Bill 3546

References revised

SECTION 1240. Section 48-55-10 of the 1976 Code is amended to read:

"Section 48-55-10. (A) The South Carolina Environmental Awareness Award must be presented annually by a committee of two members appointed from each of the following: (1) South Carolina Department of Health and Environmental Control by its commissioner; (2) State Commission of Forestry by its chairman; (3) South Carolina Sea Grant Consortium by its executive director; (4) Water Resources Division of the Department of Natural Resources by the department's director; (5) Wildlife and Freshwater Fish Division of the Department of Natural Resources by the department's director; (6) Land Resources and Conservation Districts Division of the Department of Natural Resources by the department's director; and (7) Coastal Division of the Department of Health and Environmental Control by the department's director; (8) Marine Resources Division of the Department of Natural Resources by the department's director. (B) The committee shall elect from its members a chairman and a secretary. Each department or commission shall provide for the expenses of its members, except collective expenses must be shared by the departments and the commissions. Members are not eligible for mileage or per diem."

References and regulatory provisions revised

SECTION 1241. Section 49-1-15 of the 1976 Code is amended to read:

"Section 49-1-15. (A) Except as otherwise provided herein, no person may erect, construct, or build any structure or works in order to dam or impound the waters of a navigable stream or any waters which are tributary to a navigable stream for the purpose of generating hydroelectricity without securing a permit from the Department of Health and Environmental Control. Any projects that are subject to Chapter 33 of Title 58 of the Utility Facility Siting and Environmental Protection Act are exempted from this section. Further exempted are projects where the project developer without exercising condemnation authority is the existing owner of the property upon which the project is to be constructed and projects which do not exceed sixty acres including in both cases inundated land. (B) The Department of Health and Environmental Control may issue a permit for the projects in this subsection after a thorough review of the proposed project and a finding that it meets any regulations of the board and the following standards: (1) The proposed project does not halt or prevent navigation by watercraft of the type ordinarily frequenting the reach of the watercourse in question. (2) The projects proposed for shoaled areas of the watercourse provide a means of portage or bypass of the project structure. (3) The need for the proposed project far outweighs the historical and current uses of the stream in question. (4) The impact of the proposed project will not threaten or endanger plant or animal life. (5) The recreational and aesthetic benefits or detriments caused by the proposed project do not alter the watercourse or damage riparian lands. (C) The Attorney General shall represent before any federal agency the department, if so requested by the department, respecting the same application."

Department may charge fee

SECTION 1242. Chapter 1 of Title 49 of the 1976 Code is amended by adding:

"Section 49-1-16. The Department of Health and Environmental Control may charge a fee to an applicant for a permit for any construction, alteration, dredging, filling, or other activity in navigable waters of the State. If the project is commercial or industrial and is in support of operations that charge for the production, distribution, or sale of goods or services, a fee of five hundred dollars must be charged, except if the aerial crossing of navigable waters by conductors or other wires supported solely by structures outside the navigable waters the fee shall be one hundred dollars. If the work is noncommercial in nature and provides personal benefits that have no connection with a commercial enterprise the fee must be fifty dollars. The department shall remit the fees to the State Treasurer and shall be issued a credit for any portion of the fees necessary to offset its costs in processing, investigating and taking final action on each permit application. Any remaining portion shall be credited to the general fund of the State."

Reference revised

SECTION 1243. Section 49-3-20 of the 1976 Code is amended to read:

"Section 49-3-20. (a) There is hereby created the South Carolina Water Resources Commission, hereinafter referred to as the commission, which shall be composed of eighteen members as follows: Ten shall be appointed by the Governor and eight shall serve as ex officio members. The ten members appointed by the Governor shall be composed of three members representing the interest of agriculture, three members representing the interest of industry, three members representing the interest of municipalities, and one member representing saltwater interests. The terms of the members appointed by the Governor shall be for three years, except that for those first appointed, representing the interest of agriculture, industry and municipalities, one of these from each category shall be appointed for one year, one from each category shall be appointed for two years, and one from each category shall be appointed for three years. The member representing saltwater interests shall be appointed for three years. The length of the terms of the three members from the categories of agriculture, industry and municipalities shall be determined by lot at the first meeting of the Commission after appointment. The heads of the following eight departments of the State government shall constitute the eight ex officio members of the Commission. Provided, however, that the head of each department concerned may at his discretion designate another member of his department to serve on the Commission in his stead. The length of the terms of the members serving ex officio shall be coterminous with the terms for which the head of each department concerned is elected or appointed. (1) The Department of Agriculture; (2) The South Carolina Department of Health and Environmental Control; (3) The South Carolina Wildlife and Marine Resources Commission; (4) The South Carolina State Forestry Commission; (5) The State Land Resources Conservation Commission; (6) The Director of the Department of Commerce; (7) The Clemson University Water Resources Research Institute; and (8) The State Highway Department. (b) A meeting of the Commission shall be called by the Governor within thirty days after appointment and thereafter the Commission shall meet upon a call of the chairman or a majority of the members appointed by the Governor. At the first meeting the Commission shall organize itself by electing as chairman one of the members appointed by the Governor and such other officers as may be considered necessary. The term of office of the chairman shall be for one year and he may succeed himself. A majority of those members appointed by the Governor shall constitute a quorum for the purpose of conducting the business of the Commission. (c) Members of the Commission shall receive no salary for the performance of their duties but shall be entitled to such per diem, subsistence and mileage as authorized by law for members of boards, commissions or committees, which shall be paid on vouchers signed by the chairman from the Civil Contingent Fund of the State for the members of the commission appointed by the Governor, and from the appropriation of each department of the state government concerned for the members serving ex officio."

Water Resources Commission transferred

SECTION 1244. Chapter 3 of Title 49 of the 1976 Code is amended to read:

"CHAPTER 3

Water Resources Planning and Coordinating Act

Section 49-3-10. This chapter may be cited as the South Carolina Water Resources Planning and Coordination Act.

Section 49-3-20. As used in this chapter: (1) `Board' means the governing body of the Department of Natural Resources. (2) `Department' means the Department of Natural Resources.

Section 49-3-30. The former Water Resources Commission without its regulatory functions is hereby transferred to the Water Resources Division of the Department of Natural Resources and is directly accountable to and subject to the board of the Department of Natural Resources. The Water Resources Division shall be directly accountable to and subject to the Department of Natural Resources. The regulatory functions of the former Water Resources Commission are transferred to the Department of Health and Environmental Control.

Section 49-3-40. (a) The department shall advise and assist the Governor and the General Assembly in: (1) formulating and establishing a comprehensive water resources policy for the State, including coordination of policies and activities among the state departments and agencies; (2) developing and establishing policies and proposals designed to meet and resolve special problems of water resource use and control within or affecting the State, including consideration of the requirements and problems of urban and rural areas; (3) reviewing the actions and policies of state agencies with water resource responsibilities to determine the consistency of such actions and policies with the comprehensive water policy of the State and to recommend appropriate action where deemed necessary; (4) reviewing any project, plan or program of federal aid affecting the use or control of any waters within the State and to recommend appropriate action where deemed necessary; (5) developing policies and recommendations to assure that the long range interests of all groups, urban, suburban, and rural, are provided for in the state's representation on interstate water agencies; (6) recommending to the General Assembly any changes of law required to implement the policy declared in this chapter; and (7) such other water resources planning, policy formulation and coordinating functions as the Governor and the General Assembly may designate. (b) The department is authorized to conduct or arrange for such studies, inquiries, surveys or analyses as may be relevant to its duties in assisting the Governor and the General Assembly in the implementation of the policy declared in this chapter, and in developing recommendations for the General Assembly. For these purposes, the department shall have full access to the relevant records of other state departments and agencies and political subdivisions of the State, and may hold public hearings, and may cooperate with or contract with any public or private agency, including educational, civic and research organizations. The studies, inquiries, surveys, or analyses shall incorporate and integrate, to the maximum extent feasible, plans, programs, reports, research and studies of federal, state, interstate, regional, metropolitan and local units, agencies and departments of government. (c) In developing recommendations for the Governor and the General Assembly relating to the use and control of the water resources of the State, the department shall: (1) coordinate its activities by distribution of copies of its notices of meetings with agenda, minutes and reports of all state agencies concerned with water resources; (2) consult with representatives of any federal, state, interstate, or local units of government which would be affected by such recommendations; and (3) be authorized to appoint such interdepartmental and public advisory boards as necessary to advise them in developing policies for recommendations to the Governor and the General Assembly. (d) The department shall encourage, assist and advise regional, metropolitan, and local governmental agencies, officials or bodies responsible for planning in relation to water aspects of their programs, and shall assist in coordinating local water resources activities, programs, and plans. (e) The department may publish reports, including the results of such studies, inquiries, surveys and analyses as may be of general interest, and shall make an annual report of its activities to the Governor and the General Assembly within ten days after the convening of each session of the General Assembly. (f) The department may receive and expend grants, gifts, and monies donated or given by any state or private agency, person, corporation, water or sewer authority, or political subdivision in connection with water resource investigations in which the results of such investigations will be made publicly available. (g) The department is authorized and required to review and approve the expenditure of funds derived from the United States Army Corps of Engineers when any funds are authorized and appropriated for any water resources related projects or purposes, including but not limited to, the following: (1) navigation, (2) irrigation, (3) water storage, (4) aquatic weed management, (5) flood control, (6) salinity control, (7) interstate water concerns, and (8) any studies, surveys, or analyses performed by the Corps of Engineers. The review and approval required by this subsection is not applicable to any Corps of Engineers funds which must be expended in a different manner pursuant to express statutory direction.

Section 49-3-50. In exercising its responsibilities under this chapter, the department shall take into consideration the need for: (a) Adequate supplies of surface and groundwaters of suitable quality for domestic, municipal, agricultural, and industrial uses. (b) Water quality facilities and controls to assure water of suitable quality for all purposes. (c) Water navigation facilities. (d) Hydroelectric power. (e) Flood damage control or prevention measures including zoning to protect people, property, and productive lands from flood losses. (f) Land stabilization measures. (g) Drainage measures, including salinity control. (h) Watershed protection and management measures. (i) Outdoor recreational and fish and wildlife opportunities. (j) Any other means by which development of water and related land resources can contribute to economic growth and development, the long-term preservation of water resources, and the general well-being of all the people of the State."

Water use provisions revised

SECTION 1245. Chapter 4 of Title 49 of the 1976 Code is amended to read:

"CHAPTER 4

South Carolina Water Use Reporting and Coordination Act

Section 49-4-10. This chapter shall be known and cited as the South Carolina Water Use Reporting and Coordination Act.

Section 49-4-15. As used in this chapter: (1) `Board' means the board of the department. (2) `Department' means the Department of Health and Environmental Control.

Section 49-4-20. The department may promulgate regulations to require any person, business, firm, corporation, governmental agency or political subdivision using, withdrawing, diverting, obtaining or drilling for any surface, underground or other water within the State for any purpose to report any of the following water use information: (a) Identification and location of any sites or facilities where such water is used, withdrawn, diverted, obtained and discharged. (b) Identification and location of any sites or facilities where a water well is drilled. (c) The source and location of the water. (d) The capacity and location of any intake, withdrawal or diversion pumps or structures. (e) The number and depth of any wells or underground sources from which water is withdrawn or to which it is returned and the capacity of any withdrawal pumps or structures. (f) Any water treatments applied to such waters. (g) The total amount of water so used, diverted, withdrawn or obtained in accordance with Section 49-4-30, including the maximum daily use within each month. (h) Water storage and treatment capacity. (i) For each discharge or return of water (1) the total amount of such discharge or return in accordance with Section 49-4-30 and the maximum daily discharge or return for each month, (2) the location of the discharge or return structure and the name and location of the receiving stream, river, well, land area, utility or other source to which the water is returned or discharged. (j) The method used to determine the amount of water used, withdrawn or obtained. The department shall not require the installation of flow measuring devices to determine such amounts and where such devices are not available a reasonable estimate of the amount used, based on estimating procedures satisfactory to it, shall be sufficient for the purposes of reporting any water use information requested under this chapter. (k) The general nature of the use made of the water. Such information shall be required by general category of use only and no requests for information shall be made which require compilation of extensive data not capable of reasonable estimation based on estimating procedures satisfactory to the department or which would be likely to reveal a trade secret or process or other confidential information as provided in Section 49-4-80.

