Department name changed
SECTION 1162. Section 44-107-80 of the 1976 Code is amended to read:
"Section 44-107-80. Upon request, the Department of Alcohol and Other Drug Abuse Services shall provide technical assistance to any state agency to assist with the implementation of this chapter. Additionally, upon request, the names and addresses of contractors and grantees providing a drug-free workplace pursuant to this chapter must be provided to the department."
References revised
SECTION 1163. Section 46-13-60(2)(c) of the 1976 Code is amended to read:
"(c) If the deputy director finds the applicant qualified to use and supervise the use of pesticides in the classifications he has applied for, and if an applicant applying for a commercial applicator license files the evidence of financial responsibility required under Section 46-13-100, and if the applicant applying for a license to engage in aerial application of pesticides has met all of the requirements of the Federal Aviation Agency, the Division of Aeronautics of the Department of Commerce for the State, and any other applicable federal or state laws or regulations to operate the equipment described in the application, the deputy director shall issue a pesticide applicator's license limited to the classifications for which he is qualified, which shall expire at the end of the calendar year of issue unless it has been revoked or suspended prior thereto by the deputy director for cause. The deputy director may limit the license of the applicant to the use of certain areas, or to certain types of equipment if the applicant is only so qualified."
References revised
SECTION 1164. Section 46-13-150 of the 1976 Code is amended to read:
"Section 46-13-150. There is created a pesticide advisory committee consisting of five licensed commercial applicators residing in the State, one of whom must be licensed to operate horticultural ground equipment, one must be licensed to operate agricultural ground equipment, one must be licensed to operate aerial equipment, and two must be licensed for structural pest control; one entomologist in public service; one toxicologist in public service; one herbicide specialist in public service; two members from the agrichemical industry, one of whom must be a pesticide dealer; two producers of agricultural crops or products on which pesticides are applied or which may be affected by the application of pesticides; one representative of the South Carolina Department of Natural Resources; one plant pathologist in public service; one representative of the South Carolina State Forestry Commission; one representative of the South Carolina Department of Agriculture; one representative of the South Carolina Department of Health and Environmental Control; and two citizens from the State at large. The members must be residents of this State and must be appointed by the Governor on the recommendation of the following organizations: (1) The South Carolina Aerial Applicators' Association shall recommend the pesticide applicator licensed to operate aerial equipment. (2) The South Carolina Pest Control Operator's Association shall recommend the pesticide applicator licensed to operate horticultural ground equipment and two pesticide applicators licensed for structural pest control. (3) The Vice President and Vice Provost of Agriculture and Natural Resources of Clemson University shall recommend the herbicide specialist in public service, the entomologist in public service, and the plant pathologist in public service. (4) The members of the South Carolina Fertilizer and Agrichemical Association shall recommend the member from the agrichemical industry and the pesticide dealer. (5) The South Carolina Farm Bureau shall recommend the two producers of agricultural crops or products on which pesticides are applied or which may be affected by the application of pesticides, and the commercial applicator licensed to operate agricultural ground equipment. (6) The Director of the South Carolina Department of Natural Resources shall recommend the member from the South Carolina Department of Natural Resources. (7) The State Forester shall recommend the member from the South Carolina State Forestry Commission. (8) The Commissioner of Agriculture shall recommend the member from the South Carolina Department of Agriculture. (9) The director of the Department of Health and Environmental Control shall recommend the member from that department. (10) The administrator of the Department of Consumer Affairs shall recommend the two citizens at large. Such members shall be appointed for terms of four years and may be appointed for successive terms; provided, that at the inception of this chapter the pesticide applicator licensed to operate aerial equipment, the entomologist in public service, the herbicide specialist, one of the two producers of agricultural crops, and the representative from the South Carolina Department of Agriculture shall be appointed for two years; the pesticide applicator licensed for structural pest control, one of the two pesticide applicators licensed to operate ground equipment, one of the two producers of agricultural crops, the pesticide dealer representing the South Carolina Pesticide Association, and the plant pathologist in public service shall be appointed for a period of three years; one of the two pesticide applicators licensed to operate ground equipment, the toxicologist in public service, the member of the agrichemical industry representing the South Carolina Pesticide Association, the representative of the South Carolina Department of Natural Resources, the representative from the South Carolina Commission of Forestry and the representative from the Department of Health and Environmental Control shall be appointed for a period of four years. All subsequent terms for appointment to such committee shall be for a period of four years. The appointing organizations shall have the authority to recommend the removal of the appointees prior to the expiration of their term of appointment for cause. Upon the death, resignation, or removal for cause of any member of the committee, such vacancy shall be filled within thirty days of its creation for the remainder of its term in the manner herein prescribed for appointment to the committee. The committee shall elect one of its members chairman. The members of the committee shall meet at such time and at such place as shall be specified by the call of the Director, Chairman, or a majority of the committee. The committee shall advise the Director on any or all problems relating to the use and application of pesticides. This may include pest control problems, environmental or health problems related to pesticide use, and review of needed legislation, regulations and agency programs."
References revised
SECTION 1165. Section 46-51-20 of the 1976 Code is amended to read:
"Section 46-51-20. Within ninety days after the creation of the office the facilitator shall meet with the director of the Department of Health and Environmental Control, the director of the South Carolina Department of Natural Resources and the executive director of the State Budget and Control Board to establish one application form which must be used by all the permitting agencies when a potential aquaculturist is seeking permits, licenses, and certifications to begin an aquaculture operation. The permit facilitator shall recognize the value and integrity of the permitting programs of each of the state's regulatory agencies listed above and seek to maintain the division of authority."
References revised
SECTION 1166. Section 47-3-310 of the 1976 Code is amended to read:
"Section 47-3-310. On game management areas, state-owned property and property of private landowners and leaseholders, at the request of such landowners and leaseholders, specially trained enforcement officers of the Natural Resources Enforcement Division of the Department of Natural Resources may enter on such areas and property for the purpose of investigating dogs running at large on the property. If the dogs are determined to be feral dogs (a dog which has reverted to a wild state) and are a threat to the lives or health of livestock, wildlife or humans, the enforcement officers may remove the feral dog from the property or dispose of it in the most humane manner as determined by the department."
References revised
SECTION 1167. Section 47-3-320 of the 1976 Code is amended to read:
"Section 47-3-320. Two enforcement officers of the Natural Resources Enforcement Division of the Department of Natural Resources from each of the state's twenty-eight law enforcement units shall be trained by the Department in the identification, capture and humane disposal of feral dogs and these officers shall have the responsibility of answering all complaints concerning feral dogs within the geographical boundaries of their respective law enforcement units. Such enforcement officers shall be held harmless of any personal liability that may occur during the lawful execution of their duties under this act except in case of gross negligence."
References revised
SECTION 1168. Section 47-3-420 of the 1976 Code is amended to read:
"Section 47-3-420. Only the following methods of euthanasia shall be used to kill dogs and cats impounded in animal shelters and the procedure applicable to the method selected shall be strictly followed: 1. Barbituric Acid Derivatives: (a) Intravenous or intracardial injection of a lethal solution, (b) Intraperitoneal injection of a lethal solution when location of an injection into the vein is difficult or impossible, (c) Oral ingestion of powdered barbituric acid derivatives in capsules mixed with food or by manual administration. 2. Euthanasia Solution T-61 or other therapeutically equivalent solution approved for animal euthanasia by the American Veterinary Medicine Association and the Food and Drug Administration: Intravenous or intracardial injection of these solutions specifically according to the directions of the manufacturers for intravenous and intracardial injections. The solutions shall not be administered via intraperitoneal, intrathoracic, or intrapulmonary routes, nor in any other manner except as provided above. Administration of injections shall be done only by a licensed veterinarian or by a person trained for this purpose by a licensed veterinarian. All injections shall be administered using an undamaged hypodermic needle of a size suitable for the size and species of animal. 3. Carbon Monoxide Gas: Dogs and cats, except animals under eight weeks of age, may be killed by carbon monoxide gas administered in a tightly enclosed chamber. The chamber shall be equipped with: (a) Internal lighting and a window providing direct visual surveillance of the collapse and death of any animal within the chamber. (b) The gas concentration process must be adequate to achieve a carbon monoxide gas concentration throughout the chamber of at least five percent within five minutes after any animal is placed in the chamber. If chemical generation through the use of sodium formate and sulfuric acid is used, the generated carbon monoxide gas must have all irritating acid vapors filtered out by passing it through a ten percent solution of sodium hydroxide prior to its entry into the carbon monoxide chamber. (c) If carbon monoxide gas generation is by combustion of gasoline in an engine, all of the following shall be satisfied: (1) The engine shall be maintained in good operating condition. (2) The engine shall be operated only at idling speed with the richest fuel-air mixture the choke permits. (3) Prior to entry into the chamber, the exhaust gas shall be cooled so that it does not exceed 115 Fahrenheit. (4) The chamber shall be equipped with accurate temperature gauges monitored closely by attendants or shall be equipped with an alarm system to assure that the internal temperature of the chamber does not exceed 90 Fahrenheit. (5) Prior to entry into the chamber, the exhaust gas shall be first passed through an adequate water-gravel filtration process and subsequently through a cloth filtration process to remove irritants and carbon particles. (6) The noise level from the engine shall not exceed 70 dBA when measured within the chamber. (7) A flexible tubing or pipe at least twenty-four inches in length shall be placed between the chamber and the engine to minimize vibrations. (8) The unit shall include a means for exhausting or bypassing internal combustion engine gas during the period of engine warm-up. (9) The unit shall include an exhaust fan connected by a gas-tight duct to the outdoors capable of completely evacuating the gas from the chamber before it is opened after each use, except that this provision shall not apply to chambers located out-of-doors. (d) Animals shall be left in the chamber for a period of no less than fifteen minutes from the time the gas concentration throughout the chamber reaches five percent. 4. Nitrogen Gas: Dogs and cats, except animals under four months of age may be killed by nitrogen gas provided: (a) The nitrogen gas cabinet is equipped with a viewport providing direct visual surveillance of the collapse and death of any animal within the cabinet, and internal lighting unless the cabinet is equipped with a clear door. (b) Every animal is placed in an individual container or compartment of the cabinet. (c) The oxygen concentration within the cabinet is reduced to 1.5 percent or less by displacing air within the cabinet with nitrogen. (d) The 1.5 percent reduction in oxygen concentration is reached within 45-50 seconds after the beginning of the cycle of operation and the animals are left within the cabinet at that concentration not less than ten minutes. (e) Pregnant animals are left in the cabinet not less than twenty minutes. In all instances where the carbon monoxide and nitrogen chambers are used: (a) Neither incompatible or hostile animals, nor animals of different species shall be placed in any chamber simultaneously. (b) Every chamber must be thoroughly cleaned after the completion of each full cycle. No live animals shall be placed in the chamber with dead animals. (c) All animals must be examined by a veterinarian or other qualified person to ensure they are dead upon removal from chamber. (d) All chambers shall be inspected quarterly by an independent qualified technician who is thoroughly knowledgeable with the operation and maintenance of the particular euthanasia chamber being used. (e) An operational guide and maintenance instructions shall be displayed in the room with the euthanasia chamber. 5. Shooting: Shooting shall be used as a means of euthanasia only in an emergency situation to prevent extreme suffering or in which the safety of people or other animal life is threatened or where it is deemed necessary by the South Carolina Department of Natural Resources to eliminate or control the population of feral animals. 6. Inhalant Anesthetics: The animal to be killed shall be less than eight weeks old. (a) The animal to be killed shall be placed in a cage. The cage shall be placed in an airtight chamber or in a transparent plastic bag which can be tightly sealed following introduction of the inhalant anesthetic. (b) When using ether, halothane, fluothane, halocarbon, metofane or penthrane a veterinarian shall be consulted as to the amount of inhalant anesthetic to be used in relation to the size of the container. When using chloroform a two percent concentration within the chamber is required. To obtain a two percent concentration use a formula of 1.9 cubic centimeters (.068 ounce) per cubic foot of air space within the container or chamber. (c) The inhalant anesthetic shall be placed on a piece of gauze or ball of cotton and inserted into the chamber or bag in such a position that the animal shall not be able to come in direct contact with it. (d) The lid of the chamber or the top of the plastic bag shall be left open until the animal is anesthetized. When no movement is seen, the container shall be tightly sealed. (e) The animal shall remain in the chamber or bag for a period of not less than twenty minutes. (f) The room in which the inhalant anesthetic is administered shall have forced ventilation to remove all fumes after each use. (g) The animal shall remain in the chamber or bag until rigor mortis has occurred."
References revised
SECTION 1169. Section 47-3-510 of the 1976 Code is amended to read:
"Section 47-3-510. The owner of any dog or kennel may, upon payment of a fee to be determined by the South Carolina Department of Natural Resources (department), not to exceed five dollars a dog or twenty dollars a kennel, have his dog registered by the department and the registration number tattooed in either of the dog's ears or on any other clearly visible part of the body that would be considered most suitable for the respective species of dog. The department shall maintain records of the names and addresses of the owners of registered kennels."
References revised
SECTION 1170. Section 47-3-550 of the 1976 Code is amended to read:
"Section 47-3-550. The South Carolina Department of Natural Resources may promulgate regulations to carry out the provisions of this chapter."
References revised
SECTION 1171. Section 47-5-30 of the 1976 Code is amended to read:
"Section 47-5-30. The Department of Health and Environmental Control may employ a licensed doctor of veterinary medicine to serve as public health veterinarian of the Department of Health and Environmental Control. He shall aid county health departments and rabies control officers in the administration and enforcement of the provisions of this chapter, including the supervision of forms of certificates and tags to effectuate the inoculation program herein provided. He shall aid in the preparation of literature describing the symptoms of rabies and preventive measures to be taken against the spread of rabies, such information to be distributed to pet owners at the time of inoculation of animals, and shall otherwise promote efficiency in the program of inoculation and rabies control herein provided. In addition to the above, he shall aid administratively in the prevention and control of all diseases communicable from animal to man which may become prevalent in this State and in combatting such disease, in cooperation with Department of Natural Resources, the extension service of Clemson University, and any other state or federal agencies engaged in similar efforts to combat diseases communicable from animal to man."
References revised
SECTION 1172. Section 48-1-85(C) of the 1976 Code is amended to read:
"(C) When an owner of a houseboat having a marine toilet applies to the Department of Natural Resources for a certificate of title pursuant to Section 50-23-20, he shall certify in the application that the toilet discharges only into a holding tank."
References revised
SECTION 1173. Section 48-1-110 of the 1976 Code is amended to read:
"Section 48-1-110. (a) It shall be unlawful for any person, until plans therefor have been submitted to and approved by the department and a written permit therefor shall have been granted to: (1) Construct or install a disposal system or source; (2) Make any change in, addition to or extension of any existing disposal system or part thereof that would materially alter the method or the effect of treating or disposing of the sewage, industrial waste or other wastes; (3) Operate such new disposal systems or new source, or any existing disposal system or source; (4) Increase the load through existing outlets of sewage, industrial waste or other wastes into the waters of the State. (b) The director of Health and Environmental Control shall classify all public wastewater treatment plants, giving due regard to size, types of work, character, and volume of waste to be treated, and the use and nature of the water resources receiving the plant effluent. Plants may be classified in a group higher than indicated at the discretion of the classifying officer by reason of the incorporation in the plant of complex features which cause the plant to be more difficult to operate than usual or by reason of a waste unusually difficult to treat, or by reason of conditions of flow or use of the receiving waters requiring an unusually high degree of plant operation control or for combinations of such conditions or circumstances. The classification is based on the following groups: (1) For biological wastewater treatment plants: Group I-B. All wastewater treatment plants which include one or more of the following units: primary settling, chlorination, sludge removal, imhoff tanks, sand filters, sludge drying beds, land spraying, grinding, screening, oxidation, and stabilization ponds. Group II-B. All wastewater treatment plants which include one or more of the units listed in Group I-B and, in addition, one or more of the following units: sludge digestion, aerated lagoon, and sludge thickeners. Group III-B. All wastewater treatment plants which include one or more of the units listed in Groups I-B and II-B and, in addition, one or more of the following: trickling filters, secondary settling, chemical treatment, vacuum filters, sludge elutriation, sludge incinerator, wet oxidation process, contact aeration, and activated sludge (either conventional, modified, or high rate processes). Group IV-B. All wastewater treatment plants which include one or more of the units listed in Groups I-B, II-B, and III-B and, in addition, treat waste having a raw five-day biochemical oxygen demand of five thousand pounds a day or more. (2) Effective July 1, 1987, for physical-chemical wastewater treatment plants: Group I-P/C. All wastewater treatment plants which include one or more of the following units: primary settling, equalization, pH control, and oil skimming. Group II-P/C. All wastewater treatment plants which include one or more of the units listed in Group I-P/C and, in addition, one or more of the following units: sludge storage, dissolved air flotation, and clarification. Group III-P/C. All wastewater treatment plants which include one or more of the units listed in Groups I-P/C and II-P/C and, in addition, one or more of the following: oxidation/reduction reactions, cyanide destruction, metals precipitation, sludge dewatering, and air stripping. Group IV-P/C. All wastewater treatment plants which include one or more of the units listed in Groups I-P/C, II-P/C, and III-P/C and, in addition, one or more of the following: membrane technology, ion exchange, tertiary chemicals, and electrochemistry. (c) It shall be unlawful for any person or municipal corporation to operate a public wastewater treatment plant unless the operator-in-charge holds a valid certificate of registration issued by the Board of Certification of Environmental Systems Operators in a grade corresponding to the classification of the public wastewater treatment plant supervised by him, except as hereinafter provided. (d) It shall be unlawful for any person to operate an approved waste disposal facility in violation of the conditions of the permit to construct or the permit to discharge. (e) It shall be unlawful for any person, directly or indirectly, negligently or willfully, to discharge any air contaminant or other substance in the ambient air that shall cause an undesirable level."
Department of Natural Resources and its board and director created
SECTION 1174. Title 48 of the 1976 Code is amended by adding:
"CHAPTER 4
Department of Natural Resources
Section 48-4-10. The South Carolina Department of Natural Resources is created to administer and enforce the laws of this State relating to wildlife, marine resources, and natural resources, and other laws specifically assigned to it. The department shall be comprised of a Natural Resources Enforcement Division, a Wildlife and Freshwater Fish Division, a Marine Resources Division, a Water Resources Division, a Land Resources and Conservation Districts Division, and a State Geologist and Geological Mapping Division. Each division of the department shall have such functions and powers as provided by law. All functions, powers, and duties provided by law to the South Carolina Wildlife and Marine Resources Department, the Geological Mapping Division of the Budget and Control Board, to include the State Geologist, and the South Carolina Migratory Waterfowl Committee are hereby transferred to the Department of Natural Resources. All non-regulatory functions, powers, and duties provided by law to the South Carolina Water Resources Commission and the State Land Resources Conservation Commission are hereby transferred to the Department of Natural Resources. All rules, regulations, standards, orders, or other actions of these entities shall remain in effect unless specifically changed or voided by the department in accordance with the Administrative Procedures Act. All divisions shall be directly accountable to and subject to the Department of Natural Resources. The Wildlife and Marine Resources Commission, the Land Resources Conservation Commission, and the Water Resources Commission are abolished.
Section 48-4-20. For the purposes of this chapter: (1) `Board' means the governing body of the department. (2) `Department' means the South Carolina Department of Natural Resources. (3) `Director' or `Executive Director' means the administrative head of the department, appointed by the board.
Section 48-4-30. The department shall be governed by a board consisting of seven non-salaried board members. Board members of the former Department of Wildlife and Marine Resources shall serve as board members for the Department of Natural Resources until their terms expire and their successors are appointed and qualify. All board members shall be appointed by the Governor with the advice and consent of the Senate. One member shall be appointed from each congressional district of the state and one shall be appointed from the state at-large. In making appointments, race, gender, and other demographic factors should be considered to assure nondiscrimination, inclusion, and representation to the greatest extent possible of all segments of the population of the State; however, consideration of these factors in making an appointment in no way creates a cause of action or basis for an employee grievance for a person appointed or for a person who fails to be appointed. Board members must possess sound moral character, superior knowledge in the fields of wildlife, marine, and natural resource management, and proven administrative ability. The Governor may remove any board member pursuant to the provisions of Section 1-3-240. Terms of the members shall be for four years and until their successors are appointed and qualify. If a vacancy occurs when the General Assembly is not in session, it must be filled by the Governor's appointment for the unexpired term, subject to confirmation by the Senate at the next session of the General Assembly. Each board member, within thirty days after notice of appointment and before taking office, shall take and file with the Secretary of State the oath of office prescribed by the State Constitution. One of the members of the board shall be designated by the Governor to serve as chairman.
Section 48-4-40. The board members shall receive reimbursement for their expenses incurred while engaged in the work of the board as provided by law for state boards and commissions.
Section 48-4-50. The board shall be vested with the duty and authority to oversee, manage, and control the operation, administration, and organization of the department subject only to the laws of this State and the United States.
Section 48-4-60. The board shall appoint a director to serve at its pleasure who shall be the administrative head of the department. The director must carry out the policies of the board and administer the affairs of the department. The director may exercise all powers belonging to the board within the guidelines and policies established by the board. The director shall manage the administration and organization of the department and may appoint such assistants or deputies as the director considers necessary. The director may hire such employees as the director considers necessary for the proper administration of the affairs of the department. The director must prescribe the duties, powers, and functions of all assistants, deputies, and employees of the department.
