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Current Status Bill Number:View additional legislative information at the LPITS web site.287 Type of Legislation:General Bill GB Introducing Body:Senate Introduced Date:20010206 Primary Sponsor:Leventis All Sponsors:Leventis, Drummond, Ravenel, McConnell and Giese Drafted Document Number:l:\council\bills\nbd\11230ac01.doc Residing Body:Senate Current Committee:Agriculture and Natural Resources Committee 01 SANR Subject:Freshwater Wetlands Protection Act, Conservation, Health and Environmental Control, Fish and Game, Natural Resources History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ Senate 20010206 Introduced, read first time, 01 SANR referred to Committee Versions of This Bill
TO AMEND TITLE 48, CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 60 SO AS TO ENACT THE "FRESHWATER WETLANDS PROTECTION ACT" WHICH REQUIRES A PERMIT TO UNDERTAKE A REGULATED ACTIVITY WITHIN A FRESHWATER WETLAND AND ESTABLISHES THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL AS THE ADMINISTRATOR OF THE PROGRAM, WHICH ESTABLISHES CRITERIA AND PROCEDURES FOR ISSUING PERMITS, INCLUDING PROVIDING PUBLIC NOTICE AND AN OPPORTUNITY FOR PUBLIC COMMENT AND COORDINATION OF ITS REVIEW OF PERMIT APPLICATIONS WITH OTHER STATE AND FEDERAL AGENCIES, WHICH AUTHORIZES MITIGATION PROPOSALS AND GENERAL OR BLOCK PERMITS, WHICH PROVIDE PENALTIES FOR VIOLATIONS, WHICH AUTHORIZES THE DEPARTMENT TO ACCEPT RESPONSIBILITY FOR MANAGEMENT OF THE FEDERAL PERMITTING PROGRAM UNDER THE CLEAN WATER ACT, AND WHICH APPLIES THE CRITICAL AREA WETLANDS REGULATIONS TO THIS CHAPTER UNTIL REGULATIONS ARE PROMULGATED UNDER THIS CHAPTER.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 48 of the 1976 Code is amended by adding:
Section 48-60-10. This chapter may be cited as the 'Freshwater Wetlands Protection Act'.
Section 48-60-20. The South Carolina General Assembly finds that:
(1) The freshwater wetlands of the State of South Carolina are an invaluable and vulnerable natural resource which provides the following values and functions for the benefit of all citizens of the State:
(a) control of peak flood levels by storing and gradually releasing stormwater runoff from watershed lands;
(b) provide essential habitat and food chain elements for fish, wildlife, and plant populations including important commercial, recreational, and endangered species;
(c) serve to improve water quality by removing toxic substances, trapping sediment and other suspended materials, and retaining nutrients introduced to the waterway from watershed and upstream sources;
(d) serve as a buffer to control shoreline erosion caused by flooding, wind-generated wave action, and wakes from watercraft;
(e) provide areas for recreational activities including boating, fishing, hunting, wildlife observation, and other water-related recreational pursuits;
(f) provide sites for public education and academic and applied research in the fields of biology, ecology, fisheries and wildlife management, and environmental protection;
(g) provide areas of aesthetic, historic, cultural, and wilderness value;
(h) serve as recharge and discharge areas for groundwater which provides sources of public and private water supply.
(2) The freshwater wetlands within the State are being adversely affected, and will continue to be adversely affected, by escalating alteration of and construction within these areas, occasioned by increased population growth and resultant development. Systematic review of development activities in freshwater wetlands is necessary to protect and preserve the valuable benefits provided by these areas.
(3) The State has acted for the public benefit to protect coastal salt water wetland areas, but it has not provided similar protection to freshwater wetland areas.
(4) The protection and management of freshwater wetlands within South Carolina is a matter of statewide concern and is in the best interests of all present and future citizens of the State.
Section 48-60-30. (A) The General Assembly declares that the public policy of this State is to protect and conserve freshwater wetlands and the values and benefits derived from them through regulation of their use and development in a manner consistent with the general welfare and economic and social development of the State.
(B) Specific state policies to be followed in the implementation of this chapter are to:
(1) achieve an interim goal of no overall net loss of the State's remaining wetland base and to achieve a long-term goal of increasing the quantity and quality of the State's wetland resource base. In pursuing these policies, the State's remaining wetland base must be defined both in terms of acreage and wetland function; and
(2) protect and, where possible, to restore or enhance the freshwater wetland resources of this State for this and succeeding generations.