Section 49-4-30. Information required to be reported pursuant to Section 49-4-20 shall be submitted to the department quarterly. Reports of water use exclusively for agricultural purposes shall be submitted to the department annually in accordance with Section 49-4-40. During and only during periods of extremely low stream flow the department may require monthly reports in lieu of quarterly reports and quarterly reports in lieu of annual reports. The department shall by regulation establish a procedure for requiring such emergency monthly and quarterly reports only from those water users in the affected low stream flow areas.

Section 49-4-40. The department shall establish by regulation a reporting system for agricultural uses in cooperation with Clemson University. Clemson University may participate with the department in collecting and compiling agricultural water use information in accordance with this chapter and the regulations promulgated by it.

Section 49-4-50. Reporting shall be required of any water user diverting, withdrawing or obtaining one hundred thousand gallons or more of water per day on any day.

Section 49-4-60. Any person, business, firm, corporation, governmental agency or political subdivision that drills, bores, digs, deepens, alters or changes any well, except wells intended for single family domestic purposes, four inches or greater in diameter for the purpose of using, withdrawing, diverting or obtaining water within the State shall submit to the department a driller's well log. The department may promulgate regulations specifying the information to be reported on forms prepared by it, including but not limited to the following: (a) The character and depth of the formation passed through or encountered. (b) The static water level of the completed well. (c) A copy of the record of pumping tests, if any. (d) The construction details, including lengths, diameters and thickness of casing, screening and gravel packing. (e) The type of pumping equipment installed, if any. Such logs shall be submitted to the department within thirty days after the completion of drilling, boring, digging, deepening, altering or changing such well.

Section 49-4-70. To the extent possible, the department shall utilize existing reporting forms and procedures and shall endeavor to reduce the number of separate reports required. Any person, business, firm, corporation, governmental agency or political subdivision reporting information, that is required by this chapter, to the department shall not be required to make additional reports to the department. The department may require additional attachments requesting information to forms employed by any state agency but only if such additional information does not increase the number of reports required and, in such cases, similar information shall not be required on any other reporting form under this chapter. Any form used for the reporting of information authorized by this chapter shall be drawn so that the responding party can readily determine the specific authority under which each question is asked.

Section 49-4-80. Upon a claim by the user that the disclosure of particular water use information, other than the total amount used, diverted, withdrawn or obtained would reveal a trade secret, process or other confidential information or would impair national security, the department shall hold such water use information confidential. Compilations of water use information not identifiable to the user may be published by the department. In any case in which the total amount of water used, diverted, withdrawn or obtained is claimed to be confidential, the department may require the user to establish that disclosure of such information would reveal a trade secret, process or other confidential information or impair national security.

Section 49-4-90. Prior to effecting any change in any regulations promulgated pursuant to the authority granted in this chapter, the department shall notify, via regular mail, water users to be affected by such change. This provision shall apply only to water users that are required by this chapter to submit a water use report to the department at the time a change in regulations is proposed by the department."

Groundwater use provisions revised

SECTION 1246. Chapter 5 of Title 49 of the 1976 Code is amended to read:

CHAPTER 5

Groundwater Use Act

Section 49-5-10. This chapter is known and may be cited as the Groundwater Use Act.

Section 49-5-20. The General Assembly declares that the general welfare and public interest require that the water resources of the State be put to beneficial use to the fullest extent to which they are capable, subject to reasonable regulation in order to conserve and protect these resources, prevent waste, and to provide and maintain conditions which are conducive to the development and use of water resources.

Section 49-5-30. Unless the context otherwise requires, the following terms as used in this chapter are defined as follows: (1) `Area of the State' means any municipality or county or portion of a county or municipality or other substantial geographical area of the State as may be designated by the department. (2) `Department' means the South Carolina Department of Health and Environmental Control. (3) `Person' means individuals, firms, partnerships, associations, public or private institutions, municipalities or political subdivisions, governmental agencies, or private or public corporations organized under the laws of this State or any other state or county. (4) `Groundwater' means water of underground streams, channels, artesian basins, reservoirs, lakes, and other water under the surface of the earth whether percolating or otherwise, natural or artificial, which is contained within, flows through, or borders upon this State or any portion of this State, including those portions of the Atlantic Ocean over which this State has jurisdiction. (5) `Aquifer' means a geologic formation, group of these formations, or a part of such a formation that is water bearing. (6) `Domestic use' means a well appurtenant to a single family dwelling intended for household purposes, gardens, or livestock, except that this use is restricted to gardens and livestock for the personal use or consumption of the landowner or lessee operating the well but does not include gardens and livestock maintained for commercial purposes. (7) `Well' means any excavation that is cored, bored, drilled, jetted, dug, or otherwise constructed for the purpose of locating, testing, or withdrawing groundwater or for evaluating, testing, developing, draining, or recharging any groundwater reservoirs or aquifer, or that may control, divert, or otherwise cause the movement of water from or into any aquifer. This does not include surface water impoundments that normally receive inflow from or discharge into a surface watercourse. (8) `Flowing well' means a well releasing groundwater under such pressure that pumping is not necessary to bring it above the ground surface.

Section 49-5-40. (A) The department, upon receipt of a request of a county, municipality, or other political subdivision of this State, may declare and delineate, and may modify, capacity use areas of the State where it finds that the use of groundwater requires coordination and regulation for protection of the interests and rights of residents or property owners of these areas or of the public interest. (B) Within the meaning of this chapter `a capacity use area' is one where the department finds that the aggregate uses of groundwater in or affecting the area have developed or threatened to develop to a degree which requires coordination and regulation, or exceed or threaten to exceed or otherwise threaten or impair, the renewal or replenishment of the waters or any part of them. In making its findings, the department shall consider, but is not limited to, determining whether there may be reason to believe that: (1) groundwater levels (elevations relative to mean sea level of water table or artesian water head) in the area in question are declining or have declined excessively; (2) the wells of two or more groundwater users within the area in question interfere substantially with one another; (3) the available groundwater supply in the area in question is being or is about to be overdrawn; (4) the flow of any surface watercourse is being affected by groundwater use; or (5) groundwater level declines have resulted in or may result in compaction of aquifers with subsequent reduction in aquifer productivity or subsidence of land surface; (6) groundwater level declines or fluctuations have resulted in or may result in the formation of sinkholes and dolines; (7) groundwater withdrawals have resulted in or may result in the capture and diversion of natural or man-made contaminants; or (8) other reasons exist, as determined by the department, that substantially may threaten, limit, or impair the ability to use groundwater for the benefit of the general welfare and public interest. (C) The department may declare and delineate capacity use areas in accordance with the following procedures: (1) Whenever the department, after reviewing a request from a county, municipality, or subdivision of this State, believes that a capacity use situation exists or may be emerging in any area of the State, it may direct its agent to conduct an investigation and report to the department on this situation. (2) In conducting the investigation the agent shall consult with all interested persons, groups, and agencies, may retain consultants, and shall consider all factors relevant to the conservation and use of water in the area. The report must include the agent's findings and recommendations as to the water use problems of the area involving groundwater, whether effective measures can be employed limited to groundwater, and whether timely action by any agency or person may preclude the need for additional regulation at that time. The report must also include those other findings and recommendations as may be considered appropriate, including recommended boundaries for any capacity use area that may be proposed. (3) If the department finds, following its review of the report (or following its evaluation of measures taken falling short of regulation) that a capacity use area should be declared, it may adopt an order declaring the capacity use area. Before adopting the order, the department shall give notice of its proposed action and conduct one or more public hearings with respect to the proposed action. (4) The notice must be given not less than thirty days before the date of the hearing and state the date, time, and place of hearing, the subject of the hearing, and the action which the department proposes to take. The notice must either include details of the proposed action, or where the proposed action is too lengthy for publication, the notice must specify that a copy of the proposed action may be obtained on request from the department. (5) The notice must be published at least once in one newspaper of general circulation circulated in each county of the State in which the water area affected is located. (6) Any person who desires to be heard at the public hearing shall give notice of this desire in writing to the department on or before the first date set for the hearing. The department is authorized to set reasonable time limits for the oral presentation of views by any one person at the public hearing. The department shall permit anyone who so desires to file a written argument or other statement with the department in relation to any proposed action of the department any time within thirty days following the conclusion of any public hearing or within that additional time as the department may allow by notice given as prescribed in this section. (7) Upon completion of public hearings and consideration of relevant comments with respect to any proposed action by the department pursuant to this section, the department shall adopt its final action with respect to this matter and publish a notice of its action in the State Register. The department is empowered to modify or revoke any final action previously taken by it pursuant to the provisions of this section, the modification, or revocation, however, is subject to the procedural requirements of this chapter, including notice and hearing. If the department finds and orders that a capacity use area must be declared, its order must include a delineation of the boundary of the area, and the department shall instruct its agent to prepare proposed regulations consistent with the provisions of this chapter and commensurate with the degree of control needed from among the classes of permissible regulations set forth in Section 49-5-50.

Section 49-5-50. (A) Following the declaration of a capacity use area by the department, it shall prepare proposed regulations to be applied in the area, containing such of the following provisions as the department finds appropriate concerning the use of groundwaters: (1) Provisions requiring water users within the area to submit reports not more frequently than at thirty-day intervals concerning quantity and quality of water used or withdrawn, sources of water, water levels, and the nature and distribution of the use of the water. The department shall not require reports of public supply well water quality where the reports are duplicative and are derived from samples collected at times and by methods suitable for the purposes of the department . (2) With respect to groundwaters provisions concerning the timing of withdrawals; provisions to protect against or abate saltwater encroachment; provisions to protect against or abate unreasonable adverse effects on other water users within the area, including, but not limited to, adverse effects on public use; and provisions to minimize waste by requiring users to employ water conservation measures. (3) With respect to groundwaters provisions concerning well depth and spacing controls; and provisions establishing a range of prescribed pumping levels (elevations below which water may not be pumped) or maximum pumping rates, or both, in wells or for the aquifer or for any part of the wells or aquifer based on the capacities and characteristics of the aquifer. (4) With respect to groundwaters provisions concerning withdrawals to protect against or abate sinkholes and land subsidence resulting from or relating to these withdrawals. (5) With respect to wells provisions concerning minimum well design standards; provisions requiring approval by the department of well design plans before construction and the issuance of any permit under this chapter; provisions regarding technical upgrading requirements on, for, or to permitted wells consistent with the level of regulation necessary in the capacity use area; and provisions concerning the abandonment of wells. (6) Those other provisions not inconsistent with this chapter as the department finds necessary to implement the purposes of this chapter. (B) In adopting any regulations and in considering permit applications, revocations, or modifications the department shall consider: (1) the number of persons using an aquifer and the object, extent, and necessity of their respective withdrawals or uses; (2) the nature and size of the aquifer; (3) the physical and chemical nature of any impairment of the aquifer, adversely affecting its availability or fitness for other water uses including public use; (4) the probable severity and duration of the impairment under foreseeable conditions; (5) the injury to public health, safety, or welfare which results if the impairment is not prevented or abated; (6) the kinds of businesses or activities to which the various uses are related; (7) the importance and necessity of the uses claimed by permit applicants under this section, or of the water uses of the area, and the extent of any injury or detriment caused or expected to be caused to other water uses including public use; (8) the efficacy of conservation measures with respect to the extent of reuse, reduction of losses to the ground, surface, and atmosphere, and prevention of unreasonable or wasteful use; (9) diversion from or reduction of flows in other watercourses or aquifers; and (10) any other relevant factors. (C) The department may modify or revoke any final action previously taken by it pursuant to the provisions of this section.