Section 48-4-70. The board shall: (1) hold meetings, as considered necessary by the chairman, with a majority of the board members constituting a quorum. The board may hold meetings, transact business, or conduct investigations at any place necessary; however, its primary office is in Columbia; (2) formulate and recommend legislation to enhance uniformity, enforcement, and administration of the wildlife, marine, and natural resource laws; (3) make an annual report to the General Assembly on all matters relating to its action; (4) require those of its officers, agents, and employees it designates to give bond for the faithful performance of their duties in the sum and with the sureties it determines, and all premiums on the bonds must be paid by the board; (5) pay travel expenses; and purchase or lease all necessary facilities, equipment, books, periodicals, and supplies for the performance of its duties; and (6) exercise and perform other powers and duties as granted to it or imposed upon it by law.
Section 48-4-80. The board may: (1) make rules and promulgate regulations, not inconsistent with law, to aid in the performance of its duties. The board may prescribe the extent, if any, to which these rules and regulations must be applied without retroactive effect. (2) exercise all authority granted to it under the laws and regulations relating to wildlife, marine and natural resources. (3) conduct such hearings as may be required by law."
Definitions
SECTION 1175. Chapter 9 of Title 48 of the 1976 Code is amended by adding:
"Section 48-9-15. As used in this chapter: (1) `Department' means the Department of Natural Resources. (2) `Division' means Land Resources and Conservation Districts Division of the Department of Natural Resources. (3) `Director' means the administrative head of the department appointed by the board."
Definitions deleted
SECTION 1176. Section 48-9-30 of the 1976 Code is amended by deleting item (3) which reads:
"(3) `Commission' or `State Land Resources Conservation Commission' means the agency created in Section 48-9-210;'"
Commission changed to department; name revised
SECTION 1177. Section 48-9-40 of the 1976 Code is amended to read:
"Section 48-9-40. The name of the State Land Resources Conservation Commission is hereby changed to the Department of Natural Resources."
Accountability of the Land Resources and Conservation Districts Division
SECTION 1178. Chapter 9 of Title 48 of the 1976 Code is amended by adding:
"Section 48-9-45. The Land Resources and Conservation Districts Division, shall be directly accountable to and subject to the director of the department."
Department name revised
SECTION 1179. Section 48-9-230 of the 1976 Code is amended to read:
"Section 48-9-230. The following shall serve ex officio in an advisory capacity to the State Land Resources Conservation Commission: The Director of the State Agricultural Extension Service, the Director of the South Carolina Agricultural Experiment Station, the president of Clemson University, the State Forester, the State Supervisor of the State Department of Vocational Agriculture, the Director of the Division of Game of the South Carolina Wildlife and Marine Resources Department, the Director of the Department of Commerce, the Commissioner of Agriculture and, with the concurrence of the Secretary of the United States Department of Agriculture, the State Conservationist of the Soil and Water Conservation Service, the chairman of the Purchasing and Marketing Administration State Committee and the Director of the Farmers' Home Administration."
Commission changed to division; name revised
SECTION 1180. Section 48-9-230 of the 1976 Code is amended to read:
"Section 48-9-230. The following shall serve ex officio in an advisory capacity to the Land Resources and Conservation Districts Division of the Department of Natural Resources: The Director of the State Agricultural Extension Service, the Director of the South Carolina Agricultural Experiment Station, the president of Clemson University, the State Forester, the State Supervisor of the State Department of Vocational Agriculture, the Director of the Department of Commerce, the Commissioner of Agriculture and, with the concurrence of the Secretary of the United States Department of Agriculture, the State Conservationist of the Soil and Water Conservation Service, the chairman of the Purchasing and Marketing Administration State Committee and the Director of the Farmers' Home Administration."
Commission changed to department; name revised
SECTION 1181. Section 48-9-260 of the 1976 Code is amended to read:
"Section 48-9-260. The Department of Natural Resources may employ an administrative officer and such technical experts and other agents and employees, permanent and temporary, as it may require and shall determine their qualifications, duties and compensation. The department may call upon the Attorney General for such legal services as it may require or may employ its own counsel and legal staff." Commission changed to department
SECTION 1182. Section 48-9-270 of the 1976 Code is amended to read:
"Section 48-9-270. The Department of Natural Resources shall adopt a seal which shall be judicially noticed and may perform such acts, hold such public hearings and promulgate such rules and regulations as may be necessary for the execution of its functions under this chapter."
Commission changed to department
SECTION 1183. Section 48-9-280 of the 1976 Code is amended to read:
"Section 48-9-280. The Department of Natural Resources shall provide for the execution of surety bonds for all employees and officers who shall be entrusted with funds or property, shall provide for the keeping of a full and accurate record of all its proceedings and activities and of all resolutions, regulations and orders issued or adopted and shall provide for an annual audit of the accounts of receipts and disbursements."
Commission changed to department
SECTION 1184. Section 48-9-290 of the 1976 Code is amended to read:
"Section 48-9-290. In addition to the duties and powers otherwise conferred upon the Department of Natural Resources, it shall have the following duties and powers: (1) To offer such assistance as may be appropriate to the commissioners of soil and water conservation districts, organized as provided in this chapter, in the carrying out of any of their powers and programs; (2) To keep the commissioners of each of the several districts organized under the provisions of this chapter informed of the activities and experience of all other districts organized under this chapter and to facilitate an interchange of advice and experience between such districts and cooperation between them; (3) To coordinate the programs of the several soil and water conservation districts organized under this chapter so far as this may be done by advice and consultation; (4) To secure the cooperation and assistance of the United States and any of its agencies and of agencies and counties of this State, in the work of such districts; (5) To disseminate information throughout the State concerning the activities and programs of the soil and water conservation districts organized hereunder and to encourage the information of such districts in areas where their organization is desirable; (6) To receive gifts, appropriations, materials, equipment, lands and facilities and to manage, operate and disburse them for the benefit of the soil and water conservation districts; (7) To coordinate the development of comprehensive conservation plans for environmental improvement on all lands owned or controlled by the State; (8) To coordinate the development of a statewide landscape inventory and formulate guidelines for assisting local conservation districts, municipalities, counties, and other groups in implementing landscape and beautification programs; (9) To coordinate the development of a comprehensive plan for implementation of the standard soil survey information and to prepare guidelines for local conservation districts, counties, municipalities and other agencies of State and local government in the use of soil survey data for land use planning, development and conservation; (10) To coordinate the development of a statewide flood plain lands area inventory and to formulate guidelines for the conservation, protection and use of flood plain lands, excluding tidelands and marshlands; (11) To coordinate and assist local conservation districts, counties, and municipalities in developing policies and procedures for an adequate erosion and sediment control program; and engage in an educational informational program to acquaint municipalities, conservation districts, counties, and developers with sedimentation control management measures applicable to their activities, and familiarize these people with the program of the district; (12) To coordinate the development of a statewide irrigable land inventory and to formulate guidelines for the conservation, protection and use of such lands; (13) To coordinate the development of a statewide inventory of the availability of rural lands for recreational uses, and to formulate guidelines for the conservation, protection and use of such lands; and (14) To coordinate the development of conservation guidelines for incorporation into local and statewide land use plans."
Commission changed to department
SECTION 1185. Section 48-9-300 of the 1976 Code is amended to read:
"Section 48-9-300. The department may delegate to one or more agents or employees such powers and duties as it may deem proper and it may furnish information as well as call upon any or all State or local agencies for cooperation in carrying out the provisions of this chapter."
Commission changed to department
SECTION 1186. Section 48-9-310 of the 1976 Code is amended to read:
"Section 48-9-310. On or before the first day of November, annually, the department shall transmit to the Governor, on official blanks to be furnished by him, an estimate, in itemized form, showing the amount of expenditure requirements for the ensuing fiscal year. The estimates submitted shall state, in addition to the requirements of existing law, the following information: (1) The number and acreage of districts in existence or in process of organization, together with an estimate of the number and probable acreages of the districts which may be organized during the ensuing fiscal year; (2) A statement of the balance of funds, if any, available to the department and to the districts; and (3) The estimates of the department as to the sums needed for its administrative and other expenses and for allocation among the several districts during the ensuing fiscal year. The department may require the commissioners of the respective soil and water conservation districts to submit to it such statements, estimates, budgets and other information as it may deem necessary for the purposes of this section."
Commission changed to department
SECTION 1187. Section 48-9-320 of the 1976 Code is amended to read:
"Section 48-9-320. Unless otherwise provided by law all moneys which may from time to time be appropriated out of the State Treasury for the use of soil and water conservation districts shall be available to pay the administrative and other expenses of such districts and shall be allocated by the department among the districts already organized and to be organized during the fiscal year for which such appropriation is made. Such allocation shall be fair, reasonable and in the public interest, giving due consideration to the greater relative expense of carrying on operations within the particular districts because of such factors as unusual topography, unusual severity of erosion, special difficulty of carrying on operations, special volume of work to be done and the special importance of instituting erosion control and soil and water conservation operations immediately. In making allocations of such moneys, the department shall reserve an amount estimated by it to be adequate to enable it to make subsequent allocations in accordance with the provisions of this section from time to time among districts which may be organized within the current fiscal year after the initial allocations are made. All appropriations made for the purpose of this chapter shall be disbursed by the State Treasurer on warrants approved and signed by the department."
Commission changed to department
SECTION 1188. Article 5, Chapter 9, Title 48 of the 1976 Code is amended to read:
"Article 5
Creation of Soil and Water Conservation Districts
Section 48-9-510. Any twenty-five owners of land lying within the limits of territory proposed to be organized into a soil and water conservation district may file a petition with the department asking that a soil and water conservation district be organized to function in the territory described in the petition.
Section 48-9-520. Any such petition shall set forth: (1) The proposed name of the district; (2) That there is need, in the interest of the public health, safety and welfare, for a soil and water conservation district to function in the territory described in the petition; (3) A description of the territory proposed to be organized as a district, which shall not be required to be given by metes and bounds or by legal subdivisions but shall be deemed sufficient if generally accurate; and (4) Requests (a) that the department duly define the boundaries for the district, (b) that a referendum be held within the territory so defined on the question of the creation of a soil and water conservation district in such territory and (c) that the department determine that such a district be created.
Section 48-9-530. When more than one petition is filed covering parts of the same territory the department may consolidate all or any of such petitions.
Section 48-9-540. Within thirty days after such a petition has been filed with the department it shall cause due notice to be given of a proposed hearing upon the question of the desirability and necessity, in the interest of the public health, safety and welfare, of the creation of such district, upon the question of the appropriate boundaries to be assigned to such district, upon the propriety of the petition and other proceedings taken under this chapter and upon all questions relevant to such inquiries. All owners and occupiers of land within the limits of the territory described in the petition and of the lands within the limits of the territory considered for addition to such described territory and all other interested parties shall have the right to attend such hearings and to be heard. If it shall appear upon the hearing that it may be desirable to include within the proposed district territory outside of the area within which due notice of the hearing has been given, the hearing shall be adjourned and due notice of a further shall be given throughout the entire area considered for inclusion in the district and such further hearing held.
Section 48-9-550. If the department shall determine after such hearing, after due consideration of the facts presented at such hearing and such other relevant facts and information as may be available, that there is no need for a soil and water conservation district to function in the territory considered at the hearing, it shall make and record such determination and shall deny the petition. After six months shall have expired from the date of the denial of any such petition, subsequent petitions covering the same or substantially the same territory may be filed as provided in Section 48-9-510 and new hearings held and determinations made thereon.
Section 48-9-560. After such hearing, if the department shall determine, upon the facts presented at such hearing and upon such other relevant facts and information as may be available, that there is need, in the interest of the public health, safety and welfare, for a soil and water conservation district to function in the territory considered at the hearing, it shall make and record such determination and shall define, by metes and bounds or by legal subdivisions, the boundaries of such district. In making such determination and in defining such boundaries the department shall give due weight and consideration to the topography of the area considered and of the State, the composition of soils therein, the distribution of erosion, the prevailing land-use practices, the desirability and necessity of including within the boundaries the particular lands under consideration and the benefits such lands may receive from being included within such boundaries, the relation of the proposed area to existing watersheds and agricultural regions and to other soil and water conservation districts already organized or proposed for organization under the provisions of this chapter and such other physical, geographical and economic factors as are relevant, having due regard to the legislative determinations set forth in Section 48-9-20. The territory to be included within such boundaries need not be contiguous.
Section 48-9-570. The boundaries of any such district shall include the territory as determined by the department as provided in Section 48-9-560, but in no event shall they include any area included within the boundaries of another soil and water conservation district organized under the provisions of this chapter.
Section 48-9-580. After the department has made and recorded a determination that there is need, in the interest of the public health, safety and welfare, for the organization of a district in a particular territory and has defined the boundaries thereof, it shall, within a reasonable time after entry of the finding that there is need for the organization of the proposed district and the determination of the boundaries thereof hold a referendum within the proposed district upon the proposition of the creation of the district and cause due notice of such referendum to be given. The question shall be submitted by ballots upon which the words `For creation of a soil and water conservation district of the lands below described and lying in the county(ies) of (and )' and `Against creation of a soil and water conservation district of the lands below described and lying in the county(ies) of (and )' shall appear with a square before each proposition and a direction to insert an X mark in the square before one or the other of said propositions as the voter may favor or oppose creation of such district. The ballot shall set forth the boundaries of such proposed district as determined by the department. All owners of lands lying within the boundaries of the territory, as determined by the department, shall be eligible to vote in such referendum. Only such landowners shall be eligible to vote.
Section 48-9-590. The department shall pay all expenses for the issuance of such notices and the conduct of such hearings and referenda and shall supervise the conduct of such hearings and referenda. It shall issue appropriate regulations governing the conduct of such hearings and referenda and providing for the registration prior to the date of the referendum of all eligible voters or prescribing some other appropriate procedure for the determination of those eligible as voters in such referendum. No informalities in the conduct of such referendum or in any matters relating thereto shall invalidate the referendum or the result thereof if notice thereof shall have been given substantially as provided in Section 48-9-540 and such referendum shall have been fairly conducted.
Section 48-9-600. The department shall publish the result of such referendum and shall thereafter consider and determine whether the operation of the district within the defined boundaries is administratively practicable and feasible. If the department shall determine that the operation of such district is not administratively practicable and feasible it shall record such determination and deny the petition. If the department shall determine that the operation of such district is administratively practicable and feasible it shall record such determination and shall proceed with the organization of the district in the manner provided in Sections 48-9-610 to 48-9-630. In making such determination the department shall give due regard and weight to the attitudes of the owners and occupiers of lands lying within the defined boundaries, the number of landowners eligible to vote in such referendum who shall have voted, the proportion of the votes cast in such referendum in favor of the creation of the district to the total number of votes cast, the approximate wealth and income of the landowners and occupiers of the proposed district, the probable expense of carrying on erosion-control operations within such district and such other economic and social factors as may be relevant to such determination, having due regard to the legislative determinations set forth in Section 48-9-20. The department shall not have authority to determine that the operation of the proposed district within the defined boundaries is administratively practicable and feasible unless at least a majority of the votes cast in the referendum upon the proposition of creation of the district shall have been cast in favor of the creation of such district.
Section 48-9-610. If the department shall determine that the operation of the proposed district within the defined boundaries is administratively practicable and feasible it shall appoint two commissioners to act with the three commissioners elected as provided in Article 11 of this chapter as the governing body of the district.
Section 48-9-620. The two appointed commissioners shall present to the Secretary of State an application signed by them, which shall set forth (and such application need contain no detail other than the mere recitals) that: (1) A petition for the creation of the district was filed with the department pursuant to the provisions of this chapter and that the proceedings specified in this chapter were taken pursuant to such petition; (2) The application is being filed in order to complete the organization of the district under this chapter and the department has appointed the signers as commissioners; (3) The name and official residence of each of the commissioners, together with a certified copy of the appointments evidencing their right to office; (4) The term of office of each of the commissioners; (5) The name which is proposed for the district; and (6) The location of the principal office of the commissioners of the district. The application shall be subscribed and sworn to by each of the commissioners before an officer authorized by the laws of this State to take and certify oaths, who shall certify upon the application that he personally knows the commissioners and knows them to be the officers as affirmed in the application and that each has subscribed thereto in the officer's presence. The application shall be accompanied by a statement by the department which shall certify (and such statement need contain no detail other than the mere recitals) that a petition was filed, notice issued and hearing held as provided in Sections 48-9-510 and 48-9-540; that the department did duly determine that there is need, in the interest of the public health, safety and welfare, for a soil and water conservation district to function in the proposed territory and did define the boundaries thereof; that notice was given and a referendum held on the question of the creation of such district and that the result of such referendum showed a majority of the votes cast in such referendum to be in favor of the creation of the district; and that thereafter the department did duly determine that the operation of the proposed district is administratively practicable and feasible. Such statement shall set forth the boundaries of the district as defined by the department.
Section 48-9-630. The Secretary of State shall examine the application and statement and, if he finds that the name proposed for the district is not identical with that of any other soil and water conservation district of this State or so nearly similar as to lead to confusion or uncertainty, he shall receive and file them and shall record them in an appropriate book of record in his office. If the Secretary of State shall find that the name proposed for the district is identical with that of any other soil and water conservation district of this State or so nearly similar as to lead to confusion and uncertainty, he shall certify such fact to the department, which shall thereupon submit to the Secretary of State a new name for the district, which shall not be subject to such defects. Upon receipt of such new name, free of such defects, the Secretary of State shall record the application and statement, with the name so modified, in an appropriate book of record in his office. When the application and statement have been made, filed and recorded, as provided in Section 48-9-620 and this section, the district shall constitute a governmental subdivision of this State and a public body corporate and politic exercising public powers. The Secretary of State shall make and issue to the commissioners a certificate, under the seal of the State, of the due organization of the district and shall record such certificate with the application and statement.
Section 48-9-640. After six months shall have expired from the date of entry of a determination by the department that the operation of a proposed district is not administratively practicable and feasible and a denial of a petition pursuant to such determination, subsequent petitions may be filed as provided in Section 48-9-510 and action taken thereon in accordance with the provisions of this chapter.
Section 48-9-650. In any suit, action or proceeding involving the validity or enforcement of, or relating to, any contract, proceeding or action of the district, the district shall be deemed to have been established in accordance with the provisions of this chapter upon proof of the issuance of the certificate by the Secretary of State as provided in Section 48-9-630. A copy of such certificate duly certified by the Secretary of State shall be admissible in evidence in any such suit, action or proceeding and shall be proof of the filing and contents thereof."
Commission changed to department
SECTION 1189. Article 7, Chapter 9, Title 48 of the 1976 Code is amended to read:
"Article 7
Extension or Subdivision of Districts
Section 48-9-810. Petitions for including additional territory within an existing district may be filed with the department and the proceedings provided for in Article 5 of this chapter in the case of petitions to organize a district shall be observed in the case of petitions for such inclusion. The department shall prescribe the form for such petition, which shall be as nearly as may be in the form prescribed in Article 5 of this chapter for petitions to organize a district. When the total number of landowners in the area proposed for inclusion shall be less than twenty-five, the petition may be filed when signed by a majority of the landowners of such area and in such case no referendum need be held. In referenda upon petitions for such inclusion, all owners of land lying within the proposed additional area shall be eligible to vote.
Section 48-9-820. A portion of a soil and water conservation district, such portion being composed of one or more entire counties, may withdraw from such district and constitute itself a separate soil and water conservation district by the procedure set forth in this section and Sections 48-9-830 and 48-9-840. A petition signed by a majority of the members of the governing body of the soil and water conservation district or a petition signed by twenty-five landowners of the county or counties wishing to withdraw and constitute themselves a separate district may be filed with the department asking that the subdivision be made and constitute a district. Such petition shall (a) set forth the name of the district, (b) describe the existing boundary lines of the district and boundary lines of the proposed district (subdivision) and (c) request that the department hold a public hearing upon the question of the proposed subdivision and that the department duly define the boundary lines as set out in the petition.
Section 48-9-830. Within thirty days after such a petition has been filed with the department, it shall cause due notice to be given of a proposed hearing upon the question of the proposed subdivision. All occupiers of land lying within the proposed district and all other interested parties shall have the right to attend such hearing and to be heard.
Section 48-9-840. After such hearing the department shall determine, upon the facts presented at such hearing and upon such other relevant facts and information as may be available, whether there is need in the interest of the public health, safety and welfare for the proposed subdivision and whether the operation of the districts within the proposed boundaries will be administratively practicable and feasible. In making such determination, the department shall give due weight and consideration to the legislative determinations set forth in Section 48-9-20 and to the standards provided in Sections 48-9-560 and 48-9-600 for the guidance of the department in making its determinations in connection with the organization of districts. If the department determines that the proposed subdivision is not necessary in the interest of the public health, safety and welfare, or that the operation of the districts within the proposed boundaries would not be administratively practicable or feasible, it shall record such determination and deny the petition. If the department shall determine in favor of the proposed subdivision, it shall record such determination and define the boundary lines between the districts and shall notify the chairman of the governing body of the district to be divided of its determination.
Section 48-9-850. The department shall then proceed in accordance with Sections 48-9-610 to 48-9-630 to organize the subdivision into a district and to inform the Secretary of State of the change in the boundaries of the remaining district and to complete the organization of the governing body of the remaining district."
