Current Status Introducing Body:House Bill Number:3094 Primary Sponsor:Rogers Committee Number:20 Type of Legislation:GB Subject:Freshwater Wetlands Protection Act Residing Body:House Current Committee:Agriculture, Natural Resources, and Environmental Affairs Computer Document Number:3094 Introduced Date:Jan 08, 1991 Last History Body:House Last History Date:Jan 08, 1991 Last History Type:Introduced and read first time, referred to Committee Scope of Legislation:Statewide All Sponsors:Rogers Waites Corning Cromer Whipper Baxley Keyserling Type of Legislation:General Bill
Bill Body Date Action Description CMN
---- ------ ------------ ------------------------------ ---
3094 House Jan 08, 1991 Introduced and read first 20
time, referred to Committee
3094 House Dec 27, 1990 Prefiled, referred to 20
Committee
View additional legislative information at the LPITS web site.
TO AMEND TITLE 48, CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 40 SO AS TO ENACT THE FRESHWATER WETLANDS PROTECTION ACT AND TO PROVIDE PENALTIES FOR VIOLATIONS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited as the "Freshwater Wetlands Protection Act".
SECTION 2.The General Assembly finds that:
(1) The freshwater wetlands of the State of South Carolina are an invaluable and vulnerable natural resource which provide the following for the benefit of all citizens of the State:
(a) control of peak flood levels by storing and gradually releasing stormwater runoff from watershed lands;
(b) essential habitat and food chain elements for fish, wildlife, and plant populations including important commercial, recreational, and endangered species;
(c) improvement of water quality by removing toxic substances, trapping sediment, and other suspended materials, and retaining nutrients introduced to the waterway from watershed and upstream sources;
(d) buffers to control shoreline erosion caused by flooding, wind-generated wave action, and wakes from watercraft;
(e) areas for recreational activities including boating, fishing, hunting, wildlife observation, and other water-related recreational pursuits;
(f) sites for public education and academic and applied research in the fields of biology, ecology, fisheries and wildlife management, and environmental protection;
(g) areas of aesthetic, historic, cultural, and wilderness value;
(h) recharge and discharge areas for groundwater which provide sources of public and private water supply.
(2) The freshwater wetlands within the State are being affected adversely, and will continue to be affected adversely, by escalating alteration of and construction within these areas, caused by increased population growth and resultant development. Systematic review of development activities in freshwater wetlands is necessary to protect and preserve the valuable benefits provided by these areas.
(3) The State has acted for the public benefit to protect coastal saltwater wetland areas, but it has not provided similar protection to freshwater wetland areas.
(4) The protection and management of freshwater wetlands within South Carolina is a matter of statewide concern and is in the best interest of all present and future citizens of the State.
SECTION 3. The 1976 Code is amended by adding:
Section 48-40-10. As used in this chapter:
(1) `Commission' means the agency designated to manage the freshwater wetlands program created by this chapter.
(2) `Freshwater wetlands' means those areas, excluding wetlands within the critical area of the coastal zone, that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. In delineating a wetland, the commission shall use the hydrology, soils, and vegetation approach enumerated in the `Federal Manual for Identifying and Delineating Jurisdictional Wetlands', January 1989.
(3) `Freshwater wetlands permit' means a permit to engage in a regulated activity issued pursuant to the provisions of this chapter.
(4) `Regulated activity' means any dredging, excavation or other removal of soils or other materials, dumping, discharge, filling or other deposition of materials, erection or placement of any structure, placement of any obstruction, driving of pilings, destruction of plant life, or hydrology alteration including draining, flooding, or other disturbance of the water level or water table occurring within a freshwater wetland.
(5) `Materials' means any solid substance, including, but not limited to, soil, sediment, aggregate, land, gravel, clay, sand, refuse, or waste.
(6) `Person' means an individual, firm, partnership, association, public or private institution, municipality or political subdivision, federal or state governmental agency, or private or public corporation organized under the laws of this State or any other state or county.
(7) `Mitigation' means:
(a) avoiding an adverse impact by not taking a certain action or parts of an action;
(b) minimizing an adverse impact by limiting the degree of magnitude of the action and its implementation;
(c) rectifying an adverse impact by repairing, rehabilitating, or restoring the affected environment;
(d) reducing or eliminating an adverse impact over time by preservation and maintenance operations during the life of the action; or
(e) compensating for the adverse impact by replacing or providing substitute resources or environments of greater quality and functions.