Section 49-5-60. (A) In areas declared by the department to be capacity use areas no person shall (after the expiration of that period, not in excess of twelve months, as the department may designate) withdraw, obtain, or utilize groundwaters in excess of the following amounts for any purpose, nor construct a water well with the intent of pumping these amounts, unless the person first obtains a permit for this purpose from the department: (1) one hundred thousand gallons each day on any day; (2) one million gallons each month in any month; or (3) ten million gallons in any twelve consecutive months. Applications for the permits must set forth those facts the department considers necessary to enable it to establish and maintain adequate records of water uses within the capacity use area. No permit is required under this chapter for groundwater use which is for domestic use only. (B) Upon receipt of an application for a groundwater use permit, which application must be submitted on forms supplied by the department, the department shall require the applicant to publish a notice, in that form as may be prescribed by the department, in a newspaper of general circulation in the county where the groundwater use is proposed. Each applicant shall provide the department an affidavit of publication, along with a copy of the notice published. The notice must inform interested persons of the submission of the application, the location of the well or proposed well, the maximum amount of groundwater to be used, the general nature of the use proposed for the groundwater, and other information considered relevant by the department. Any interested person may submit written comments to the department on any permit application within thirty days following publication of the notice required in this section. The department may, in its discretion, conduct a public information hearing on any application for a groundwater use permit. The department shall also provide a copy of this notice through regular mail to each permitted groundwater user within a one mile radius of the proposed groundwater withdrawal point. (C) The department shall notify each person making application for a permit of the department's proposed action concerning the permit application, and transmit with the notice a copy of any permit it has proposed to issue, which permit becomes final unless a request for a hearing is made within fifteen days from the date of service of the notice. The department has the power: (1) to grant the permit with conditions the department considers necessary to implement the regulations adopted pursuant to Section 49-5-50; (2) to grant any temporary permit for the time the department specifies where conditions make the temporary permit essential, even though the action allowed by the permit may not be consistent with the department's regulations applicable to the capacity use area; (3) to modify, suspend, or revoke any permit upon not less than thirty days' written notice to any person affected; and (4) to deny the permit if the application for it or the effect of the water use proposed or described in the permit upon the water resources of the area is found to be contrary to public interest. (D) Any person aggrieved in a manner or to a degree significantly different from the general public by the proposed action of the department on any permit application as specified in subsection (C) may request a hearing before an Administrative Law Judge pursuant to the Administrative Procedures Act. (1) Any appeal of a decision by the Administrative Law Judge shall be made to the board pursuant the provision of the Administrative Procedures Act. (2) The burden of proof at any hearing under this chapter is upon the person or the department, as the case may be, at whose instance the hearing is being held. (3) The board of the department has the authority to adopt a seal which must be judicially noticed by the courts of the State. Any document, proceeding, order, degree, special order, regulation, rule of procedure, or any other official act or records of the board of the department or its minutes may be certified by the director of the department under his hand and the seal of the department and when so certified must be received in evidence in all actions or proceedings in the courts of the State without further proof of the identity of the records if the records are competent, relevant, and material in the action or proceeding. The board of the department shall have the right to take judicial notice of all studies, reports, statistical data, or any other official reports or records of the federal government or of any sister state and all these records, reports, and data may be placed in evidence by the department or by any other person or interested party where material, relevant, and competent.

Section 49-5-70. (A) A permit under Section 49-5-60 must be issued for a period specified as follows: (1) ten years; or (2) a period found by the department to be reasonable based upon review of relevant factors and circumstances pertaining to the proposed groundwater use. Permits may be renewed following their expiration upon compliance with the provisions of Section 49-5-60. (B) Permits may not be transferred except with the approval of the department. (C) Every person in a capacity use area who is required by this chapter to secure a permit shall file with the department in the manner prescribed by the department a certified statement of quantities of water used and withdrawn, sources of water, and the nature of the use of the water not more frequently than thirty-day intervals. These statements must be filed on forms furnished by the department within ninety days after the adoption of an order by the department declaring a capacity use area. (D) If any person who is required to secure a permit under this chapter is unable to furnish accurate information concerning amounts of water being withdrawn or used, or if there is evidence that his certified statement is false or inaccurate or that he is withdrawing or using a larger quantity of water or under different conditions than has been authorized by the department, the department has the authority to require the person to install water meters, or some other more economical means for measuring water use acceptable to the department. In determining the amount of water being withdrawn or used by a permit holder or applicant the department may use the rated capacity of his pumps, the rated capacity of his cooling system, data furnished by the applicant, or the standards or methods employed by the United States Geological Survey in determining these quantities or by any other accepted method. (E) The department may require an applicant or permittee to construct, test, maintain, and monitor observation wells if reasonably necessary to evaluate the impact of a proposed or permitted well, mine, or pond on aquifers, water courses, existing or potential water users, land subsidence, or groundwater quality. (F) In any case where a permit applicant can prove to the department's satisfaction that the applicant was withdrawing or using water before the date of declaration of a capacity use area, the department shall take into consideration the extent to which the prior use or withdrawal was reasonably necessary in the judgment of the department to meet his needs and grant a permit which meets those reasonable needs. The granting of the permit must not encourage waste and must not have unreasonably adverse effects upon other water uses in the area, including public use, and including potential as well as present use. (G) The department shall also take into consideration in the granting of any permit the prior investments of any person in lands and plans for the usage of water in connection with these lands which plans have been submitted to the department within a reasonable time after the declaration of a capacity use area. The granting of the permit must not have unreasonably adverse effects upon other water uses in the area, including public use, and including potential as well as present use. (H) Pending the issuance or denial of a permit pursuant to subsection (F) or (G) of this section, the applicant may continue the same withdrawal or use which existed before the date of declaration of the capacity use area.

Section 49-5-80. The department may conduct those investigations as may reasonably be necessary to carry out its duties prescribed in this chapter, and for this purpose to enter at reasonable times upon any property, public or private, for the purpose of investigating the condition, withdrawal, or use of any waters, investigating water sources, or investigating the installation or operation of any well and to require written statements or the filing of reports under oath with respect to pertinent questions relating to the installation or operation of any well. No person may be required to disclose any secret formula, processes, or methods used in any manufacturing operation or any confidential information concerning business activities carried on by him or under his supervision. No person may refuse entry or access to any authorized representative of the department who requests entry for the purposes of a lawful inspection and who presents appropriate credentials, nor may any person obstruct, hamper, or interfere with this representative while in the process of carrying out his official duties consistent with the provisions of this chapter.

Section 49-5-90. (A) The department may adopt and modify regulations to implement the provisions of this chapter. (B) The department is authorized to cooperate with other state agencies and agencies of the federal government to the extent practical in the implementation of this chapter. The department may enter into or execute memoranda of understanding, agreements, or like instruments for purposes of coordinating administration of the programs of this chapter with any related or similar programs administered by a federal agency or another agency of the State.

Section 49-5-100. (A) Any person violating any provision of this chapter is guilty of a misdemeanor and, upon conviction, must be fined not less than one hundred dollars nor more than one thousand dollars for each violation. In addition, if any person is adjudged to have committed the violation wilfully, the court may determine that each day during which the violation continued constitutes a separate offense. (B) Upon violation of any of the provisions of this chapter, or the regulations of the department, the department, either before or after the institution of criminal proceedings, may also institute a civil action in the circuit court in the name of the State for injunctive relief. Neither the institution of the actions nor any of the proceedings on the actions relieve any party to the proceedings from the penalty prescribed by this chapter for any violation of these provisions or regulations. (C) In addition to the criminal penalties authorized in subsection (A) and the injunctive relief authorized in subsection (B), any person whom the department determines to be in violation of any provision of this chapter or any regulation, permit or permit condition, final determination or order of the department may be assessed a civil penalty by the department of not less than fifty dollars nor more than one thousand dollars for each day of violation. The department may also issue an order requiring the person to comply with the provisions of this chapter, regulation, permit or permit condition, final determination or order, including an order requiring modification or abandonment of any well when considered necessary to protect groundwater. All civil penalties collected pursuant to this subsection must be deposited in the general fund of the State.

Section 49-5-110. Flowing wells that flow at a rate of greater than five thousand gallons a day at any time are an unreasonable use of groundwater constituting waste and are prohibited, except that these wells may be utilized as artesian wells to the extent actually necessary for a specific use. These wells must be fitted with a mechanism to restrict the flow of water if the flow is in excess of that necessary for the specific use. The Department of Health and Environmental Control may promulgate regulations to govern use of these wells in this State.

Section 49-5-120. Nothing contained in this chapter changes or modifies existing common or statutory law with respect to the rights of the use of surface water in this State.

Section 49-5-130. The Department of Health and Environmental Control may negotiate agreements, accords, or compacts on behalf of and in the name of the State with other states or the United States, or both, with an agency, department, or of either, or both, relating to withdrawal or diversion of groundwater that impacts the groundwater of this State, or are connected to those waters. Any interstate compacts made by the department by authority of this chapter are subject to approval by joint resolution of the General Assembly. The department may represent this State in connection with groundwater withdrawals, diversions, or transfers occurring in other states which may affect this State."

Commission changed to department; council and names revised

SECTION 1247. Chapter 6, Title 49 of the 1976 Code is amended to read:

"CHAPTER 6

Aquatic Plant Management

Section 49-6-10. There is hereby created the South Carolina Aquatic Plant Management Program for the purpose of preventing, identifying, investigating, managing, and monitoring aquatic plant problems in public waters of South Carolina. The program will coordinate the receipt and distribution of available federal, state, and local funds for aquatic plant management activities and research in public waters. The Department of Natural Resources (department) is designated as the state agency to administer the Aquatic Plant Management Program and to apply for and receive grants and loans from the federal government or such other public and private sources as may be available for the Aquatic Plant Management Program and to coordinate the expenditure of such funds.

Section 49-6-20. There is created the South Carolina Aquatic Plant Management Trust Fund which must be kept separate from other funds of the State. The fund must be administered by the department for the purpose of receiving and expending funds for the prevention, management, and research of aquatic plant problems in public waters of South Carolina. Unexpended balances, including interest derived from the fund, must be carried forward each year and used for the purposes specified above. The fund shall be subject to annual audit by the Office of the State Auditor. The fund is eligible to receive appropriations of state general funds, federal funds, local government funds, and funds from private entities including donations, grants, loans, gifts, bond issues, receipts, securities, and other monetary instruments of value. All reimbursements for monies expended from this fund must be deposited in this fund.

