Bill 655

                    Current Status

Bill Number:               655
Ratification Number:       249
Act Number                 176
Introducing Body:          Senate
Subject:                   An act to establish the Lake Wylie Marine
                           Commission

(A176, R249, S655)

AN ACT TO ESTABLISH THE LAKE WYLIE MARINE COMMISSION, PROVIDE FOR ITS JURISDICTION, POWERS, DUTIES, AND RESPONSIBILITIES; TO AMEND SECTION 50-1-130, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE PENALTY FOR VIOLATION OF GAME, BIRD, OR FISH LAWS, SO AS TO DELETE THE REFERENCE TO THESE LAWS AND INSERT A REFERENCE TO A VIOLATION OF A PROVISION OF TITLE 50, AND INCREASE THE MAXIMUM FINE FROM ONE TO TWO HUNDRED DOLLARS; TO AMEND THE 1976 CODE BY ADDING SECTION 50-3-420 SO AS TO PROVIDE THAT NO OFFICER OF THE LAKE WYLIE MARINE COMMISSION NOR ANY CONSERVATION OFFICER IN THIS STATE IS SUBJECT TO CRIMINAL PROSECUTION WHEN ACTING IN HIS OFFICIAL CAPACITY WITHIN HIS TERRITORIAL JURISDICTION FOR CERTAIN ACTIONS AND TO PROVIDE THAT PROVISIONS OF THIS SECTION DO NOT RELIEVE THESE OFFICERS FROM THE DUTY TO EXERCISE DUE REGARD FOR THE SAFETY OF THE PUBLIC OR PROTECT THEM FROM THE CONSEQUENCES OF RECKLESS, WILFUL, OR WANTON DISREGARD FOR THE SAFETY OF OTHERS NOR LIABILITY FOR CRIMINAL PROSECUTIONS EXCEPT AS STATED IN THIS SECTION.

Be it enacted by the General Assembly of the State of South Carolina:

Definitions

SECTION 1. For purposes of this act:

(1) "Board" means the board of commissioners of one of the three counties.

(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 resolution" means a resolution substantially identical in content adopted separately by the board in each of the governing agencies.

(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 modified by a joint resolution of the three counties, 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 Wildlife and Marine Resources.

Commission may be created

SECTION 2. The counties of York, South Carolina, Gaston and Mecklenburg, North Carolina, are authorized by ordinance or joint resolution to create the Lake Wylie Marine Commission. Upon its creation, the commission has the powers, duties, and responsibilities conferred upon it by ordinance or joint resolution subject to the laws of each applicable state. The provisions of any ordinance or joint resolution may be modified, amended, or rescinded by a subsequent joint resolution. A county may unilaterally withdraw from participation as required by any joint resolution or the provisions of this act, once the commission has been created, and any county may unilaterally withdraw from the commission at the end of any budget period upon ninety days' prior written notice. Upon the effectuation of the withdrawal, the commission is dissolved until reestablished under the provisions of this act and all property of the commission must be distributed to or divided among the three counties and any other public agency or agencies serving the Lake Wylie area in a manner considered equitable by the commission.

Governing board

SECTION 3. Upon its creation, the commission shall have a governing board of seven. Except as otherwise provided for the first four-year period, each commission shall serve either a three or a four-year term with commissioners to serve overlapping terms so that two commissioner appointments are made each year. Upon creation of the commission, the Board of Gaston County shall appoint three commissioners and the boards of the other two counties shall appoint two each. These initial appointees shall serve until September thirtieth following their appointment. Thereafter, appointments must be made each October first by the respective boards of the three counties as follows:

(1) First year: Three commissioners from Gaston, one appointed for a one-year term, one appointed for a three-year term, and one appointed for a four-year term; two commissioners from Mecklenburg, one appointed for a one-year term and one appointed for a two-year term; two commissioners from York, one appointed for a two-year term and one appointed for a three-year term.

(2) Second year: Two commissioners from Mecklenburg, one appointed for a three-year term and one appointed for a four-year term.

(3) Third year: Two commissioners from York, one appointed for a three-year term and one appointed for a four-year term.

(4) Fourth year: Two commissioners from Gaston, one appointed for a three-year term and one appointed for a four-year term.

