Bill 391

                    Current Status

Bill Number:               391
Ratification Number:       748
Act Number                 607
Introducing Body:          Senate
Subject:                   Beach/dune system findings

(A607, R748, S391)

AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTIONS 48-39-250 AND 48-39-260 SO AS TO PROVIDE FOR THE FINDINGS AND POLICY RELATING TO THE BEACH/DUNE SYSTEM; TO AMEND SECTION 48-39-130, AS AMENDED, RELATING TO COASTAL COUNCIL PERMITS TO UTILIZE A CRITICAL AREA, SO AS TO REVISE THE PROVISIONS DETAILING WHEN A PERMIT IS NOT NECESSARY; TO AMEND SECTIONS 48-39-270 THROUGH 48-39-360, RELATING TO THE BEACH MANAGEMENT ACT, SO AS TO ADD SECTIONS 48-39-305 AND 48-39-355, REVISE DEFINITIONS, THE PROVISIONS FOR AND THE DETERMINATION OF THE BASELINE AND THE SETBACK LINE, THE DUTIES OF THE COASTAL COUNCIL, THE REQUIREMENTS RELATING TO CONSTRUCTION, RECONSTRUCTION, HABITABLE STRUCTURES, EROSION CONTROL STRUCTURES OR DEVICES, POOLS, AND BUILDING PERMITS, AND THE EXEMPTIONS, PROVIDE FOR A PETITION TO THE CIRCUIT COURT BY LANDOWNERS AND THE COURT'S DETERMINATION, PROVIDE FOR THE PLANTING OF VEGETATION, REVISE THE REQUIREMENTS FOR THE BEACH MANAGEMENT PLAN AND OF A DISCLOSURE STATEMENT IN A CONTRACT OF SALE OR TRANSFER OF REAL PROPERTY, AND PROVIDE FOR THE CIRCUMSTANCES UNDER WHICH A PERMIT IS NOT REQUIRED AND FOR DOCUMENTATION; TO REPEAL SECTIONS 1 AND 2 OF ACT 634 OF 1988 RELATING TO FINDINGS AND POLICY RELATING TO THE BEACH/DUNE SYSTEM; TO PROVIDE FOR THE PLACEMENT OF SAND ON BEACHES; TO AMEND SECTION 48-39-40, RELATING TO THE MEMBERS OF THE COASTAL COUNCIL, SO AS TO PROVIDE FOR THEIR ELECTION INSTEAD OF APPOINTMENT AND DELETE THE PROVISIONS FOR INITIAL APPOINTMENTS; TO PROVIDE FOR THE SERVICE OF THE CURRENT NONLEGISLATIVE MEMBERS OF THE COUNCIL; AND TO PROVIDE FOR APPLICATION OF THE ACT ON LEGAL ACTIONS.

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

Beach/dune system findings

SECTION 1. The 1976 Code is amended by adding:

"Section 48-39-250. The General Assembly finds that:

(1) The beach/dune system along the coast of South Carolina is extremely important to the people of this State and serves the following functions:

(a) protects life and property by serving as a storm barrier which dissipates wave energy and contributes to shoreline stability in an economical and effective manner;

(b) provides the basis for a tourism industry that generates approximately two-thirds of South Carolina's annual tourism industry revenue which constitutes a significant portion of the state's economy. The tourists who come to the South Carolina coast to enjoy the ocean and dry sand beach contribute significantly to state and local tax revenues;

(c) provides habitat for numerous species of plants and animals, several of which are threatened or endangered. Waters adjacent to the beach/dune system also provide habitat for many other marine species;

(d) provides a natural healthy environment for the citizens of South Carolina to spend leisure time which serves their physical and mental well-being.

(2) Beach/dune system vegetation is unique and extremely important to the vitality and preservation of the system.

(3) Many miles of South Carolina's beaches have been identified as critically eroding.

(4) Chapter 39 of Title 48, Coastal Tidelands and Wetlands, prior to 1988, did not provide adequate jurisdiction to the South Carolina Coastal Council to enable it to effectively protect the integrity of the beach/dune system.

Consequently, without adequate controls, development unwisely has been sited too close to the system. This type of development has jeopardized the stability of the beach/dune system, accelerated erosion, and endangered adjacent property. It is in both the public and private interests to protect the system from this unwise development.

(5) The use of armoring in the form of hard erosion control devices such as seawalls, bulkheads, and rip-rap to protect erosion-threatened structures adjacent to the beach has not proven effective. These armoring devices have given a false sense of security to beachfront property owners. In reality, these hard structures, in many instances, have increased the vulnerability of beachfront property to damage from wind and waves while contributing to the deterioration and loss of the dry sand beach which is so important to the tourism industry.