Section 49-6-30. There is hereby established the South Carolina Aquatic Plant Management Council, hereinafter referred to as the council, which shall be composed of ten members as follows: 1. The council shall include one representative from each of the following agencies, to be appointed by the chief executive officer of each agency: (a) Water Resources Division of the Department of Natural Resources; (b) South Carolina Department of Health and Environmental Control; (c) Wildlife and Freshwater Fish Division of the Department of Natural Resources; (d) South Carolina Department of Agriculture; (e) Coastal Division of the Department of Health and Environmental Control; (f) South Carolina Public Service Authority; (g) Land Resources and Conservation Districts Division of the Department of Natural Resources; (h) South Carolina Department of Parks, Recreation and Tourism; (i) Clemson University, Department of Fertilizer and Pesticide Control. 2. The council shall include one representative from the Governor's Office, to be appointed by the Governor. 3. The representative of the Water Resources Division of the Department of Natural Resources shall serve as chairman of the council and shall be a voting member of the council. The council shall provide interagency coordination and serve as the principal advisory body to the department on all aspects of aquatic plant management and research. The council shall establish management policies, approve all management plans, and advise the department on research priorities.

Section 49-6-40. The department, with advice and assistance from the council, shall develop an Aquatic Plant Management Plan for the State of South Carolina. The plan shall describe the procedures for problem site identification and analysis, selection of control methods, operational program development, and implementation of operational strategies. The plan shall also identify problem areas, prescribe management practices, and set management priorities. The plan shall be updated and amended at appropriate intervals as necessary; provided, however, problem site identification and allocation of funding shall be conducted annually. In addition, the department shall establish procedures for public input into the plan and its amendments and priorities. The public review procedures shall be an integral part of the plan development process. When deemed appropriate, the department may seek the advice and counsel of persons and organizations from the private, public, or academic sectors. The council shall review and approve all plans and amendments. Approval shall consist of a two-thirds vote of the members present. The department shall have final approval authority over those sections which do not receive two-thirds approval of the council."

Dams and reservoirs provisions revised

SECTION 1248. Chapter 11 of Title 49 of the 1976 Code is amended to read:

"CHAPTER 11

Dams

Article 1

General Provisions

Section 49-11-10. No person shall be permitted or allowed to make or keep up any dam or bank to stop the course of any waters so as to overflow the lands of another person without the consent of such person first had and obtained nor shall any person be permitted or allowed to let off any reserved water to injure the crops upon the grounds of other persons.

Section 49-11-20. Nothing contained herein shall be construed to authorize any person to keep water at any time on any lands other than his own.

Article 3

Dams and Reservoirs Safety Act

Section 49-11-110. This article shall be cited as the `Dams and Reservoirs Safety Act.'

Section 49-11-120. Unless the context otherwise requires, as used in this article: (1) `Alterations' and `repairs' mean only the alterations or repairs which may affect the safety of a dam or reservoir. (2) `Appurtenant works' include, but are not limited to, structures such as spillways, either in the dam or separate from it, low-level outlet works, and water conduits. (3) `Department' means the South Carolina Department of Health and Environmental Control or its staff or agents. (4) `Dam' means an artificial barrier with appurtenant works, including, but not limited to, dams, levees, dikes, or floodwalls for the impoundment or diversion of waters or other fluids where failure may cause danger to life or property. However, this does not include a dam: (a) less than twenty-five feet in height from the natural bed of the stream or watercourse measured at the downstream toe of the dam, or less than twenty-five feet from the lowest elevation of the outside limit of the dam, if it is not across a stream channel or watercourse, to the maximum water storage elevation and has an impounding capacity at maximum water storage elevation of less than fifty-acre feet unless a situation exists where the hazard potential as determined by the department is such that dam failure or improper reservoir operation may cause loss of human life; (b) owned or operated by a department or an agency of the federal government; (c) owned or licensed by the Federal Energy Regulatory Commission, the South Carolina Public Service Authority, the Nuclear Regulatory Commission, the United States Corps of Engineers, or other responsible federal licensing agencies considered appropriate by the department; (d) upon which the Department of Transportation or county or municipal governments have accepted maintenance responsibility for a road or highway where that road or highway is the only danger to life or property with respect to failure of the dam. (5) `Districts' means the soil and water conservation districts of this State. For the purposes of this article the districts may serve as agents and advisors to the department. (6) `Danger to life or property' means a situation exists where the hazard potential as determined by the department is such that dam failure or improper reservoir operation may cause injury to persons, loss of human life, or damage to property. (7) `Detailed inspection' means all studies, investigations, and analyses necessary to evaluate conclusively the structural safety and hydraulic capacity of a dam or reservoir and appurtenant works. This inspection includes, but is not limited to, soil analyses, concrete or earth stability analyses, materials testing, foundation explorations, and hydrologic analyses, including basin studies and flood potential. This inspection must be performed by a qualified registered professional engineer. (8) `Enlargement' means a change in or an addition to an existing dam or reservoir which raises or may raise the water storage elevation of the water impounded by the dam or reservoir. (9) `Owner' means those who own, control, operate, maintain, manage, or propose to construct a dam or reservoir. (10) `Removal' means destruction or breaching of an existing dam or drainage of water impoundment or reservoir. (11) `Reservoir' means a reservoir which contains the impoundment of water by a dam or reservoir. (12) `Order' means a written document prepared and issued by the department which mandates specific actions to be accomplished by a dam owner within a specified time frame. Failure to comply makes the owner subject to penalties outlined in Section 49-11-260. (13) `Unsafe' means the condition of the dam is such that repairs or alterations are necessary to reduce the risk of dam failure.

Section 49-11-130. It is the purpose of this article to provide for the certification and inspection of certain dams in South Carolina in the interest of public health, safety, and welfare in order to reduce the risk of failure of the dams, prevent injuries to persons and damage to property, and confer upon the department the regulatory authority to accomplish the purposes.

Section 49-11-140. The authority for the safe maintenance of the dams and reservoirs of this State and the powers of inspection and certification provided in this article are the responsibility of the department. The department may employ engineers and technicians it considers necessary to implement this article for which appropriations are available.

Section 49-11-150. The owner of a dam or reservoir constructed in this State solely is responsible for maintaining the dam or reservoir in a safe condition throughout the life of the structure. The owner of a dam or reservoir shall inform the department in writing within thirty days after title to the dam or reservoir legally has been transferred from his ownership. The notice must include the name and address of the new owner. The owner of a dam or reservoir whose failure likely would cause loss of life or substantial property damage, a dam or reservoir classified as a high or significant hazard under existing regulations, shall provide the department a current emergency action plan in the format the department by regulation requires.

Section 49-11-160. The department may issue an order directing the owner of a dam or reservoir to make at his expense the necessary maintenance, alteration, repair, or removal upon a finding that the dam or reservoir: (a) is or has become unsafe and is dangerous to life or property; (b) is not maintained in good repair or operating condition; or (c) is not maintained or operated in accordance with the terms and conditions of the certificate of completion and operation issued by the department.

Section 49-11-170. (A) The existence of a dam which is not maintained in good repair or operating condition or may be unsafe and a danger to life or property may be brought to the attention of the department by complaint, staff, or authorized investigation or by other means. (B) Upon staff or other authorized investigations or upon receipt of a written private complaint alleging that the person or property of the complainant is endangered by the construction, maintenance, operation, or condition of a dam or reservoir, the department shall cause a preliminary inspection of the structure and downstream development to be made by field observations to determine if the complaint is meritorious. The department may require the owner of the dam or reservoir to provide data, records, and design plans of the structure specified by regulations. (C) If upon the preliminary inspection it is determined that the dam or reservoir is unsafe and is dangerous to life or property, the department may order the owner at his expense to make a detailed inspection of the dam and reservoir and surrounding area and to provide to the department within a time frame specified by the department plans prepared by a qualified registered professional engineer for correction of all deficiencies of the dam or to provide to the department plans and specifications for removal of the dam. In either instance the plans must be approved by the department before implementation and implemented within a time frame specified by the department. If upon inspection it is determined that the dam or reservoir has not been maintained in good repair or operating condition, the department may order the owner at his expense to accomplish the necessary maintenance or to obtain a permit for removal and to remove the dam within a time frame specified by the department. (D) The department shall give the owner notice of its action when: (1) a complaint has been filed alleging that the owners' dam or reservoir is unsafe and a danger to life or property stating the nature of the complaint; (2) a preliminary inspection has been made with findings. (E) The owner of a dam or reservoir determined through a preliminary inspection not to be maintained in good repair or operating condition or to be unsafe and a danger to life or property may request a hearing before the board of the department within thirty days after notice of the findings are delivered. The owner may submit written or present oral evidence which must be considered by the board of the department in the issuance of the order.

Section 49-11-180. (A) The department may solicit voluntary compliance by the owner of a dam or reservoir found to be unsafe and a danger to life or property to take remedial steps necessary to render the dam safe. (B) Extension of time to complete work specified in an order may be granted by the department. No extension may be granted when there appears substantial and immediate danger of dam failure.

Section 49-11-190. (A) The department immediately shall order remedial measures necessary to protect life or property if the condition of a dam or reservoir is so dangerous to the safety of life or property as not to permit time for the issuance and enforcement of a repair order or passing or imminent floods threaten overtopping erosion or destruction of a dam or reservoir capable of danger to life or property. (B) In applying emergency measures the department has the following limited powers to order the owner to: (1) lower the water level by releasing water from the reservoir; (2) empty the reservoir completely; (3) take other steps essential to safeguard life and property. (C) For an emergency where the owner finds repairs are necessary to safeguard life or property, he may start the repairs immediately but shall notify the department at once of the proposed repair and work underway. (D) When the owner fails to comply with the emergency order or cannot be ascertained or found, the department or its authorized agents may enter and immediately take actions necessary to provide protection to life or property, including removal of the dam. The department may recover from the owner, in the name of the State, the expenses incurred in taking the action in the same manner debts are recoverable by law.

Section 49-11-200. (A) The construction of a new dam or reservoir or enlargement, removal, or repair may not begin until the owner has applied for and obtained from the department written approval of plans and specifications. (B) Where the location and size of the dam or reservoir renders the requirements of subsection (A) and Section 49-11-210 unnecessary, the department may grant approval and waive certain nonessential requirements in instances, including, but not limited to, small dams and reservoirs for agricultural, fish or wildlife, or recreational uses on private lands and of no danger to other life or property downstream.

Section 49-11-210. A separate application for each dam or reservoir and all enlargements, removals, or repairs to existing dams or reservoirs must be filed with the department upon forms to be provided by it, except only one application need be filed for a dam and the reservoir which will contain the water impounded by the dam. The application must be accompanied by maps and plans and specifications of a character and size and setting forth pertinent details and dimensions required by regulation. The application for construction of a new dam or reservoir whose failure likely would cause loss of life or substantial property damage, a dam or reservoir classified as high or significant hazard under existing regulations, must include a fully-developed emergency action plan in a format the department by regulation requires. After the dam or reservoir is constructed, this emergency action plan must be updated by the owner of the dam or reservoir each time it becomes noncurrent.

Section 49-11-220. An applicant for approval of a dam or reservoir subject to Section 49-11-200 also shall file with the department a design approved by a registered professional engineer legally qualified in the State. Dams designed by the USDA-Soil Conservation Service or other federal agencies do not require certification by a registered professional engineer.

Section 49-11-230. (A) The department may make necessary inspections during construction of new dams and reservoirs, enlargements, removal, and repairs of dams and reservoirs and during work done pursuant to repair orders to assure compliance with the approved plans and specifications or provisions of the order. (B) If water is to be released during the construction, repair, or removal, the department shall specify the maximum discharge rate allowable to avoid endangering or causing injury to downstream owners.

Section 49-11-240. (A) The department or its authorized agents may inspect the dam or reservoir and surrounding area to determine the safety of the structure. (B) An authorized member, agency, or representative of the department may enter state or private lands and natural or artificial waterways in the State to discharge the duties set forth in this article. (C) The department shall formulate reasonable regulations, including, but not limited to, minimum safety design standards for impoundments, safety inspection standards, water discharge, or drawdown rates and levels in unsafe impoundments and for other purposes necessary to administer this article. (D) The department shall issue all orders, permits, or licenses set forth in this article.

