2003-2004 Bill 4934: SC Isolated Wetlands Act of 2004 - South Carolina Legislature Online

South Carolina General Assembly
115th Session, 2003-2004

Download This Bill in Microsoft Word format

~~Indicates Matter Stricken~~
Indicates New Matter

H. 4934

STATUS INFORMATION

General Bill
Sponsors: Reps. Witherspoon, Clemmons, Loftis, Edge, Rhoad, Viers, Barfield, Lee, Snow, Duncan, Koon, Frye, Altman, Battle, R. Brown, Chellis, Coates, Davenport, Freeman, Hamilton, Harvin, Haskins, Hosey, Leach, McCraw, Miller, Phillips, Quinn, Sinclair, F.N. Smith, G.R. Smith, J.R. Smith, Stewart, Stille, Townsend, Tripp, Vaughn and Young
Document Path: l:\council\bills\gjk\20964sd04.doc

Introduced in the House on March 11, 2004
Introduced in the Senate on April 29, 2004
Last Amended on April 27, 2004
Currently residing in the Senate

Summary: SC Isolated Wetlands Act of 2004

HISTORY OF LEGISLATIVE ACTIONS

     Date      Body   Action Description with journal page number
-------------------------------------------------------------------------------
   3/11/2004  House   Introduced and read first time HJ-6
   3/11/2004  House   Referred to Committee on Agriculture, Natural Resources 
                        and Environmental Affairs HJ-7
   4/15/2004  House   Committee report: Favorable with amendment Agriculture, 
                        Natural Resources and Environmental Affairs HJ-2
   4/19/2004          Scrivener's error corrected
   4/21/2004  House   Requests for debate-Rep(s). Witherspoon, Loftis, Hagood, 
                        Emory, McLeod, Gourdine, Scarborough, Owens, Tripp, 
                        Perry, Cato, Vaughn, Hamilton, FN Smith, Allen, 
                        Coates, and Moody-Lawrence HJ-51
   4/27/2004  House   Amended HJ-98
   4/27/2004  House   Debate interrupted HJ-153
   4/28/2004  House   Read second time HJ-131
   4/28/2004  House   Roll call Yeas-59  Nays-42 HJ-134
   4/29/2004  House   Read third time and sent to Senate HJ-29
   4/29/2004  Senate  Introduced and read first time SJ-10
   4/29/2004  Senate  Referred to Committee on Agriculture and Natural 
                        Resources SJ-10
   5/25/2004  Senate  Committee report: Majority favorable with amend., 
                        minority unfavorable Agriculture and Natural Resources 
                        SJ-17
   5/26/2004          Scrivener's error corrected

View the latest legislative information at the LPITS web site

VERSIONS OF THIS BILL

3/11/2004
4/15/2004
4/19/2004
4/27/2004
4/28/2004
5/25/2004
5/26/2004

(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

~~Indicates Matter Stricken~~

Indicates New Matter

COMMITTEE REPORT

May 25, 2004

H. 4934

Introduced by Reps. Witherspoon, Clemmons, Loftis, Edge, Rhoad, Viers, Barfield, Lee, Snow, Duncan, Koon, Frye, Altman, Battle, R. Brown, Chellis, Coates, Davenport, Freeman, Hamilton, Harvin, Haskins, Hosey, Leach, McCraw, Miller, Phillips, Quinn, Sinclair, F.N. Smith, G.R. Smith, J.R. Smith, Stewart, Stille, Townsend, Tripp, Vaughn and Young

S. Printed 5/25/04--S. [SEC 5/26/04 2:16 PM]

Read the first time April 29, 2004.

THE COMMITTEE ON

AGRICULTURE AND NATURAL RESOURCES

To whom was referred a Bill (H. 4934) to amend Title 48, Code of Laws of South Carolina, 1976, relating to environmental protection and conservation, by adding Chapter 38 so as to enact the "South Carolina Isolated Wetlands Act of 2004", etc., respectfully

REPORT:

That they have duly and carefully considered the same and recommend that the same do pass with amendment:

Amend the bill, as and if amended, by deleting all after the enacting words and inserting:

/SECTION 1. (A) The General Assembly finds that:

(1) isolated wetlands serve important environmental functions such as providing habitat for wildlife, protecting water quality, and providing flood control;

(2) isolated wetlands offer important economic and recreational benefits, such as hunting, fishing, bird watching, and tourism;

(3) isolated wetlands in South Carolina are at risk of degradation, resulting in the need for an effective program to limit the degradation of isolated wetlands and to provide, where and when appropriate, for long-term restoration and enhancement of isolated wetlands in South Carolina that have degraded or have been lost in the past;

(4) changes in federal, state, and local policies have significantly decreased the rate of isolated wetland losses in recent years;

(5) recent interpretations by the court regarding the scope and reach of the federal Clean Water Act may limit the federal government's role in regulating impacts on isolated wetlands;

(6) the State of South Carolina will implement an effective, balanced, statewide program to manage activities in and around isolated wetlands that:

(a) conserves and enhances environmentally significant wetland functions;

(b) requires mitigation to compensate for isolated wetland disturbances;

(c) recognizes the need for essential public infrastructure, such as highways, utilities, ports, airports, sewer systems, and public water supply systems, and the need to preserve strong local tax bases; and

(d) provides for sustained economic growth.