(8) `Feasible alternative' means other choices available and capable of accomplishing the overall project purposes with less damage to wetlands and the environment. The feasibility of an alternative must be determined by the commission based upon the best available information, including, but not limited to, technical input from other state and federal agencies and consideration of economic, environmental, social, and legal factors bearing on the suitability of the proposed activity and its alternatives, taking into consideration cost, existing technology, and logistics in light of overall project proposes. A feasible alternative may include use of an area not owned by the applicant which reasonably could have been or which could be obtained, utilized, expanded, or managed in order to fulfill the basic purpose of the proposed activity. It also includes the concepts of reasonableness and likelihood of success in achieving the purpose. `Feasible alternative' applies to both locations or sites and to methods of design of construction and includes a `no action' alternative.
Section 48-40-20. (A) The General Assembly declares that the public policy of this State is to protect and conserve freshwater wetlands and the values and benefits derived therefrom through regulation of their use and development in a manner consistent with the general welfare and economic and social development of the State.
(B) Specific state policies to be followed in the implementation of this chapter are:
(1) to achieve an interim goal of no overall net loss of the state's remaining wetland base and to achieve a long-term goal of increasing the quantity and quality of the state's wetland resource base. In pursuing these policies, the state's remaining wetland base must be defined both in terms of acreage and wetland function; and
(2) to protect and, where possible, to restore or enhance the freshwater wetland resources of this State for this and succeeding generations.
(C) To implement these state policies the following initiatives must be undertaken:
(1) All state and local agencies shall adopt the state's `no net loss' goal for all their wetland activities.
(2) Land-holding state and local agencies, with the assistance of natural resource agencies, shall identify wetlands and develop management plans to protect wetlands on their properties.
(3) The legislature shall develop and implement enabling legislation which grants real estate tax incentives for landowners protecting wetlands.
(4) A detailed Wetland Conservation Action Plan must be undertaken which identifies and protects the most significant wetlands resources and systems in the State. The plan would assist developers in the identification of areas to be protected, target wetlands for purchase by agencies and land trusts, encourage donation of preservation by landowners, and suggest mitigation opportunities. A rehabilitation or restoration program for altered wetlands must be a part of the plan.
Section 48-40-30. (A) After the effective date of this chapter, no person may undertake a regulated activity within a freshwater wetland until a freshwater wetlands permit is obtained from the commission.
(B) The commission shall issue a permit if, after considering the comments of interested persons, agencies, and local governments, and after evaluation of biological and economic considerations and conducting such inquiries as it considers appropriate, it finds that an application for a freshwater wetlands permit is not contrary to the policies specified in this chapter. The permit may be conditioned upon the applicant amending the proposal to take whatever measures the commission determines are necessary to protect the public interest.
(C) No permit for the permanent alteration of freshwater wetlands may be granted unless the proposed activity requires access to, proximity to, or siting within wetlands or destruction of wetlands to fulfill its basic function.
(D) No permit for the permanent alteration of freshwater wetlands may be granted, regardless of whether the proposed activity is water dependent, if there is a feasible alternative to the proposed activity.
(E) No permit for the permanent alteration of freshwater wetlands may be granted unless the applicant has demonstrated that the proposed activity constitutes an overriding public interest when compared to the public interest in protecting wetlands.
(F) In determining whether a permit application is approved or denied, the commission shall base its decision on the individual merits of each application, the policies, and requirements specified in this chapter and must be guided by the following general considerations:
(1) the public interest in preservation of natural resources and the private interest of the property owners;
(2) the public and private need for the activity;
(3) the economic costs and benefits from preservation of an area in its unaltered state;
(4) available feasible and prudent alternative locations and methods to accomplish the expected benefits of the activity;
(5) the extent and permanence of impacts, both beneficial and detrimental, to historic, cultural, scenic, ecological, and recreational values, fish and wildlife, hydrology, water quality, and to the public and private uses of the wetland;
(6) the value and benefits of nature-related uses of freshwater wetlands, including aquaculture, waterfowl and wading bird management, and game and nongame wildlife protection projects;
(7) the size of the wetland where the activity is to be located and the amount of remaining wetland in the watershed;
(8) the extent to which the long-range, cumulative effects of the activity, including the cumulative effects of existing and anticipated activities in the watershed, may affect adjacent wetlands and navigable waters, and the value and enjoyment of adjacent owners;
(9) the extent to which the proposed activity is primarily dependent upon being located in a wetland;
(10) the extent to which the proposed activity could affect the habitats for rare and endangered species of wildlife or irreplaceable historic and archeological sites;
(11) the extent of any adverse environmental impact which cannot be avoided by reasonable safeguards.