Section 49-11-250. Nothing in this article and no action or failure to act under this article: (1) imposes liability on the State, the department, districts, or an agency or its officers or employees for the recovery of damages caused by the action or failure to act; or (2) relieves the owner or operator of a dam or reservoir of the duties, obligations, responsibilities, or liabilities arising from or incident to the ownership or operation of a dam or reservoir.

Section 49-11-260. (A) A person violating this article is guilty of a misdemeanor and, upon conviction, must be fined not less than one hundred nor more than five hundred dollars. Each day the violation continues after notice to take corrective action is a separate offense. (B) The department may assess an administrative fine of not less than one hundred nor more than one thousand dollars against a person who violates this article or an order issued or regulation promulgated pursuant to it. In determining the amount of the fine the department shall consider the degree and extent of harm caused by the violation and the cost of rectifying the damage. Fines assessed under this subsection may be appealed to the department who may reduce them based on information presented at the appeal hearing. (C) Upon a violation of this article or related regulations the department may institute legal action to obtain injunctive relief in the name of the department. (D) A person against whom a final order or decision has been made, except for emergencies specified in Section 49-11-190, may appeal to the board under the Administrative Procedures Act. The burden of proof is on the party attacking an order or a decision of the department to show that the order is unlawful or unreasonable. (E) Civil fines collected under this article must be deposited in a special account of the department to fund educational activities relating to dams and reservoirs safety, including, but not limited to, workshops, seminars, manuals, and brochures."

River basin provisions revised

SECTION 1249. Chapter 21, Title 49 of the 1976 Code is amended to read:

"CHAPTER 21

Interbasin Transfer of Water

Section 49-21-10. For purposes of this chapter: (1) `Department' or `DHEC' means the South Carolina Department of Health and Environmental Control; (2) `River basin' means the area drained by a river and its tributaries or through a specified point on a river, as determined in subsection (7) of Section 49-21-60; (3) `Receiving river basin' means a river basin which is the recipient of an increase in water, over and above that occurring naturally, as the result of a diversion or transfer of water from a different river basin; (4) `Losing river basin' means a river basin which sustains a decrease in water as the result of a diversion or transfer of water to a different river basin and there is no significant return of the water to the river basin of origin; (5) `Person' means any and all persons, including individuals, firms, partnerships, associations, public or private institutions, municipalities or political subdivisions, federal or state governmental agencies, or private or public corporations organized under the laws of this State or any other state or country. (6) `Board' means the board of the department.

Section 49-21-20. Following the effective date of this chapter, no person shall withdraw, divert, pump, or cause directly the transfer of either five percent of the seven-day, ten-year low flow, or one million gallons or more of water a day on any day, whichever is less, from one river basin and use or discharge all or any part of the water in a different river basin unless the person shall first obtain a permit from the department.

Section 49-21-30. A. The department may grant, deny, or issue with conditions as to quantity or qualities of water, a permit to any person for any interbasin transfer of water upon application for a permit, opportunity for public comment, and a hearing before the department, if the department finds the criteria in subsections B, C, D, and E are met. B. The applicant shall specify the location of all collection, withdrawal, and transportation facilities and additional information as the department may require. The department shall publish notice of the permit application once a week for four consecutive weeks in a newspaper of general circulation in each river basin area to be affected by the transfer; the department shall publish the notice in the State Register; and the department shall provide notice to each holder of an interbasin water transfer permit within the proposed losing river basin by mailing a notice by registered or certified mail, return receipt requested. C. In making its determination whether transfer may be permitted, the department shall: (1) Protect present, and consider projected stream uses of the losing river basin generally and of the losing river specifically including, but not limited to, present agricultural, municipal, industrial and instream uses, and assimilative needs. (2) Protect water quality of the losing river basin. (3) Consider reasonably foreseeable future water needs of the losing river basin. (4) Consider the reasonably foreseeable future water needs of the applicant for the water to be transferred, including methods of water use, conservation, and efficiency of use. (5) Consider beneficial impact on the State and its local subdivisions of any proposed transfer, and the capability of the applicant to implement effectively its responsibilities under the requested permit. (6) Consider the nature of the permittee's use of the water, to determine whether the use is reasonable and beneficial. (7) Consider whether the proposed project shall promote and increase the storage and conservation of water. (8) Consider the feasibility of alternative sources of supply and their comparative costs. (9) Consider impact on interstate water use. (10) Consider requirements of other state or federal agencies with authority relating to water resources. (11) Consider availability of water in the losing river basin to respond to emergencies, including drought. (12) Consider whether the project shall have any beneficial or detrimental impact on navigation, hydropower generation, fish and wildlife habitat, aesthetics, or recreation. (13) Consider such other facts and circumstances as are reasonably necessary to carry out the purposes of this chapter. D. (a) In addition to the requirements in subsection C. of this section, the department shall not issue a transfer permit except upon certification by the department that the proposed interbasin transfer of water shall neither: (1) Violate the water classification standard system regulation or the stream classification regulation, nor (2) Adversely affect the public health and welfare. Through its certification DHEC shall insure the protection of the water quality and health of the losing river basin and shall insure the protection of the present and permitted assimilative needs of the losing river basin. DHEC shall use data from stream modeling and instream sampling in making its certification. DHEC may issue a certification with conditions which must be made part of any permit issued pursuant to this chapter. (b) The department may not deny an interbasin transfer permit on the basis of water quality when it has certified that the water quality of the losing basin or the receiving basin is not adversely affected. E. In order to protect the water uses of the losing river basin, the department, in determining the amount of water to be approved, may conduct or have conducted instream sampling and stream modeling to predict the volumes of water which may be transferred. Transferable amounts may vary to accommodate seasonal water conditions in the losing river basin. No transfer of water may be permitted at any time which shall cause the remaining flow in the losing river basin to be less than the statistical low flow that occurs for seven consecutive days, once every ten years as established prior to the interbasin transfer. F. The permit shall specify the location of all collection, withdrawal, transmission, and discharge facilities to be used or constructed to effect the interbasin transfer and shall specify the amount or amounts which can be withdrawn. The permit shall require that the interbasin transfer shall cease or decrease when the actual flow of the losing basin is less than a specified minimum required to protect against adverse effects to the basin. The permit shall further require that the permittee comply with other requirements as may be advisable to promote an adequate water supply for the State and to mitigate any adverse conditions or effects which the department finds exist, but are not sufficient to require denial of the permit. G. Any riparian landowner or person legally exercising rights to use water, suffering material injury for the loss of water rights as a consequence of an interbasin transfer shall have a cause of action against the water transferor in the court of common pleas of the county in which the water transfer originates to recover all provable damages for loss of riparian rights including increases in operating costs, lost production, or other damages directly caused him by the interbasin transfer; provided, however, this subsection G does not apply to transfers authorized under item (2) of subsection A of Section 49-21-50; provided, further, the immediately preceding proviso may not be construed to abridge or alter causes of actions in the civil courts under the common law or statutory laws existing prior to the effective date of this chapter and any such cause of action against the water transferor must be brought in the court of common pleas of the county in which the transfer originates. The burden of proof is on the person alleging damages.

Section 49-21-40. A. No permit under Section 49-21-20 may be issued for a longer period than the longest of the following, unless the applicant requests a shorter period: (1) twenty years; or (2) a period found by the department to be reasonable based upon review of all relevant facts and circumstances pertaining to the proposed water transfer but for a period no longer than forty years. B. The department may modify, suspend, or revoke any water transfer permit, including authority to transfer water pursuant to Section 49-21-50, for good cause consistent with the following procedures: (1) Before any permit may be modified, suspended, or revoked the department shall give the permittee notice of the proposed action and afford the permittee an opportunity for a hearing before the board. Any hearing must be conducted pursuant to the South Carolina Administrative Procedures Act (Act 176 of 1977). (2) All hearings under this section must be before an Administrative Law Judge. (3) A full and complete record of all proceedings at any hearing under this chapter must be taken by a reporter appointed by the by an Administrative Law Judge or by other method approved by the Attorney General. Any party to a proceeding is entitled to a copy of the record upon the payment of the reasonable cost as determined by the Administrative Law Judge. (4) The burden of proof at any hearing under this subsection B is upon the moving party. (5) Any appeal of the decision by the Administrative Law Judge shall be made to the board pursuant to the provisions of the Administrative Procedures Act. (6) Judicial review and stays of enforcement of the decision of the board must be pursuant to the South Carolina Administrative Procedures Act, but any petition for judicial review or stay of the decision of the board must be filed in the circuit court in the county in which the subject permitted water transfer originates. C. Permits may be renewed following their expiration upon a full review of all factors considered issuing a permit for the first time. D. Permits may not be transferred except with the approval of the department.

Section 49-21-50. A. Any person diverting or transferring or having substantially under construction facilities to divert or transfer five percent of the seven-day, ten-year low flow or one million gallons or more of water a day from one river basin and using or discharging all or any part of the water in a different river basin on the effective date of this chapter may continue the transfer subject to the following conditions: (1) The transfer must be registered with the department within six months of the effective date of this chapter. (2) The total amount of the transfer daily shall not exceed the larger of (i) the capacity of the facilities used to transfer water on December 1, 1984, or (ii) facilities to transfer water substantially under construction on December 1, 1984, or (iii) any water withdrawal project under contract approved by the Federal Energy Regulatory Commission prior to December 1, 1984. (3) Any increase in water transferred over the amount authorized in item (2) of this section must be reviewed and permitted in accordance with Section 49-21-20. (4) In any event, a transfer authorized under this section must be reviewed under the criteria of Section 49-21-30 upon the occurrence of any of the following conditions: (i) the cessation of the transfer for any reason for a continuous period of three years; (ii) following a period from the effective date of this chapter no longer than the longest of the following: (a) twenty years, or (b) a period found by the department to be reasonable based upon review of all relevant facts and circumstances pertaining to the existing water transfer, but the period may be not longer than forty years, or (c) for existing transfers pursuant to item (2) of subsection A of Section 49-21-50, upon conclusion of the maximum useful life of the transfer facilities or water withdrawal project under contract not to exceed forty years from December 1, 1984. B. The provisions of this chapter shall take precedence over any other state regulatory provision pertaining to the subject of this chapter.

Section 49-21-60. A. The department may promulgate regulations to carry out the intent of this chapter including, but not limited to, the following: (1) Development of applications. (2) The conduct of public hearings to be conducted at the discretion of the department. (3) Provisions to ensure public notice of applications and submission of comments from the public. (4) Coordination of comments from interested state agencies. (5) Provisions to identify persons who may be adversely affected by a water transfer and allowing any of the persons to be heard by the department prior to final action on a permit application. (6) Provisions requiring special conditions on any permit necessary to protect the health, safety, or welfare of losing or receiving river basins. (7) The department shall by regulation delineate and designate river basins. In undertaking this task, the department shall initially establish fifteen river basins, including the watershed of each of the following fifteen rivers or river systems: (a) Upper Savannah; (b) Lower Savannah; (c) Saluda; (d) Broad; (e) Congaree; (f) Catawba-Wateree; (g) Lynches; (h) Pee Dee; (i) Little Pee Dee; (j) Black; (k) Waccamaw; (l) Lower Santee; (m) Edisto; (n) Ashley-Cooper; (o) Combahee-Coosawhatchie. Prior to any designation or delineation of any additional river basins, they must first be approved by act of the General Assembly.