Section 48-60-40. As used in this chapter:
(1) 'Department' means the South Carolina Department of Health and Environmental Control.
(2) 'Feasible alternative' means other choices available and capable of accomplishing the overall project purposes with less damage to wetlands and the environment. 'Feasible or feasibility' is determined by the department based upon the best available information including, but not limited to technical input from other state and federal agencies and consideration of economic, environmental, social, and legal factors bearing on the suitability of the proposed activity and its alternatives, taking into consideration cost, existing technology, and logistics in light of overall project purposes. Feasible alternatives may include use of an area not owned by the applicant which could reasonably have been or be obtained, utilized, expanded, or managed in order to fulfill the basic purpose of the proposed activity. It includes the concepts of reasonableness and likelihood of success of achieving the purpose. 'Feasible alternatives' applies to both locations or sites and to methods of design or construction and includes a 'no action' alternative.
(3) 'Freshwater wetlands' means those areas, excluding wetlands within the critical area of the coastal zone, that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, aquatic life or a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions or other aquatic life. In delineating a wetland, the department shall use the three parameter approach (i.e., hydrology, soils and vegetation) enumerated in the April 1, 1987 interim-final draft 'Wetland Identification and Delineation Manual' developed by the United States Environmental Protection Agency, and any subsequent amendments to the manual.
(4) 'Freshwater wetlands permit' means a permit to engage in a regulated activity issued pursuant to this chapter.
(5) 'Materials' means a solid substance including, but not limited to, soil, sediment, aggregate, land, gravel, clay, sand, refuse, or waste.
(6) 'Mitigation' means:
(a) avoiding an adverse impact by not taking a certain action or parts of an action;
(b) minimizing an adverse impact by limiting the degree or magnitude of the action and its implementation;
(c) rectifying an adverse impact by repairing, rehabilitating, or restoring the affected environment;
(d) reducing or eliminating an adverse impact over time by preservation and maintenance operations during the life of the action; or,
(e) compensating for the adverse impact by replacing or providing substitute resources or environments of greater quality and functions.
(7) 'Person' means an individual, firm, partnership, association, public or private institution, municipality, or political subdivision, federal or state governmental agency, or private or public corporation organized under the laws of this State or any other state or country.
(8) 'Regulated activity' means dredging, excavating, or removing soils or other materials; dumping, discharging, filling, or depositing materials; erecting a structure; placing a structure; placing a obstruction; driving pilings; destructing plant life; or hydrologic alteration, including draining, flooding, or other disturbance of the water level or water table occurring within a freshwater wetland.
Section 48-60-50. (A) After July 1, 2001, no person may undertake a regulated activity within a freshwater wetland unless a freshwater wetlands permit is first obtained from the department.
(B) The department shall issue a permit if, after considering the comments of interested agencies, local governments and persons and after evaluating biological and economic considerations and conducting inquiries it considers appropriate, it finds that an application for a freshwater wetlands permit is not contrary to the policies specified in this chapter or any regulations promulgated pursuant to this chapter. The permit may be conditioned upon the applicant amending the proposal to take whatever measures the department determines are necessary to protect the public interest.
(C) No permit for the permanent alteration of freshwater wetlands may be granted unless the proposed activity requires access to, proximity to, or siting within wetlands or destruction of wetlands to fulfill its basic function (i.e., the project is 'water dependent').
(D) No permit for the permanent alteration of freshwater wetlands may be granted, regardless of whether the proposed activity is water dependent, if there is a feasible alternative to the proposed activity.
(E) No permit for the permanent alteration of freshwater wetlands may be granted unless the applicant has demonstrated that the proposed activity constitutes an overriding public interest when compared to the public interest in protecting wetlands.
(F) In determining whether to approve or deny a permit application the department shall base its decision on the individual merits of each application and the policies and requirements specified in this chapter and must be guided by these considerations:
(1) the public interest in preservation of natural resources and the private interest of the property owners;
(2) the public and private need for the activity;
(3) the economic costs and benefits to the public and the State that would result from the activity, compared with the benefits from preservation of an area in its unaltered state;
(4) available feasible and prudent alternative locations and methods to accomplish the expected benefits of the activity;
(5) the extent and permanence of impacts, both beneficial and detrimental, to historic, cultural, scenic, ecological, and recreational values, fish and wildlife, hydrology, water quality, and the public and private uses of the wetland;
(6) the value and benefits of nature-related uses of freshwater wetlands, such as aquaculture, waterfowl and wading bird management, and game and non-game wildlife protection projects;
(7) the size of the wetland where the activity is to be located and the amount of remaining wetland in the watershed;
(8) the extent to which the long-range, cumulative effects of the activity, including the cumulative effects of existing and anticipated activities in the watershed, may affect adjacent wetlands and navigable waters, and the value and enjoyment of adjacent owners;
(9) the extent to which the proposed activity is primarily dependent upon being located in a wetland;
(10) the extent to which the proposed activity could affect the habitats for rare and endangered species of wildlife or irreplaceable historic and archeological sites;
(11) the extent of any adverse environmental impact which cannot be avoided by reasonable safeguards.