(6) Erosion is a natural process which becomes a significant problem for man only when structures are erected in close proximity to the beach/dune system. It is in both the public and private interests to afford the beach/dune system space to accrete and erode in its natural cycle. This space can be provided only by discouraging new construction in close proximity to the beach/dune system and encouraging those who have erected structures too close to the system to retreat from it.

(7) Inlet and harbor management practices, including the construction of jetties which have not been designed to accommodate the longshore transport of sand, may deprive downdrift beach/dune systems of their natural sand supply. Dredging practices which include disposal of beach quality sand at sea also may deprive the beach/dune system of much-needed sand.

(8) It is in the state's best interest to protect and to promote increased public access to South Carolina's beaches for out-of-state tourists and South Carolina residents alike.

(9) Present funding for the protection, management, and enhancement of the beach/dune system is inadequate.

(10) There is no coordinated state policy for post-storm emergency management of the beach/dune system.

(11) A long-range comprehensive beach management plan is needed for the entire coast of South Carolina to protect and manage effectively the beach/dune system, thus preventing unwise development and minimizing man's adverse impact on the system.

Section 48-39-260. In recognition of its stewardship responsibilities, the policy of South Carolina is to:

(1) protect, preserve, restore, and enhance the beach/dune system, the highest and best uses of which are declared to provide:

(a) protection of life and property by acting as a buffer from high tides, storm surge, hurricanes, and normal erosion;

(b) a source for the preservation of dry sand beaches which provide recreation and a major source of state and local business revenue;

(c) an environment which harbors natural beauty and enhances the well-being of the citizens of this State and its visitors;

(d) natural habitat for indigenous flora and fauna including endangered species;

(2) create a comprehensive, long-range beach management plan and require local comprehensive beach management plans for the protection, preservation, restoration, and enhancement of the beach/dune system. These plans must promote wise use of the state's beachfront to include a gradual retreat from the system over a forty-year period;

(3) severely restrict the use of hard erosion control devices to armor the beach/dune system and to encourage the replacement of hard erosion control devices with soft technologies as approved by the South Carolina Coastal Council which will provide for the protection of the shoreline without long-term adverse effects;

(4) encourage the use of erosion-inhibiting techniques which do not adversely impact the long-term well-being of the beach/dune system;

(5) promote carefully planned nourishment as a means of beach preservation and restoration where economically feasible;

(6) preserve existing public access and promote the enhancement of public access to assure full enjoyment of the beach by all our citizens including the handicapped and encourage the purchase of lands adjacent to the Atlantic Ocean to enhance public access;

(7) involve local governments in long-range comprehensive planning and management of the beach/dune system in which they have a vested interest;

(8) establish procedures and guidelines for the emergency management of the beach/dune system following a significant storm event."

Beach/dune system policy

SECTION 2. Section 48-39-130(D)(1) and (6) of the 1976 Code, as last amended by Act 634 of 1988, are further amended to read:

"(1) The accomplishment of emergency orders of an appointed official of a county or municipality or of the State, acting to protect the public health and safety, upon notification to the council. However, with regard to the beach/dune critical area, only the use of sandbags, sandscraping, or renourishment, or a combination of them, in accordance with guidelines provided by the council is allowed pursuant to this item.

(6) Emergency repairs to an existing bank, dike, fishing pier, or structure, other than oceanfront erosion control structures or devices, which has been erected in accordance with federal and state laws or provided for by general law or acts passed by the General Assembly, if notice is given in writing to the council within seventy-two hours from the onset of the needed repairs."

Coastal Council permits to utilize a critical area

SECTION 3. Sections 48-39-270 through 48-39-360, as added by Act 634 of 1988, are amended to read:

"Section 48-39-270. As used in this chapter:

(1) Erosion control structures or devices include:

(a) seawall: a special type of retaining wall that is designed specifically to withstand normal wave forces;

(b) bulkhead: a retaining wall designed to retain fill material but not to withstand wave forces on an exposed shoreline;

(c) revetment: a sloping structure built along an escarpment or in front of a bulkhead to protect the shoreline or bulkhead from erosion.

(2) Habitable structure means a structure suitable for human habitation including, but not limited to, single or multifamily residences, hotels, condominium buildings, and buildings for commercial purposes. Each building of a condominium regime is considered a separate habitable structure but, if a building is divided into apartments, then the entire building, not the individual apartment, is considered a single habitable structure. Additionally, a habitable structure includes porches, gazebos, and other attached improvements.

(3) Council means the South Carolina Coastal Council.