(5) Fifth and succeeding years: Appointments for one three-year and one four-year term in rotation by county in the order set out above. On the death of a commissioner, resignation, incapacity, or inability to serve, as determined by the board appointing the commissioner, or removal of the commissioner for cause, as determined by the board appointing the commissioner, the board affected may appoint another commissioner to fill the unexpired term.

Terms

SECTION 4. The joint resolution of the three counties shall state the terms relating to compensation to commissioners, if any, compensation of consultants and staff members employed by the commission, and reimbursement of expenses incurred by commissioners, consultants, and employees. The commission is governed by these budgetary and accounting procedures as may be specified by joint resolution.

Meetings of board

SECTION 5. Upon creation of the commission, its governing board shall meet at a time and place agreed upon by the board of the three counties concerned. The commissioners shall elect a chairman and such officers as they may choose. All officers shall serve one-year terms. The governing board shall adopt such rules and regulations as it may consider necessary, not inconsistent with the provisions of this act or of any joint resolution or the laws of the appropriate state, for the proper discharge of its duties and for the governance of the commission. In order to conduct business, a quorum must be present. The chairman may adopt those committees as may be authorized by such rules and regulations. The commission shall meet regularly at those times and places as may be specified in its rules and regulations or in any joint resolution. However, meetings of the commission must be held in all three counties on a rotating basis so that an equal number of meetings is held in each county. Special meetings may be called as specified in the rules and regulations.

Powers

SECTION 6. (A) Within the limits of funds available to it and subject to the provisions of this act and of any joint resolution, the commission may:

(1) hire and fix the compensation of permanent and temporary employees and staff as it may consider necessary in carrying out its duties;

(2) contract with consultants for such services as it may require;

(3) contract with the States of North Carolina, South Carolina, or the federal government, or any agency, department, or subdivision of them for property or services as may be provided to or by these agencies and carry out the provisions of these contracts;

(4) contract with persons, firms, and corporations generally as to all matters over which it has a proper concern and carry out the provisions of contracts;

(5) lease, rent, purchase, or otherwise obtain suitable quarters and office space for its employees and staff, and lease, rent, purchase, or otherwise obtain furniture, fixtures, vessels, vehicles, firearms, uniforms, and other supplies and equipment necessary or desirable for carrying out the duties imposed in or under the authority of this act;

(6) lease, rent, purchase, construct, otherwise obtain, maintain, operate, repair, and replace, either on its own or in cooperation with other public or private agencies or individuals, any of the following: boat docks, navigation aids, waterway markers, public information signs and notices, and other items of real and personal property designed to enhance public safety in Lake Wylie and its shoreline area, or protection of property in the shoreline area subject to the provisions of Title 50 of the 1976 Code or regulations promulgated under that title.

(B) The commission may accept, receive, and disburse in furtherance of its functions any funds, grants, services, or property made available by the federal government or its agencies or subdivisions, by the state government or its agencies or subdivisions, or by private and civic sources.

(C) The governing bodies of the three counties may appropriate funds to the commission out of surplus funds or funds derived from nontax sources. They may appropriate funds out of tax revenues and may also levy annually taxes for the payments of such appropriation as a special purpose, in addition to any allowed by the Constitution.

(D) The commission is subject to those audit requirements as may be specified in any joint resolution.

(E) In carrying out its duties and either in addition to or in lieu of exercising various provisions of the above authorization, the commission may, with the agreement of the board of the county concerned, utilize personnel and property of or assign responsibilities to any officer or employee of any of the three counties. Such contribution in kind, if substantial, may with the agreement of the other two counties be considered to substitute in

whole or in part for the financial contribution required of that county in support of the commission.

(F) Unless otherwise specified by joint resolution, each of the three counties shall annually contribute an equal financial contribution to the commission in an amount appropriate to support the activities of the commission in carrying out its duties.

Distribution of resolution

SECTION 7. (A) A copy of the ordinance or joint resolution creating the commission and of any ordinance or joint resolution amending or repealing the ordinance or joint resolution creating the commission must be filed with the Executive Director of the North Carolina Wildlife Resources Commission and the Executive Director of the South Carolina Department of Wildlife and Marine Resources. When the executive director receives resolutions that are in substance identical from all three counties concerned, the executive director shall, within ten days, certify this fact and distribute a certified single resolution text to the following:

(1) the Secretary of the State of North Carolina and the Secretary of State of South Carolina;

(2) the clerk to the 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 executive director also shall send a certified single copy of any and all applicable joint resolutions to the chairman of the commission;

(4) a newspaper of general circulation in the three counties.