(G) All permits must comply with the mitigation requirements of Section 48-60-120.
(H) No permit may be issued for a project that is inconsistent with Section 404 of the Clean Water Act or any regulation promulgated under that act by the United States Environmental Protection Agency and the United States Army Corps of Engineers.
(I) Notwithstanding any other provision of this chapter, the department may issue a permit if the applicant has clearly demonstrated that the applicant's property will have virtually no economic use unless a permit is issued for the proposed activity.
(J) A permit may be issued for a length of time determined by the department to be appropriate to the permitted project, not to exceed ten years. Construction authorized by the permit must be completed within three years of the date of issuance or a shorter time as the department may set.
(K) A permit may be renewed by following the same procedure as applicable to the initial issuance of a permit. A permit may be modified, suspended, or revoked for cause after giving the permittee and the public due notice and an opportunity to be heard. A permit may be transferred subject to public notice and opportunity for hearing. The time limit for construction may be extended for good cause, showing that due diligence toward completion of the work has been made as evidenced by significant work progress, after public notice and opportunity for hearing.
Section 48-60-60. (A) An application for a permit must be filed with the department on forms provided by the department, accompanied by a fee as established by the department. No fee may be required from a public agency within the State.
(B) The application shall include:
(1) the name and address of the applicant; if the applicant is a partnership or corporation, the application shall include the name and address of the managing agent of the applicant and of the agent of the applicant having primary responsibility for the permit;
(2) a description of the proposed activity, its location, purpose and intended use, method of construction, and the types and amount of freshwater wetlands to be altered or potentially affected or both;
(3) a drawing of the structures proposed, including size specifications;
(4) a plan and elevation drawing showing the general and specific site locations and character of all proposed activities, with an appropriate map of the area;
(5) evidence of ownership or the consent of the owners of the wetland on which any part of the projected activity will be located;
(6) the names and addresses of adjacent property owners;
(7) a certification that all information submitted with the application is true, accurate, and complete;
(8) additional information as may be necessary for the department to assess the benefits and detriments of the projected activity. When considered appropriate by the department, or its staff, additional information, studies, or analyses may be required to be supplied to the department by the applicant.
Section 48-60-70. (A) Upon its determination that a complete application has been submitted, the department shall prepare a public notice which shall include a description of the proposed activity and its location and a statement that interested agencies, adjoining landowners, local government units and other interested persons shall have forty-five days to file written comments upon the application. The department shall provide copies of the public notice to state agencies, adjoining landowners, local government units in which the project is located, and the general public.
(B) The department shall provide public notice at least once by advertisement in state and local newspapers of general circulation in the area concerned.
(C) A person who desires notification of pending permit applications may notify the department in writing; the department must mail copies of all public notices to these persons on at least a bi-weekly basis.
(D) A person or agency may comment on a permit application. Comments, or written requests for extension of time to comment, must be submitted to the department within forty-five days from the date of issuance of the public notice.
Section 48-60-80. (A) The department shall hold a public hearing on a permit application if a hearing is considered necessary to receive information from the public or obtain public comment. If within the public comment period the department receives twenty written comments requesting a public hearing, the department must conduct a public hearing. If a hearing is held, it must be held after at least fifteen days notice and, if possible, must be held in the county where the project is to be located.
(B) Notice of public hearings must be given in the same manner as utilized for public notices of permit applications, as provided for in Section 48-60-70.
(C) Public hearings must be open to all citizens of the State. Public hearings conducted for the purpose of gathering comments and information before an initial permit decision must be non-adversarial; persons speaking may not be subjected to cross-examination, and the hearing may not constitute a contested case hearing.
(D) If a public hearing is held, the public comment period shall remain open for a period of at least 15 days after the hearing.
Section 48-60-90. (A) The department shall develop a procedure for coordination of its review of freshwater wetlands permit applications with other state and federal agencies in order to simplify and streamline the overall wetlands permitting program.
