
all the provisions of this chapter. For the purposes of this section, a
beach nourishment project stabilizing the beach exists if a successful
restoration project is completed consisting of at least one hundred
fifty cubic yards a foot over a length of five and one-half miles, with
a project design capable of withstanding a one-in-ten-year storm, as
determined by department council, and
renourishment is conducted annually at a rate, agreed upon by the
department council and local governing body,
equivalent to that which would occur naturally if the navigation
project causing the erosion did not exist. If the two parties cannot
agree, then the department council must obtain the
opinion of an independent third party. Any habitable structure
located in an area in which the erosion of the beaches located in its
jurisdiction is attributed to a federally authorized navigation project
as documented by the findings of a Section 111 Study, which was in
existence on September 21, 1989, and was over forty years old on
that date and is designated by the local governing body as an
a historical landmark may be rebuilt seaward of the baseline
if it is rebuilt to the exact specifications, dimensions, and exterior
appearance of the structure as it existed on that date.
Section 48-39-300. A local governing body, if it notifies the
department council before July 1, 1990, may exempt
from the provisions of Section 48-39-290, relating to reconstruction
and removal of erosion control devices, the shorelines fronting the
Atlantic Ocean under its jurisdiction where coastal erosion has been
shown to be attributed to a federally authorized navigation project as
documented by the findings of a Section 111 Study conducted under
the authority of the Rivers and Harbors Act of 1968, as amended by
the Water Resources Development Act of 1986 and approved by the
United States Army Corps of Engineers. Erosion control devices
exempt under this section must not be constructed seaward of their
existing location, increased in dimension, or rebuilt out of materials
different from that of the original structure.
Section 48-39-305. (A) A person having a recorded interest or
interest by operation of law in or having registered claim to land
seaward of the baseline or setback line which is affected by the
prohibition of construction or reconstruction may petition the circuit
court to determine whether the petitioner is the owner of the land or
has an interest in it. If he is adjudged the owner of the land or to have
an interest in it, the court shall determine whether the prohibition so
restricts the use of the property as to deprive the owner of the
practical uses of it and is an unreasonable exercise of police power
and constitutes a taking without compensation. The burden of proof
is on the petitioner as to ownership, and the burden of proof is on the
State to prove that the prohibition is not an unreasonable exercise of
police power.
(B) The method provided in this section for the determination of
the issue of whether the prohibition constitutes a taking without
compensation is the exclusive judicial determination of the issue, and
it must not be determined in another judicial proceeding. The court
shall enter a judgment in accordance with the issues. If the judgment
is in favor of the petitioner, the order must require the State either to
issue the necessary permits for construction or reconstruction of a
structure, order that the prohibition does not apply to the property, or
provide reasonable compensation for the loss of the use of the land
or the payment of costs and reasonable attorney's fees, or both.
Either party may appeal the court's decision.
Section 48-39-310. The destruction of beach or dune vegetation
seaward of the setback line is prohibited unless there is no feasible
alternative. When there is destruction of vegetation permitted
seaward of the setback line, mitigation, in the form of planting of new
vegetation where possible, for the destruction is required as part of
the permit conditions.
Section 48-39-320. (A) The department's
council's responsibilities include the creation of a long-range
and comprehensive beach management plan for the Atlantic Ocean
shoreline in South Carolina. The plan must include all of the
following:
(1) development of the data base for the state's coastal areas to
provide essential information necessary to make informed and
scientifically-based decisions concerning the maintenance or
enhancement of the beach/dune system;
(2) development of guidelines and their coordination with
appropriate agencies and local governments for the accomplishment
of:
(a) beach/dune restoration and nourishment, including the
projected impact on coastal erosion rates, cost/benefit of the project,
impact on flora and fauna, and funding alternatives;
(b) development of a beach access program to preserve the
existing public access and enhance public access to assure full
enjoyment of the beach by all residents of this State;
(c) maintenance of a dry sand and ecologically stable beach;
(d) protection of all sand dunes seaward of the setback line;
(e) protection of endangered species, threatened species, and
important habitats such as nesting grounds;
(f) regulation of vehicular traffic upon the beaches and the
beach/dune system which includes the prohibition of vehicles upon
public beaches for nonessential uses;
(g) development of a mitigation policy for construction
allowed seaward of the setback line, which must include public
access ways, nourishment, vegetation, and other appropriate means;
(3) formulation of recommendations for funding programs
which may achieve the goals set forth in the State Comprehensive
Beach Management Plan;
(4) development of a program on public education and
awareness of the importance of the beach/dune system, the project to
be coordinated with the South Carolina Educational Television
Network and Department of Parks, Recreation and Tourism;
(5) assistance to local governments in developing the local
comprehensive beach management plans.