Commission changed to department
SECTION 1190. Article 9, Chapter 9, Title 48 of the 1976 Code is amended to read:
"Article 9
Discontinuance of Districts
Section 48-9-1010. At any time after five years after the organization of a district under the provisions of this chapter any twenty-five owners of land lying within the boundaries of such district may file a petition with the department praying that the operations of the district be terminated and the existence of the district discontinued. The department may conduct such public meetings and public hearings upon the petition as may be necessary to assist it in the consideration thereof.
Section 48-9-1020. Within sixty days after such a petition has been received by the department it shall give due notice of the holding of a referendum and shall supervise such referendum and issue appropriate regulations governing the conduct thereof. The question shall be submitted by ballots upon which the words `For terminating the existence of the (name of the soil and water conservation district to be here inserted)' and `Against terminating the existence of the (name of the soil and water conservation district to be here inserted)' shall appear with a square before each proposition and a direction to insert an X mark in the square before one or the other of the propositions as the voter may favor or oppose discontinuance of such district. All owners of land lying within the boundaries of the district shall be eligible to vote in such referendum. Only such landowners shall be eligible to vote. No informalities in the conduct of such referendum or in the matters relating thereto shall invalidate the referendum or the result thereof if notice thereof shall have been given substantially as provided in this section and the referendum shall have been fairly conducted.
Section 48-9-1030. The department shall publish the result of such referendum and shall thereafter consider and determine whether the continued operation of the district within the defined boundaries is administratively practicable and feasible. If the department shall determine that the continued operation of such district is administratively practicable and feasible it shall record such determination and deny the petition. If the department shall determine that the continued operation of such district is not administratively practicable and feasible it shall record such determination and shall certify such determination to the commissioners of the district. In making such determination the department shall give due regard and weight to the attitude of the owners and occupiers of lands lying within the district, the number of landowners eligible to vote in such referendum who shall have voted, the proportion of the votes cast in such referendum in favor of the discontinuance of the district to the total number of votes cast, the approximate wealth and income of the landowners and occupiers of the district, the probable expense of carrying on erosion-control operations within the district and such economic and social factors as may be relevant to such determination, having due regard to the legislative findings set forth in Section 48-9-20. But the department shall not have authority to determine that the continued operation of the district is administratively practicable and feasible unless at least a majority of the votes cast in the referendum shall have been cast in favor of the continuance of such district.
Section 48-9-1040. Upon receipt from the department of a certification that the department has determined that the continued operation of the district is not administratively practicable and feasible, pursuant to the provisions of this article, the commissioners shall forthwith proceed to terminate the affairs of the district. The commissioners shall dispose of all property belonging to the district at public auction and shall pay over the proceeds of such sale to be converted into the State Treasury. The commissioners shall thereupon file an application, duly verified, with the Secretary of State for the discontinuance of such district and shall transmit with such application the certificate of the department setting forth the determination of the department that the continued operation of such district is not administratively practicable and feasible. The application shall recite that the property of the district has been disposed of and the proceeds paid over as in this section provided and shall set forth a full accounting of such properties and proceeds of the sale. The Secretary of State shall issue to the commissioners a certificate of dissolution and shall record such certificate in an appropriate book of record in his office.
Section 48-9-1050. Upon issuance of a certificate of dissolution under the provisions of this article all ordinances and regulations theretofore adopted and in force within such district shall be of no further force and effect. All contracts theretofore entered into to which the district or commissioners are parties shall remain in force and effect for the period provided in such contracts. The department shall be substituted for the district or commissioners as a party to such contracts. The department shall be entitled to all benefits and subject to all liabilities under such contracts and shall have the same right and liability to perform, to require performance, to sue and be sued thereon and to modify or terminate such contracts by mutual consent or otherwise as the commissioners of the district would have had. Such dissolution shall not affect the lien of any judgment entered under the provisions of Section 48-9-1630 nor the pendency of any action instituted under the provisions of Section 48-9-1610 and the department shall succeed to all the rights and obligations of the district or commissioners as to such liens and actions.
Section 48-9-1060. The department shall not be required to entertain petitions for the discontinuance of any district nor conduct referenda upon such petitions nor make determinations pursuant to such petitions in accordance with the provisions of this article more often than once in five years."
Commission changed to board
SECTION 1191. Section 48-9-1210 of the 1976 Code is amended to read:
"Section 48-9-1210. The two commissioners appointed by the board shall be persons who are by training and experience qualified to perform the specialized skilled services which will be required of them in the performance of their duties under this chapter."
Commission changed to board
SECTION 1192. Section 48-9-1230 of the 1976 Code is amended to read:
"Section 48-9-1230. Except as otherwise provided in Section 48-9-1220, the term of office of each commissioner is four years, except that in newly created districts the elected commissioners' terms of office are until the next regular election is held under the provisions of Section 48-9-1220 and the first appointed commissioners must be designated to serve for terms of one and two years, respectively, from the date of their appointment. A commissioner shall hold office until his successor has been elected or appointed and has qualified. Vacancies must be filled for the unexpired term. The selection of successors to fill an unexpired term, or for a full term, must be made in the same manner in which the retiring commissioners shall, respectively, have been selected, except that in the case of a vacancy in the unexpired term of an elected commissioner a successor may be appointed by the board upon the unanimous recommendation of the remaining commissioners. Any commissioner may be removed by the board upon notice and hearing for neglect of duty or malfeasance in office, but for no other reason."
Commission changed to department
SECTION 1193. Section 48-9-1320 of the 1976 Code is amended to read:
"Section 48-9-1320. The commissioners shall furnish to the department, upon request, copies of such ordinances, rules, regulations, orders, contracts, forms and other documents as they shall adopt or employ and such other information concerning their activities as it may require in the performance of its duties under this chapter."
Commission changed to department
SECTION 1194. Section 48-9-1810 of the 1976 Code is amended to read:
"Section 48-9-1810. When the commissioners of any district organized under the provisions of this chapter shall adopt an ordinance prescribing land-use regulations in accordance with the provisions of Article 13 of this chapter they shall further provide by ordinance for the establishment of a board of adjustment. Such board of adjustment shall consist of three members, each to be appointed for a term of three years, except that the members first appointed shall be appointed for terms of one, two and three years, respectively. The members of each such board shall be appointed by the department, with the advice and approval of the commissioners of the district for which such board has been established, and shall be removable, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other reason, such hearing to be conducted jointly by the department and the commissioners of the district. Vacancies in the board shall be filled in the same manner as original appointments, and shall be for the unexpired term of the member whose term becomes vacant."
Commission changed to board and department
SECTION 1195. Section 48-9-1820 of the 1976 Code is amended to read:
"Section 48-9-1820. Members of the board and the commissioners of the district shall be ineligible to appointment as members of the board during their tenure of such other office. The members of the board shall receive compensation for their services at a per diem rate to be determined by the department for time spent on the work of the board, in addition to expenses, including traveling expenses, necessarily incurred in the discharge of their duties. The commissioners shall pay the necessary administrative and other expenses of operation incurred by the board upon the certificate of the chairman of the board."
Chairman changed to director; commission changed to department
SECTION 1196. Section 48-9-1840 of the 1976 Code is amended to read:
"Section 48-9-1840. A land occupier may file a petition with the board alleging that there are great practical difficulties or unnecessary hardships in the way of his carrying out upon his lands the strict letter of the land-use regulations prescribed by ordinance approved by the commissioners and praying the board to authorize a variance from the terms of the land-use regulations in the application of such regulations to the lands occupied by the petitioner. Copies of such petition shall be served by the petitioner upon the chairman of the commissioners of the district within which his lands are located and upon the director of the department."
Commission changed to department
SECTION 1197. Section 48-9-1850 of the 1976 Code is amended to read:
"Section 48-9-1850. The board shall fix a time for the hearing of the petition and cause due notice of such hearing to be given. The commissioners of the district and the department may appear and be heard at such hearing. Any occupier of lands lying within the district who shall object to the authorizing of the variance prayed for may intervene and become a party to the proceedings. Any party to the hearing before the board may appear in person, by agent or by attorney. If, upon the facts presented at such hearing, the board shall determine that there are great practical difficulties or unnecessary hardships in the way of applying the strict letter of any of the land-use regulations upon the lands of the petitioner, it shall make and record such determination and shall make and record findings of fact as to the specific conditions which establish such great practical difficulties or unnecessary hardships. Upon the basis of such findings and determination the board may by order authorize such variance from the terms of the land-use regulations, in their application to the lands of the petitioner, as will relieve such great practical difficulties or unnecessary hardships and will not be contrary to the public interest and such that the spirit of the land-use regulations shall be observed, the public health, safety and welfare secured and substantial justice done."
Definitions
SECTION 1198. Section 48-11-10 of the 1976 Code is amended by adding at the end the following:
"(12) `Department' means the Department of Natural Resources. (13) `Division' means Land Resources and Conservation Districts Division. (14) `Board' means the board of the Department of Natural Resources."
Commission changed to department
SECTION 1199. Section 48-11-15 of the 1976 Code is amended to read:
"Section 48-11-15. The Department of Natural Resources shall assist boards of commissioners of soil and water conservation districts and boards of directors of watershed conservation districts with the organization and function of watershed conservation districts. For the purpose of this chapter, the responsibility of the department is limited to this activity. The construction, operation, and maintenance of watershed works of improvement are the sole responsibility of watershed conservation districts and others as specified in documents for the works of improvement."
Commission changed to department
SECTION 1200. Section 48-11-90 of the 1976 Code is amended to read:
"Section 48-11-90. The county election commission shall tabulate the results of the referendum at the close of the polls and certify the results to the clerks of court of the counties in which part of the district is situated. Upon proper recordation of the referendum results by the clerks of court the watershed conservation district constitutes a governmental subdivision of this State and a public body corporate and politic. After recording the results the clerks of court shall notify the board of commissioners in writing that the watershed conservation district has been created, and the soil and water conservation district board shall submit to the department a copy of the notification."
Commission changed to department
SECTION 1201. Section 48-11-100 of the 1976 Code is amended to read:
"Section 48-11-100. (A) The governing body of each watershed conservation district consists of five directors selected as provided in this section. No person may be a director who is not a qualified elector residing in the district. (B) The first directors of the watershed conservation district after the district has been created must be elected in a nonpartisan election conducted by the county election commission when county officers are elected in the general election. To be placed on the ballot each candidate shall submit to the county election commission a nominating petition with the signatures of twenty-five qualified electors residing in the watershed conservation district, or, if less than fifty qualified electors reside in the district, a majority of the qualified electors. The official number of qualified electors residing in a watershed conservation district is the number of registered electors residing in the district and registered one hundred twenty days before the date of the election for which the nomination petition is being submitted. The candidate named in each petition must be placed on the appropriate official ballot for the election if the petition is submitted to the county election commission not later than twelve noon on August first or, if August first falls on Sunday, not later than twelve noon on the following Monday. The form of the petition must comply with the requirements in Section 7-11-80 pertaining to the conduct of general elections not conflicting with this section. This election must be conducted pursuant to Title 7, mutatis mutandis, except as otherwise provided in this section. The five elected directors, under the general supervision of the board of commissioners of the soil and water conservation district, are the governing body of the watershed conservation district. (C) (1) Of the directors first elected, the three receiving the largest number of votes serve for terms of four years, and the two receiving the next largest number of votes serve for terms of two years. (2) The term of office of each of their successors is four years, except in lieu of election successors may be appointed in watershed conservation districts if: (a) one of the sponsors, other than the watershed conservation district board of directors, of each phase of each work of improvement conducted by the district, including operation and maintenance of the work of improvement, has the authority to levy an annual tax on the real property in the district for that phase of the work of improvement; (b) the watershed conservation district has sufficient funds, other than taxes levied by the district on real property in the district, to pay the expenses of the district. (3) Twenty-five or more qualified electors residing in a watershed conservation district may submit a petition to the board of commissioners of the soil and water conservation district for the procedure by which watershed conservation district directors are selected to be changed from election to appointment. The board of commissioners shall determine whether the prerequisites for appointment described in item (1) are met. To help make this decision the board shall give due notice of and hold a public hearing on the proposed change within sixty days after receiving the petition. After the public hearing the board of commissioners shall determine whether the prerequisites are met. (4) If the board of commissioners determine that the prerequisites are met, a referendum to approve or disapprove the change in the procedure for selecting watershed conservation district directors must be held by the county election commission in the next scheduled countywide election in the counties where the watershed conservation district is located. Applicable rules of the scheduled election apply to the referendum. Due notice of the referendum must be given by the county election commission. Notice must state that, if the procedure for selecting watershed conservation district directors is changed from election to appointment, the change is effective as current terms expire and that the authority of the watershed conservation district to levy an annual tax on real property in the district ceases when the first of the current terms expires and has been filled by appointment and continues as long as directors are appointed instead of elected. Only qualified electors residing in the watershed conservation district may vote in the referendum. (5) The county election commission shall tabulate the results of the referendum, submit the results in writing to the board of commissioners of the soil and water conservation district, and certify the results to the clerks of court of the counties in which the watershed conservation district is located. If a majority of the votes cast in the referendum favor changing the procedure for selecting watershed conservation district directors from election to appointment, the board of commissioners shall submit written notification to the county election commission, county auditors, sponsors of works of improvement of the watershed conservation district, watershed district directors, and the department that the selection procedure is changed when current terms expire and that the authority of the watershed conservation district board to levy an annual tax on real property in the district ceases, when the first of the current terms expires and has been filled by appointment and continues as long as directors are appointed instead of elected. (6) The governing body of each county in which the watershed conservation district is located shall appoint one director each, and the board of commissioners of the soil and water conservation district shall appoint the remaining directors. To be considered for appointment by the board of commissioners of the soil and water conservation district or the county governing body, an individual shall submit to the board or body from which appointment is sought a nominating petition with the signatures of twenty-five qualified electors residing in the watershed conservation district, or, if less than fifty qualified electors reside in the district, a majority of the qualified electors. The official number of qualified electors residing in a watershed conservation district is the number of registered electors residing in the district and registered one hundred twenty days before the date by which nominating petitions must be submitted. The board of commissioners and the county governing body shall give due notice that they will receive petitions to nominate candidates to be appointed as watershed conservation district directors. Due notice must be given at least sixty days before the date by which petitions must be submitted. (7) The board of commissioners of the soil and water conservation district shall: (a) maintain records on the election and appointment of directors; (b) coordinate appointments by the county governing bodies, including written notification to the county governing bodies at least ninety days before the expiration of each term to be filled through appointment by the county governing body; (c) submit in writing to the department the name of each elected or appointed director within thirty days of election or appointment. (8) When each phase of a work of improvement of a watershed conservation district for which directors are appointed does not have a sponsor with authority to levy an annual tax on real property in the district for that phase of the work of improvement, or when the watershed conservation district does not have sufficient funds to pay the expenses of the district, the procedure for selecting watershed conservation district directors must be changed from appointment to election, and the board of commissioners shall notify in writing the county election commission, county auditor, sponsors of works of improvement of the watershed conservation district, watershed conservation district directors, and the department that the selection procedure is changed when current terms expire and that when current terms expire and have been filled by election, the watershed conservation district board may levy an annual tax on real property in the district as long as directors are elected instead of appointed. For a vacancy occurring before the expiration of the term of an elected director, a successor to serve for the unexpired portion of the term must be appointed by the board of commissioners. (D) For a vacancy occurring before the expiration of the term of an appointed director, a successor to serve for the unexpired portion of the term must be appointed by the body that made the original appointment. A director may be removed from office by the board of commissioners upon notice and hearing for neglect of duty or malfeasance in office but for no other reason. (E) For each calendar year the directors annually shall elect from among their number a chairman, secretary, and treasurer and so notify the soil and water conservation district and the department by March thirty-first each year. The board of directors, with the approval of the board of commissioners of the soil and water conservation district, may employ officers, agents, and other employees it requires and determine their qualifications, duties, and compensation. The board of directors shall provide for the execution of surety bonds for the officers, agents, or employees entrusted with funds or property of the watershed conservation district, tort liability insurance for each director of the watershed conservation district board, for the keeping of a full and accurate record of the proceedings, resolutions, and other actions of the board, and for the making and publication of an annual audit of the accounts of receipts and disbursements of the watershed conservation district. The watershed conservation district board shall submit a copy of the audit to the county treasurer and to the board of commissioners of the soil and water conservation district. The watershed conservation district board shall submit written notification to the department within one hundred twenty days following the end of the district's fiscal year that the audit has been made, the date of the audit, and the name of the firm that or individual who made the audit. (F) The directors may receive no compensation for their services, but they may be reimbursed from the budget of the watershed conservation district or from another local source for expenses, including traveling expenses, necessarily incurred in the discharge of their powers and duties as approved by the board of commissioners."
Commission changed to department
SECTION 1202. Section 48-11-185(D) of the 1976 Code is amended to read:
"(D) The county election commission shall tabulate the results of the referendum at the close of the polls, submit a written report of the results to the board of commissioners of the soil and water conservation district, and certify the results of the referendum to the clerks of court of the counties in which the district is situated. If a majority of the votes cast in the referendum are in favor of consolidation of the watershed conservation districts into the single district, upon proper recordation of the referendum results by the clerks of court of the counties, the watershed conservation district constitutes a governmental subdivision of this State and a public body corporate and politic and must be organized and shall function fully in accordance with this chapter. After recording the results the clerks of court shall notify the board of commissioners of the soil and water conservation district in writing that the watershed conservation district has been established. The board of commissioners shall submit to the department a copy of the notification from the clerks of court."
Commission changed to department
SECTION 1203. Section 48-11-190(C) of the 1976 Code is amended to read:
"(C) After recording the results of the referendum, the clerks of court shall notify the board of commissioners of the soil and water conservation district and the board of directors of the watershed conservation district in writing that the watershed conservation district has been discontinued, and the directors immediately shall terminate the affairs of the watershed conservation district. The board of commissioners shall submit to the department a copy of the notification from the clerks of court."
Commission changed to department
SECTION 1204. Section 48-11-210(D) of the 1976 Code is amended to read:
"(D) The board of commissioners of each of the soil and water conservation districts in which a part or all of each of the watershed conservation districts in subsections (A), (B), and (C) is located shall initiate action with the board of directors of the watershed conservation district and the county government to carry out this revision in the organization and function of the watershed conservation district. The department shall assist each of the boards of commissioners of the affected soil and water conservation districts with this responsibility. The department shall initiate this assistance by providing written directions and guidance to each of the affected soil and water conservation districts within ninety days of the effective date of this chapter, as amended. The department may adopt policy and has broad authority to carry out this section."
Definitions revised
SECTION 1205. Items (1), (4), and (6) of Section 48-14-20 of the 1976 Code are amended to read:
"(1) `Department' means the South Carolina Department of Health and Environmental Control. (4) `Implementing agency' means the department, local government, or conservation district with the responsibility for receiving stormwater management and sediment control plans for review and approval, reviewing plans, issuing permits for land disturbing activities, and conducting inspections and enforcement actions in a specified jurisdiction. (6) `Designated Watershed' means a watershed designated by a local government and approved by the Department of Health and Environmental Control and identified as having an existing or potential stormwater, sediment control, or nonpoint source pollution problem."
Commission changed to department
SECTION 1206. Section 48-14-40(F) of the 1976 Code is amended to read:
"(F) Any of the following land disturbing activities undertaken by any person who provides gas, electrification, or communications services, subject to the jurisdiction of the South Carolina Public Service Commission, or corporations organized and operating pursuant to Section 33-49-10 et seq.: (1) land disturbing activities conducted pursuant to a certificate of environmental compatibility and public convenience and necessity issued pursuant to Title 58, Chapter 33 or land disturbing activities conducted pursuant to any other certification or authorization issued by the Public Service Commission; (2) land disturbing activities conducted pursuant to a federal environmental permit, including Section 404 of the Federal Clean Water Act, and including permits issued by the Federal Energy Regulatory Commission; (3) land disturbing activities associated with emergency maintenance or construction of electric, gas, or communications facilities, when necessary to restore service or when the Governor declares the area to have sustained a disaster and the actions are undertaken to protect the public from a threat to health or safety; (4) land disturbing activities associated with routine maintenance and/or repair of electric, gas, or communications lines; (5) land disturbing activities associated with the placement of poles for overhead distribution or transmission of electric energy or of communications services; (6) land disturbing activities associated with placement of underground lines for distribution or transmission of electric energy or of gas or communications services; or (7) land disturbing activities conducted by a person filing environmental reports, assessments, or impact statements with the United States Department of Agriculture, Rural Electrification Administration in regard to a project. Any person, other than a person identified in subparagraph (7), who undertakes land disturbing activities described in subparagraphs (4), (5), and (6) of this subsection must file with the South Carolina Public Service Commission, in a Policy and Procedures Manual, the procedures it will follow in conducting such activities. Any person, other than a person identified in subparagraph (7), who conducts land disturbing activities described in subparagraph (2) of this subsection, must address the procedures it will follow in conducting the activities in the Policy and Procedures Manual filed with the South Carolina Public Service Commission to the extent that the land disturbing activities are not specifically addressed in the federal permit or permitting process. If any person, other than a person identified in subparagraph (7), does not have a Policy and Procedures Manual on file with the Public Service Commission, such manual must be filed with the Public Service Commission not later than six months after May 27, 1992. Any person who undertakes land disturbing activities described in subparagraph (7) of this subsection shall give the same written notice to the department as given to agencies whose permits are required for project approval by the regulations of the United States Department of Agriculture, Rural Electrification Administration."