(B) A state agency objecting to a project activity shall forward its objections to the applicant and the department within the public comment period. The objecting agency shall attempt to reconcile its objection in conciliation negotiations with the applicant. No action may be taken by the department on a permit application to which an objection has been made until it has received notice from the agency that the objection has been resolved or that efforts to resolve the objection have failed and further negotiation would be of no benefit.
(C) No freshwater wetlands permit may be issued by the department without certification from the South Carolina Department of Health and Environmental Control that the proposed activity would not violate applicable water quality standards and, if applicable, certification from the Office of Ocean and Coastal Resource Management that the proposed activity does not contravene the Coastal Zone Management Plan.
(D) The department may enter into agreements with other state and federal agencies whereby applications for regulated activities in regulated freshwater wetlands may jointly be used by the agencies and the department and no separate application may be required. Review of the application by the department shall conform to the provisions of this chapter and the department may request the applicant to provide information to supplement its application as the department considers necessary.
Section 48-60-100. (A) The department shall notify the applicant that it must submit a proposal to replace or compensate for the long and short term economic, environmental, and natural resource benefits that would be lost by the proposed activity if the department determines that:
(1) the proposed activity is likely to produce an adverse impact on the quality and value of the wetland where the project is to be located, or of the adjacent navigable waterway;
(2) the applicant has proposed or taken all reasonable and feasible measures to prevent the adverse impact;
(3) the proposed activity will provide public benefit relative to the adverse impact; and
(4) the proposed activity otherwise meets the standards for permit issuance.
(B) The applicant shall submit a proposal for mitigation within thirty days of the notice provided by the department pursuant to subsection (A). If no proposal is submitted, the application must be denied.
(C) The department shall provide public notice of the mitigation proposal under the same procedures utilized for public notice of permit applications pursuant to Section 48-60-70. Agency and public comments on the proposal must be submitted to the department within forty-five days from the notice.
(D) If, after completing its review of the mitigation proposal and all agency and public comments on the proposal, the department determines that the proposed mitigation measures are sufficient to compensate for the adverse wetland impacts of the proposed activity, a permit may be issued.
(E) The department may not consider mitigation until after making the determinations required in subsection (A).
Section 48-60-110. (A) The department shall notify the applicant of the permit decision and give written notice to those who commented on the application and requested notification of the decision. If the permit is denied, the department shall state the reasons for the denial. The decision becomes final if no request for a contested hearing is filed within 15 days as provided for in subsection (B).
(B) An applicant having a permit denied or conditionally issued, or a person who is adversely affected by the permit, may demand a contested case hearing on the decision of the department pertaining to permit issuance, denial, or issuance with terms and conditions to the department by filing a Request for Contested Case Hearing with the department within fifteen days of notice of the permit decision.
(C) If a contested case hearing demand is filed, the hearing must be conducted in accordance with the requirements of the South Carolina Administrative Procedures Act.
(D) An appeal stays the issuance of the permit, pending the final agency decision on the appeal.
(E) Judicial review is available to the parties after the final decision of the department in accordance with the Administrative Procedures Act.
Section 48-60-120. (A) The department, using the above procedures, may issue general or block permits for certain described categories of work, or substantially similar structures in a particular area, if the work or structures are consistent with all goals and policies of this chapter. General permits may not be issued for activities which involve the discharge of dredged or fill material or which would convert a wetland to a non-wetland area. Once the general or block permit is issued, individual permits for those activities or structures are not required; however, a person operating under a general or block permit must report the authorized activity or structure to the department before its undertaking and provide information that the department requires by regulation promulgated pursuant to this chapter.
(B) General permits are however, issued for the following activities; these general permits do not apply to an activity in a regulated freshwater wetland which involves the discharge of dredged or fill material or which brings an area of the wetland into a use to which it was not previously subject:
(1) normal farming activities including, but not limited to, plowing, seeding, cultivating, and harvesting, which are part of an established and ongoing farming operation;
(2) normal silviculture activities carried out for the purpose of growing, harvesting, and regenerating forests stands which are part of an established and ongoing silviculture operation and conducted in accordance with Best Management Practices developed by the South Carolina Forestry Department with provisions pertaining to wetland values and functions;
(3) activities associated with routine maintenance of existing state-owned highways, roads, streets, and bridges or replacement of or minor improvements to structurally deficient or functionally obsolete structures located in freshwater wetlands where these improvements are necessary to meet current design and safety standards. These activities must be implemented under conditions and Best Management Practices as approved by the department. Maintenance, replacement, or minor improvement does not include adding extra lanes or increasing the right-of-way within a freshwater wetland;
(4) duck blinds;
(5) normal maintenance and repair of a permitted structure or a structure constructed before July 1, 2001, that is currently serviceable, intact and has been maintained in good working order since the date it was permitted or constructed; however, the normal maintenance and repairs on these structures must not alter the dimensions or change the purpose, scope, or use of the structure nor adversely affect the values and functions of the wetland. Structures as used in this item include impoundments and their associated water control structures.