(4) Beach nourishment means the artificial establishment and periodic renourishment of a beach with sand that is compatible with the existing beach in a way so as to create a dry sand beach at all stages of the tide.

(5) The beach/dune system includes all land from the mean highwater mark of the Atlantic Ocean landward to the setback line described in Section 48-39-280.

(6) A standard erosion zone is a segment of shoreline which is subject to essentially the same set of coastal processes, has a fairly constant range of profiles and sediment characteristics, and is not influenced directly by tidal inlets or associated inlet shoals.

(7) An inlet erosion zone is a segment of shoreline along or adjacent to tidal inlets which is influenced directly by the inlet and its associated shoals.

(8) Master plan means a document or a map prepared by a developer or a city as a policy guide to decisions about the physical development of the project or community.

(9) Planned development means a development plan which has received local approval for a specified number of dwelling and other units. The siting and size of structures and amenities are specified or restricted within the approval. This term specifically references multifamily or commercial projects not otherwise referenced by the terms, master plan, or planned unit development.

(10) Planned unit development means a residential, commercial, or industrial development, or all three, designed as a unit and approved by local government.

(11) Destroyed beyond repair means that more than sixty-six and two-thirds percent of the replacement value of the habitable structure or pool has been destroyed. If the owner disagrees with the appraisal of the council, he may obtain an appraisal to evaluate the damage to the building or pool. If the appraisals differ, then the two appraisers must select a third appraiser. If the two appraisers are unable to select a third appraiser, the clerk of court of the county where the structure lies must make the selection. Nothing in this section prevents a court of competent jurisdiction from reviewing, de novo, the appraisal upon the petition of the property owner.

(12) Pool is a structure designed and used for swimming and wading.

(13) Active beach is that area seaward of the escarpment or the first line of stable natural vegetation, whichever first occurs, measured from the ocean.

Section 48-39-280. (A) A forty-year policy of retreat from the shoreline is established. The council must implement this policy and must utilize the best available scientific and historical data in the implementation. The council must establish a baseline which parallels the shoreline for each standard erosion zone and each inlet erosion zone.

(1) The baseline for each standard erosion zone is established at the location of the crest of the primary oceanfront sand dune in that zone. In standard erosion zones in which the shoreline has been altered naturally or artificially by the construction of erosion control devices, groins, or other manmade alterations, the baseline must be established by the council using the best scientific and historical data, as where the crest of the primary oceanfront sand dunes for that zone would be located if the shoreline had not been altered.

(2) The baseline for inlet erosion zones that are not stabilized by jetties, terminal groins, or other structures must be determined by the council as the most landward point of erosion at any time during the past forty years, unless the best available scientific and historical data of the inlet and adjacent beaches indicate that the shoreline is unlikely to return to its former position. In collecting and utilizing the best scientific and historical data available for the implementation of the retreat policy, the council, as part of the State Comprehensive Beach Management Plan provided for in this chapter, among other factors, must consider: historical inlet migration, inlet stability, channel and ebb tidal delta changes, the effects of sediment bypassing on shorelines adjacent to the inlets, and the effects of nearby beach restoration projects on inlet sediment budgets.

(3) The baseline within inlet erosion zones that are stabilized by jetties, terminal groins, or other structures must be determined in the same manner as provided for in item (1). However, the actual location of the crest of the primary oceanfront sand dunes of that erosion zone is the baseline of that zone, not the location if the inlet had remained unstabilized.

(4) Notwithstanding any other provision of this section, where a council-approved beach nourishment project has been completed, the local government or the landowners, with notice to the local government, may petition the council to move the baseline as far seaward as the landward edge of the erosion control structure or device or, if there is no existing erosion control structure or device, then as far seaward as the post project baseline as determined by the council in accordance with Section 48-39-280(A)(1) by showing that the beach has been stabilized by council-approved beach nourishment.

If the petitioner is asking that the baseline be moved seaward pursuant to this section, he must show an ongoing commitment to renourishment which will stabilize and maintain the dry sand beach at all stages of the tide for the foreseeable future.

If the council grants the petition to move the baseline seaward pursuant to this section, no new construction may occur in the area between the former baseline and the new baseline for three years after the initial beach nourishment project has been completed as determined by the council.

If the beach nourishment fails to stabilize the beach after a reasonable period of time, the council must move the baseline landward to the primary oceanfront sand dune as determined pursuant to items (1), (2), and (3) for that section of the beach.

(B) To implement the retreat policy provided for in subsection (A), a setback line must be established landward of the baseline a distance which is forty times the average annual erosion rate or not less than twenty feet from the baseline for each erosion zone based upon the best historical and scientific data adopted by the council as a part of the State Comprehensive Beach Management Plan.