Section 49-21-70. A. Any person violating any provision of this chapter is guilty of a misdemeanor and, upon conviction, must be fined not less than one thousand dollars nor more than ten thousand dollars for each violation. In addition, if any person is adjudged to have committed a violation of this chapter wilfully, the court may determine that each day during which the violation continued constitutes a separate offense. B. Upon violation of any of the provisions of this chapter, or the regulations of the department, the director may, either before or after the institution of criminal proceedings, institute a civil action in the circuit court in the name of the State for injunctive relief. Neither the institution of the actions nor any of the proceedings relating to them shall relieve any party to the proceedings from the penalty prescribed by this chapter for any violation of the provisions of this chapter.

Section 49-21-80. The board is empowered to negotiate agreements, accords, or compacts on behalf of and in the name of the State with other states or the United States, or both, with any agency, department, or commission of either, or both, relating to transfers of water that impact waters of this State, or are connected to or flowing into those waters. Any interstate compacts made by the board by authority of this chapter are subject to approval by concurrent resolution of the General Assembly. The board is further empowered to represent this State in connection with water withdrawals, diversions, or transfers occurring in other states which may affect this State." Commission changed to department; names revised

SECTION 1250. Chapter 23, Title 49 of the 1976 Code is amended to read:

"CHAPTER 23

South Carolina Drought Response Act of 1985

Section 49-23-10. This chapter may be cited as the South Carolina Drought Response Act of 1985.

Section 49-23-20. In this chapter: (a) `Department' means the Department of Natural Resources. (b) `Conservation' means a reduction in usage of water, to prevent depletion or waste of the resource. (c) `Drought response committee' means the committee created under Section 49-23-50 to be convened to address drought related problems and responses. (d) `Office of primary responsibility' means the Department of Natural Resources. (e) `Person' means any and all persons, including individuals, firms, partnerships, associations, public or private institutions, municipalities or political subdivisions, governmental agencies, or private or public corporations organized under the laws of this State or any other state or country. (f) `Water resources' means any and all water on or beneath the surface of the ground, including natural and artificial water courses, lakes or ponds, and water percolating, standing, or flowing beneath the surface of the ground. (g) `Diffused surface water' means waters of a casual or vagrant character, lying or running on the surface of the earth but not in definite courses, streams, or waterbodies. (h) `Incipient drought' means that there is a significant threat of a drought as indicated by a Palmer Index of -0.50 to -1.49. The incipient drought phase will initiate inhouse mobilization by department personnel and the drought response committee. The State Climatology Office, which routinely monitors the climatic variables, will inform those agencies on the notification list that a portion of the State is experiencing an incipient drought condition. The department will increase monitoring activities to identify any change in existing conditions. (i) `Moderate drought' exists when the Palmer Index reaches the -1.50 to -2.99 range and moderate drought conditions have developed as verified by other means. If conditions indicate that this situation will persist, statements will be released to the news media by the State Climatologist, and appropriate agencies will accelerate monitoring activities. (j) `Severe drought' exists when the Palmer Index reaches the -3.00 to -3.99 range and severe drought conditions are verified by other means. This phase will be verified utilizing data from various agencies in conjunction with National Weather Service forecasts and routinely monitored data. A drought of this severity will normally require an official declaration by the department and water-use restrictions. (k) `Extreme drought' exists when the Palmer Index reaches or falls below -4.00 and extreme drought conditions are verified by other means. The State Climatology Office will continue to evaluate information from various sources. Upon confirmation of an Extreme Drought Alert Phase, the drought response committee may recommend that the Governor issue a public statement that an extreme drought situation exists and that appropriate water-use restrictions be imposed. (l) `Board' means the governing authority of the Department of Natural Resources.

Section 49-23-30. The department shall formulate, coordinate, and execute a comprehensive drought response plan. The plan must be developed consistent with the South Carolina Water Resources Planning and Coordination Act (Chapter 3 of Title 49) to the extent that the plan is compatible with the comprehensive state water resources policy. In carrying out these responsibilities, the department shall seek and utilize to the extent possible the input, resources, and expertise of other state agencies capable of assisting in drought planning and response.

Section 49-23-40. This chapter applies to all of the water resources of the State, but this chapter does not authorize any restriction in use of water from any pond completely situated on private property and fed only by diffused surface water. For the purposes of this chapter, the waters of the State shall include all groundwater and all surface water within the State as defined in Section 49-23-10. The drought response plan shall apply to every person using water in this State.

Section 49-23-50. Consistent with the South Carolina Water Resources Planning and Coordination Act (Chapter 3 of Title 49), the department, without limiting its general authority, may: (a) routinely monitor and record climatic and other data necessary for the determination of drought conditions; (b) make investigations it considers proper to determine whether action by the department in discharging its duties is necessary; (c) determine levels of drought based upon data collected; (d) establish drought management areas within the State in order to: (1) enable drought response to be accomplished within defined geographical areas; (2) prevent overly broad response to drought. Statewide action usually should not be taken in instances in which action in a particular area experiencing drought is more appropriate. (e) establish drought alert phases based upon drought levels and provide the following kinds of notice of each drought alert phase: (1) The department shall notify municipal and county governments in the affected drought management area, persons designated on notification lists, and other appropriate agencies and individuals. (2) The department shall publish notice of each drought alert phase at least once in a newspaper of general circulation in the areas affected. (3) The department may take any other action appropriate to announce a drought alert. (f) coordinate and implement responses to announced drought alert phases after required notification; (g) execute the regulations promulgated by the department reasonably necessary to collect and distribute information, convene committees, promote water conservation, govern practice and procedure before the department and to fulfill its duties and the purposes of this chapter.

Section 49-23-60. (a) The department shall coordinate appropriate drought response upon consultation with a drought response committee. The drought response committee is composed of two parts, as follows: (1) A statewide committee composed of the following state agencies: South Carolina Preparedness Division of the Office of the Adjutant General, South Carolina Department of Health and Environmental Control, Department of Agriculture, South Carolina Forestry Commission, and South Carolina Department of Natural Resources. (2) A local committee within each drought management area. The local committees shall consist of the following members to be appointed by the Governor on the recommendation of the legislative delegations from each of the drought management areas to represent the following interests: counties, municipalities, public service districts, private water suppliers, agriculture, industry, domestic users, regional councils government, and commissions of public works. The Governor on the recommendation of the legislative delegations from each of the drought management areas may appoint additional members as necessary to ensure broadbased input on the committee. The statewide committee shall coordinate planning and response within each drought management area only upon consultation with the appropriate local committee. The department shall chair the drought response committee and provide administrative support. (b) The drought response committee shall convene as necessary upon call by the chair. In carrying out its responsibilities, the drought response committee shall consult with and invite participation by representatives of municipalities, counties, and commissions of public works in affected drought management areas. (c) The department may consult and cooperate with federal agencies and agencies of the states of Georgia and North Carolina in carrying out its responsibilities under this chapter.

Section 49-23-70. (a) Upon the inception of a drought alert phase, the department is responsible for disseminating public information concerning all aspects of the drought. The initial action in responding to drought must be public education, providing information as to existing and potential conditions and water conservation measures necessary to meet the demand presented at each drought alert phase. (b) The department shall provide available information on water demands and use to any significant water user, public or private, in order to promote voluntary water conservation. (c) The department may promulgate regulations to specify categories of nonessential water use. Water used strictly for firefighting purposes, health and medical purposes, maintaining instream flow requirements, and the use of water to satisfy federal, state, or local public health and safety requirements is considered essential water use. The department by regulation may provide for the mandatory curtailment of nonessential water uses during periods of severe or extreme drought in drought management areas. Mandatory curtailment of nonessential water use shall become effective only after the drought response committee determines the action to be reasonably necessary to insure supplies of water in drought management areas. Upon such a finding, the drought response committee shall determine which categories of nonessential water use must be curtailed after reviewing each category by the following standards: (1) the purpose of the use, (2) the suitability of the use to the watercourse, lake, or aquifer, (3) the economic value of the use, (4) the social value of the use, (5) the extent and amount of the harm it causes, (6) the practicality of avoiding the harm by adjusting the use or method of use of one proprietor or the other, (7) the practicality of adjusting the quantity of water used by each proprietor, (8) the protection of existing values of water uses, land, investments, and enterprises, (9) the consumptive or nonconsumptive nature of the use. Following such determination, the department shall issue a declaration specifying the drought management areas affected and identifying the categories of nonessential water use to be curtailed. The declaration must be widely distributed to news media and must be published at least once a week in a newspaper of general circulation in each county affected. Any person adversely affected by mandatory curtailment may, within ten days after such curtailment becomes effective, submit appropriate information to the department and obtain relief therefrom as is appropriate. Any declaration shall continue in effect only so long as conditions in any drought management area reasonably require it, and the declaration shall be terminated by action of either the drought response committee or the department, and notice of termination of the declaration must be given as when originally issued. In the event that a declaration issued pursuant to this section conflicts with any ordinance or plan adopted pursuant to Section 49-23-80, the declaration shall supersede any ordinance or plan. (d) During any drought alert phase, the department may offer its services to mediate any dispute arising from competing demands for water. The mediation may be undertaken only upon the request of the parties involved and may not be binding. Any mediation shall not estop or preclude the department and the drought response committee from taking any other action authorized by this chapter.

Section 49-23-80. In the event the drought response committee determines that drought conditions in any drought management area have progressed to the extent that the safety, security, health, or welfare of the citizens of the area are threatened, the committee shall expeditiously report the conditions to the Governor. The committee shall also present the Governor with a priority list of recommended actions designed to alleviate the effects of drought conditions in affected drought management areas. Pursuant to the authority in Section 21 of Part II of Act 199 of 1979, the Governor may declare a drought emergency. In addition to exercising existing authority pursuant to Section 21 of Part II of Act 199 of 1979, the Governor may issue emergency proclamations and regulations to require mandatory curtailment of water use or to allocate water on an equitable basis. Notwithstanding any provisions of Section 21 of Part II of Act 199 of 1979, emergency action ordered by the Governor in response to a drought emergency may continue so long as conditions giving rise to the declaration of the emergency continue to threaten safety, security, health, or welfare.

Section 49-23-90. (a) Municipalities, counties, public service districts, and commissions of public works engaged in the business or activity of supplying water for any purpose shall develop and implement drought response ordinances, or plans where authority to enact ordinances does not exist. The ordinances or plans must be consistent with the State Drought Response Plan, implemented through the regulations adopted pursuant to this chapter. Within six months of approval by the General Assembly of regulations promulgated to implement this chapter, the department shall prepare and distribute a model drought response ordinance or ordinances. (b) Local drought ordinances or plans must be adopted within eighteen months of the approval by the General Assembly of regulations adopted pursuant to this chapter; but any proposed ordinance or plan must first be submitted to the department for review to determine consistency with the State Drought Response Plan.

Section 49-23-100. (a) Any person violating any provision of this act is guilty of a misdemeanor and, upon conviction, must be fined not less than fifty dollars nor more than one thousand dollars for each violation. In addition, if any person is adjudged to have committed the violation wilfully, the court may determine that each day during which the violation continued constitutes a separate offense. (b) In addition, upon violation of any of the provisions of this chapter, or the regulations of the department, the director may, either before or after the institution of criminal proceedings, institute a civil action in the circuit court in the name of the State for injunctive relief. Neither the institution of the actions nor any of the proceedings relating to them shall relieve any party to the proceedings from the penalty prescribed by this chapter for any violation of the provisions of the chapter."

Commission changed to department; director, or board; director changed to state climatologist

SECTION 1251. Chapter 25, Title 49 of the 1976 Code is amended to read:

"CHAPTER 25

Office of State Climatology

Section 49-25-10. There is created within the Department of Natural Resources the South Carolina State Climatology Office.