Commission changed to department
SECTION 1207. Section 48-14-50 of the 1976 Code is amended to read:
"Section 48-14-50. (A) The department shall develop a State Stormwater Management and Sediment Reduction Program. (B) In carrying out this chapter, the department shall: (1) provide technical and other assistance to local governments and others in implementing this chapter; (2) require that appropriate stormwater management and sediment control provisions be included in all stormwater management and sediment control plans developed pursuant to this chapter; (3) cooperate with appropriate agencies of this State, the United States, other states, or any interstate agency with respect to stormwater management and sediment control; (4) conduct studies and research regarding the causes, effects, and hazards of stormwater and sediment and methods to control stormwater runoff and sediment; (5) conduct and supervise educational programs with respect to stormwater management and sediment control; (6) require the submission to the department of records and periodic reports by implementing agencies as may be necessary to carry out this chapter; (7) establish a means of communications, such as a newsletter, so that information regarding program development and implementation can be distributed to interested individuals; (8) assist conservation districts and local governments involved in the local stormwater management and sediment control program; and (9) develop a schedule for implementing this chapter in the counties and municipalities of this State. (C) The department shall promulgate regulations, minimum standards, guidelines, and criteria necessary to carry out the provisions of this chapter with input from the South Carolina Erosion and Sediment Reduction Advisory Council, appointed by the Governor, in consultation with the South Carolina Association of Special Purpose Districts, and the South Carolina Municipal Association, and a task force of technical experts appointed by the department. The regulations must include, but are not limited to: (1) criteria for the delegation of program elements and review and revocation of delegated program elements; (2) appeal procedures for local governments requesting delegation of program elements; (3) types of activities that require a stormwater management and sediment control permit; (4) waivers, exemptions, variances, and appeals; (5) stormwater management and sediment control plan application or inspection fees; (6) criteria for distribution of funds collected by sediment and stormwater plan approval and inspection fees; (7) criteria for implementation of a stormwater management utility; (8) specific design criteria and minimum standards and specifications; (9) permit application and approval requirements; (10) specific enforcement options; (11) criteria for approval of designated watersheds; (12) criteria regarding correction of off-site damages resulting from the land disturbing activity; (13) construction inspections; (14) maintenance requirements for sediment control during construction and stormwater management structures after construction is completed; (15) procedures to accept and respond to citizen complaints on delegated program components and individual site problems; and (16) a schedule for implementing this chapter considering such factors as demographics, growth and development, and state and local resources. (D) These regulations promulgated for carrying out the stormwater management and sediment control program must: (1) be based upon relevant physical and developmental information concerning the watershed and drainage basins of the State, including but not limited to, data relating to land use, soils, hydrology, geology, grading, ground cover, size of land area being disturbed; and (2) contain conservation standards for various types of soils and land uses, which standards must include criteria and alternative techniques and methods for the control of erosion, sediment, and stormwater runoff resulting from land disturbing activities. (E) The department may amend, modify, or repeal these regulations in accordance with the provisions of the Administrative Procedures Act."
Commission changed to department
SECTION 1208. Section 48-14-60 of the 1976 Code is amended to read:
"Section 48-14-60. (A) The department may delegate any or all components of stormwater management and sediment control programs to a local government or conservation district pursuant to regulations promulgated by the department. (B) Requests for delegation of program elements must be submitted within six months of the promulgation of the applicable state regulation, and by January first of subsequent years if delegation is desired at a future date. The department shall approve, approve with modification, or deny such a request on or before April first of the year for which delegation is sought. (C) Delegation, once applied for, becomes effective on July first and may not exceed three years, at which time delegation renewal is required. (D) A local government may develop the program in cooperation with conservation districts. (E) In the event a local government does not adopt and request approval of a stormwater management and sediment control program within its jurisdiction, the local conservation district may adopt a program in conjunction with subdivision regulations, if applicable, and submit it to the department for approval. (F) The department has jurisdiction, to the exclusion of other implementing agencies, for the purpose of adopting the components of a sediment control and stormwater management program for land disturbing activities that are: (1) conducted by the United States; (2) conducted by persons having the power of eminent domain for land disturbing activities which cross jurisdictional boundaries; (3) conducted by local governments."
Commission changed to department; provide for the department's action pursuant to the Administrative Procedures Act
SECTION 1209. Section 48-14-70 of the 1976 Code is amended to read:
"Section 48-14-70. (A) Any local government that has adopted a stormwater management and/or sediment control program before May 27, 1992 may request approval of any or all components of its existing program within its jurisdiction. This request must be submitted within six months of the promulgation of the applicable state regulation. The review and approval, approval with modification, or disapproval of these existing programs must be given priority by the department. The local government shall continue to administer its existing programs during the review process by the department. The review must include consideration of the efficiency and effectiveness of the existing program in meeting the intent of this chapter. (B) The department shall approve a program upon determining that its standards equal or exceed those of this chapter. The department shall only modify the portions of a program which do not meet the minimum standards of this chapter. (C) If a local government's request for approval of one or more components of an existing stormwater management or sediment control is not approved by the department, the local government may appeal the department's action following the procedures detailed in the Administrative Procedures Act."
Commission changed to department
SECTION 1210. Section 48-14-80 of the 1976 Code is amended to read:
"Section 48-14-80. One year after May 27, 1992, a federal agency may not undertake any regulated activity unless the agency has submitted a stormwater management and sediment control plan to the department and received its approval. The only variation to this requirement is when program elements are delegated by the department to a federal agency."
Commission changed to department
SECTION 1211. Section 48-14-85 of the 1976 Code is amended to read:
"Section 48-14-85. After May 27, 1992, a local government or special purpose or public service district may not undertake any regulated activity unless the local government or special purpose or public service district has submitted a request for a general permit to the department and received its approval."
Commission changed to department
SECTION 1212. Section 48-14-90 of the 1976 Code is amended to read:
"Section 48-14-90. (A) With respect to approved stormwater management and sediment control plans, the implementing agency shall ensure that periodic reviews are undertaken, implementation is accomplished in accordance with the approved plans, and the required measures are functioning in an effective manner. Notice of right of entry must be included in the stormwater management and sediment control plan certification. The implementing agency may request assistance from the department. (B) The request for assistance from the department may initiate an inspection to verify site conditions. That inspection may result in the following actions: (1) notification by the implementing agency to the person responsible for the land disturbing activity to comply with the approved plan within a specified time; (2) notification by the implementing agency that the required measures are not functioning in an effective manner with a schedule for the person responsible for the disturbing activity to maintain the required measures or install additional measures which will be effective in controlling stormwater runoff and off-site sediment movement. (C) Failure of the person responsible for the land disturbing activity to comply with department requirements may result in the following actions in addition to other penalties as provided in this chapter: (1) The department may request that the appropriate implementing agency issue a stop work order until the violations have been remedied. (2) The department may request that the appropriate implementing agency refrain from issuing any further building or grading permits to the person having outstanding violations until those violations have been remedied. (3) The department may recommend fines to be levied by the implementing agency."
Commission changed to department
SECTION 1213. Section 48-14-110 of the 1976 Code is amended to read:
"Section 48-14-110. The department, in conjunction with local governments and districts and other appropriate state and federal agencies, shall conduct educational programs in stormwater management and sediment control for state and local government officials, persons engaged in land disturbing activities, interested citizen groups, and others."
Commission changed to department
SECTION 1214. Section 48-14-120 of the 1976 Code is amended to read:
"Section 48-14-120. (A) The implementing agencies are authorized to receive from federal, state, or other public or private sources financial, technical, or other assistance for use in accomplishing the purposes of this chapter. (B) The implementing agency has authority to adopt a fee system to help fund program administration. A fee system may be adopted by the implementing agency to help to fund overall program management, plan review, construction review, enforcement actions, and maintenance responsibilities. In those situations where the department becomes the implementing agency, the department may assess a plan review and inspection fee. Fees must be based upon the costs to the implementing agency to implement and administer the program. The implementing agency is granted authority to expend the funds it collects from the fee system to administer the provisions of this chapter. The department shall not assess a local government a plan review and inspection fee. (C) Authority is granted to local governments to establish a stormwater utility. The stormwater utility may fund such activities as watershed master planning, facility retrofitting, and facility maintenance. This funding shall occur through the establishment of a fee system or tax assessment that must be reasonable and equitable. Criteria for the implementation of the stormwater utility must be established in regulations promulgated under this chapter. The implementation of a stormwater utility will necessitate the adoption of a local utility ordinance prior to its implementation."
Approval by the department
SECTION 1215. Section 48-14-130 A(7) of the 1976 Code is amended to read:
"(7) a public involvement process which includes the establishment of a local watershed advisory committee and public hearing prior to approval by the department."
Commission changed to department
SECTION 1216. Section 48-14-140 of the 1976 Code is amended to read:
"Section 48-14-140. (A) Any person who violates any provision of this chapter or any ordinance or regulation promulgated, enacted, adopted, or issued pursuant to this chapter by the department or other implementing agency, or who initiates or continues a land disturbing activity for which a stormwater management and sediment control plan is required except in accordance with the terms, conditions, and provisions of an approved plan, is subject to a civil penalty of not more than one thousand dollars. No penalty may be assessed until the person alleged to be in violation has been notified of the violation. Each day of a violation constitutes a separate violation. (B) The implementing agency shall determine the amount of the civil penalty to be assessed under this section for violations under its jurisdiction. It shall make written demand for payment upon the person responsible for the violation and set forth in detail the violation for which the penalty has been invoked. If payment is not received or equitable settlement reached within thirty days after demand for payment is made, a civil action may be filed in the circuit court in the county in which the violation is alleged to have occurred to recover the amount of the penalty. If the implementing agency is the department, the action must be brought in the name of the State. Local governments shall refer the matters under their jurisdiction to their respective attorneys for the institution of a civil action in the name of the local government in the circuit court in the county in which the violation is alleged to have occurred for recovery of the penalty."
Commission changed to department
SECTION 1217. Section 48-14-160 of the 1976 Code is amended to read:
"Section 48-14-160. Nothing contained in this chapter and no action or failure to act under this chapter may be construed: (1) to impose any liability on the State, department, districts, local governments, or other agencies, officers, or employees thereof for the recovery of damages caused by such action or failure to act; or (2) to relieve the person engaged in the land disturbing activity of the duties, obligations, responsibilities, or liabilities arising from or incident to the operations associated with the land disturbing activity."
Commission changed to department
SECTION 1218. Section 48-14-170 of the 1976 Code is amended to read:
"Section 48-14-170. The department shall promulgate regulations necessary to implement Chapter 14, Title 48 of the 1976 Code added by this act."
Definitions revised; commission changed to department; obsolete references deleted
SECTION 1219. Chapter 18, Title 48, of the 1976 Code is amended to read:
"CHAPTER 18
Erosion and Sediment Reduction Act of 1983
Section 48-18-10. This chapter may be cited as the Erosion and Sediment Reduction Act of 1983.
Section 48-18-20. As used in this chapter: (1) `Erosion' means the wearing away of the ground surface by the action of wind, water, gravity, or any combination thereof. (2) `Sediment' means soil or other earth-like material that has been moved by the forces of water, wind, gravity, or any combination of them. (3) `Sedimentation' means the process or action of depositing sediment. (4) `Land disturbing activity' means any land change which may result in excessive erosion and sedimentation. (5) `Stormwater' means the direct runoff of water and associated material resulting from precipitation in any form. (6) `Local government' means any county or municipality. (7) `Soil and water conservation district' or `conservation district' means a governmental subdivision of the State created pursuant to Chapter 9 of Title 48; and `conservation district board' means the governing body of a soil and water conservation district. (8) `Department' means the South Carolina Department of Health and Environmental Control. (9) `Privately owned land' means all land not owned by the State, a state agency, quasi-state agency, subdivision of the State, or a federal governmental agency. (10) `Quasi-state agency' means any entity other than a state agency but having some attributes of a state agency by virtue of the fact that the State has some authority to make rules and regulations by which it is governed. For the purpose of this chapter, the South Carolina Public Service Authority is a quasi-state agency; county and municipal governments and special purpose districts are not quasi-state agencies. (11) `Board' means the board of the department.
Section 48-18-30. This chapter does not apply to the following: (1) Activities regulated by the South Carolina Mining Act (Chapter 19 of Title 48). (2) Beach erosion, which for the purpose of this chapter, means removal of soil, sand, or rock from the land adjacent to the ocean due to wave action.
Section 48-18-40. The department shall implement a statewide erosion and sediment reduction and stormwater management program as follows: (1) The department is designated as the state agency responsible for developing, coordinating, and promoting erosion and sediment reduction and stormwater management programs in the State. (2) The department must develop general guidelines for reducing erosion and sedimentation and improving stormwater management for use by conservation districts, local government, landowners, and land users of the State. The department must publicize and promote these guidelines through information and education programs. (3) The department must conduct surveys, investigations, and assessments of erosion, sediment, and stormwater management problems. (4) The department must make available existing technical assistance upon request to local governments, conservation districts, landowners, and land users. (5) The department must promulgate regulations for erosion and sediment reduction and stormwater management only on land either owned by the State, a state agency, or quasi-state agency or land under the management or control of such an entity through right-of-way easements or other agreements between such entities and private landowners, and must develop regulations for this purpose pursuant to Section 48-18-70. The regulations shall apply to privately owned lands only where they are under the management or control of the State, a state agency, or quasi-state agency through right-of-way easements or other agreements.
Section 48-18-50. (1) A state Advisory Council on Erosion and Sediment Reduction (State Advisory Council), which may include, but not be limited to, a representative of each of the following, must be appointed by the Governor upon the advice of the following agencies and organizations: South Carolina Association of Counties South Carolina Municipal Association South Carolina Association of Conservation Districts South Carolina Home Builders Association Associated General Contractors, Inc. South Carolina Association of Realtors South Carolina Chapter, American Society of Landscape Architects South Carolina Chapter, American Society of Civil Engineers Council of Governments Executive Director's Committee South Carolina Farm Bureau South Carolina State Grange Office of the Governor USDA-Soil Conservation Service Clemson University South Carolina Department of Health and Environmental Control South Carolina Forestry Commission South Carolina Forestry Association South Carolina Chapter American Institute of Architects (2) The department must provide staff support to the State Advisory Council. (3) Duties of the State Advisory Council include, but are not limited to the following: (a) Study the erosion and sediment reduction and stormwater management programs of other states and evaluate their applicability to South Carolina. (b) Evaluate erosion, sedimentation, and stormwater conditions in the State. (c) Recommend improvements and changes to meet the needs for erosion and sediment reduction and stormwater management in the State. (d) Assist the department with educational programs including, but not limited to, seminars, conferences, workshops, media productions, and written publication. (e) Compile information pertaining to sedimentation of water bodies in the State. (f) Evaluate and recommend conservation programs and technology for reducing erosion and sedimentation and improving stormwater management. (g) Evaluate the need for additional legislation for erosion and sediment reduction and stormwater management. (h) Recommend appropriate recognition programs for landowners and land users implementing outstanding erosion and sediment reduction and stormwater management programs. (i) Provide information to the department as needed. Section 48-18-60. (1) The Conservation Districts shall: (a) Assist in the development and promotion of erosion and sediment reduction and stormwater management programs as considered necessary by the conservation district boards. (b) Provide leadership in the promotion of erosion and sediment reduction and stormwater management within their boundaries. (c) Coordinate and seek assistance of governmental agencies, organizations, landowners, and land users for erosion and sediment reduction and stormwater management. (d) Conduct demonstrations on erosion and sediment reduction and stormwater management utilizing proven conservation technology. (e) Assist in the preparation of conservation plans for erosion and sediment reduction as requested by landowners and land users. (f) Provide available technical assistance for erosion and sediment reduction and stormwater management planning upon request by landowners and land users. (g) Perform other duties as defined in the Conservation Districts Law (Chapter 9 of Title 48). (2) Each conservation district must appoint an Advisory Council on Erosion and Sediment Reduction (Local Advisory Council) which may include, but not be limited to a: (a) local homebuilder. (b) local contractor. (c) local realtor. (d) municipal councilman. (e) county planning agency representative. (f) county councilman. (g) conservation district commissioner. (h) county farm bureau representative. (i) county grange representative. (j) USDA-Soil Conservation Service representative. (k) county extension service representative. (l) State Forestry Commission representative. (m) local civil engineer. (n) local architect. (o) local landscape architect. (3) Duties of the Local Advisory Council include, but are not limited to, the following: (a) Study the erosion and sediment reduction and stormwater management programs of other districts and evaluate their applicability to its respective district. (b) Evaluate erosion, sedimentation, and stormwater conditions in the district. (c) Recommend improvements and changes to meet the needs for erosion and sediment reduction and stormwater management in the district. (d) Assist the district with educational programs, including but not limited to, seminars, conferences, workshops, media productions, and written publications. (e) Compile information pertaining to sedimentation of water bodies in the district. (f) Evaluate and recommend conservation programs and technology for reducing erosion and sedimentation and improving stormwater management. (g) Evaluate the need for additional programs for erosion and sediment reduction and stormwater management. (h) Recommend appropriate recognition programs for landowners and land users implementing outstanding erosion and sediment reduction and stormwater management programs. (i) Provide information to the district as needed.
Section 48-18-70. (1) The department shall promulgate regulations for erosion and sediment reduction and stormwater management only on land either owned by this State, a state agency, or quasi-state agency or land under the management or control of these entities through right-of-way easements or other agreements between these entities and private landowners, except that the regulations may not apply to forest land owned or managed by the South Carolina Forestry Commission. The regulations apply to privately-owned lands only where they are under the management or control of this State, a state agency, or quasi-state agency through right-of-way easements or other agreements. The regulations must include, but not be limited to, technical standards, specifications, and guidelines for erosion and sediment reduction and stormwater management, and requirements for the implementation of the standards and specifications. The department shall develop and propose for approval the regulations provided for in this subsection in consultation with the State Engineer, Division of General Services, and other state agencies as applicable. The State Engineer shall insure that the regulations are followed on all land and land disturbing activities under his jurisdiction. (2) The department or its designated representative may inspect land owned by this State, a state agency, or quasi-state agency or land under the management or control of these entities through right-of-way easements or other agreements between these entities and private landowners to determine existing erosion and sedimentation and stormwater management problems and to insure the implementation of the provisions of the regulations provided for in subsection (1) of this section. (3) A state agency found by the department to be in noncompliance with the erosion and sediment reduction and stormwater management standards provided for in subsection (1) of this section shall take the necessary steps indicated by the standards and specifications provided for in subsection (1) of this section to correct the problems. (4) The department in consultation with the South Carolina Department of Transportation shall promulgate regulations for erosion and sediment reduction and stormwater management on land and land disturbing activities under the jurisdiction of the department. (5) The South Carolina Forestry Commission shall develop a plan, in consultation with the department, for erosion and sediment reduction and stormwater management on forest land owned or managed by the Forestry Commission, and shall implement the plan.
Section 48-18-80. Each conservation district must submit to the department an annual evaluation report with input from the Local Advisory Council on the progress in erosion and sediment reduction and stormwater management in the district. The department shall submit a comprehensive report to the Governor and the General Assembly every five years."
Commission changed to department
SECTION 1220. Section 48-20-30 of the 1976 Code is amended to read:
"Section 48-20-30. The South Carolina Department of Health and Environmental Control is responsible for administering the provisions and requirements of this chapter. This includes the process and issuance of mining permits, review and approval of reclamation plans, collection of reclamation performance bonds, conduct of environmental appraisals, technical assistance to mine operators and the public, implementation of research and demonstration projects, and inspections of all mining operations and reclamation as set forth in this chapter. Proper execution of these responsibilities may necessitate that the department seek comment from other relevant state agencies regarding matters within their respective areas of statutory responsibility or primary interests. The department has ultimate authority, subject to the appeal provisions of this chapter, over all mining, as defined in this chapter, and the provisions of this chapter regulating and controlling such activity."
Commission changed to department
SECTION 1221. Section 48-20-40(3) of the 1976 Code is amended to read:
"(3) `Department' means the South Carolina Department of Health and Environmental Control. Whenever in this chapter the department is assigned duties, they may be performed by the director or by subordinates as he designates."