(G) All permits must comply with the mitigation requirements of Section 48-40-80.
(H) No permit may be issued for a project that is inconsistent with Section 404 of the Clean Water Act or any regulation promulgated under the act by the United States Environmental Protection Agency and the United States Army Corps of Engineers.
(I) The commission may issue a permit where the applicant clearly has demonstrated that the applicant's property will have virtually no economic use unless a permit is issued for the proposed activity.
(J) Permits must be issued for a length of time determined by the commission to be appropriate to the permitted project, not to exceed ten years. Construction authorized by the permit must be completed within three years of the date of issuance or a shorter time if set by the commission.
(K) Permits may be renewed by following the same procedure as applicable to the initial issuance of a permit. All permits may be modified, suspended, or revoked for cause after giving the permittee and the public due notice and an opportunity to be heard. Permits may be transferred subject to public notice and opportunity for hearing. The time limit for construction may be extended for good cause showing that due diligence toward completion of the work has been made as evidenced by significant work progress, after public notice and opportunity for hearing.
Section 48-40-40. (A) An application for a permit must be filed with the commission on forms provided by the commission, accompanied by a fee as established by the commission. No fee may be required from a public agency within the State.
(B) The application must include:
(1) the name and address of the applicant; if the applicant is a partnership or corporation, the application must include the name and address of the managing agent of the applicant and of the agent of the applicant having primary responsibility for the permit;
(2) a description of the proposed activity, its location, purpose and intended use, method of construction, and the types and amount of freshwater wetlands to be altered or potentially affected, or both altered and potentially affected;
(3) a drawing of the structures proposed including size specifications;
(4) a plan and elevation drawing showing the general and specific site locations and character of all proposed activities, with an appropriate map of the area;
(5) evidence of ownership or the consent of the owners of the wetland on which any part of the projected activity will be located;
(6) the names and addresses of adjacent property owners;
(7) a certification that all information submitted with the application is true, accurate, and complete;
(8) additional information as may be necessary for the commission to assess the benefits and detriments of the projected activity. When considered appropriate by the commission or its staff, they may require additional information, studies, or analyses.
Section 48-40-50. (A) Upon determining that a complete application has been submitted, the commission shall prepare a public notice which must include a description of the proposed activity and its location and a statement that all interested agencies, all adjoining landowners, local government units, and other interested persons have forty-five days to file written comments upon the application. The commission shall provide copies of the public notice to state agencies, all adjoining landowners, local government entities in which the project is located, and the general public.
(B) Public notice must be given at least once by advertisement in state and local newspapers of general circulation in the area concerned.
(C) A person who desires notification of pending permit applications may notify the commission in writing. The commission shall mail copies of all public notices to these persons on at least a biweekly basis.
(D) A person or agency may comment on a permit application. Comments, or written requests for extension of time to comment, must be submitted to the commission within forty-five days from the date of issuance of the public notice.
Section 48-40-60. (A) The commission shall hold a public hearing on a permit application if a hearing is considered necessary to receive information from the public or obtain public comment. If within the public comment period the commission receives twenty written comments requesting a public hearing, the commission shall conduct a public hearing. If a hearing is held, it must be held after at least fifteen days' notice and, if possible, must be held in the county where the project is to be located.
(B) Notice of public hearings must be given in the same manner as public notices of permit applications pursuant to Section 48-40-50.
(C) Public hearings must be open to all citizens of the State. Public hearings conducted for the purpose of gathering comments and information before an initial permit decision must be nonadversarial; persons speaking may not be subjected to cross-examination; and the hearing does not constitute a contested case hearing.
(D) When a public hearing is held, the public comment period must remain open for at least fifteen days after the hearing.
Section 48-40-70. (A) The commission shall develop a procedure for coordinating review of freshwater wetlands permit applications with other state and federal agencies in order to simplify and streamline the overall wetlands permitting program.
(B) A state agency objecting to a project activity shall forward its objections to the applicant and the commission within the public comment period. The objecting agency shall attempt to reconcile its objection in conciliation negotiations with the applicant. No action may be taken by the commission on a permit application to which an objection has been made until it has received notice from the agency that the objection has been resolved or that efforts to resolve the objection have failed and further negotiation would be of no benefit.