(B) The plan provided for in this section is to be used for planning
purposes only and must not be used by the department
council to exercise regulatory authority not otherwise
granted in this chapter, unless the plan is created and adopted
pursuant to Chapter 23 of Title 1.
Section 48-39-330. Thirty days after the initial adoption by the
department council of setback lines, a contract of
sale or transfer of real property located in whole or in part seaward of
the setback line or the jurisdictional line must contain a disclosure
statement that the property is or may be affected by the setback line,
baseline, and the seaward corners of all habitable structures
referenced to the South Carolina State Plane Coordinate System
(N.A.D.-1983) and include the local erosion rate most recently made
available by the department council for that
particular standard zone or inlet zone as applicable. Language
reasonably calculated to call attention to the existence of baselines,
setback lines, jurisdiction lines, and the seaward corners of all
habitable structures and the erosion rate complies with this section.
The provisions of this section are regulatory in nature and do not
affect the legality of an instrument violating the provisions.
Section 48-39-340. Funding for local governments to provide for
beachfront management must be distributed in a fair and equitable
manner. Consideration must be given to the size of the locality, the
need for beach management in the area, the cost/benefits of
expenditures in that area, and the best interest of the beach/dune
system of the State as established by priority by the
department council.
Section 48-39-345. Any funds reimbursed to nonfederal project
sponsors under the terms of a Local Cooperative Agreement (LCA)
with the Army Corps of Engineers for a federally cost-shared beach
renourishment project, where the reimbursement is for credit to the
nonfederal sponsor for federally approved effort and expenditures
toward the nonfederal project sponsor obligations detailed in the
LCA and where the State has provided funding to the nonfederal
sponsor to meet the financial cost-sharing responsibilities under the
LCA, must be refunded by the nonfederal sponsor to the State with
the State and the nonfederal sponsor sharing in this reimbursement in
the same ratio as each contributed to the total nonfederal match
specified in the LCA. The Coastal Division Council
of the South Carolina Department of Health and Environmental
Control shall administer these funds and make these funds
available to other beach renourishment projects.
Section 48-39-350. (A) The local governments must prepare by
July 1, 1991, in coordination with the department
council, a local comprehensive beach management plan
which must be submitted for approval to the department
council. The local comprehensive beach management plan,
at a minimum, must contain all of the following:
(1) an inventory of beach profile data and historic erosion rate
data provided by the department council for each
standard erosion zone and inlet erosion zone under the local
jurisdiction;
(2) an inventory of public beach access and attendant parking
along with a plan for enhancing public access and parking;
(3) an inventory of all structures located in the area seaward of
the setback line;
(4) an inventory of turtle nesting and important habitats of the
beach/dune system and a protection and restoration plan if necessary;
(5) a conventional zoning and land use plan consistent with the
purposes of this chapter for the area seaward of the setback line;
(6) an analysis of beach erosion control alternatives, including
renourishment for the beach under the local government's
jurisdiction;
(7) a drainage plan for the area seaward of the setback zone;
(8) a post disaster plan including plans for cleanup, maintaining
essential services, protecting public health, emergency building
ordinances, and the establishment of priorities, all of which must be
consistent with this chapter;
(9) a detailed strategy for achieving the goals of this chapter by
the end of the forty-year retreat period. Consideration must be given
to relocating buildings, removal of erosion control structures, and
relocation of utilities;
(10) a detailed strategy for achieving the goals of preservation of
existing public access and the enhancement of public access to assure
full enjoyment of the beach by all residents of this State. The plan
must be updated at least every five years in coordination with the
department council following its approval. The local
governments and the department council must
implement the plan by July 1, 1992.