Section 49-25-20. The director shall appoint the state climatologist who shall serve as director of the office.

Section 49-25-30. The office has the following powers and duties: 1. to serve as a climatological focal point for state government and its agencies; 2. to provide climatological support to the department and other state agencies as required, including collection and analysis of climatic data, such as drought, flood, rainfall, storms, and other climatic information that affect water management in South Carolina; 3. to acquire, archive, process, and disseminate all climatic and weather information which is or may be of value to policy and decision makers in the State; 4. to act as the representative of the State in all climatological and meteorological matters within and outside the State; 5. to prepare, publish, and disseminate regular climatic information for those individuals, agencies, and organizations whose activities are related to the welfare of the State and are affected by climate and weather, and to serve as a source of climatic information for the citizens of South Carolina; 6. to conduct and report on studies of climate and weather phenomena of significant socioeconomic importance to the State; 7. to evaluate the significance of natural, man-made, deliberate, and inadvertent changes or modifications in the climate and weather affecting the State, and to report this information to those agencies and organizations in the State which are likely to be affected by the changes or modifications.

Section 49-25-40. The state climatologist may certify copies as being authentic reproductions of weather records held in the State and shall present a report each year to the board of the Department of Natural Resources concerning the activities of the climatic program and other information which the board may consider necessary."

Names revised

SECTION 1252. Section 49-27-10 of the 1976 Code is amended to read:

"Section 49-27-10. For purposes of this chapter: (1) `Board' means the board of commissioners of Mecklenburg and Gaston Counties, North Carolina, and the county council of York County, South Carolina. (2) `Commission' means the Lake Wylie Marine Commission or its governing board as the case may be. (3) `Commissioner' means a member of the governing board of the Lake Wylie Marine Commission. (4) `Three counties' means Mecklenburg and Gaston Counties, North Carolina, and York County, South Carolina. (5) `Joint ordinance' means an ordinance substantially identical in content adopted separately by the board in each of the three counties. (6) `Lake Wylie' means the impounded body of water along the Catawba River in the three counties extending from the base of Mountain Island Dam downstream to the Catawba Dam. (7) `Shoreline area' means, except as restricted by a joint ordinance, the area within the three counties lying within one thousand feet of the mean high-water line (five hundred seventy feet) on Lake Wylie. In addition, the shoreline area includes all islands within Lake Wylie and all peninsulas extending into the waters of Lake Wylie. (8) `Wildlife Commission' means the North Carolina Wildlife Resources Commission and the South Carolina Department of Natural Resources."

Names revised

SECTION 1253. Section 49-27-70 of the 1976 Code is amended to read:

"Section 49-27-70. (A) A copy of the joint ordinance creating the commission and of any joint ordinance amending or repealing the joint ordinance creating the commission must be filed with the Executive Director of the North Carolina Wildlife Resources Commission and the Director of the South Carolina Department of Natural Resources. When the directors receive ordinances that are in substance identical from all three counties concerned, they, in accordance with procedures agreed upon, shall, within ten days, certify this fact and distribute a certified single ordinance text to the following: (1) the Secretary of State of North Carolina and the Secretary of State of South Carolina; (2) the clerk to the governing board of each of the three counties; (3) the clerk of superior court of Mecklenburg and Gaston Counties and the clerk of court of York County. Upon request, the directors also shall send a certified single copy of any and all applicable joint ordinances to the chairman of the commission; (4) a newspaper of general circulation in the three counties. (B) Unless a joint ordinance specifies a later date, it shall take effect when the directors' certified text has been submitted to the Secretaries of State for filing. Certifications of the directors under the seal of the commission as to the text or amended text of any joint ordinance and of the date or dates of submission to the Secretaries of State is admissible in evidence in any court. Certifications by any clerk of superior court or county clerk of court of the text of any certified ordinance filed with him by the directors is admissible in evidence and the directors' submission of the ordinance for filing to the clerk shall constitute prima facie evidence that the ordinance was on the date of submission also submitted for filing with the Secretary of State. Except for the certificate of a clerk as to receipt and date of submission, no evidence may be admitted in court concerning the submission of the certified text of any ordinance by the directors to any person other than the Secretary of State."

Names revised

SECTION 1254. Section 49-27-80 of the 1976 Code is amended to read:

"Section 49-27-80. (A) Except as limited in subsection (B) of this section, by restrictions in any joint ordinance, and by other supervening provisions of law, the commission may make regulations applicable to Lake Wylie and its shoreline area concerning all matters relating to or affecting the use of Lake Wylie. These regulations may not conflict with or supersede provisions of general or special acts or of regulations of state agencies promulgated under the authority of general law. No regulations adopted under the provisions of this section may be adopted by the commission except after public hearing, with publication of notice of the hearing in a newspaper of general circulation in the three counties at least ten days before the hearing. In lieu of or in addition to passing regulations supplementary to state law and regulations concerning the operation of vessels on Lake Wylie, the commission may, after public notice, request that the North Carolina Wildlife Resources Commission and the South Carolina Department of Natural Resources pass local regulations on this subject in accordance with the procedure established by appropriate state law. (B) Violation of any regulation of the commission commanding or prohibiting an act is a misdemeanor punishable by a fine not to exceed two hundred dollars or thirty days' imprisonment. (C) The regulations promulgated under this section take effect upon passage or upon such dates as may be stipulated in the regulations except that no regulation may be enforced unless adequate notice of the regulation has been posted in or on Lake Wylie or its shoreline area. Adequate notice as to a regulation affecting only a particular location may be by a sign, uniform waterway marker, posted notice, or other effective method of communicating the essential provisions of the regulation in the immediate vicinity of the location in question. Where a regulation applies generally as to Lake Wylie or its shoreline area, or both, there must be a posting of notices, signs, or markers communicating the essential provisions in at least three different places throughout the area and it must be printed in a newspaper of general circulation in the three counties. (D) A copy of each regulation promulgated under this section must be filed by the commission with the following persons: (1) the Secretaries of State of North and South Carolina; (2) the clerk of superior court of Mecklenburg and Gaston Counties and the clerk of court of York County; (3) the Directors of the Wildlife Resources Commission of North Carolina and the South Carolina Department of Natural Resources. (E) Any official designated in subsection (D) above may issue certified copies of regulations filed with him under the seal of his office. These certified copies may be received in evidence in any proceeding. (F) Publication and filing of regulations promulgated under this section as required above is for informational purposes and is not a prerequisite to their validity if they in fact have been duly promulgated, the public has been notified as to the substance of regulations, a copy of the text of all regulations is in fact available to any person who may be affected, and no party to any proceeding has been prejudiced by any defect that may exist with respect to publication and filing. Rules and regulations promulgated by the commission under the provisions of other sections of this chapter relating to internal governance of the commission need not be filed or published. Where posting of any sign, notice, or marker or the making of other communication is essential to the validity of a regulation duly promulgated, it is presumed in any proceeding that prior notice was given and maintained and the burden lies upon the party asserting to the contrary to prove lack of adequate notice of any regulation."

Names revised

SECTION 1255. Section 49-29-210 of the 1976 Code is amended to read:

"Section 49-29-210. A person who violates a provision of this chapter, the regulations promulgated by the management agency under it, or the conditions of the perpetual easements granted to the State under this chapter is guilty of a misdemeanor and may be compelled to comply with or obey the provisions of this chapter by injunction or other appropriate remedy and, upon conviction, must be punished by a fine of not more than five hundred dollars or imprisonment for not more than thirty days for each day of a violation. The provisions of this section do not preclude any applicable action by the Department of Revenue and Taxation to remove or recover property or income tax due it under Section 49-29-100."

Commission changed to department; names revised

SECTION 1256. Chapter 29, Title 49 of the 1976 Code is amended to read:

"CHAPTER 29

South Carolina Scenic Rivers Act

Section 49-29-10. This chapter may be cited as the `South Carolina Scenic Rivers Act of 1989'.

Section 49-29-20. Except as otherwise required by the context: (1) ` Department' means the Department of Natural Resources. (2) `Free flowing' means existing or flowing in natural condition without impoundment, (diversion) straightening, riprapping, or other modification of the waterway. The existence of low dams, diversion works, and other minor structures at the time a river is proposed for inclusion in the State Scenic Rivers Program does not automatically bar its consideration for inclusion, but this may not be construed to authorize, intend, or encourage future construction of those structures within components of the State Scenic Rivers Program. (3) `Management agency' means the Department of Natural Resources. (4) `Mean highwater line' means that line which intersects with the shore in tidal waters representing the average height of high waters over an eighteen and one-half year tidal cycle. Benchmarks purporting to have established mean high or low water values must be verified by the department as meeting state and national ocean survey standards. (5) `Ordinary highwater mark' means the natural or clear line impressed on the shore or bank in nontidal waters representing the ordinary height of water. It may be determined by bank shelving, changes in the character of the soil, destruction or absence of terrestrial vegetation, the presence of litter or debris, or a combination of the above or other appropriate criteria that consider the characteristics of the surrounding area. Ordinary highwater mark is not the line reached by floods, but it is the line to which ordinary high water usually reaches. (6) `Perpetual easement' means a perpetual right in land of less than fee simple which: (a) obligates the grantor and his heirs and assigns to certain restrictions constituted to maintain the scenic qualities of those lands bordering the river as determined by the State under this chapter; (b) is restricted to the area defined in the easement deed; (c) grants a privilege to those charged with the administration or enforcement of the provisions of this chapter to go upon the land for the purpose of compliance inspection. (7) `River' means a flowing body of water or a section, portion, or tributary of it including rivers, streams, creeks, branches, or small natural lakes. (8) `Road' means a highway or any hard-surface road.

Section 49-29-30. The General Assembly finds that certain selected rivers and river segments of this State possess unique or outstanding scenic, recreational, geologic, botanical, fish, wildlife, historic, or cultural values. It is the policy of the General Assembly to provide for the protection of these selected diminishing values and to preserve the state's natural heritage for the benefit and enjoyment of present and future generations. The provisions of this chapter complement and are considered part of the State Water Resources Plan as formulated by the department.

Section 49-29-40. The following types of rivers are eligible for inclusion in the State Scenic Rivers Program: Natural rivers: those free-flowing rivers or river segments generally inaccessible except by trail or river, with adjacent lands and shorelines essentially undeveloped and its waters essentially unpolluted. Scenic rivers: those rivers or river segments which are essentially free flowing and possess shorelines largely undeveloped and with limited road access. Adjacent lands are partially or predominantly used for agriculture, silviculture, or other dispersed human activity which does not disturb substantially the natural character of the river corridor. Recreational rivers: those rivers or river segments accessible by road and that possess development along shorelines and adjacent lands. Included are rivers with developed or partially developed shorelines and adjacent lands for residential, commercial, or industrial purposes, rivers with parallel roads or railroads, and rivers with some impoundments. These rivers or river segments provide outstanding river-related recreational opportunities.

Section 49-29-50. (A) The department shall inventory and study all South Carolina rivers and identify the rivers or river segments which possess unique or outstanding scenic, recreational, geological, botanical, fish, wildlife, historic, or cultural values in accordance with Section 49-29-70. (B) Rivers or river segments identified in the inventory as possessing unique or outstanding scenic, recreational, geologic, botanical, fish, wildlife, historic, or cultural values are eligible for the State Scenic Rivers Program and may be designated as an eligible state scenic river by the department. Rivers or river segments so designated are subject to the completion of a management plan and the acquisition of management rights on adjacent riparian lands. (C) Proposals for including additional rivers or river segments may be made by state agencies, local governments, and other governmental or citizen's groups and submitted to the department for evaluation and study.