(C) The council, before July 3, 1991, must establish a final baseline and setback line for each erosion zone based on the best available scientific and historical data as provided in subsection (B) and with consideration of public input. The baseline and setback line must not be revised before July 1, 1998, nor later than July 1, 2000. After that revision, the baseline and setback line must be revised not less than every eight years but not more than every ten years after each preceding revision. In the establishment and revision of the baseline and setback line, the council must transmit and otherwise make readily available to the public all information upon which its decisions are based for the establishment of the final baseline and setback line. The council must hold one public hearing before establishing the final baseline and setback lines. Until the council establishes new baselines and setback lines, the existing baselines and setback lines must be used. The council may stagger the revision of the baselines and setback lines of the erosion zones so long as every zone is revised in accordance with the time guidelines established in this section.

(D) In order to locate the baseline and the setback line, the council must establish monumented and controlled survey points in each county fronting the Atlantic Ocean. The council must acquire sufficient surveyed topographical information on which to locate the baseline. Surveyed topographical data typically must be gathered at two thousand foot intervals. However, in areas subject to significant near-term development and in areas currently developed, the interval, at the discretion of the council, may be more frequent. The resulting surveys must locate the crest of the primary oceanfront sand dunes to be used as the baseline for computing the forty-year erosion rate. In cases where no primary oceanfront sand dunes exist, a study conducted by the council is required to determine where the upland location of the crest of the primary oceanfront sand dune would be located if the shoreline had not been altered. The council, by regulation, may exempt specifically described portions of the coastline from the survey requirements of this section when, in its judgment, the portions of coastline are not subject to erosion or are not likely to be developed by virtue of local, state, or federal programs in effect on the coastline which would preclude significant development, or both.

(E) A landowner claiming ownership of property affected who feels that the final or revised setback line, baseline, or erosion rate as adopted is in error, upon submittal of substantiating evidence, must be granted a review of the setback line, baseline, or erosion rate, or a review of all three. The requests must be forwarded to the appropriate committee of the council and handled in accordance with the council's regulations on appeals.

Section 48-39-290. (A) No new construction or reconstruction is allowed seaward of the baseline except:

(1) wooden walkways no larger in width than six feet;

(2) small wooden decks no larger than one hundred forty-four square feet;

(3) fishing piers which are open to the public. Those fishing piers with their associated structures including, but not limited to, baitshops, restrooms, restaurants, and arcades which existed September 21, 1989, may be rebuilt if they are constructed to the same dimensions and utilized for the same purposes and remain open to the public. In addition, those fishing piers with their associated structures which existed on September 21, 1989, that were privately owned, privately maintained, and not open to the public on this date also may be rebuilt and used for the same purposes if they are constructed to the same dimensions;

(4) golf courses;

(5) normal landscaping;

(6) structures specifically permitted by special permit as provided in subsection (D);

(7) pools may be reconstructed if they are landward of an existing, functional erosion control structure or device.

A permit must be obtained from the council for items (2) through (7).

(B) Construction, reconstruction, or alterations between the baseline and the setback line are governed as follows:

(1) Habitable structures:

(a) New habitable structures: If part of a new habitable structure is constructed seaward of the setback line, the owner must certify in writing to the council that the construction meets the following requirements:

(i) The habitable structure is no larger than five thousand square feet of heated space. The structure must be located as far landward on the property as practicable. A drawing must be submitted to the council showing a footprint of the structure on the property, a cross section of the structure, and the structure's relation to property lines and setback lines which may be in effect. No erosion control structure or device may be incorporated as an integral part of a habitable structure constructed pursuant to this section.

(ii) No part of the building is being constructed on the primary oceanfront sand dune or seaward of the baseline.

(b) Habitable structures which existed on the effective date of Act 634 of 1988 or constructed pursuant to this section:

(i) Normal maintenance and repair of habitable structures is allowed without notice to the council.

(ii) Additions to habitable structures are allowed if the additions together with the existing structure do not exceed five thousand square feet of heated space. Additions to habitable structures must comply with the conditions of new habitable structures as set forth in subitem (a).

(iii) Repair or renovation of habitable structures damaged, but not destroyed beyond repair, due to natural or manmade causes is allowed.