(C) No freshwater wetlands permit may be issued by the commission without certification from the South Carolina Department of Health and Environmental Control that the proposed activity would not violate applicable water quality standards and, where applicable, certification from the South Carolina Coastal Council that the proposed activity does not contravene the Coastal Zone Management Plan.
(D) The commission is authorized to enter, in its discretion, into agreements with other state and federal agencies whereby applications for regulated activities in regulated freshwater wetlands may be used jointly by the agencies and the commission. Separate applications are not required. The commission shall review the application pursuant to the provisions of this chapter and the commission may request the applicant to provide information to supplement its application, as necessary.
Section 48-40-80. (A)The commission shall notify the applicant that a proposal must be submitted to replace or compensate for the long and short-term economic, environmental, and natural resource benefits that would be lost by the proposed activity, if the commission determines that:
(1) the proposed activity is likely to produce an adverse impact on the quality and value of the wetland where the project is to be located, or of the adjacent navigable waterway;
(2) the applicant has proposed or taken all reasonable and feasible measures to prevent the adverse impact;
(3) the proposed activity will provide public benefit relative to the adverse impact; and
(4) the proposed activity otherwise meets the standards for permit issuance.
(B) The applicant shall submit a proposal for mitigation within thirty days of the notification by the commission. If no proposal is submitted, the application must be denied.
(C) The commission shall provide public notice of the mitigation proposal under the same procedure as public notice of permit applications. Agency and public comments on the proposal must be submitted to the commission within forty-five days of this notice.
(D) If, after completing its review of the mitigation proposal and all agency and public comments thereon, the commission determines that the proposed mitigation measures are sufficient to compensate for the adverse wetland impacts of the proposed activity, a permit may be issued.
(E) The commission must not consider mitigation until after making the determinations required in subsection (A) of this section.
Section 48-40-90. (A) The commission shall notify the applicant of the permit decision and give written notice to all who commented on the application and requested notification of the decision. If the permit is denied, the commission shall state the reason or the denial. The decision becomes final if no request for a contested hearing is filed within fifteen days as provided in this section.
(B) An applicant whose permit is denied or conditionally issued, or a person who is affected adversely by the permit, may demand a contested case hearing on the commission decision pertaining to permit issuance, denial, or issuance with terms and conditions by filing a Notice of Demand for Contested Case Hearing with the commission within fifteen days of notice of the permit decision.
(C) If a contested case hearing demand is filed, the hearing must be conducted in accordance with the requirements of the South Carolina Administrative Procedures Act. A hearing officer may be appointed to preside over the appeal.
(D) The commission shall coordinate its appeals process with appeals from the certification decisions of the Department of Health and Environmental Control and Coastal Council. Where an application is appealed at more than one state agency, the agencies shall consolidate the appeals process and all agencies with certification or permitting authority, or both, shall cooperate in the selection of one or more hearing officers and in the conduct of the consolidated appeals. Notwithstanding the consolidated hearings, each certification and permitting agency shall render its own final decision in accordance with the law applicable to the particular agency decision.
(E) An appeal stays the issuance of the permit pending the final agency decision on the appeal.
(F) Judicial review is available to the parties after the final decision of the commission.
Section 48-40-100. (A) The commission, using the above procedures, may issue general or block permits for certain described categories of work or substantially similar structures in a particular area, if the work or structures are consistent with all goals and policies of this chapter. General permits may not be issued for any activities which involve the discharge of dredged or fill material or which would convert a wetland to a nonwetland area. Once the general or block permit is issued individual permits for those activities or structures are not required; however, a person operating under a general or block permit must report the authorized activity or structure to the commission before its undertaking and provide all information required by the commission regulations promulgated under this chapter.