Section 49-29-60. The department shall hold a public meeting in the vicinity of the river or river segment proposed for addition to the State Scenic Rivers Program. This public meeting must be conducted before any action by the department to designate the river or river segment as an eligible state scenic river. The purpose of this meeting is to solicit comments from the public concerning the proposed designation of a river or river segment. Notice of this meeting must be published at least thirty days before the meeting in the State Register and in a newspaper having general circulation in each county containing or bordering the river or river segment under study and in a newspaper having general circulation in the State. Landowners along the proposed river or river segment also must be notified by letter.

Section 49-29-70. The department shall establish and publish minimum criteria for assessing a river's eligibility and classification under the State Scenic Rivers Program. To qualify as eligible, the river or river segment must possess unique or outstanding scenic, recreational, geological, botanical, fish, wildlife, historic or cultural values. The level of pollution of a river's waters must be considered in determining eligibility for qualification as a scenic river. A river with relatively polluted waters may qualify as eligible as a scenic river if other values are considered outstanding. The river or river segment must be managed permanently for the preservation or enhancement of its values.

Section 49-29-80. After eligibility procedures for a river or river segment are completed by the department, and the General Assembly ratifies such designation, the department, through the executive director, shall establish an advisory council for that scenic river. The advisory council must be appointed as early as possible to assist the work of the department. Each advisory council must consist of not less than six nor more than ten members who must be selected from local government, riparian landowners, community interests, and the department, whose staff member must serve as chairman. The riparian landowners must constitute a majority of the membership on each council. The duties of the advisory councils are to assist and advise the department concerning protection and management of each scenic river.

Section 49-29-90. No river or river segment may be eligible as a state scenic river and accorded the protection of this chapter, except upon formal action by the department. Following action by the department declaring a river or river segment eligible as a state scenic river, the department shall publish a notice of the eligibility in the State Register and provide written notice to the State Budget and Control Board, the Department of Revenue and Taxation, and the affected units of local government. Notice of eligibility also must be published in a newspaper of general circulation in the State to apprise interested parties of the opportunities under Section 49-29-100. The notice must describe the boundaries of the river or river segment. Following notice of eligibility, the department shall submit the same to the General Assembly for review. No river or river segment may be designated a state scenic river until the General Assembly has duly enacted legislation ratifying such designation.

Section 49-29-100. After ratification by the General Assembly of the designation of a river or river segment as a scenic river under the State Scenic Rivers Program, the State, through the Budget and Control Board, and with the consent of the governing body of the county in which the land is located, may purchase with donated or appropriated funds, exchange lands for, or otherwise accept donations of certain lands adjacent to the eligible river or section of a river either in fee simple or perpetual easement from an owner. Unless unusual circumstances warrant, purchases of land adjacent to scenic and recreational rivers may not be less than one hundred feet in width from the ordinary highwater mark or mean highwater line of the river in normal conditions. Purchases of land for natural rivers may not be less than three hundred feet in width from the ordinary highwater mark or mean highwater line of the river. For landowners donating perpetual easements to the State under the Scenic Rivers Program, a deduction from state income tax may be taken equal to the fair market value of the easement granted. The value of a perpetual easement is determined as the difference between the fair market value of the total property before the land is burdened with the easement and the fair market value of the property after the easement is granted. After the grant of a perpetual easement, land subject to a permanent easement is exempt from all property taxes. Donors of land in fee simple may elect to take a deduction from state income tax equal to the value of the fee donated. For both donations in fee simple or easement, the donor may elect to take the deduction during a five-year period following the donation. The total deduction may be taken during any one year of the five-year period or the deduction may be taken in proportionate amounts during the five-year period. The value of the fee or easement must be assessed at the time of the donation. Land placed in the Scenic Rivers Program which is owned by the State may be restricted in conformance with this chapter by executed easement or deed restriction executed by the donating agency and approved by the Budget and Control Board. The Budget and Control Board shall submit annually a report of the property included in the Scenic Rivers Program to the Department of Revenue and Taxation and the auditor of each county in which the property is situated. The limitations of the liability of titleholders, as provided under Section 29-3-50, apply to all land purchased or donated in easement under the Scenic Rivers Program.

Section 49-29-110. There is created the Scenic Rivers Trust Fund which must be kept separate from other funds of the State. The fund must be administered by the department for the purpose of acquiring fee simple or lesser interest in land adjacent to scenic rivers and river segments, legal fees, appraisals, surveys, or other costs involved in the acquisition of those interests. Unexpended balances, including interest derived from the fund, must be carried forward each year and used for the purposes provided in this chapter. No fund money may be expended to acquire an interest in land by eminent domain nor may the funds be expended to acquire interest in land without a recommendation from the board and the approval of the Budget and Control Board. The board shall report by letter to the presiding officers of the General Assembly and chairmen of the House and Senate Agriculture and Natural Resources Committees each year all funds expended pursuant to this chapter for the previous year, including the amount of funds expended and the uses to which the expenditures were applied. The fund is eligible to receive appropriations of state general funds, federal funds, donations, gifts, bond issue receipts, securities, and other monetary instruments of value. A reimbursement for monies expended from this fund must be deposited in this fund. A fund received through sale, exchange, or otherwise of land acquired under this chapter accrues to the fund.

Section 49-29-120. The lands to be placed in the Scenic Rivers Program may be obtained only from private or corporate owners voluntarily in the manner specified in Section 49-29-100. Neither the State nor an agency or department of it may obtain by eminent domain land for the Scenic Rivers Program either in fee simple or in perpetual easement. Section 49-29-130. Whenever land or a portion of it donated pursuant to this chapter ceases to be used for the purpose for which it was donated, the title to the land reverts to the donor.

Section 49-29-140. Management of scenic river areas may differ in degree within a given class of rivers based on the special attributes of the river but must adhere to the following management policies: (1) Natural rivers must be managed in a manner which: (a) would best maintain and enhance those conditions which are attributed to wilderness type areas; (b) would allow camping and river access only at designated public access areas; and (c) would allow certain public uses only within prescribed public access areas. (2) Scenic rivers must be managed in a manner which best maintains and enhances the scenic values of the river and the adjacent land while at the same time preserving the right of riparian landowners to use the river for customary agricultural, silvicultural, or other similar purposes. (3) Recreational rivers must be managed in a manner which would best maintain and enhance the scenic values of the river while at the same time preserving the right of riparian landowners to use the river for customary agricultural, silvicultural, residential, recreational, commercial, and industrial purposes. To the extent practicable and consistent with the objectives of this chapter to preserve and maintain scenic rivers, public access and use must be open in all classes of scenic rivers. The level and nature of public use must not interfere with the rights retained by the titleholders or detract from the natural scenic qualities of the land, but the State may purchase lands or accept donations of easements, in accordance with Section 49-29-100, which restricts public access and use when necessary to implement this chapter.

Section 49-29-150. The provisions of this chapter regarding restrictive use or zoning of lands apply only to those lands which have been accepted into the State Scenic Rivers Program by donation, perpetual easement, or purchase.

Section 49-29-160. The department shall formulate comprehensive water and related land use plans for the three classes of scenic rivers. Each plan must address access of electricity, natural gas, and communication lines or other facilities for permitted uses for each class of river facilities. Each plan must also address criteria for permitting the crossing of each class of scenic river by sellers of electric energy, natural gas, or communication services. In developing these criteria, the department must consider the state of available technology, the economics of the various alternatives, and that electric, natural gas, and communication suppliers are required to deliver their services. The department must recognize that emergency situations will arise that require immediate action and must make provision in the management plan to allow this action. In the comprehensive plan for the river classes, the following general land and water use practices are permitted or prohibited depending on the class: (1) In natural river areas, no new roads or buildings may be constructed and there may be no mining and no commercial timber harvesting. (2) In scenic and recreational river areas, the continuation of present agricultural practices such as grazing and the propagation of crops, including timber, is permitted. The construction of farm-use buildings is permitted if it is found to be compatible with the maintenance of scenic qualities of the stream and its banks. There may be no construction of roads paralleling the river within the limits of a scenic easement or public access area. The harvesting of timber is permitted provided the landowner follows the best management practices for forested wetlands as approved by the South Carolina Forestry Commission. Mining activities are permitted pursuant to a mining permit issued under the provisions of Chapter 19 of the `South Carolina Mining Act'. Construction for public access related to recreational use of these scenic river areas is allowed in accordance with Section 49-29-140.

Section 49-29-170. Sellers of electric energy, natural gas, or communication services may cross on, over, or under lands designated as part of the Scenic River System provided that the department certifies that such crossing is consistent with the management plan for those lands. A certificate of consistency shall be issued by the department upon a finding: (1) that the crossing is necessary to provide electric, natural gas, or communication service; and either (a) that the crossing is consistent with the management plan; or (b) that the extent of deviation from the management plan for the construction, operation, and maintenance of the facility across the scenic river is justified, considering the state of available technology and the nature and economics of the various alternatives, and that the entity responsible for the encroachment will make reasonable mitigation for the impacts caused by the construction, operation, and maintenance of the facility. The department shall issue a certification of consistency or nonconsistency within thirty days from the receipt of an application. A time extension may be granted upon a mutual agreement of both parties. Certification does not preclude the necessity to obtain other required state and federal authorizations. All administrative proceedings are subject to Article I, Chapter 23 of Title 1 (the Administrative Procedures Act), as amended.

Section 49-29-180. The department shall administer the provisions of this chapter. The department may promulgate regulations to carry out the provisions of this chapter. In addition to general regulations, the department may promulgate further regulations based on the individual attributes of each designated scenic river area if regulations do not defeat, conflict with, or minimize the provisions of the general regulations for each class of scenic river. No scenic river may be managed in a manner that would result in the river corridor falling into a less restrictive class. Nothing in this chapter or its implementation may restrict reasonable utilization of the rivers in the program for fishing from the banks of the rivers or river segments.

Section 49-29-190. The department may enter into agreements with local, state, and federal agencies, and private landowners, for the mutual management of a scenic river. An agency which has administrative jurisdiction over lands or interests in land along a state scenic river must assist the department to implement the policies and practices of this chapter.

Section 49-29-200. The Natural Resources Enforcement Division of the Department of Natural Resources and the State Forestry Commission, as well as local sheriffs, constables, and special officers, shall cooperate in the inspection and enforcement of the provisions of this chapter.

Section 49-29-210. A person who violates a provision of this chapter, the regulations promulgated by the management agency under it, or the conditions of the perpetual easements granted to the State under this chapter is guilty of a misdemeanor and may be compelled to comply with or obey the provisions of this chapter by injunction or other appropriate remedy and, upon conviction, must be punished by a fine of not more than five hundred dollars or imprisonment for not more than thirty days for each day of a violation. The provisions of this section do not preclude any applicable action by the Department of Revenue and Taxation to remove or recover property or income tax due it under Section 49-29-100.

Section 49-29-220. To the extent practicable and consistent with the objectives of this chapter to preserve and maintain scenic rivers, camping activities are encouraged to be included in the comprehensive management plans of all classes of scenic rivers when that activity does not interfere with the rights retained by the titleholders or detract from the natural scenic qualities of the land.

Section 49-29-230. The following are designated as scenic rivers: (1) that portion of the Little Pee Dee River located between the Highway 378 bridge crossing of the Little Pee Dee River and the confluence of the river with the Great Pee Dee River; (2) that portion of the Broad River located between the 99 Islands Dam and the confluence with the Pacolet River; (3) that portion of the Saluda River located between the old railroad abutments located three thousand feet below the Saluda Hydroelectric Plant and the confluence with the Broad River."