(iv) Replacement of habitable structures destroyed beyond repair due to natural causes is allowed after notification is provided by the owner to the council that all of the following requirements are met:

a. The total square footage of the replaced structure seaward of the setback line does not exceed the total square footage of the original structure seaward of the setback line. The linear footage of the replaced structure parallel to the coast does not exceed the original linear footage parallel to the coast.

b. The replaced structure is no farther seaward than the original structure.

c. Where possible, the replaced structure is moved landward of the setback line or, if not possible, then as far landward as is practicable, considering local zoning and parking regulations.

d. The reconstruction is not seaward of the baseline unless permitted elsewhere in Sections 48-39-250 through 48-39-360.

(v) Replacement of habitable structures destroyed beyond repair due to manmade causes is allowed provided the rebuilt structure is no larger than the original structure it replaces and is constructed as far landward as possible, but the new structure must not be farther seaward than the original structure.

(2) Erosion control devices:

(a) No new erosion control structures or devices are allowed seaward of the setback line except to protect a public highway which existed on the effective date of this act.

(b) Erosion control structures or devices which existed on the effective date of this act must not be repaired or replaced if destroyed:

(i) more than eighty percent above grade through June 30, 1995;

(ii) more than sixty-six and two-thirds percent above grade from July 1, 1995, through June 30, 2005;

(iii) more than fifty percent above grade after June 30, 2005.

(iv) Damage to seawalls and bulkheads must be judged on the percent of the structure remaining intact at the time of damage assessment. The portion of the structure or device above grade parallel to the shoreline must be evaluated. The length of the structure or device parallel to the shoreline still intact must be compared to the length of the structure or device parallel to the shoreline which has been destroyed. The length of the structure or device parallel to the shoreline determined to be destroyed divided by the total length of the original structure or device parallel to the shoreline yields the percent destroyed. Those portions of the structure or device standing, cracked or broken piles, whalers, and panels must be assessed on an individual basis to ascertain if these components are repairable or if replacement is required. Revetments must be judged on the extent of displacement of stone, effort required to return these stones to the prestorm event configuration of the structure or device, and ability of the revetment to retain backfill material at the time of damage assessment. If the property owner disagrees with the assessment of a registered professional engineer acting on behalf of the council, he may obtain an assessment by a registered professional engineer to evaluate, as set forth in this item, the damage to the structure or device. If the two assessments differ, then the two engineers who performed the assessments must select a registered professional engineer to perform the third assessment. If the first two engineers are unable to select an engineer to perform the third assessment, the clerk of court of the county where the structure or device lies must make the selection of a registered professional engineer. The determination of percentage of damage by the third engineer is conclusive.

(v) The determination of the degree of destruction must be made on a lot by lot basis by reference to county tax maps.

(vi) Erosion control structures or devices must not be enlarged, strengthened, or rebuilt but may be maintained in their present condition if not destroyed more than the percentage allowed in Section 48-39-290(B)(2)(b)(i), (ii), and (iii). Repairs must be made with materials similar to those of the structure or device being repaired.

(c) Erosion control structures or devices determined to be destroyed more than the percentage allowed in Section 48-39-290(B)(2)(b)(i), (ii), and (iii) must be removed at the owner's expense. Nothing in this section requires the removal of an erosion control structure or a device protecting a public highway which existed on the effective date of Act 634 of 1988.

(d) The provisions of this section do not affect or modify the provisions of Section 48-39-120(C).

(3) Pools, as defined in Section 48-39-270(12):

(a) No new pools may be constructed seaward of the setback line unless the pool is built landward of an erosion control structure or device which was in existence or permitted on the effective date of this act and is built as far landward as practical.

(b) Normal maintenance and repair is allowed without notice to the council.

(c) If a pool, existing on July 1, 1988, is destroyed beyond repair, as determined by the council pursuant to Section 48-39-270(11), it may be replaced if the owner certifies in writing to the council that:

(i) It is moved as far landward as practical. This determination of practicality must include the consideration of local zoning requirements.

(ii) It is rebuilt no larger than the destroyed pool.

(iii) It is constructed according to acceptable standards of pool construction and cannot be reinforced in a manner so as to act as an erosion control structure or device.

(d) If a pool is not destroyed beyond repair as determined by the council pursuant to Section 48-39-270(11) but the owner wishes to replace it, the owner may do so if:

(i) The dimensions of the pool are not enlarged.

(ii) The construction conforms to sub-subitem (iii) of subitem (c).

(4) All other construction or alteration between the baseline and the setback line requires a council permit. However, the council, in its discretion, may issue general permits for construction or alterations where issuance of the general permits would advance the implementation and accomplishment of the goals and purposes of Sections 48-39-250 through 48-39-360.