(B) Notwithstanding the provisions of Section 48-39-340, if a local
government fails to act in a timely manner to establish and enforce a
local coastal beach management plan, the department
council must impose and implement the plan or the State
Comprehensive Beach Management Plan for the local government.
If a local government fails to establish and enforce a local coastal
beach management plan, the government automatically loses its
eligibility to receive available state-generated or shared revenues
designated for beach/dune system protection, preservation,
restoration, or enhancement, except as directly applied by the
department council in its administrative capacities.
Section 48-39-355. A permit is not required for an activity
specifically authorized in this chapter. However, the
department council may require documentation
before the activity begins from a person wishing to undertake an
authorized construction or reconstruction activity. The
documentation must provide that the construction or reconstruction
is in compliance with the terms of the exemptions or exceptions
provided in Sections 48-39-280 through 48-39-360.
Section 48-39-360. The provisions of Sections 48-39-250 through
48-39-355 do not apply to an area which is at least one-half mile
inland from the mouth of an inlet."
SECTION 4. Section 48-55-10(A)(7) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(7) South Carolina Coastal Division
Council of the Department of Health and Environmental
Control by the department's council's
director chairman;"
SECTION 5. Section 49-6-30 1.(e) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(e) South Carolina Coastal Division
Council of the Department of Health and Environmental
Control;"
SECTION 6. The first paragraph of Section 50-17-390 of the 1976
Code, as last amended by Act 181 of 1993, is further amended to
read:
"The department council has jurisdiction over all
natural shell deposits, including those of oysters, clams, and other
mollusks occurring upon or within state-owned bottoms. In addition,
the department council has jurisdiction over all shell
deposits lying above the mean high-water mark if the deposits have
been created by processes of natural accretion upon state-owned
lands or bottoms. The South Carolina Coastal
division Council of the Department of Health and
Environmental Control permit requirements for alteration of
critical areas apply to the removal of all shell deposits within a
critical area."
SECTION 7. (A) On this act's effective date the employees,
current appropriations, and personal property of the Coastal Division
of the Department of Health and Environmental Control are
transferred to the South Carolina Coastal Council.
(B) All classified or unclassified personnel employed by the
Coastal Division of the Department of Health and Environmental
Control, on the effective date of this act, either by contract or by
employment at will, become employees of the South Carolina Coastal
Council with the same compensation, classification, and grade level,
as applicable. The Budget and Control Board shall cause all
necessary actions to be taken to accomplish this transfer and shall
prescribe the manner in which the transfer provided for in this act
must be accomplished.
(C) Employees of the South Carolina Coastal Council pursuant to
this act shall continue to occupy the same office locations and
facilities which they occupied as employees of the Coastal Division
unless or until otherwise changed by appropriate action and
authorization. The rent and physical plant operating costs of these
offices and facilities, if any, shall continue to be paid by the
Department of Health and Environmental Control formerly
employing these personnel until otherwise provided by the General
Assembly. The records and files of the Coastal Division of the South
Carolina Department of Health and Environmental Control which
formerly employed these personnel shall continue to remain the
property of the Department of Health and Environmental Control,
except that these personnel shall have complete access to these
records and files in the performance of their duties as new employees
of the South Carolina Coastal Council.
(D) All proceedings pending and all rights and liabilities including
contractual rights and obligations, existing, acquired, or incurred at
the time this act takes effect involving the Coastal Division of the
Department of Health and Environmental Control, are saved and are
transferred to the South Carolina Coastal Council.
SECTION 8. Members serving on the Coastal Zone Management
Appellate Council pursuant to Section 48-39-40, as amended by
Section 3 of this act, shall continue to serve as members of the South
Carolina Coastal Council pursuant to their terms under the Coastal
Zone Management Appellate Council and until these terms expire
and their successors are appointed and qualify.
SECTION 9. This act takes effect upon approval by the Governor.
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