Commissioner changed to department
SECTION 1222. Section 48-20-110 of the 1976 Code is amended to read:
"Section 48-20-110. Each applicant for a certificate of exploration, and each applicant for an operating permit, shall file with the department, upon approval of the application, and maintain in force a bond in an amount set forth in this section. All bonds must be in favor of the State of South Carolina, executed by a surety approved by the Department of Insurance in the amount set forth in this section. The bond must be continuous in nature and must remain in force until canceled by the surety. Cancellation by the surety is effectuated only upon sixty days' written notice to the department and to the operator. The applicant may file a separate bond for each certificate of exploration or operating permit or may file a blanket bond covering all exploration activities or mining operations within the State for which he holds certificates or permits. The amount of each bond required for a certificate of exploration must be two thousand, five hundred dollars. The amount of each bond for operating permits must be based upon the area of affected land to be reclaimed under the approved reclamation plan to which it pertains, less any area whose reclamation has been completed and released from coverage by the department pursuant to Section 48-20-130. If the area totals less than ten acres, the bond must be ten thousand dollars. If it is ten acres or more but less than fifteen acres, the bond must be fifteen thousand dollars. If it is fifteen or more acres the bond must be twenty-five thousand dollars. If an area totals more than twenty-five acres, the department may require a bond in excess of twenty-five thousand dollars if a greater bond is necessary to insure reclamation as provided by this chapter. All mining operations must have the reclamation bond amounts in effect by July 1, 1995, or before if the mining permit is modified to increase the affected land. The bond must be conditioned upon the faithful performance of the requirements set forth in this chapter and of the regulations adopted pursuant to it. Liability under the bond must be maintained as long as reclamation is not completed in compliance with the approved reclamation plan unless released only upon written notification from the department. Notification must be given upon completion of compliance or acceptance by the department of a substitute bond. In no event may the liability of the surety exceed the amount of surety bond required by this section. In lieu of the surety bond required by this section, the explorer or operator may file with the department a cash deposit, registered securities acceptable to the department, an assignment of a savings account in a South Carolina bank, or other securities acceptable to the department on an assignment form prescribed by the department. If the license to do business in South Carolina of a surety upon a bond filed pursuant to this chapter is suspended or revoked, the operator, within sixty days after receiving notice, shall substitute for the surety a good and sufficient corporate surety authorized to do business in this State or file with the department one of the alternative forms of surety prescribed in this section. Upon failure of the operator to make the substitution, the permit must be suspended until the substitute bond is posted and written documentation is provided to the department."
Council changed to department; provisions for regulation revised
SECTION 1223. Section 48-20-210 of the 1976 Code is amended to read:
"Section 48-20-210. The department shall promulgate regulations to implement the provisions of this chapter as provided by Article 1, Chapter 23 of Title 1. The regulations must set forth the duties of operators applying for certificates of exploration and operating permits under this chapter and also those of the department director, his subordinates, or designees."
Commission changed to department
SECTION 1224. Section 48-20-270 of the 1976 Code is amended to read:
"Section 48-20-270. Nothing contained in this chapter and no action or failure to act under this chapter may be construed to impose liability on the State, department, district, or an agency, officer, or employee of the State for the recovery of damages caused by the action or failure to act."
Name revised; commission changed to department
SECTION 1225. Section 48-20-280 of the 1976 Code is amended to read:
"Section 48-20-280. The provisions of this chapter do not apply to those activities of the Department of Transportation , nor of a person acting under contract with the department, on highway rights-of-way or borrow pits maintained solely in connection with the construction, repair, and maintenance of the public road systems of the State. This exemption does not become effective until the department has adopted reclamation standards applying to those activities and the standards have been approved by the council. At the discretion of the department, the provisions of this chapter may apply to mining on federal lands."
Membership revised
SECTION 1226. Section 48-21-20(b) of the 1976 Code is amended to read:
"(b) The council shall be composed of eleven members. One member shall be the State Geologist and one member shall be the Director of the Department of Commerce or his designee. Three members, appointed by the Governor with the advice and consent of the Senate, shall be representatives of mining industries; three members, appointed by the Governor with the advice and consent of the Senate, shall be representatives of nongovernmental conservation interests; two members, appointed by the Governor with the advice and consent of the Senate, shall be representatives of the South Carolina Water Resources Commission or Department of Health and Environmental Control who shall be knowledgeable in the principles of water and air resources management; and one member, appointed by the Governor, shall be his official representative to the Interstate Mining Compact Commission. Any public official appointed to the council shall serve ex officio. The term of office for the Director of the Department of Commerce or his designee and the Governor's official representative to the Interstate Mining Compact Commission shall be coterminous with that of the Governor. Of the remaining eight members appointed by the Governor, six shall be appointed for terms of six years, two shall be appointed for terms of two years and beginning July 1, 1976, the term of office for all new appointments and reappointments to these eight positions shall be for four years. The term of each member of the council shall expire on June thirtieth of the year in which his term expires. Any vacancy occurring on the council by death, resignation or otherwise shall be filled for the unexpired term of the person creating the vacancy by the Governor."
Membership revised; commission changed to department; department name revised
SECTION 1227. Section 48-21-20 of the 1976 Code is amended to read:
"Section 48-21-20. (a) The `mining council' is established in the office of the Governor. The council is the advisory body referred to in Article V(a) of the Interstate Mining Compact. Members of the council and the Governor's alternate on the Interstate Mining Commission shall receive the per diem, mileage, and subsistence allowed by law for members of state boards, committees, and commissions. (b) The council shall be composed of eleven members. One member shall be the State Geologist and one member shall be the Director of the Department of Commerce or his Designee. Three members, appointed by the Governor with the advice and consent of the Senate, shall be representatives of mining industries; three members, appointed by the Governor with the advice and consent of the Senate, shall be representatives of nongovernmental conservation interests; two members, appointed by the Governor with the advice and consent of the Senate, shall be representatives of the Department of Health and Environmental Control who shall be knowledgeable in the principles of water and air resources management; and one member, appointed by the Governor, shall be his official representative to the Interstate Mining Compact Commission. Any public official appointed to the council shall serve ex officio. The term of office for the Director of the Department of Commerce or his designee and the Governor's official representative to the Interstate Mining Compact Commission shall be coterminous with that of the Governor. Of the remaining eight members appointed by the Governor, six shall be appointed for terms of six years, two shall be appointed for terms of two years and beginning July 1, 1976, the term of office for all new appointments and reappointments to these eight positions shall be for four years. The term of each member of the council shall expire on June thirtieth of the year in which his term expires. Any vacancy occurring on the council by death, resignation or otherwise shall be filled for the unexpired term of the person creating the vacancy by the Governor. (c) In accordance with Article V (i) of the compact, the commission shall file copies of its bylaws and any amendments thereto with the Director Department of Health and Environmental Control."
Geological Mapping Division of Department of Natural Resources created; powers and duties provided for the division and the State Geologist
SECTION 1228. Title 48 of the 1976 Code is amended by adding:
"CHAPTER 22
The State Geologist and Geological Mapping Division of the Department of Natural Resources Division
Section 48-22-10. The State Geologist and Geological Mapping Division, is hereby created and shall be under the direction of the Department of Natural Resources. The State Geologist shall be appointed by the Director of the Department of Natural Resources. He shall have graduated from an accredited college or university with a full curriculum in geology and shall have had at least five years of practical work experience, academic, governmental or industrial, in geology.
Section 48-22-20. The powers and duties provided for the State Geologist and Geological Mapping Division of the Budget and Control Board are devolved upon the Department of Natural Resources. All property, equipment and personal services monies, including all employee contributions and other fringe benefits used by the Geological Survey within the Division of Research and Statistical Services of the Budget and Control Board prior to the adoption of this section shall be transferred to the Department of Natural Resources.
Section 48-22-30. The State Geologist shall have supervision of the entire work of the division and shall be responsible for its accuracy. He shall travel throughout the State so as to make himself familiar with the geology and mineral resources of each section, and supervise work in progress; shall undertake such field and laboratory work as his time will permit; and shall perform such other duties as properly pertain to his office. He may, as directed by the department, employ geologists, technicians, and such other personnel as may be necessary to conduct the objectives of the division.
Section 48-22-40. In addition to such other duties as may be assigned to it, the division shall: (1) Conduct field and laboratory studies in geologic reconnaissance, mapping, prospecting for mineral resources, and related gathering of surface and subsurface data. Investigative areas shall include offshore, as well as all onshore, lands in this State. (2) Provide geologic advice and assistance to other state and local governmental agencies engaged in environmental protection, or in industrial or economic development projects. In addition, the division shall be actively involved in geologic aspects of regional planning and effective land use in the State. (3) Encourage economic development in the State by disseminating published geologic information as bulletins, maps, economic reports and related series, and also open-file reports, to appropriate governmental agencies and private industry. The division is further encouraged to initiate and maintain appropriate industrial contacts, to promote both the extraction and conservation of South Carolina's earth raw materials, and their manufacture, to the economic improvement of the State. (4) Provide unsolicited advice, when appropriate, to the Mining Council and its associated state regulatory agency, on geologic and related mining matters in keeping with the intent of the South Carolina Mining Act. (5) Operate and maintain a central, statewide repository for rock cores, well cuttings and related subsurface samples, and all associated supplemental data. Private firms and public agencies are encouraged to notify the division prior to any exploratory or developmental drilling and coring. (6) Be the state's official cooperator on topographic mapping; provided, that the Federal expenditure for such purposes shall at least equal that of the State, and may conduct cooperative work with appropriate agencies of the United States Government in its geologic activities and investigations. (7) Provide a minerals research laboratory, related to the identification, extraction, and processing of industrial minerals and minerals of economic potential wherever found throughout the onshore and offshore areas of the State. The minerals research laboratory is encouraged to accept mineral research projects from South Carolina businesses or citizens on a per cost, per unit basis and to encourage expended use of the raw materials of the State. The minerals research laboratory may accept public and private gifts or funds and may enter into cooperative agreements for the purpose of applied research in the metallic and nonmetallic minerals of this State.
Section 48-22-50. The division shall maintain all unpublished information in its files which shall be open to the public, except in cases where the investigator still has work in progress on a project leading to a publication; or where an industrial firm, interested in possibly locating in the State, asks temporary confidential status for oral and written geologic related information supplied by them or obtained on their properties. In the latter instance such information may be held in confidence by the division for not more than one year from the date such information was obtained.
Section 48-22-60. The division shall work impartially for the benefit of the public, and no person, firm, or governmental agency may call upon or require the State Geologist or his staff to enter upon any special survey for his or their special benefit.
Section 48-22-70. The South Carolina Geodetic Survey established within the Division of Research and Statistical Services of the Budget and Control Board is hereby transferred to the Department of Natural Resources. The Geodetic Survey is constituted as part of the State Geologist and Geological Mapping Division. The division shall establish horizontal and vertical geodetic control within the State at a density that will effectively provide land and land-related items and records to be referenced to the national horizontal and vertical coordinate system, ensure the accuracy and integrity of new geodetic data entered into the state and national reference system, maintain geodetic files for the State, and disseminate geodetic information as necessary.
Section 48-22-80. The division, under the auspices of the department, shall have the responsibility of coordinating mapping activities in the State to ensure that mapping products are compatible with the South Carolina Coordinate System. As part of this activity, the division shall establish, develop, and promulgate standards for maps and map products to ensure quality, accuracy, and compatibility of mapping products, encourage the development of accurate mapping systems that are compatible with and suitable for incorporation into a standardized statewide mapping system, develop, maintain, and administer programs for funding qualified mapping projects, and serve as the focal point for federal, state, and local mapping programs and activities in South Carolina.
Section 48-22-90. Where county boundaries are ill-defined, unmarked, or poorly marked, the South Carolina Geodetic Survey on a cooperative basis shall assist counties in defining and monumenting the locations of county boundaries and positioning the monuments using geodetic surveys. The South Carolina Geodetic Survey shall act as a mediator between counties to resolve county boundary disputes."
Reference Revised
SECTION 1229. Section 48-27-70 of the 1976 Code is amended to read:
"Section 48-27-70. A secretary to the board shall give a surety bond to the State in such sum as the Director of the Department of Labor, Licensing, and Regulation may determine. The premium on such bond shall be regarded as a proper and necessary expense of the board and shall be paid out of the fund of the Board of Registration for Foresters. The secretary shall receive such salary as the Director of the Department of Labor, Licensing, and Regulation shall determine in addition to the expenses provided for in Section 48-27-40."
Judicial provisions revised
SECTION 1230. Section 48-27-200 of the 1976 Code is amended to read:
"Section 48-27-200. The board may, upon proof that grounds exist that the licensee has committed fraud, deceit, gross negligence, incompetency, or other misconduct in connection with any forestry practice, order the revocation or suspension of a license, publicly or privately reprimand the holder of a license, or take any other action short of revocation or suspension, such as requiring the licensee to undertake additional professional training subject to the direction and supervision of the board. The board may also impose such restraint upon the practice of the licensee as circumstances warrant until the licensee demonstrates to the board adequate professional competence. The board may designate a person to investigate and report to it upon any charges of fraud, deceit, gross negligence, incompetency, or other misconduct in connection with any forestry practice against any registrant as may come to its attention. Any person may prefer charges of fraud, deceit, gross negligence, incompetency, or misconduct in connection with any forestry practice against any registrant. The charges must be in writing and must be filed with the secretary of the board. All charges, unless dismissed by the board as unfounded or trivial, must be heard by the board as soon as a thorough investigation may be made and a hearing scheduled. The time and place for the hearing must be fixed by the board, and a copy of the charges, together with a notice of the time and place of the hearing, must be personally served on or mailed to the last known address of the registrant at least thirty days before the date fixed for the hearing. At any hearing the accused registrant may appear personally and by counsel, to cross-examine witnesses appearing against him, and to produce evidence and witnesses in his own defense. Any registrant whose license has been sanctioned may apply for a review of the proceedings with reference to the sanction of his license before an Administrative Law Judge as provided under Chapter 23 of Title 1. The review must be upon the record made before the board. Petition for review of this act of the board must be served upon the board within thirty days from the date of the service of the order or the decision of the board upon the person. Upon service upon it of a petition for review, the board shall within thirty days certify the record made before it to an Administrative Law Judge as provided under Chapter 23 of Title 1."
Name changed
SECTION 1231. Section 48-30-30A.(5) of the 1976 Code is amended to read:
"(5) `Department of Revenue and Taxation' shall mean the South Carolina Department of Revenue and Taxation."
Name changed
SECTION 1232. Section 48-30-50 of the 1976 Code is amended to read:
"Section 48-30-50. 1. The Department of Revenue and Taxation shall develop the necessary administrative procedures to collect the assessment, collect the assessment from primary forest product processors, deposit funds collected from the assessment in the forest renewal fund and audit the records of processors to determine compliance with the provisions of this chapter. 2. The State Forester shall provide quarterly to the Department of Revenue and Taxation lists of processors subject to the assessment, advise the Department of Revenue and Taxation of the appropriate methods to convert measurements of primary forest products by systems other than those authorized in this chapter, establish in September the estimated total assessment that shall be collectable in the next budget period and inform the Budget and Control Board and the General Assembly and notify, within thirty days of certification of the state budget, the Department of Revenue and Taxation of the need to collect the assessment for the period covered by the approved budget. The Department of Revenue and Taxation shall be reimbursed for those expenditures incurred as a cost of collecting the assessment for the forest renewal fund. This amount shall be transferred from the forest renewal fund in equal increments at the end of each quarter of the fiscal year to the Department of Revenue and Taxation. This amount shall not exceed fifty thousand dollars annually."
Name changed
SECTION 1233. Section 48-30-70 of the 1976 Code is amended to read:
"Section 48-30-70. The assessment shall be levied against the processor of the primary forest product. It shall be submitted on a quarterly basis of the state's fiscal year due and payable the twenty-fifth of the month following the end of each quarter. It shall be remitted to the Department of Revenue and Taxation, by check or money order, with such production reports as may be required by the Department of Revenue and Taxation. The processor shall maintain for a period of three fiscal years and make available to the Department of Revenue and Taxation such production records necessary to verify proper reporting and payment of revenue due the forest renewal fund. The production reports of the various processors shall be used only for assessment purposes. Production information on an individual processor basis shall not be made a part of the public record. Any official or employee of the State who discloses information obtained from a production report, except as may be necessary for administration and collection of the assessment, or in the performance of official duties, or in administrative or judicial proceedings related to the levy of collection of the assessment, shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than two hundred dollars or imprisoned not more than thirty days."
Name changed
SECTION 1234. Section 48-30-80 of the 1976 Code is amended to read:
"Section 48-30-80. The Department of Revenue and Taxation shall enforce collection of the primary forest product assessment in accordance with statutory remedies and procedures pertaining to collection of revenue by it."
Coastal Division of Department of Health and Environmental Control
SECTION 1235. Chapter 39 of 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' means the Coastal Division of the South Carolina Department of Health and Environmental Control. (D) `CDPS' means Coastal Division Permitting Staff. (E) `Saline waters' means those waters which contain a measurable quantity of sea water, at least one part chloride ion per thousand. (F) `Coastal waters' means the navigable waters of the United States subject to the ebb and flood of the tide and which are saline waters, shoreward to their mean high-water mark. Provided, however, that the department may designate boundaries which approximate the mean extent of saline waters until such time as the mean extent of saline waters can be determined scientifically. (G) `Tidelands' means all areas which are at or below mean high tide and coastal wetlands, mudflats, and similar areas that are contiguous or adjacent to coastal waters and are an integral part of the estuarine systems involved. Coastal wetlands include marshes, mudflats, and shallows and means those areas periodically inundated by saline waters whether or not the saline waters reach the area naturally or through artificial water courses and those areas that are normally characterized by the prevalence of saline water vegetation capable of growth and reproduction. Provided, however, nothing in this definition shall apply to wetland areas that are not an integral part of an estuarine system. Further, until such time as the exact geographic extent of this definition can be scientifically determined, the department shall have the authority to designate its approximate geographic extent. (H) `Beaches' means those lands subject to periodic inundation by tidal and wave action so that no nonlittoral vegetation is established. (I) `Primary ocean front 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 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 the maximum benefit to the people, but not necessarily a combination of uses which will generate measurable maximum dollar benefits. As such, 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 is created the Coastal Zone Management Appellate Panel 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 the Senate representing the counties in that district, each House or Senate member to have one vote. The panel 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 shall have the following powers and duties: (A) To employ the CDPS 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 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 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 observes an oil spill in such waters it shall immediately report such spill to the South Carolina Department of Health and Environmental Control, 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 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 action appropriate, on behalf of any person who is granted a permit for a specific development by the department 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.
Section 48-39-60. When requested by the department, the South Carolina Department of Natural Resources shall provide additional staff for the department, 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 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, 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. The only exception shall be, that information considered proprietary by the applicant. If in the opinion of the department a proper decision cannot be rendered without the submission of such proprietary information, the department shall be empowered to execute an agreement on confidentiality with the applicant and such 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 person guilty of contumacy or refusal to obey is found, resides or transacts business, upon application by the department, may issue to such person an order requiring him to appear before the department 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 and signed by the department director. Subpoenas shall be issued to such persons as the department may designate.
Section 48-39-80. The department 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 shall: (A) Provide a regulatory system which the department shall use in providing for the orderly and beneficial use of the critical areas. (B) In devising the management program the department shall consider all lands and waters in the coastal zone for planning purposes. In addition, the department 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 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 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 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 in securing media coverage for the program.
Section 48-39-90. (A) The department, 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 documents associated with such 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 hearing. (C) After sufficient hearings and upon consideration of the views of interested parties the department 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 ordinances and regulations applying to critical areas to the department for review. The department shall evaluate such ordinances and plans to determine that they meet the provisions of this chapter and rules and regulations promulgated hereunder. Upon determination and approval by the department, such ordinances and regulations shall be adopted by the department, followed by the department in meeting its permit responsibilities under this chapter and integrated into the Department'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 if it is not in compliance with the provisions of this chapter and rules and regulations promulgated hereunder. (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 critical areas by notifying the department of its intent within one hundred and eighty days following the twenty-fourth day of May, 1977. Such 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 in writing at least thirty days prior to the date on which such action is to be taken.
Section 48-39-110. The South Carolina State Ports Authority shall prepare and submit to the department a management plan for port and harbor facilities and navigation channels. Upon approval by the department of such management plan it shall become part of the comprehensive coastal management program developed by the department. 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 for approval.
Section 48-39-120. (A) The department 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 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 ocean front 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 ocean front property was initially developed or subdivided, and such property shall remain the property of the State held in trust for the people of the State. (C) The department shall have the authority to remove all erosion control structures which have an adverse effect on the public interest. (D) The department 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, the State, acting through the department, 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 purposes. (F) The department, 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 date unless he has first obtained a permit from the department. (B) Within sixty days of July 1, 1977, the department 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 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 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 guidelines available the department shall hold a public hearing affording all interested persons an opportunity to comment on such guidelines. Following the public hearing the department, 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. 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 use without obtaining a permit. Any person may request the department to review any project or activity to determine if he is exempt under this section from the provisions of this chapter. The department 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. 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 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 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 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 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. (6) Emergency repairs to an existing bank, dike, fishing pier, or structure, other than oceanfront erosion control structures or devices, which has 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 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 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 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 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 for preliminary review. If a permit is necessary, the department 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 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 information is not ascertainable. (C) The department 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 general circulation in the area concerned. The department 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 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 application after receipt of any such notice by the department.
Section 48-39-145. (A) The Department may charge an administrative fee upon application for a permit for alteration of any 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 shall be charged an administrative fee not to exceed fifty dollars. A reasonable fee, determined by the department, will be charged for permit applications when the planned or ultimate purpose of the activity is commercial or industrial in nature. (B) Any fees collected under this provision shall be forwarded to the State Treasurer for credit to the general fund.
Section 48-39-150. (A) In determining whether a permit application is approved or denied the department 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 prior to issuing a permit. (3) The extent to which the applicant's completed project 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. (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 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 feels are necessary to protect the public interest. At the request of twenty citizens or residents of the county or counties affected, the department shall hold a public hearing on any application which has an effect on a critical area, prior to issuing a permit. Such 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, the department may support the applicant with respect to any federal permit applications pertaining to the same specific development. (C) The department 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 shall have the authority to approve such permits and shall act within thirty days. In the event a permit is denied the department shall state the reasons for such denial and such 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. 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. (F) Work authorized by permits issued hereunder shall be completed within three years after the date of issuance of the permit. 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.