(C) (1) Notwithstanding the provisions relating to new construction, a person, partnership, or corporation owning real property that is affected by the setback line as established in Section 48-39-280 may proceed with construction pursuant to a valid building permit issued as of the effective date of this section. The person, partnership, or corporation may proceed with the construction of buildings and other elements of a master plan, planned development, or planned unit development notwithstanding the setback line established in this chapter if the person, partnership, or corporation legally has begun a use as evidenced by at least one of the following:

(a) All building permits have been applied for or issued by a local government before July 1, 1988.

(b) There is a master plan, planned development, or planned unit development:

(i) that has been approved in writing by a local government before July 1, 1988; or

(ii) where work has begun pursuant to approval as evidenced by the completion of the utility and infrastructure installation designed to service the real property that is subject to the setback line and included in the approved master plan, planned development, or planned unit development.

(2) However, repairs performed on a habitable structure built pursuant to this section are subject to the guidelines for repairs as set forth in this section.

(3) Nothing in this section prohibits the construction of fishing piers or structures which enhance beach access seaward of the baseline, if permitted by the council.

(D) Special permits:

(1) If an applicant requests a permit to build or rebuild a structure other than an erosion control structure or device seaward of the baseline that is not allowed otherwise pursuant to Sections 48-39-250 through 48-39-360, the council may issue a special permit to the applicant authorizing the construction or reconstruction if the structure is not constructed or reconstructed on a primary oceanfront sand dune or on the active beach and, if the beach erodes to the extent the permitted structure becomes situated on the active beach, the permittee agrees to remove the structure from the active beach if the council orders the removal. However, the use of the property authorized under this provision, in the determination of the council, must not be detrimental to the public health, safety, or welfare.

(2) The council's Permitting Committee is the committee to consider applications for special permits.

(3) In granting a special permit, the committee may impose reasonable additional conditions and safeguards as, in its judgment, will fulfill the purposes of Sections 48-39-250 through 48-39-360.

(4) A party aggrieved by the committee's decision to grant or deny a special permit application may appeal to the full council pursuant to Section 48-39-150(D).

(E) The provisions of this section and Section 48-39-280 do not apply to an area in which the erosion of the beaches located in its jurisdiction is attributed to a federally authorized navigation project as documented by the findings of a Section 111 Study conducted under the authority of the federal Rivers and Harbors Act of 1968, as amended by the federal Water Resources Development Act of 1986, and approved by the United States Army Corps of Engineers. Nothing contained in this subsection makes this area ineligible for beach renourishment funds.

The baseline determined by the local governing body and the council is the line of erosion control devices and structures and the council retains its jurisdiction seaward of the baseline. In addition, upon completion of a council approved beach renourishment project, including the completion of a sand transfer system if necessary for long-term stabilization, an area under a Section 111 Study becomes subject to all the provisions of this chapter.

For the purposes of this section, a beach nourishment project stabilizing the beach exists if a successful restoration project is completed consisting of at least one hundred fifty cubic yards a foot over a length of five and one-half miles, with a project design capable of withstanding a one-in-ten-year storm, as determined by council, and renourishment is conducted annually at a rate, agreed upon by the council and local governing body, equivalent to that which would occur naturally if the navigation project causing the erosion did not exist. If the two parties cannot agree, then the council must obtain the opinion of an independent third party.

Any habitable structure located in an area in which the erosion of the beaches located in its jurisdiction is attributed to a federally authorized navigation project as documented by the findings of a Section 111 Study, which was in existence on September 21, 1989, and was over forty years old on that date and is designated by the local governing body as an historical landmark may be rebuilt seaward of the baseline if it is rebuilt to the exact specifications, dimensions, and exterior appearance of the structure as it existed on that date.

Section 48-39-300. A local governing body, if it notifies the council before July 1, 1990, may exempt from the provisions of Section 48-39-290, relating to reconstruction and removal of erosion control devices, the shorelines fronting the Atlantic Ocean under its jurisdiction where coastal erosion has been shown to be attributed to a federally authorized navigation project as documented by the findings of a Section 111 Study conducted under the authority of the Rivers and Harbors Act of 1968, as amended by the Water Resources Development Act of 1986 and approved by the United States Army Corps of Engineers. Erosion control devices exempt under this section must not be constructed seaward of their existing location, increased in dimension, or rebuilt out of materials different from that of the original structure.

Section 48-39-305. (A) A person having a recorded interest or interest by operation of law in or having registered claim to land seaward of the baseline or setback line which is affected by the prohibition of construction or reconstruction may petition the circuit court to determine whether the petitioner is the owner of the land or has an interest in it. If he is adjudged the owner of the land or to have an interest in it, the court shall determine whether the prohibition so restricts the use of the property as to deprive the owner of the practical uses of it and is an unreasonable exercise of police power and constitutes a taking without compensation. The burden of proof is on the petitioner as to ownership, and the burden of proof is on the State to prove that the prohibition is not an unreasonable exercise of police power.