(B) General permits are issued for the following activities, provided that these general permits do not apply to any activity in a regulated freshwater wetland which involves discharging dredged or fill material or bringing an area of the wetland into a use to which it was not subject previously:
(1) normal farming activities which are part of an established and ongoing farming operation, including plowing, seeding, cultivating, and harvesting;
(2) normal silviculture activities carried out for the purpose of growing, harvesting, and regenerating forest stands which are part of an established and ongoing silviculture operation and conducted in accordance with Best Management Practices developed by the South Carolina Forestry Commission with provisions pertaining to wetland values and functions;
(3) activities associated with routine maintenance of existing state-owned highways, roads, streets, and bridges or replacement of or minor improvements to structurally deficient or functionally obsolete structures located in freshwater wetlands where the improvements are necessary to meet current design and safety standards. These activities must be implemented under conditions and Best Management Procedures as approved by the commission. Maintenance, replacement, or minor improvement does not include adding extra lanes or increasing the right-of-way within a freshwater wetland;
(4) duck blinds;
(5) normal maintenance and repair of a permitted structure or a structure constructed before the effective date of this chapter that is currently serviceable, intact, and has been maintained in good working order since the date it was permitted or constructed if the normal maintenance and repairs on these structures do not alter the dimensions or change the purpose, scope, or use of the structure or adversely affect the values and functions of the wetland. These structures include impoundments and their associated water control structures.
Pursuant to regulations promulgated under this chapter, the commission is authorized to place conditions upon the general permits specifically authorized in this subsection to achieve the goals and carry out the policies of this chapter.
(C) Parties contesting a general or block permit, except for the permits authorized in subsection (B) of this section, may appeal the permit either upon initial issuance or within thirty days of notice of an activity for which permission is claimed under the general or block permit.
Section 48-40-110. (A) A person violating a provision of this chapter is guilty of a misdemeanor and, upon conviction for a first offense, must be imprisoned not more than six months or fined not more than five thousand dollars, or both, and for each subsequent offense, must be imprisoned not more than one year or fined not more than ten thousand dollars, or both.
(B) A person the commission determines is in violation of a provision of this chapter is liable and may be assessed by the commission for payment of damages to cover all injuries to the natural resources in the public domain and all costs of investigation and prosecution, or may be assessed a civil penalty of not less than one hundred dollars nor more than one thousand dollars a day of violation, or both.
(C) If the commission determines that a person is in violation of a permit, regulation, standard, or requirement under this chapter, the commission may issue an order requiring compliance, including an order requiring restoration when considered environmentally appropriate by the commission. In addition, the commission may bring a civil enforcement action and may seek injunctive relief.
Section 48-40-120. (A) No person is allowed to apply for a permit for a regulated activity which the person has commenced already, until the person has paid a fine equal to the costs to the commission and other state agencies for investigation of the unpermitted activity.
(B) After-the-fact permit applications must be reviewed under the same procedure as other applications.
(C) If work on the activity is incomplete at the time of the application, all work must cease pending permit review unless the commission determines that the public interest would be best served by the applicant taking interim action as the commission determines appropriate.
(D) All after-the-fact permits must be conditioned upon the applicant's payment of or secured agreement to provide compensation or mitigation for all damages to natural resources, or both.
Section 48-40-130. (A) A citizen may petition the commission requesting that enforcement action be brought against a person alleged to be in violation of this chapter or requesting that the commission take other action as may be required by this chapter. Within thirty days of receipt of the petition, the commission shall either deny the petition in writing, stating its reasons for denial, or shall initiate the action requested in the petition.
(B) A citizen may intervene in a civil enforcement proceeding or action brought by the commission to enforce this chapter.
(C) If the commission denies a citizen's petition under subsection (A) of this section, the citizen may commence a civil action on his or her own behalf against:
(1) a person who is alleged to be in violation of a provision of this chapter or in violation of a permit condition or order issued by the commission; or
(2) the commission where there is an alleged failure of the commission to perform any act or duty which is not discretionary with the commission.
(D) No citizen may bring an action in circuit court without first petitioning the commission as provided in subsection (A) of this section; and no citizen action may be brought in circuit court if the commission has commenced and is diligently prosecuting a civil or criminal action to require compliance with this chapter, a permit condition, or an order.
(E) The circuit court has jurisdiction to enforce the provisions of this chapter, to enforce permit conditions and orders issued by the commission, to order the commission to perform an act or duty as may be necessary, and to apply appropriate civil penalties authorized by this chapter.
Section 48-40-150. (A) The commission has authority to apply for and accept responsibility for management of the federal permitting program under Section 404 of the Federal Clean Water Act.
(B) In the event of new federal legislation establishing a new federal freshwater wetlands permitting program, the commission is authorized to apply for and accept responsibility for management of the program.
Section 48-40-160. The commission may promulgate regulations to implement this chapter."
SECTION 3. This act takes effect upon approval by the Governor.