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, 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 area to be restored to its original condition, if possible, and environmentally desirable. In the alternative, the department 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 shall be liable for, and may be assessed by the department for, a civil penalty of not less than one hundred dollars nor more than one thousand dollars per day of violation. Whenever the department determines that any person is in violation of any permit, regulation, standard, or requirement under this chapter, the department may issue an order requiring such person to comply with such permit, regulation, standard, or requirement, including an order requiring restoration when deemed environmentally appropriate by the department; in addition, the department 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 48-39-180. 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, 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 action `de novo' or to determine whether the department'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 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 permit issued by the circuit court having jurisdiction if such 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 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. The department shall be 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 such application for a permit shall be acted upon within the time prescribed by this chapter.
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 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 person in and to such 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 issue. Such 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 tidelands, except as set forth in this section. (D) The Attorney General shall immediately notify the department 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 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 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 means the Department of Health and Environmental Control. (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 highwater 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, 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 must implement this policy and must utilize the best available scientific and historical data in the implementation. The department 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 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 as the most landward point of erosion at any time during the past forty years, unless the best available scientific and historical data of the inlet and adjacent beaches indicate that the shoreline is unlikely to return to its former position. In collecting and utilizing the best scientific and historical data available for the implementation of the retreat policy, the department, as part of the State Comprehensive Beach Management Plan provided for in this chapter, among other factors, must consider: historical inlet migration, inlet stability, channel and ebb tidal delta changes, the effects of sediment bypassing on shorelines adjacent to the inlets, and the effects of nearby beach restoration projects on inlet sediment budgets. (3) The baseline within inlet erosion zones that are stabilized by jetties, terminal groins, or other structures must be determined in the same manner as provided for in item (1). However, the actual location of the crest of the primary oceanfront sand dunes 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 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 in accordance with Section 48-39-280(A)(1) by showing that the beach has been stabilized by department-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. If the beach nourishment fails to stabilize the beach after a reasonable period of time, the department 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. (B) To implement the retreat policy provided for in subsection (A), a setback line must be established landward of the baseline a distance which is forty times the average annual erosion rate or not less than twenty feet from the baseline for each erosion zone based upon the best historical and scientific data adopted by the department as a part of the State Comprehensive Beach Management Plan. (C) The department, before July 3, 1991, must establish a final baseline and setback line for each erosion zone based on the best available scientific and historical data as provided in subsection (B) and with consideration of public input. The baseline and setback line must not be revised before July 1, 1998, nor later than July 1, 2000. 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 must transmit and otherwise make readily available to the public all information upon which its decisions are based for the establishment of the final baseline and setback line. The department must hold one public hearing before establishing the final baseline and setback lines. Until the department establishes new baselines and setback lines, the existing baselines and setback lines must be used. The department may stagger the revision of the baselines and setback lines of the erosion zones so long as every zone is revised in accordance with the time guidelines established in this section. (D) In order to locate the baseline and the setback line, the department must establish monumented and controlled survey points in each county fronting the Atlantic Ocean. The department must acquire sufficient surveyed topographical information on which to locate the baseline. Surveyed topographical data typically must be gathered at two thousand foot intervals. However, in areas subject to significant near-term development and in areas currently developed, the interval, at the discretion of the department, may be more frequent. The resulting surveys must locate the crest of the primary oceanfront sand dunes 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 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, 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 and handled in accordance with the department'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 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 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 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. (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 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, 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). (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. (c) If a pool, existing on July 1, 1988, is destroyed beyond repair, as determined by the department pursuant to Section 48-39-270(11), it may be replaced if the owner certifies in writing to the department 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 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 permit. However, the department, 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. (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 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 orders the removal. However, the use of the property authorized under this provision, in the determination of the department, must not be detrimental to the public health, safety, or welfare. (2) The department'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 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 is the line of erosion control devices and structures and the department retains its jurisdiction seaward of the baseline. In addition, upon completion of a department 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, and renourishment is conducted annually at a rate, agreed upon by the department 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 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 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 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 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 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 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 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.
Section 48-39-350. (A) The local governments must prepare by July 1, 1991, in coordination with the department, a local comprehensive beach management plan which must be submitted for approval to the department. 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 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 following its approval. The local governments and the department 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 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 in its administrative capacities.
Section 48-39-355. A permit is not required for an activity specifically authorized in this chapter. However, the department 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."
Oil and gas provisions revised
SECTION 1236. Chapter 43 of Title 48 of the 1976 Code is amended to read:
"Chapter 43
Oil and Gas Exploration, Drilling, Transportation and Production
Article 1 General Provisions
Section 48-43-10. Unless the context otherwise requires, the terms defined in this section shall have the following meaning when used in this chapter: (A) `Waste' means and includes: (1) physical waste, as that term is generally understood in the oil and gas industry; (2) the inefficient, excessive, or improper use, or the unnecessary dissipation of, reservoir energy; (3) the inefficient storing of oil and gas; (4) the locating, drilling, equipping, operating, or producing of any oil or gas well in a manner that causes, or tends to cause, reduction in the quantity of oil or gas ultimately recoverable from a pool under prudent and proper operations, or that causes or tends to cause unnecessary or excessive surface loss or destruction or oil or gas; (5) the production of oil or gas in excess of (a) transportation or marketing facilities; (b) the amount reasonably required to be produced in the proper drilling, completing or testing of the well from which it is produced; or (c) oil or gas otherwise usefully utilized but gas produced from an oil well or condensate well pending the time when, with reasonable diligence, the gas can be sold or otherwise usefully utilized on terms and conditions that are just and reasonable shall not be considered waste if the production of such gas has been approved by order of the department; (6) underground or above ground waste in the production or storage of oil, gas, or condensate, however caused, and whether or not defined in other subdivisions hereof. (B) `Department' means the South Carolina Department of Health and Environmental Control. (C) `Person' means any natural person, corporation, association, partnership, receiver, trustee, executor, administrator, guardian, fiduciary, or other representatives of any kind, and includes any government or any political subdivision or any agency thereof. (D) `Oil' means crude petroleum oil and all other hydrocarbons, regardless of 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. (E) `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. (F) `Condensate' means liquid hydrocarbons that were originally in the gaseous phase in the reservoir. (G) `Pool' means an underground reservoir containing a common accumulation of oil and gas or both; each zone of a structure that is completely separated from any other zone in the same structure is a pool. (H) `Field' means the general area underlain by one or more pools. (I) `Owner' means the person who has the right to drill into and produce from a pool and to appropriate the oil or gas that he produces therefrom, either for himself or for himself and others. (J) `Producer' means the owner of a well or wells capable of producing oil or gas or both. (K) `Just and Equitable Share of the Production' means, as to each person, that part of the authorized production from the pool that is substantially in the proportion that the amount of recoverable oil or gas or both in the developed areas of his tract or tracts in the pool bears to the recoverable oil or gas or both in the total of the developed areas in the pool. (L) `Developed Area' means a spacing unit on which a well has been completed that is capable of producing oil or gas, or the acreage that is otherwise attributed to a well by the department for allowable purposes. (M) `Protect Correlative Rights' means that the action or regulation by the department should afford a reasonable opportunity to each person entitled thereto to recover or receive the oil or gas in his tract or tracts or the equivalent thereto, without being required to drill unnecessary wells or to incur other unnecessary expense to recover or receive such oil or gas or its equivalent. (N) `Product' means any commodity made from oil or gas, and includes refined crude oil, crude tops, topped crude, processed crude, processed crude petroleum, residue from crude petroleum, cracking stock, uncracked fuel oil, fuel oil, treated crude oil, residuum, gas oil, casinghead gasoline, natural gas gasoline, kerosene, benzine, wash oil, waste oil, blended gasoline, lubrication oil, blends or mixtures of oil with one or more liquid products or by-products derived from oil or gas, and blends or mixtures of two or more liquid products or by-products derived from oil or gas, whether herein enumerated or not. (O) `Illegal Oil' means oil that has been produced from any well within the State in excess of the quantity permitted by any rule, regulation, or order of the department. (P) `Illegal Gas' means gas that has been produced from any well within the State in excess of the quantity permitted by any rule, regulation, or order of the department. (Q) `Illegal Product' means any product derived in whole or in part from illegal oil or illegal gas. (R) `Certificate of Clearance' means a permit prescribed by the department for the transportation or the delivery of oil or gas or product. (S) `Pollutant' means any emission that significantly derogates the quality of the air, water or land. (T) `Pollution' means the act of emitting pollutants into the air or water or onto the land. (U) `Royalty owner' means the person who pursuant to a lease arrangement with another has the right to receive, free of costs, an allocation of production or payments based upon the value of production. (V) `Geothermal resources' mean the resources defined in Section 10-9-310 of the 1976 Code. (W) `Sanitary landfill' means a solid waste disposal facility regulated by the Department of Health and Environmental Control. (X) `Board' means board of the department.
Section 48-43-20. The waste of oil and gas and the pollution of the water, air or land is prohibited.
Section 48-43-30. (A) This chapter shall apply to all lands however owned, including the submerged lands, both inland and offshore, tidelands and wetlands located within the jurisdictional limits of the State and any lands owned or administered by any government or any agency or political subdivision thereof, over which the State, under its police power has jurisdiction; and to that end the department is authorized to: (1) Prevent waste of oil and gas, to protect correlative rights and to prevent pollution of the water, air and land by oil or gas, and otherwise to administer and enforce this chapter. It has jurisdiction over all persons and property necessary for that purpose. In the event of a conflict, the duty to prevent waste is paramount. (2) Make such investigations as it deems proper to determine whether action by the department in discharging its duties is necessary. (3) Hire personnel to carry out the purposes of this chapter. (B) Without limiting its general authority, the department shall have specific authority: (1) To require: (a) identification of ownership of oil or gas wells, producing leases, tanks, plants, structures, and facilities for the transportation or refining of oil and gas; (b) the preparing and filing of well logs and samples, directional surveys and reports on well location, drilling and production, provided, however, that the log and samples of an exploratory or wildcat well need not be filed before one year after the completion of the well and upon the filing of the log and samples of such well the department shall keep the log and samples and information contained therein confidential for one year from the date of filing if requested by the operator in writing to do so and the department may keep the log and samples and information contained therein confidential for an additional year at its discretion if the operator requests in writing that the department keep such log and samples and information confidential for an additional year. (c) the drilling, casing, operation, and plugging of wells in such manner as to prevent (a) the escape of oil or gas out of one pool into another, (b) the detrimental intrusion of water into an oil or gas pool that is avoidable by efficient operations, (c) the pollution of fresh water supplies by oil, gas, or salt water, and (d) blowouts, cavings, seepages, and fire; (d) the taking of tests of oil or gas wells; (e) the furnishing by all persons who apply for a drilling permit a reasonable performance bond with good and sufficient surety with the State of South Carolina as beneficiary to indemnify the State from loss or expense resulting from such person's failure to comply with the provisions of this chapter or the rules, regulations or orders of the department including the duty to plug each dry or abandoned well and to repair each well causing waste or pollution if repair will prevent waste or pollution; a performance bond may cover more than one drilling operation of the same person provided that the amount of such performance bond is increased to cover the additional well each time an application for a drilling permit is submitted to the department by that person. (f) that the production from wells be separated into gaseous and liquid hydrocarbons, and that each be measured by means and upon standards that may be prescribed by the department; (g) that wells not be operated with inefficient gas-oil or water-oil ratios, to fix these ratios, and to limit production from wells with inefficient gas-oil or water-oil ratios; (h) certificates of clearance in connection with the transportation or delivery of oil, gas, or product; (i) the metering or other measuring of oil, gas, or product; (j) that every person who produces, sells, purchases, acquires, stores, transports, refines, or processes oil or gas in this State keep and maintain complete and accurate records of the quantities thereof, which records shall be available for examination by the department or its agents at all reasonable times; (k) the filing of reports or plats with the department that it may prescribe; (l) permits for the onshore and offshore exploration of oil and gas both on public and private lands whether highlands, wetlands or submerged land; (m) the placing of meters approved by the department which shall at all times be under the supervision and control of the department wherever the department may designate on all pipelines, gathering systems, barge terminals, loading racks, refineries, or other places deemed necessary to prevent the transportation of illegally produced oil and gas; (n) payment of reasonable fees for all publications, materials, charts, services and similar items furnished to persons at their request; (o) that all persons who desire to drill wells for oil or gas obtain a permit from the department prior to the commencement of any drilling operations; (p) that all pipelines placed in the Atlantic Ocean, its harbors, bays and other bodies of water which are a part of the Atlantic Ocean to transport oil, gas, condensate or product that cross the lands and under waters that are within the territorial jurisdiction of the State of South Carolina be located under the bottom of the Atlantic Ocean, its harbors, bays and other bodies of water which are a part of the Atlantic Ocean so that the pipelines will not interfere with navigation, fishing, shrimping, and other lawful recreational and commercial activities. (2) To regulate: (a) the drilling, testing, completing, stimulating, producing, reworking and plugging of wells, and all other operations associated with the production of oil and gas; (b) the spacing or locating of wells; (c) operations to increase ultimate recovery, such as cycling of gas, the maintenance of pressure, and the introduction of gas, water or other substances into a producing formation; (d) the disposal of salt water and oil-field wastes; (e) the exploration for oil or gas in the waters and on the lands that are within the jurisdictional limits of the State regardless of ownership; (f) the transportation of oil and gas, as defined by this chapter and as distinguished by the definitions from product, from whatever source to gathering systems, refineries, and other storage and processing facilities which handle oil and gas; (g) the commingling of oil and gas produced from wells having different owners or producers and to adopt such rules and regulations applicable to such commingling as may be necessary to protect the rights of the owners, producers and royalty owners of the wells from which the commingling oil or gas is produced. (3) To limit the production of oil, gas, or condensate from any field, pool, area, lease, or well, and to allocate production. (4) To classify and reclassify pools as oil, gas and condensate pools and to classify and reclassify wells as oil, gas or condensate wells. (5) To promulgate, after hearing and notice as hereinafter provided, such rules and regulations, and issue such orders reasonably necessary to prevent waste and oil discharges from drilling and production platforms, pipelines, gathering systems, processing facilities, storage facilities, refineries, port facilities, tankers and other facilities and vessels that may be a source of oil spills and to protect correlative rights, to govern the practice and procedure before the board and to fulfill its duties and the purposes of this chapter. (6) To regulate the exploration, drilling, production, and transportation of methane gas in and related to sanitary landfills. The department is authorized to exercise discretion in regulating such activities and may impose any requirement of this chapter as is necessary, in the opinion of the department, to prevent waste of oil and gas, to protect correlative rights and to prevent pollution of the water, air, and land by oil and gas. The department is further authorized to require any person applying for a drilling permit or otherwise producing methane gas in a sanitary landfill to comply with one of the following requirements for financial responsibility in an amount deemed sufficient by the department in its discretion in order to achieve the purpose specified in Section 48-43-30(A)(1): (i) furnish a bond consistent with the requirements of Section 48-43-30(B)(1)(e); or (ii) furnish proof of insurance with the State of South Carolina as beneficiary. Before the issuance of drilling permits for methane gas recovery from sanitary landfills, the department must certify that the proposed activity is consistent with the Department of Health and Environmental Control regulations governing the operation, monitoring, and maintenance of the landfills and applicable permit conditions.
Section 48-43-40. (A) No rule, regulation or order, or amendment thereof, except in an emergency, shall be made by the department without a public hearing upon at least twenty days' notice, exclusive of the date of service. No permit for the construction of a deep water port shall be granted by the department without a public hearing upon at least twenty days' notice, exclusive of the date of service. At least twenty days prior to the invitation for bids for the leasing of state lands for the purpose of oil and gas exploration and production, a public hearing shall be held. The public hearing shall be held at such time and place as may be prescribed by the department, and any interested person shall be entitled to be heard. (B) When an emergency requiring immediate action is found to exist, the department may make an emergency order without notice of hearing, which shall be effective when made. No emergency order shall be effective for more than sixty days. (C) Any notice required by this chapter shall be given by the department. Any such notice, at the election of the department, may be given by any one or more of the following methods: (a) personal service, (b) publication in one or more issues of a newspaper in general circulation in the state capital or of a newspaper of general circulation in the county where the land affected or some part thereof is situated, or (c) by United States mail addressed, postage prepaid, to the last known mailing address of the person or persons affected. The date of service shall be the date on which service was made in the case of personal service, the date of first publication in the case of notice by publication, and the date of mailing in the case of notice by mail. The notice shall be issued in the name of the State, shall be signed by the chairman, secretary or executive director of the department, shall specify the style and number of the proceedings, the time and place of the hearing, and shall briefly state the purpose of the proceeding. Should the department elect to give notice by personal service, such service may be made by an officer authorized to serve process, or by any agent of the department, in the same manner as is provided by law for the service of process in civil action in the courts of the State. Proof of the service by such agent shall be by the affidavit of the agent making personal service. (D) All rules, regulations and orders made by the Department of Health and Environmental Control shall be in writing, shall be entered in full and indexed in books to be kept by the department for that purpose, and shall be public records open for inspection at all times during office hours. In addition, all rules and regulations shall be filed with the Secretary of State. A copy of any rule, regulation or order, certified by any member of the department or the department, under its seal, shall be received in evidence in all courts of this State with the same effect as the original. (E) The department may act upon its own motion or upon the application of any interested person. On the filing of an application concerning any matter within the jurisdiction of the department that requires a hearing, the department shall promptly fix a date for a hearing thereon, and shall cause notice of the hearing to be given. The hearing shall be held without undue delay after the filing of the application. The department shall make its order within thirty days after the conclusion of the hearing.
Section 48-43-50. (A) The board or an Administrative Law Judge shall have the power to conduct hearings, to summon witnesses, to administer oaths and to require the production of records, books and documents for examination at any hearing or investigation. (B) Upon failure or refusal on the part of any person to comply with a subpoena issued by the board pursuant to this section, or upon the refusal of any witness to testify as to any matter regarding which he may be interrogated and which is pertinent to the hearing or investigation, any circuit court in the State, upon the application of the board, may issue an order to compel such person to comply with such subpoena, and to attend before the board and produce such records, books and documents for examination, and to give his testimony. Such court shall have the power to punish for contempt as in the case of disobedience to a like subpoena issued by the court, or for refusal to testify therein.
Section 48-43-60. Any person, who is aggrieved and has a direct interest in the subject matter of any final order issued by the board, may appeal such order to the circuit court.
Section 48-43-80. Nothing in this chapter shall be deemed to apply to the storage or transportation of liquefied petroleum gas or to industrial effluents discharged into the waters or atmosphere of the state pursuant to either a federal or state permit.
Section 48-43-90. This chapter shall be liberally construed to effect the purposes set forth herein and the Federal Water Pollution Control Act, as amended.
Section 48-43-100. All rules and regulations adopted by the Department of Health and Environmental Control, as provided for in this chapter, must be approved by the General Assembly before they shall be effective; provided, however, no regulation approved by the General Assembly shall conflict, at the time of approval, with any requirement or be in excess of any statute, rule or regulation of the Federal Government or any department or agency thereof.
Article 2 Exploration and Production
Section 48-43-310. The department shall require that all persons who explore for oil or gas within the jurisdiction of the State of South Carolina obtain an exploration permit from the department. The department may include in the permits such conditions and restrictions as the department deems to be desirable or necessary and may charge a reasonable fee for the issuance of the permit. All monies collected by the department pursuant to this section shall be forwarded to the State Treasurer who shall place such monies in an account for the department and such monies shall be used by the department in carrying out its duties imposed by this chapter.
Section 48-43-315. All provisions of this article regulating the leasing for, exploration for, drilling for, transportation of, and production of oil and gas and their products apply to geothermal resources to the extent possible. The provisions of this article do not apply to wells drilled for water supply only.
Section 48-43-320. (A) Whenever the department limits the amount of oil that may be produced in the State, the department shall allocate the allowable production among the pools on a reasonable basis. (B) Whenever the department limits the total amount of oil, gas, or condensate that may be produced in any pool to an amount less than the amount that the pool could produce if no limitation were imposed, the department shall, subject to the reasonable necessities for the prevention of waste, allocate the allowable production among the several wells or producing properties in the pool so that each person entitled thereto will have a reasonable opportunity to produce or to receive a just and equitable share of the production. (C) In allocating oil allowables to pools, the department may consider, but shall not be bound by, nominations of purchasers to purchase from particular pools or groups of pools. The department shall allocate the oil allowable from the State in such manner as will prevent undue discrimination among pools that would result from selective buying or nomination by purchasers.