The department may place the conditions as it considers appropriate to achieve the goals and carry out the policies of this chapter upon the general permits specifically authorized in this subsection by regulation promulgated by the department pursuant to the Administrative Procedures Act.
(C) Parties contesting a general or block permit, except for the permits authorized in subsection (B), may appeal the permit either upon initial issuance or within thirty days of notice of an activity for which permission is claimed under the general or block permit.
Section 48-60-130. (A) A person violating any provision of this chapter is guilty of a misdemeanor and upon conviction, must be imprisoned not more than six months or fined not more than five thousand dollars, or both, for the first offense, and imprisoned not more than one year, or fined not more than ten thousand dollars, or both, for each subsequent offense.
(B) If the department determines that a person is in violation of a provision of this chapter or in violation of a permit or permit condition, the person is liable for, and may be assessed by the department for, payment of damages to cover all injuries to the natural resources in the public domain and all costs of investigation and prosecution or a civil penalty of not less than one hundred dollars or more than one thousand dollars for each day of violation, or both.
(C) If the department determines that a person is in violation of a permit, regulation, standard, or requirement under this chapter, the department may issue an order requiring the person to comply with the permit, regulation, standard, or requirement, including an order requiring restoration when considered environmentally appropriate by the department. In addition, the department may bring a civil enforcement action and may seek injunctive relief.
Section 48-60-140. (A) A person may not apply for a permit for a regulated activity which the person has already commenced until the person has paid a fine equal to all costs to the department and other state agencies in any investigation of the unpermitted activity.
(B) After-the-fact permit applications must be reviewed under the same procedure as other applications.
(C) If work on the activity is incomplete at the time of the application, all work shall cease pending permit review unless the department determines that the public interest would be best served by the applicant taking interim action that the department considers appropriate.
(D) All after-the-fact permits must be conditioned upon the applicant's payment of or secured agreement to provide compensation or mitigation, or both, for all damages to natural resources.
Section 48-60-150. (A) A citizen may petition the department requesting that an enforcement action be brought against a person alleged to be in violation of this chapter or requesting that the department take other actions as may be required by this chapter. Within thirty days of receipt of a petition, the department shall either deny the petition in writing, stating its reasons for denial, or shall initiate the action requested in the petition.
(B) A citizen may intervene in a civil enforcement proceeding or action brought by the department to enforce this chapter.
(C) If the department denies a citizen's petition under subsection (A), the petitioning citizen may commence a civil action on his or her own behalf:
(1) against a person who is alleged to be in violation of a provision of this chapter or in violation of a permit condition or order issued by the department; or
(2) against the department if the citizen alleges a failure of the department to perform an act or duty which is not discretionary with the department.
The circuit courts have jurisdiction to enforce the provisions of this chapter, to enforce permit conditions and orders issued by the department, to order the department to perform certain acts or duties, and to apply appropriate civil penalties authorized by this chapter.
(D) A citizen may not bring a suit without first petitioning the department as provided in subsection (A), or if the department has commenced, and is diligently prosecuting, a civil or criminal action to require compliance with this chapter or a permit condition or order.
Section 48-60-160. (A) The department has the authority to apply for and accept responsibility for management of the federal permitting program under Section 404 of the Federal Clean Water Act, and the department is directed to utilize the Corps of Engineers permit applications and public notices in the initial implementation of this chapter.
(B) If new federal legislation establishing a new federal freshwater wetlands permitting program is enacted the department has the authority to apply for and accept responsibility for management of the program.
Section 48-60-170. (A) The department shall promulgate regulations to implement this chapter and in promulgating these regulations, the department shall seek where feasible to conform the regulations to the rules and regulations applicable to critical area wetlands under the Coastal Zone Management Act.
(B) Pending the final effective date of regulations promulgated under this chapter, the regulations applicable to critical area wetlands under the Coastal Zone Management Act must be followed by the department in making permit decisions under this chapter."
SECTION 2. This act takes effect July 1, 2001.
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