(B) The method provided in this section for the determination of the issue of whether the prohibition constitutes a taking without compensation is the exclusive judicial determination of the issue, and it must not be determined in another judicial proceeding. The court shall enter a judgment in accordance with the issues. If the judgment is in favor of the petitioner, the order must require the State either to issue the necessary permits for construction or reconstruction of a structure, order that the prohibition does not apply to the property, or provide reasonable compensation for the loss of the use of the land or the payment of costs and reasonable attorney's fees, or both. Either party may appeal the court's decision.

Section 48-39-310. The destruction of beach or dune vegetation seaward of the setback line is prohibited unless there is no feasible alternative. When there is destruction of vegetation permitted seaward of the setback line, mitigation, in the form of planting of new vegetation where possible, for the destruction is required as part of the permit conditions.

Section 48-39-320. (A) The council's responsibilities include the creation of a long-range and comprehensive beach management plan for the Atlantic Ocean shoreline in South Carolina. The plan must include all of the following:

(1) development of the data base for the state's coastal areas to provide essential information necessary to make informed and scientifically based decisions concerning the maintenance or enhancement of the beach/dune system;

(2) development of guidelines and their coordination with appropriate agencies and local governments for the accomplishment of:

(a) beach/dune restoration and nourishment, including the projected impact on coastal erosion rates, cost/benefit of the project, impact on flora and fauna, and funding alternatives;

(b) development of a beach access program to preserve the existing public access and enhance public access to assure full enjoyment of the beach by all residents of this State;

(c) maintenance of a dry sand and ecologically stable beach;

(d) protection of all sand dunes seaward of the setback line;

(e) protection of endangered species, threatened species, and important habitats such as nesting grounds;

(f) regulation of vehicular traffic upon the beaches and the beach/dune system which includes the prohibition of vehicles upon public beaches for nonessential uses;

(g) development of a mitigation policy for construction allowed seaward of the setback line, which must include public access ways, nourishment, vegetation, and other appropriate means;

(3) formulation of recommendations for funding programs which may achieve the goals set forth in the State Comprehensive Beach Management Plan;

(4) development of a program on public education and awareness of the importance of the beach/dune system, the project to be coordinated with the South Carolina Educational Television Network and Department of Parks, Recreation and Tourism;

(5) assistance to local governments in developing the local comprehensive beach management plans.

(B) The plan provided for in this section is to be used for planning purposes only and must not be used by the council to exercise regulatory authority not otherwise granted in this chapter, unless the plan is created and adopted pursuant to Chapter 23 of Title 1.

Section 48-39-330. Thirty days after the initial adoption by the council of setback lines, a contract of sale or transfer of real property located in whole or in part seaward of the setback line or the jurisdictional line must contain a disclosure statement that the property is or may be affected by the setback line, baseline, and the seaward corners of all habitable structures referenced to the South Carolina State Plane Coordinate System (N.A.D.-1983) and include the local erosion rate most recently made available by the council for that particular standard zone or inlet zone as applicable. Language reasonably calculated to call attention to the existence of baselines, setback lines, jurisdiction lines, and the seaward corners of all habitable structures and the erosion rate complies with this section.

The provisions of this section are regulatory in nature and do not affect the legality of an instrument violating the provisions.

Section 48-39-340. Funding for local governments to provide for beachfront management must be distributed in a fair and equitable manner. Consideration must be given to the size of the locality, the need for beach management in the area, the cost/benefits of expenditures in that area, and the best interest of the beach/dune system of the State as established by priority by the council.

Section 48-39-350. (A) The local governments must prepare by July 1, 1991, in coordination with the council, a local comprehensive beach management plan which must be submitted for approval to the council. The local comprehensive beach management plan, at a minimum, must contain all of the following:

(1) an inventory of beach profile data and historic erosion rate data provided by the council for each standard erosion zone and inlet erosion zone under the local jurisdiction;

(2) an inventory of public beach access and attendant parking along with a plan for enhancing public access and parking;

(3) an inventory of all structures located in the area seaward of the setback line;

(4) an inventory of turtle nesting and important habitats of the beach/dune system and a protection and restoration plan if necessary;

(5) a conventional zoning and land use plan consistent with the purposes of this chapter for the area seaward of the setback line;

(6) an analysis of beach erosion control alternatives, including renourishment for the beach under the local government's jurisdiction;

(7) a drainage plan for the area seaward of the setback zone;

(8) a post disaster plan including plans for cleanup, maintaining essential services, protecting public health, emergency building ordinances, and the establishment of priorities, all of which must be consistent with this chapter;

(9) a detailed strategy for achieving the goals of this chapter by the end of the forty-year retreat period. Consideration must be given to relocating buildings, removal of erosion control structures, and relocation of utilities;

(10) a detailed strategy for achieving the goals of preservation of existing public access and the enhancement of public access to assure full enjoyment of the beach by all residents of this State.