Section 48-43-330. (A) The department may, upon application or on its own motion and after a hearing, establish spacing units for each pool. (B) An order establishing spacing units shall specify the size and shape of the units, which shall be such as will, in the opinion of the department, result in the efficient and economical development of the pool as a whole. The size of the spacing units shall not be smaller than the maximum area that can be efficiently and economically drained by one well; provided, that if, at the time of a hearing to establish spacing units, there is not sufficient evidence from which to determine the area that can be efficiently and economically drained by one well, the department may make an order establishing temporary spacing units for the orderly development of the pool pending the obtaining of the information required to determine what the ultimate spacing should be. (C) Except where circumstances reasonably require, spacing units shall be of approximately uniform size and shape for the entire pool. The department may establish spacing units of different sizes or shapes for different parts of a pool or may grant exceptions to the size or shape of any spacing unit or units or may change the size or shape of one or more existing spacing units. Where spacing units of different sizes or shapes exist in a pool, the department shall, if necessary, make such adjustment of the allowable production from the well or wells drilled thereon so that each person entitled thereto in each spacing unit will have a reasonable opportunity to produce or receive his just and equitable share of the production. (D) An order establishing spacing units shall specify the location for the drilling of a well thereon, in accordance with a reasonably uniform spacing pattern, with necessary exceptions for wells drilled or drilling at the time of notice of the hearing to consider spacing. If the department finds that a well drilled at the prescribed location would not be likely to produce in paying quantities, or that surface conditions would substantially add to the burden or hazard of drilling such well, or for other good cause shown, the department is authorized to make an order permitting the well to be drilled at a location other than that prescribed by such spacing order. In so doing, the department shall, if necessary, make such an adjustment of the allowable production from the well drilled thereon so that each person entitled thereto in such spacing unit shall not produce or receive more than his just and equitable share of the production. (E) An order establishing spacing units for a pool shall cover all lands determined or believed to be underlain by such pool, and may be modified by the department from time to time to include additional lands determined to be underlain by such pool or to exclude lands determined not to be underlain by such pool. (F) An order establishing spacing units may be modified by the department to change the size and shape of one or more spacing units, or to permit the drilling of additional wells on a reasonably uniform pattern. (G) After the date of the notice for a hearing called to establish spacing units, no additional well shall be commenced for production from the pool until the order establishing spacing units has been made, unless the commencement of the well is authorized by order of the department.
Section 48-43-340. (A) When two or more separately owned tracts are embraced within a spacing unit, or when there are separately owned interests in all or a part of a spacing unit, the interested persons may integrate their tracts or interests for the development and operation of the spacing unit. In the absence of voluntary integration, the department upon the application of any interested person, shall make an order integrating all tracts or interests in the spacing unit for the development and operation thereof and for the sharing of production therefrom. The department, as a part of the order establishing a spacing unit or units, may prescribe the terms and conditions upon which the interest of the royalty owners in the unit or units shall, in the absence of voluntary agreement, be deemed to be integrated without the necessity of a subsequent separate order integrating the interest of the royalty owners. Each such integration order shall be upon terms and conditions that are just and reasonable. (B) All operations, including, but not limited to, the commencement, drilling, or operation of a well upon any portion of a spacing unit for which an integration order has been entered, shall be deemed for all purposes the conduct of such operations upon each separately owned tract or interest in the spacing unit by the several owners thereof. That portion of the production allocated to a separately owned tract or interest included in a spacing unit shall, when produced, be deemed, for all purposes, to have been actually produced from such tract or interest by a well drilled thereon. (C) Each such integration order shall authorize the drilling, equipping, and operation, or operation, of a well on the spacing unit; shall provide who may drill and operate the well; shall prescribe the time and manner in which all the owners in the spacing unit may elect to participate therein; and shall make provision for the payment by all those who elect to participate therein of the reasonable actual cost thereof, plus a reasonable charge for supervision and interest. If requested, each such integration order shall provide for one or more just and equitable alternatives whereby an owner who does not elect to participate in the risk and cost of the drilling and operation, or operation, of a well may elect to surrender his leasehold interest to the participating owners on some reasonable basis and for a reasonable consideration which, if not agreed upon, shall be determined by the department, or may elect to participate in the drilling and operation, or operation, of the well, on a limited or carried basis upon terms and conditions determined by the department to be just and reasonable. If one or more of the owners shall drill, equip, and operate, or operate, or pay the costs of drilling, equipping, and operating, or operating, a well for the benefit of another person as provided for in an order of integration, then such owner or owners shall be entitled to the share of production from the spacing unit accruing to the interest of such other person, exclusive of a royalty not to exceed one-eighth of the production except in the event that the state is the royalty owner in which case the royalty shall not exceed one-sixth of production until the market value of such other person's share of the production, exclusive of such royalty, equals the sums payable by or charged to the interest of such other person. If there is a dispute as to the costs of drilling, equipping, or operating a well, the department shall determine such costs. In instances where a well is completed prior to the integration of interests in a spacing unit, the sharing of production shall be from the effective date of the integration, except that, in calculating costs, credit shall be given for the value of the owner's share of any prior production from the well.
Section 48-43-350. (A) The department upon its own motion may, and upon the application of any interested person shall, hold a hearing to consider the need for the operation as a unit of one or more pools or parts thereof in a field. (B) The department shall make an order providing for the unit operation of a pool or part thereof if it finds that: (1) such operation is reasonably necessary to increase the ultimate recovery of oil or gas; and (2) the value of the estimated additional recovery of oil or gas exceeds the estimated additional cost incident to conducting such operations. (C) The order shall be upon terms and conditions that are just and reasonable and shall prescribe a plan for unit operations that shall include: (1) a description of the pool or pools or parts thereof to be so operated, termed the unit area; (2) a statement of the nature of the operations contemplated; (3) an allocation to the separately owned tracts in the unit area of all the oil and gas that is produced from the unit area and is saved, being the production that is not used in the conduct of operations on the unit area or not unavoidably lost. The allocation shall be in accord with the agreement, if any, of the interested parties. If there is not such agreement, the department shall determine the relative value, from evidence introduced at the hearing, of the separately owned tracts in the unit area, exclusive of physical equipment, for development of oil and gas by unit operations, and the production allocated to each tract shall be the proportion that the relative value of each tract so determined bears to the relative value of all tracts in the unit area; (4) a provision for the credits and charges to be made in the adjustment among the owners in the unit area for their respective investments in wells, tanks, pumps, machinery, materials, and equipment contributed to the unit operations; (5) a provision providing how the costs of unit operations, including capital investments, shall be determined and charged to the separately owned tracts and how such costs shall be paid, including a provision providing when, how, and by whom the unit production allocated to an owner who does not pay the share of the cost of unit operations charged to such owner, or the interests of such owner, may be sold and the proceeds applied to the payment of such costs; (6) a provision, if necessary, for carrying or otherwise financing any person who elects to be carried or otherwise financed, allowing a reasonable interest charged for such service payable out of such person's share of the production; (7) a provision for the supervision and conduct of the unit operations, in respect to which each person shall have a vote with a value corresponding to the percentage of the costs of unit operations chargeable against the interest of such person; (8) the time when the unit operations shall commence, and the manner in which, and the circumstances under which, the unit operations shall terminate; and (9) such additional provisions that are found to be appropriate for carrying on the unit operations, and for the protection of a correlative rights. (D) No order of the department providing for unit operations shall become effective unless and until the plan for unit operations prescribed by the department has been approved in writing by those persons who, under the department's order, will be required to pay at least seventy-five percent of the costs of the unit operation, and also by the owners of at least seventy-five percent of the production or proceeds thereof that will be credited to interests which are free of cost, such as royalties, overriding royalties and production payments, and the department has made a finding, either in the order providing for unit operations or in a supplemental order, that the plan for unit operations has been so approved. For purposes of calculating the requisite percentages necessary to effectuate an order of the department when unleased acreage is effected by such order, the owner of the acreage shall be considered to be an owner and royalty owner in respective proportions of seven-eighths as owner and one-eighth as royalty owner except in a case when the acreage is owned by the State in which case the proportion shall be five-sixths as owner and one-sixth as royalty owner. If the plan for unit operations has not been so approved at the time the order providing for unit operations is made, the department shall upon application and notice hold such supplemental hearings as may be required to determine if and when the plan for unit operations has been so approved. If the persons owning required percentage of interest in the unit area do not approve the plan for unit operations within a period of six months from the date on which the order providing for unit operations is made, such order shall be ineffective, and shall be revoked by the department unless for good cause shown the department extends such time. (E) An order providing for unit operations may be amended by an order made by the department in the same manner and subject to the same conditions as an original order providing for unit operations, provided (a) if such an amendment affects only the rights and interests of the owners, the approval of the amendment by the royalty owners shall not be required, and (b) no such order of amendment shall change the percentage for the allocation of oil and gas as established for any separately owned tract by the original order, except with the consent of all persons owning oil and gas rights in such tract, or change the percentage for the allocation of cost as established for any separately owned tract by the original order, except with the consent of all owners in such tract. (F) The department, by an order, may provide for the unit operation of a pool or pools or parts thereof that embrace a unit area established by a previous order of the department. Such order, in providing for the allocation of unit production, shall first treat the unit area previously established as a single tract, and the portion of the unit production so allocated thereto shall then be allocated among the separately owned tracts included in such previously established unit area in the same proportions as those specified in the previous order. (G) An order may provide for unit operations on less than the whole of a pool where the unit area is of such size and shape as may be reasonably required for that purpose, and the conduct thereof will have no adverse effect upon other portions of the pool. (H) All operations, including, but not limited to, the commencement, drilling or operation of a well upon any portion of the unit area shall be deemed for all purposes the conduct of such operations upon each separately owned tract in the unit area by the several owners thereof. The portion of the unit production allocated to a separately owned tract in a unit area shall, when produced, be deemed, for all purposes, to have been actually produced from such tract by a well drilled thereon. Operations conducted pursuant to an order of the department providing for unit operations shall constitute a fulfillment of all the express or implied obligations of each lease or contract covering lands in the unit area to the extent that compliance with such obligations cannot be had because of the order of the department. (I) The portion of the unit production allocated to any tract, and the proceeds from the sale thereof, shall be the property and income of the several persons to whom, or to whose credit, the same are allocated or payable under the order providing for unit operations. (J) No division order or other contract relating to the sale or purchase of production from a separately owned tract shall be terminated by the order providing for unit operations, but shall remain in force and apply to oil and gas allocated to such tract until terminated in accordance with the provisions thereof. (K) Except to the extent that the parties affected so agree, no order providing for unit operations shall be construed to result in a transfer of all or any part of the title of any person to the oil and gas rights in any tract in the unit area. All property, whether real or personal, that may be acquired in the conduct of unit operations hereunder shall be acquired for the account of the owners within the unit area, and shall be the property of such owners in the proportion that the expenses of unit operations are charged.
Section 48-43-360. An agreement for the unit or cooperative development or operation of a field, pool or part thereof may be submitted to the department for approval as being in the public interest or reasonably necessary to prevent waste or protect correlative rights. Such approval shall constitute a complete defense to any suit charging violation of any statute of the State relating to trusts and monopolies on account thereof or on account of operations conducted pursuant thereto. The failure to submit such an agreement to the department for approval shall not for that reason imply or constitute evidence that the agreement or operations conducted pursuant thereto are in violation of laws relating to trusts and monopolies. Section 48-43-370. (A) The department shall require that all persons who desire to drill oil or gas wells obtain a permit for each well proposed to be drilled prior to the commencement of any drilling operations. The drilling of any well is hereby prohibited until a permit is granted by the department. (B) No permit to drill a gas or oil well shall be granted within the corporate limits of any municipality, unless the governing authority of the municipality shall have first duly approved the issuance of such permit by resolution. (C) No permit to drill a gas or oil well on any beach shall be granted by the department.
Section 48-43-380. Whenever by reason of the termination of the full period within which an optional gas and oil lease which is of record may be kept alive by the payments of rentals, or at the termination of any of the options in such lease by reason of failure on the part of the lessee to comply with the condition therein for the prevention of forfeiture, such lease shall lapse, the lessee shall, on request in writing by the lessor, with an instrument, duly acknowledged, direct the cancellation of such lease on the records or shall supply the lessor with such instrument. Any lessee failing or refusing to supply the lessor with such an instrument, or failing or refusing to cancel any lease on the records within thirty days after receiving written demand as above, shall be liable to such lessor for a reasonable attorney's fee incurred by the lessor in bringing suit to have such forfeiture and cancellation adjudged, and in addition thereto shall be liable to the lessor for all damages suffered by the lessor by reason of his inability to make any lease on account of the first lease not having been canceled. This section shall be construed to apply to all leases for oil or gas heretofore entered into.
Section 48-43-390. (A) The South Carolina State Budget and Control Board, hereinafter referred to as the board, is hereby designated as the State Agency with the authority, responsibility and power to lease all State lands to persons for the purpose of drilling for and producing oil and gas. The Department of Health and Environmental Control is hereby designated as the exclusive agent for the board in selecting lands to be leased, administering the competitive bidding for leases, administering the leases, receiving and compiling comments from other state agencies concerning the desirability of leasing the state lands proposed for leasing and such other activities that pertain to oil and gas leases as may be included herein as responsibilities of the board. (B) Upon resolution adopted by a majority of the board, the board may lease any of those lands heretofore enumerated if the board finds that the lease of the lands would not be detrimental to the State and its citizens and if the department recommends that a lease of the lands be granted. The Governor as chairman of the board shall execute all oil and gas leases. The leases shall be filed in the county in which the land is situated as all other instruments conveying real estate are filed except leases of offshore lands shall be filed in the offices of the department as a public record. The department shall have the responsibility of administering all such leases for the board. (C) Any lease executed pursuant to this section shall be for a term of no more than five years unless substantial drilling operations have been commenced on the property in which case the lease shall be extended from year to year so long as substantial drilling operations continue unless the well drilled upon the leased property becomes a producing well, in which case the lease shall be extended from year to year for as long as production continues or the leased property has a known capacity to produce oil or gas and the production has been discontinued with the prior approval of the department under such terms as the department has prescribed. The leases granted pursuant to this section shall include no more than two thousand five hundred acres (1,000 hectares) but a person is not prohibited from holding a leasehold interest in more than two thousand five hundred acres (1,000 hectares) under two or more leases. The leases shall be granted under such terms and conditions as the board shall deem to be in the best interest of the citizens of the State. However, no lease shall provide for a lesser royalty than one-sixth of the oil and gas produced from the leased property or one-sixth of the monetary value of such oil and gas at the wellhead. (D) No property shall be leased except by sealed bid. The property shall be leased to the bidder submitting the bid which provides for the highest bonus payment. The bonus payment shall be in addition to any rental payments established by the department in the lease agreement and royalties provided for herein. Any person desiring that a certain tract or tracts of property be submitted for bidding shall nominate such tract or tracts by so informing the department in accordance with the procedure for nominating established by the department. If the department determines that the tract nominated as provided herein or upon its own motion determines that a tract should be submitted for bidding, it shall invite all interested persons to submit bids for leasing the designated tract. Invitations for bids shall be published in a newspaper of general circulation within the county or counties where the tract proposed to be leased is located and in a newspaper of statewide circulation, at least twenty-five days before the final date for submitting bids. Invitations for bids shall also be mailed twenty-five days before the final date of submitting bids to the last known address of all persons who have filed a statement in accordance with the procedure established by the department indicating a desire to bid upon tracts put up for leasing. The invitation to bids shall contain: (1) a description, location and approximate acreage of the tract to be leased; (2) the address to which the bids are to be submitted; (3) the time and place at which the bids will be opened; (4) the date and time by which the bids must be received; (5) any special provisions of the lease or special rules and regulations promulgated by the department for the tract to be leased and (6) any other matters that the department may deem pertinent. The bids shall be opened publicly at the time and date prescribed by the department in the offices of the department by the person designated by the department to open bids. The department shall furnish to persons who request a copy of the lease agreement for the tract submitted for bidding. The lease of any tract shall be granted to the highest responsible bidder but the department and the board may reject all bids when it determines that the public interest will be served thereby. The department and the board must accept the most advantageous offer or reject all bids within twenty days from the date the bids were opened. (E) All monies collected by the department and the board as bonuses, rental payments or royalties shall be deposited with the State Treasurer in a special account and expended as the General Assembly may direct. (F) Prior to the mailing and publication of invitations to bid, the department shall advise the appropriate State agencies by notice of the tract proposed to be submitted for bidding. The agencies wishing to comment on the desirability of leasing such tract shall do so within thirty days following receipt of the notice. The department shall consider the comments of the agencies in determining the advisability of leasing the tract. If the department determines to lease the tract on which it has received unfavorable comment from the agencies, the department and board shall require such special provisions in the lease agreement and promulgate such rules and regulations for each individual tract that is leased as may be necessary to safeguard against particular hazards or detrimental effects that may result from drilling oil or gas wells and the production of oil or gas on the tract. In considering the special provisions, rules and regulations needed for a specific tract, the department and board shall specifically include such provisions, rules and regulations shown by the commenting agency to be necessary (1) for the protection of the environment, (2) to minimize the detriment to aesthetics, (3) for the protection of the property rights of other persons and the public, (4) to avoid obstructing navigable streams, (5) to prevent interference with recreation, (6) to protect the public beaches, and (7) to maintain the quality of underground water. The construction of drilling platforms in the Atlantic Ocean is permitted except that such drilling platforms shall not be located within one mile (1.6 kilometers) of the mean high water mark of any beach within the territorial jurisdiction of the State of South Carolina. (G) The department is authorized to promulgate such rules and regulations as may be necessary to fulfill its duties set forth in this section and implement the provisions and purposes of this section. (H) (a) Any person as defined herein who intends to construct a deep water port facility within the territorial jurisdiction of the State of South Carolina for the purpose of loading or unloading oil, gas or other products as defined by this chapter shall apply for and obtain a permit to construct such facility from the department prior to the commencement of construction. (b) The department shall promulgate such rules and regulations to govern the construction of deep water port facilities as may be necessary (1) for the protection of the environment, (2) to minimize the detriment to aesthetics, (3) for the protection of the property rights of other persons and the public, (4) for the protection of the rights of the fishing industry, (5) for the protection of the recreational activities of the public, (6) to avoid obstructing shipping channels, (7) to protect the public beaches, and (8) in general, to protect the public interest and rights of the state and its industries. In promulgating such rules and regulations, the department shall take into consideration the comments of other state agencies concerning the potential hazards present in constructing deep water port facilities and shall follow the procedure set forth in Section 48-39-390(F) in soliciting and receiving the comments from such state agencies.
Article 3
Pollution Control
Section 48-43-510. When used in this article unless the context clearly requires otherwise: (1) `Department' means the Department of Health and Environmental Control. (2) `Director' means the director of the department. (3) `Barrel' means 42 U. S. gallons at 60 Fahrenheit. (4) `Other measurements' means measurements set by the department for products transferred at terminals which are other than fluid or which are not commonly measured by the barrel. (5) `Discharge' shall include, but not be limited to, any spilling, leaking, seeping, pouring, emitting, emptying, or dumping which occurs within the territorial limits of the State or outside of the territorial limits of the State and affects lands and waters within the territorial limits of the State. (6) `Pollutants' shall include oil of any kind and in any form, gasoline, pesticides, ammonia, chlorine, and derivatives thereof. (7) `Pollution' means the presence in the outdoor atmosphere or waters of the States of any one or more substances or pollutants, in quantities which are or may be potentially harmful or injurious to human health or welfare, animal or plant life, or property or which may unreasonably interfere with the enjoyment of life or property, including outdoor recreation. (8) `Terminal facility' means any waterfront or offshore facility of any kind, other than vessels not owned or operated by such facility, and directly associated waterfront or offshore appurtenances including pipelines located on land, including submerged lands, or on or under the surface of any kind of water, which facility and related appurtenances are used or capable of being used for the purpose of drilling for, pumping, storing, handling, transferring, processing, or refining pollutants, including, but not limited to, any such facility and related appurtenances owned or operated by a public utility or a governmental or quasi-governmental body. A vessel shall be considered a terminal facility only in the event of a ship-to-ship transfer of pollutants, and only that vessel going to or coming from the place of transfer and the terminal facility. For the purposes of this article `terminal facility' shall not be construed to include waterfront facilities owned and operated by governmental entities acting as agents of public convenience for operators engaged in the drilling for or pumping, storing, handling, transferring, processing, or refining of, pollutants; however, each operator engaged in the drilling for or pumping, storing, handling, transferring, processing, or refining of pollutants through a waterfront facility owned and operated by such governmental entity shall be construed as a terminal facility. (9) `Owner means any person owning a terminal facility; `operator' means any person operating a terminal facility, whether by lease, contract, or other form of agreement. (10) `Transfer' or `transferred' includes onloading or offloading between terminal facility and vessel, vessel and vessel, or terminal facility and terminal facility. (11) `Vessel' includes every description of watercraft or other contrivance used, or capable of being used, as a means of transportation on water, whether self-propelled or otherwise, and includes barges and tugs. (12) `Discharge cleanup organization' means any group, incorporated or unincorporated, of owners or operators of waterfront terminal facilities in any port or harbor of the State, and any other person who may elect to join, organized for the purpose of containing and cleaning up discharges of pollutants through cooperative efforts and shared equipment and facilities. (13) `Board' means the Department of Health and Environmental Control. (14) `Person' means any individual, partnership, joint venture, corporation; any group of the foregoing, organized or united for a business purpose; or any governmental entity. (15) `Registrant' is a terminal facility required to possess a valid registration certificate to operate as a terminal facility. Section 48-43-520. (1) The General Assembly finds and declares that the highest and best use of the seacoast of the State is as a source of public and private recreation. (2) The General Assembly further finds and declares that the preservation of this use is a matter of the highest urgency and priority, and that such use can only be served effectively by maintaining the coastal waters, estuaries, tidal flats, beaches, and public lands adjoining the seacoast in as close to a pristine condition as possible, taking into account multiple use accommodations necessary to provide the broadest possible promotion of public and private interests. (3) Furthermore it finds and declares that: (a) The transfer of pollutants between vessels, between onshore facilities and vessels, between offshore facilities and vessels, and between terminal facilities within the jurisdiction of the State and state waters is a hazardous undertaking; (b) Spills, discharges, and escapes of pollutants occurring as a result of procedures involved in the transfer, storage, and transportation of such products pose threats of great danger and damage to the environment of the State, to owners and users of shore front property, to public and private recreation, to citizens of the State and other interests deriving livelihood from marine-related activities, and to the beauty of the coast; (c) Such hazards have frequently occurred in the past, are occurring now, and present future threats of potentially catastrophic proportions, all of which are expressly declared to be inimical to the paramount interests of the State as herein set forth; and (d) Such state interests outweigh any economic burdens imposed upon those engaged in transferring pollutants and related activities. (4) The General Assembly intends by the enactment of this article to exercise the police power of the State by conferring upon the Department of Health and Environmental Control power to: (a) Deal with the hazards and threats of danger and damage posed by such transfers and related activities; (b) Require the prompt containment and removal of pollution occasioned thereby; and (5) The General Assembly further finds and declares that the preservation of the public uses referred to herein is of grave public interest and concern to the State in promoting its general welfare, preventing diseases, promoting health, and providing for the public safety and that the state's interest in such preservation outweighs any burdens of liability imposed herein upon those engaged in transferring pollutants and related activities. (6) The General Assembly further declares that it is the intent of this article to support and complement applicable provisions of the Federal Water Pollution Control Act, as amended, specifically those provisions relating to the national contingency plan for removal of pollutants.