(B) Unless a joint resolution specifies a later date, it shall take effect when the executive director's certified text has been submitted to the Secretaries of State for filing. Certifications of the executive director under the seal of the commission as to the text or amended text of any joint resolution 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 resolution filed with him by the executive director is admissible in evidence and the executive director's submission of the resolution for filing to the clerk shall constitute prima facie evidence that the resolution 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 resolution by the executive director to any person other than the Secretary of State.

Regulations

SECTION 8. (A) Except as limited in subsection (B) of this section, by restrictions in any joint resolution 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. 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 Wildlife and Marine 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 each of the three counties;

(3) the Executive Directors of the Wildlife Resources Commission of North Carolina and South Carolina Wildlife and Marine Resources Department.

(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 resolution 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.

Jurisdiction of law enforcement officers

SECTION 9. (A) Where a joint resolution so provides, all law enforcement officers, or those officers as may be designated in the joint resolution, with territorial jurisdiction as to any part of Lake Wylie or its shoreline area, within the limitations of their subject matter jurisdiction, have the authority of peace officers in enforcing the laws over all of Lake Wylie and its shoreline area.

(B) Where a joint resolution provides it, the commission may hire special officers to patrol and enforce the laws on Lake Wylie and its shoreline area. These special officers have and may exercise all the powers of peace officers generally within the area in question and shall take the oaths and are subject to all provisions of law relating to law enforcement officers.

(C) Every criminal violation must be tried in the county where it occurred. However, a certificate of training by the South Carolina Criminal Justice Academy, or its North Carolina counterpart, will suffice for certification in both states.

(D) Where a law enforcement officer with jurisdiction over any part of Lake Wylie or its shoreline area is performing duties relating to the enforcement of the laws on Lake Wylie or in its shoreline area, he has extraterritorial jurisdiction as may be necessary to perform his duties. These duties include investigation of crimes an officer reasonably believes have been, or are about to be, committed within the area in question. This includes traversing by reasonable routes from one portion of this area to another although across territory not within the boundaries of Lake Wylie and its shoreline area; conducting prisoners in custody to a court or detention facilities as may be authorized by law, although this may involve going outside the area in question; execution of process connected with any criminal offense alleged to have been committed within the boundaries in question, except that this process may not be executed by virtue of this provision beyond the boundaries of the three counties. This also includes continuing pursuit of and arresting any violator or suspected violator as to which grounds for arrest arose within the area in question.

(E) Where law enforcement officers are given additional territorial jurisdiction under the provisions of this section, this is considered an extension of the duties of the office held and no officer shall take any additional oath or title of office.

Penalty

SECTION 10. (A) Section 50-1-130 of the 1976 Code is amended to read:

"Section 50-1-130. Unless a different penalty is specified, any person who violates a provision of this title is guilty of a misdemeanor and, upon conviction, must be fined not less than twenty-five dollars nor more than two hundred dollars or imprisoned for not less than ten days nor more than thirty days."

(B) The provisions of this section become effective upon approval by the Governor.

Immunity from prosecution

SECTION 11. (A) The 1976 Code is amended by adding:

"Section 50-3-420. Neither any officer of the Lake Wylie Marine Commission nor any conservation officer in the State is subject to criminal prosecution when acting in his official capacity within his territorial jurisdiction for:

(1) failing to comply with statutes or regulations governing the operations of motor vehicles, watercraft, or aircraft;

(2) entering into private property, whether or not posted against trespassing;

(3) failure to comply with wildlife conservation and boating laws of this State as a necessary part of the investigation or enforcement effort in enforcing those laws.

The provisions of this section do not relieve the officers from the duty to exercise due regard for the safety of the public or protect them from the consequences of reckless, wilful, or wanton disregard for the safety of others nor liability for criminal prosecutions except as stated in items (1), (2), and (3)."

(B) The provisions of this section take effect upon approval by the Governor.

Time effective

SECTION 12. This act takes effect March 1, 1988.