The plan must be updated at least every five years in coordination with the council following its approval. The local governments and the council must implement the plan by July 1, 1992.

(B) Notwithstanding the provisions of Section 48-39-340, if a local government fails to act in a timely manner to establish and enforce a local coastal beach management plan, the council must impose and implement the plan or the State Comprehensive Beach Management Plan for the local government. If a local government fails to establish and enforce a local coastal beach management plan, the government automatically loses its eligibility to receive available state-generated or shared revenues designated for beach/dune system protection, preservation, restoration, or enhancement, except as directly applied by the council in its administrative capacities.

Section 48-39-355. A permit is not required for an activity specifically authorized in this chapter. However, the council may require documentation before the activity begins from a person wishing to undertake an authorized construction or reconstruction activity. The documentation must provide that the construction or reconstruction is in compliance with the terms of the exemptions or exceptions provided in Sections 48-39-280 through 48-39-360.

Section 48-39-360. The provisions of Sections 48-39-250 through 48-39-355 do not apply to an area which is at least one-half mile inland from the mouth of an inlet."

Beach Management Act revised

SECTION 4. Sections 1 and 2 of Act 634 of 1988 are repealed.

Placement of sand on beaches

SECTION 5. The General Assembly hereby recognizes the need for maintaining navigation inlets to promote commercial and recreational uses of our coastal waters and their resources. The General Assembly further recognizes that inlets alter the natural drift of beach-quality sand resources, which often results in these sand resources being deposited around shallow outer-bar areas instead of providing natural nourishment to the downdrift beaches. Therefore, it is the intent of the General Assembly that:

(1) All construction and maintenance dredgings of beach-quality sand be placed on the downdrift beaches or, if placed elsewhere, an equivalent quality and quantity of sand from an alternate location be placed on the downdrift beaches at no cost to the State and at a location acceptable to the South Carolina Coastal Council.

(2) On an average annual basis, a quantity of sand be placed on the downdrift beaches equal to the natural net annual longshore sediment transport at no cost to the State. The placement location and quantities based on natural net annual longshore transport be established by the council and the sand quality be acceptable to the council.

(3) The council may promulgate regulations necessary to implement the provisions of this section."

Election of Coastal Council members

SECTION 6. Section 48-39-40 of the 1976 Code is amended to read:

"Section 48-39-40. (A) There is created the South Carolina Coastal Council which consists of eighteen members as follows: eight members, one from each coastal zone county, to be elected by a majority vote of the members of the House of Representatives and a majority vote of the Senate members representing the county from three nominees submitted by the governing body of each coastal zone county, each House or Senate member to have one vote; six members, one from each of the congressional districts of the State, to be elected by a majority vote of the members of the House of Representatives and the Senate representing the counties in that district, each House or Senate member to have one vote; and the following legislative members who serve ex officio: two state senators, one to be appointed by the President of the Senate and one to be elected by the Senate Fish, Game and Forestry Committee; and two members of the House of Representatives to be appointed by the Speaker of the House. The council shall elect a chairman, vice-chairman, and other officers it considers necessary.

(B) Terms of legislative members are coterminous with their terms as members of the General Assembly. Terms of all nonlegislative members are for four years and until successors are appointed and qualify. Members from congressional districts serve terms of two years only as determined by lot at the first meeting of the council. Vacancies must be filled in the original manner of selection for the remainder of the unexpired term."

Current nonlegislative Coastal Council members

SECTION 7. The current nonlegislative members of the South Carolina Coastal Council representing the eight coastal zone counties serve until their present terms of office expire at which time their successors elected in the manner provided in Section 48-39-40 of the 1976 Code, as amended by this act, take office.

Application on legal actions

SECTION 8. Except as otherwise specifically provided in this act, the provisions of this act shall be applied only prospectively and shall not affect any legal action commenced or any cause of action accruing as a result of an event or events which occurred before the effective date of this act. Any such action must be governed by the provisions of Sections 48-39-10 through 48-39-360, as amended by Act 634 of 1988, and in existence before the effective date of this act.

Time effective

SECTION 9. This act takes effect upon approval by the Governor.

Approved the 25th day of June, 1990.