Section 48-43-530. (1) The powers and duties conferred by this article shall be exercised by the Department and shall be deemed to be an essential governmental function in the exercise of the police power of the State. The Department may call upon any other state agency for consultative services and technical advice and the agencies are directed to cooperate with the Department. (2) Registration certificates required under this article shall be issued by the Department subject to such terms and conditions as are set forth in this article and as set forth in rules and regulations promulgated by the Department as authorized herein. (3) Whenever it becomes necessary for the State to protect the public interests under this article it shall be the duty of the Department to keep an accurate record of costs and expenses incurred and thereafter diligently to pursue the recovery of any sums so incurred from the person responsible or from the Government of the United States under any applicable federal act. (4) The Department may bring an action on behalf of the State to enforce the liabilities imposed by this article. The Attorney General shall represent the Department in any such proceeding.
Section 48-43-540. (1) No person shall operate or cause to be operated a terminal facility as defined in Section 48-43-510 (8) without a registration certificate. (2) Registration certificates shall be issued on a five-year basis and shall expire on December thirty-first of the fifth year, such certificates shall be subject to such terms and conditions as the Department may determine are necessary to carry out the purposes of this article. (3) As a condition precedent to the issuance or renewal of a registration certificate, the Department shall require satisfactory evidence that the applicant has implemented, or is in the process of implementing, state and federal plans and regulations for prevention, control and abatement of pollution when a discharge occurs. (4) Registration certificates issued to any terminal facility shall include vessels used to transport pollutants between the facility and vessels within state waters. (5) The Department shall require, in connection with the issuance of a terminal facility registration certificate, the payment of a reasonable fee for processing applications for registration certificates. The fee shall be reasonably related to the administrative costs of verifying data submitted pursuant to obtaining the certificates and reasonable inspections; however, the fee shall not exceed two hundred fifty dollars per terminal facility per year. (6) No later than January 1, 1978 every owner or operator of a terminal facility shall obtain a registration certificate. The department shall issue a registration certificate upon the showing that the registrant can provide all required equipment to prevent, contain, and remove discharges of pollutants or is a member of a Discharge Cleanup Organization. (7) On or after a date to be determined by the Department, but in no case later than January 1, 1978 no person shall operate or cause to be operated any terminal facility without a terminal facility registration certificate issued by the Department. Registration certificates shall be valid for five years; provided however, they shall be subject to annual inspection. Each applicant for a terminal facility registration certificate shall pay the registration certificate application fee and shall submit information, in a form satisfactory to the Department, describing the following: (a) The barrel or other measurement capacity of the terminal facility. (b) All prevention, containment, and removal equipment, including, but not limited to, vehicles, vessels, pumps, skimmers, booms, chemicals, and communication devices to which the facility has access, whether through direct ownership or by contract or membership in an approved discharge cleanup organization. (c) The terms of agreement and operation plan of any discharge cleanup organization to which the owner or operator of the terminal facility belongs. (8) Upon showing of satisfactory containment and cleanup capability under this section, and upon payment of the registration certificate application fee, the applicant shall be issued a registration certificate covering the terminal facility and related appurtenances, including vessels as defined in Section 48-43-510(11).
Section 48-43-550. The Department shall from time to time adopt, amend, repeal, and enforce reasonable regulations relating to the cleanup and removal of discharges of pollutants into the waters or onto the coasts of this State. Such regulations shall include, but not be limited to: (a) Operation and inspection requirements for terminal facilities, vessels, and other matters relating to certification under this article but shall not require vessels to maintain spill prevention gear, holding tanks of any kind, and containment gear in excess of federal requirements. (b) Procedures and methods of reporting discharges and other occurrences prohibited by this article. (c) Procedures, methods, means, and equipment to be used by persons subject to regulation by this article on the removal of pollutants. (d) Development and implementation of criteria and plans to meet pollution occurrences of various degrees and kinds. (e) Creation by contract or administrative action of a state response team which shall be responsible for creating and maintaining a contingency plan of response, organization, and equipment for handling emergency cleanup operations. The state plans shall include detailed emergency operating procedures for the State as a whole and the team shall from time to time conduct practice alerts. These plans shall be filed with the Governor and all Coast Guard stations in the State and Coast Guard captains of the port having responsibility for enforcement of federal pollution laws within the State, on or before January 1, 1978. The contingency plan shall include all necessary information for the total containment and cleanup of pollution, including but not limited to an inventory of equipment and its location, a table of organization with the names, addresses, and telephone numbers of all persons responsible for implementing every phase of the plan, a list of available sources of supplies necessary for cleanup, and a designation of priority zones to determine the sequence and methods of cleanup. The state response team shall act independently of agencies of the federal government but is directed to cooperate with any federal cleanup operation. (f) Requirements that, prior to being granted entry into any port in this State, the master of a vessel shall report: (1) Any discharges of pollutants the vessel has had since leaving the last port; (2) Any mechanical problem on the vessel which creates the possibility of a discharge; (3) Any denial of entry into any port during the current cruise of the vessel. Any person who shall make or cause to be made any false statement in response to requirements of any provisions of this article with a fraudulent intent shall be deemed guilty of a felony and upon conviction shall be imprisoned for two years or fined five thousand dollars, or both. (g) Requirements that any registrant causing or permitting the discharge of a pollutant in violation of the provisions of this article and at other reasonable times, be subject to a complete and thorough inspection. If the Department determines there are unsatisfactory preventive measures or containment and cleanup capabilities, it shall, a reasonable time after notice and hearing, suspend the registration until such time as there is compliance with the Department requirements. (h) Such other rules and regulations as the exigencies of any condition may requirement or as may reasonably be necessary to carry out the intent of this article.
Section 48-43-560. (1) Any person discharging pollutants in violation of this article shall immediately undertake to contain remove, and abate the discharge to the Department's satisfaction. Notwithstanding the above requirement, the Department may undertake the removal of the discharge and may contract and retain agents who shall operate under the direction of the Department. (2) If the person causing a discharge, or the person in charge of facilities at which a discharge has taken place, fails to act, the Department may arrange for the removal of the pollutant, except that if the pollutant was discharged into or upon the navigable waters of the United States, the Department shall act in accordance with the national contingency plan for removal of such pollutant as established pursuant to the Federal Water Pollution Control Act, as amended, and the costs of removal incurred by the Department shall be paid in accordance with the applicable provisions of the law. Federal funds provided under this act shall be used to the maximum extent possible prior to the expenditure of state funds. (3) In the event of discharge the source of which is unknown, any local discharge cleanup organization shall, upon the request of the Department or its designee, immediately contain and remove the discharge. No action taken by any person to contain or remove a discharge, whether such action is taken voluntarily or at the request of the Department or its designee, shall be construed as an admission of liability for the discharge. (4) No person who, voluntarily or at the request of the Department or its designee, renders assistance in containing or removing pollutants shall be liable for any civil damages to third parties resulting solely from acts or omissions or such person in rendering such assistance, except for acts or omissions amounting to gross negligence or willful misconduct. (5) Nothing in this article shall affect in any way the right of any person who renders assistance in containing or removing pollutants to reimbursement for the costs of the containment or removal under the applicable provisions of this article or the Federal Water Pollution Control Act, as amended, or any rights which that person may have against any third party whose acts or omissions in any way have caused or contributed to the discharge of the pollutants.
Section 48-43-570. (a) The Department of Transportation, the Department of Natural Resources, and any other agency of this State, shall cooperate with and lend assistance to the Department of Health and Environmental Control by assigning, upon request, personnel, equipment and material to be utilized in any project or activity related to the containment, collection, dispersal or removal of oil discharged upon the land or into the waters of this State. (b) Subsequent to July 1, 1977, and prior to September 1, 1977, designated representatives of the department, the Department of Transportation, and the Department of Natural Resources , and any other agency or agencies of the State which the department shall deem necessary and appropriate, shall confer and establish plans and procedures for the assignment and utilization of personnel, equipment and material to be used in carrying out the purposes of this article. (c) Every state agency participating in the containment, collection, dispersal or removal of an oil discharge or in restoration necessitated by such discharge, shall keep a record of all expenses incurred in carrying out any such project or activity including the actual services performed by the agency's personnel and the use of the agency's equipment and material. A copy of all records shall be delivered to the department upon completion of the project or activity.
Section 48-43-580. It shall be unlawful, except as otherwise provided in this article, for any person to discharge or cause to be discharged, pollutants into or upon any waters, tidal flats, beaches or lands within this State or into any sewer, surface water drain or other waters that drain into the waters of this State, regardless of the fault of the person having control over the pollutants or regardless of whether the discharge was the result of intentional or negligent conduct, accident or other cause. This section shall not apply to discharges of pollutants in the following circumstances: (1) When the discharge was authorized by an existing regulation of the Department. (2) When any person subject to liability under this article proves that a discharge was caused by any of the following: (a) An act of God. (b) An Act of war or sabotage. (c) Negligence on the part of the United States government or the State or its political subdivisions. (d) An act or omission of a third party, whether any such act or omission was or was not negligent; provided, however, nothing herein shall be construed as limiting the liability of such third party. (e) Any act or omission by or at the direction of a law enforcement officer or fireman. Any person who desires or proposes to discharge oil into the land or into the waters of the State shall first make application for and secure a permit from the Department. Application shall be made under such terms and conditions adopted by the Department. Any permit granted pursuant to this section may contain such terms and conditions as the Department shall deem necessary and appropriate to conserve and protect the land or waters of this State and the public interest therein.
Section 48-43-590. All persons operating or owning terminal facilities, within the territorial jurisdiction of the State shall furnish, under such conditions as may be prescribed from time to time by the Department, evidence of financial responsibility of fourteen million dollars to meet any and all liabilities to all persons caused by the operations of any such terminal facilities. Evidence of financial responsibility may be established by an insurance or surety bond issued by an insurance or bonding company authorized to do business in the State, qualifications of a self-insurer or other evidence of financial responsibility acceptable to the Department. This provision shall not be construed as limiting the liability of any person operating or owning terminal facilities.
Section 48-43-600. Any person claiming to have suffered damage as a result of an unlawful discharge under Section 48-43-580 may file a claim pursuant to the Administrative Procedures Act.
Section 48-43-610. (1) It is unlawful for any person to violate any provision of this article or any rule, regulation of the department, or order of the department made pursuant to this article. Except as otherwise provided, a violation shall be punishable by a civil penalty of up to ten thousand dollars per violation per day to be assessed by the department. Each day during any portion of which the violation occurs constitutes a separate offense. (2) Penalties assessed herein for a discharge shall be the only penalties assessed by the State, and the assessed person or persons, shall be excused from paying any other penalty for water pollution for the same occurrence. (3) The penalty provisions of this section shall not apply to any discharge promptly reported and removed by a registrant or vessel in accordance with the rules, regulations and orders of the Department.
Article 4
Violations and Penalties
Section 48-43-620. The department shall submit to each regular session of the legislature a proposed budget for carrying out its responsibilities under this article and shall also account for all funds appropriated by the legislature for carrying out its responsibilities under this article for the previous year.
Section 48-43-810. It shall be unlawful for any person to: (a) willfully violate any provision of this chapter, or any rule, regulation or order of the department; (b) commence operations for the drilling of a well for oil or gas without first obtaining a permit from the department, under such rules and regulations as may be prescribed by the department; (c) do any of the following for the purpose of evading or violating this chapter, or any rule, regulation or order of the department; make any false entry or statement in a report required by this chapter or by any rule, regulation of the department or order of the department; make or cause to be made any false entry in any record, account or memorandum, required by this chapter, or by any such rule, regulation or order; omit, or cause to be omitted, from any such record, account or memorandum full, true and correct entries as required by this chapter, or by any such rule, regulation or order; or remove from this State or destroy, mutilate, alter or falsify any such record, account or memorandum; (d) refuse to attach or install a meter as prescribed by the department pursuant to Section 48-43-30B(1)(m) herein when ordered to do so by the department or in any way to tamper with such meter so as to produce a false or inaccurate reading, or to have any bypass at such a place where the oil or gas can be passed around; (e) permit through negligence or willfulness any gas or oil well to go wild or to get out of control. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor and, upon conviction, shall be fined not more than one thousand dollars or be imprisoned for not more than six months, or both.
Section 48-43-820. (A) Any person who violates any provision of this chapter, or any rule, regulation or order of the department, shall also be subject to a civil penalty of not more than five thousand dollars for each act of violation and for each day that such violation continues. (B) Any person who negligently or willfully permits an oil or gas well to go wild or to get out of control, to cause pollution or waste, or to create other conditions that are detrimental to the property rights of others or the public shall be liable to the department for the expense incurred in correcting the detrimental conditions and the civil penalties imposed by Section 48-43-820A and the department is hereby authorized to take whatever action it deems necessary, including operation of the well, to correct the detrimental conditions and charge the owner or producer, or both, of the well for the expenses incurred. (C) The penalties and liabilities provided in this section shall be recoverable by civil suit filed by the Attorney General in the name and on behalf of the department in the court of common pleas of the county in which the defendant resides or in which any defendant resides, if there be more than one defendant, or in the court of common pleas of any county in which the violation occurred. The payment of any such penalty shall not operate to legalize any illegal oil, illegal gas or illegal product involved in the violation for which the penalty is imposed or relieve a person on whom the penalty is imposed from liability to any other person for damages arising out of such violation. (D) In addition to any civil and criminal penalties imposed by this chapter, any person who violates any provisions of this chapter, or rules, regulations and orders of the department, shall be liable to all third parties who may incur damage or injury because of such violations.
Section 48-43-830. Any person knowingly aiding or abetting any other person in the violation of any provision of this chapter, or any rule, regulation of the department or order of the department, shall be subject to the same punishment and penalty prescribed by this chapter for the violation by such other person. Section 48-43-840. (A) The sale, purchase, acquisition, transportation, refining, processing or handling of illegal oil, illegal gas or illegal product is hereby prohibited. However, no penalty by way of fine shall be imposed upon a person who sells, purchases, acquires, transports, refines, processes or handles illegal oil, illegal gas or illegal product unless (1) such person knows, or is put on notice of, facts indicating that illegal oil, illegal gas or illegal product is involved, or (2) such person fails to obtain a certificate of clearance with respect to such oil, gas or product if prescribed by an order of the department, or fails to follow any other method prescribed by an order of the department for the identification of such oil, gas or product. (B) Illegal oil, illegal gas, and illegal product are declared to be contraband and are subject to seizure and sale as herein provided. Seizure and sale shall be in addition to any and all other remedies and penalties provided in this chapter for violations relating to illegal oil, illegal gas, or illegal product. Whenever the department believes that any oil, gas, or product is illegal, the department, acting by the Attorney General, shall bring a civil action in rem in the court of common pleas of the county where such oil, gas, or product is found, to seize and sell the same, or the department may include such an action in rem in any suit brought for an injunction or penalty involving illegal oil, illegal gas, or illegal product. Any person claiming an interest in oil, gas, or product affected by such action in rem shall have the right to intervene as an interested party in such action. (C) Actions for seizure and sale of illegal oil, illegal gas or illegal product shall be strictly in rem, and shall proceed in the name of the state as plaintiff against the oil, gas or product as defendant. No bond or similar undertaking shall be required of the plaintiff. The action for seizure and sale shall be commenced in the court of common pleas for the county in which the oil, gas or product is situated by a summons and complaint which shall be verified or supported by affidavits. When the verified complaint or complaint and supporting affidavits set forth sufficient facts to support the seizure and sale of the illegal oil, illegal gas or illegal products, the clerk of court of the county in which such oil, gas or product is situated or the judge of the judicial circuit which has jurisdiction to hear matters arising in the county shall issue a warrant directed to the sheriff of the county for service upon any and all persons having or claiming any interest in the oil, gas or product described in the complaint. The warrant shall direct the sheriff to take such oil, gas or product into his custody until such time as the court has heard the action on its merits and the matter has been fully adjudicated. The original summons and complaint and warrant shall be filed with the clerk of court for the county by the plaintiff with the sheriff's affidavit of service attached when service has been accomplished in the manner set forth herein by the sheriff. All persons having or claiming any interest in the oil, gas or product described in the complaint must appear and answer the complaint within twenty days after the service of such summons and complaint. Service of the summons and complaint and warrant by posting copies on the door of the courthouse for the county in which the oil, gas or product described in the complaint is situated, by posting copies in the immediate vicinity of the place where such oil, gas or product is located and by publishing the summons and complaint and warrant in any newspaper of general circulation in the county in which such oil, gas or product is located in four consecutive issues of the newspaper shall constitute valid and sufficient service on all persons having or claiming any interest in the such oil, gas or product. Any person who fails to appear and answer the complaint within twenty days after service of the summons and complaint and warrant shall be forever barred by any judgment obtained by the plaintiff. The service of the summons and complaint and warrant as provided herein shall place the State in constructive or actual possession, as the case may be, of the oil, gas or product. (D) Any person having an interest in any oil, gas or product which has been seized in accordance with the provisions of Section C may, prior to the sale thereof, obtain the release thereof, upon furnishing bond to the sheriff, approved by the clerk of court, in an amount equal to one hundred and fifty percent of the market value of the oil, gas or product to be released pending a final adjudication of the action on its merits. (E) If the court, after a hearing upon the complaint for the seizure and sale of oil, gas, or product, finds that such oil, gas, or product is contraband, the court shall order the sale thereof by the sheriff in the same manner and upon the same notice of sale as provided by law for the sale of personal property on execution of judgment entered in a civil action, except that the court may order that the oil, gas, or product be sold in specified lots or portions and at specified intervals. Upon such sale, title to the oil, gas, or product sold shall vest in the purchaser free of the claims of any and all persons having any title thereto or interest therein at or prior to the seizure thereof, and the same shall be legal oil, legal gas, or legal products, as the case may be, in the hands of the purchaser. (F) All proceeds derived from the sale of illegal oil, illegal gas, or illegal product, as above provided, after payment of costs of suit and expenses incident to the sale and all amounts paid as penalties provided for by this chapter, shall be paid into the State Treasury for the use of the department in defraying its expenses in the same manner as other funds provided by law for the use of the department.
Section 48-43-850. Whenever it appears that any person is violating or threatening to violate any provision of this chapter, or any rule, regulation of the department or order of the department, the Attorney General may, at the request of the department, bring suit in the name of the department against such persons in the court of common pleas of the county where the violation occurs or is threatened, or in the county in which the defendant resides or in which any defendant resides if there is more than one defendant, to restrain such person from continuing such violation or from carrying out the threat of violation. In any such suit, the court shall have jurisdiction to grant without bond or other undertaking, such prohibitory or mandatory injunctions as the facts may warrant, including temporary restraining orders and preliminary injunctions."
Reference revised
SECTION 1237. Section 48-45-40 of the 1976 Code is amended to read:
"Section 48-45-40. The membership of the consortium consists of The Citadel, the College of Charleston, Clemson University, the Medical University of South Carolina, South Carolina State College, the University of South Carolina, and the Department of Natural Resources. These members are designated as charter members. The terms of the members are perpetual, and a majority of the charter members may vote the admission of a new member into the consortium."
Reference revised
SECTION 1238. Section 48-45-80 of the 1976 Code is amended to read:
"Section 48-45-80. There is hereby created an advisory committee to the Consortium Director to consist of seven members who shall serve for terms of four years and until their successors are appointed and qualified. Four members must be appointed by the Governor with the advice and consent of the Senate. The chairmen of the Senate Fish, Game and Forestry Committee, House Agriculture and Natural Resources Committee, and Department of Natural Resources Board shall each appoint one member upon the recommendation of a majority of the members of their respective committees and commission. The four members appointed by the Governor must be residents of coastal counties, no more than one from each county, and two must be associated with the commercial fishing industry."
References revised
SECTION 1239. Section 48-47-175(B) of the 1976 Code is amended to read:
"(B) The owner or operator of a low level radioactive waste disposal facility shall, no later than 30 days following the end of each quarter, submit the following to the South Carolina Department of Revenue and Taxation: 1. A report detailing the quantity and type of waste disposed of during the previous calendar quarter; and 2. A check made payable to the South Carolina Department of Revenue and Taxation for the amount of tax imposed in (A) above."
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