(B) It is the policy of the State of South Carolina to:

(1) enact a permitting program for activities in isolated wetlands under this act that balances isolated wetland protection with economic growth;

(2) conserve isolated wetlands without significant adverse impacts on the state, regional, and local economy, including significant reductions in state and local tax receipts;

(3) encourage the conservation and restoration of wetland functions where appropriate;

(4) implement the regulatory program authorized under this act to ensure that landowners are not denied the use of their property;

(5) streamline the permitting process for minimal impact projects in isolated wetlands;

(6) achieve the goal of no net loss of isolated wetlands when measured in terms of functions provided by the isolated wetlands on a statewide basis;

(7) waive permitting under this act for disturbances of small isolated wetlands;

(8) ensure an efficient and cost-effective isolated wetland regulatory program; and

(9) minimize regulatory gridlock by designating one state agency to implement the regulatory program for wetlands determined to be isolated by the federal government.

SECTION 2. Title 48 of the 1976 Code is amended by adding:

"CHAPTER 38

Isolated Wetlands

Section 48-38-10. This chapter is known and may be cited as the 'South Carolina Isolated Wetlands Act of 2004'.

Section 48-38-20. For purposes of this chapter, the following definitions shall apply:

(1) 'Abandoned' means no construction, mining, processing, or reclamation activities have occurred during the previous ten years.

(2) 'Activities' means the discharge of dredged or fill material into waters as defined in Section 48-1-10(2).

(3) 'Discharge of dredged or fill material' means the addition of dredged or fill material into isolated wetlands that would have the effect of significantly degrading the wetlands. 'Discharge of dredged or fill material' does not include the excavation of wetlands or any fill associated with the excavation including, but not limited to, temporary stockpiling of excavated material within the wetlands.

(4) 'cropland' means agricultural land that is:

(a) manipulated, by drainage or other physical alteration to remove excess water from the land; or

(b) used for the production of any annual or perennial agricultural crop including forage or hay, aquaculture product, nursery product, wetland crop, or livestock.

(5) 'Temporary' means with respect to an impact on isolated wetlands, the disturbance or alteration caused by an activity under a circumstance in which, not later than three years after the commencement of the discharge, the isolated wetlands:

(a) return to the general condition in existence prior to the commencement of the activity; or

(b) display a condition sufficient to ensure that without further human action, the isolated wetlands are likely to return to the general condition in existence prior to the commencement of the activity in five years after the disturbance or alteration or be remediated by the applicant in accordance with a contingency plan for restoration.

(6) 'Department' means the South Carolina Department of Health and Environmental Control and all of its subdivisions.

(7) 'Board' means the board of the department.

(8) 'Isolated wetlands' means those areas that are inundated or saturated by water at a frequency or duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions and that are not regulated under the federal Clean Water Act.

The term 'isolated wetland' does not include:

(i) waste treatment systems, including treatment ponds or lagoons, designed to comply with water quality standards of the State;

(ii) stormwater management facilities, a drainage, or irrigation ditch located in upland;

(iii) an artificially irrigated area that would revert to upland if the irrigation ceased;

(iv) a waterfilled depression created incidental to construction activity, or to excavation activity for the purpose of obtaining fill, sand, gravel, aggregates, or minerals;

(v) cropland;

(vi) depressions in soil resulting from traffic from vehicles and human activity.

(9) 'Visible surface water connection' means a connection via:

(a) contiguous wetlands; or

(b) perennial or intermittent streams.

(10) 'Feasible' means available and capable of being accomplished after taking into consideration cost, existing technology, and logistics in light of the overall project purposes.

(11) 'Mitigation' or 'mitigation project' means the restoration, enhancement, or creation of wetlands to compensate for impacts to other isolated wetlands. 'Mitigation project' includes using credits from a wetlands mitigation bank.

(12) 'Mitigation bank' means a site where wetlands are restored, created, or preserved expressly for the purpose of providing mitigation credits for compliance with mitigation requirements of an approved permit in accordance with the provisions of this chapter.

(13) 'Carolina bay' means a shallow, poorly drained, elliptical depression usually found in the Coastal Plain. They typically have a general north-west to south-east orientation of the long axis and are bounded by a low sandy rim.

Section 48-38-30. The classification of an isolated wetland must be based on the determination of the appropriate federal agency. Wetlands that are not regulated under the federal Clean Water Act and that meet the definition of an isolated wetland in this chapter must be classified as an isolated wetland. Wetlands under federal jurisdiction may not be under the jurisdiction of the department for purposes of this chapter.

Section 48-38-40. (A) A delineation approved by a federal agency under Section 404 of the federal Clean Water Act are binding for the purposes of this chapter absent the showing of fraud, bad faith, or negligent misrepresentation by the applicant or agent procuring the delineation.

(B) A delineation approved by this section is binding absent a showing of fraud, bad faith, or negligent misrepresentation.

Section 48-38-50. (A) The department, after notice and opportunity to affected parties for comment, may issue permits for the activities in isolated wetlands regulated under this chapter. The department shall prescribe the form of the application for a permit under this chapter. For purposes of implementing this chapter, a request to modify a permit shall be deemed an application for permit.

(B) Within ten calendar days after the receipt of an application for an individual permit, the department shall notify the applicant if the application is complete. If the application is not complete, the department shall include in the notice an itemized list of the information or materials that are necessary to complete the application. If the applicant fails to provide information or materials that are necessary to complete the application within sixty days after the department's receipt of the application, the department may return the incomplete application to the applicant and take no further action on the application.

(C) Except as provided in this section, the department shall provide public notice of the receipt of a complete application for an individual permit. The department shall accept comments for thirty days concerning the application. The department shall accept requests for a public hearing from affected parties concerning the application for not more than twenty days following the publication of notice concerning the application. If twenty or more affected parties request a public hearing in writing, and if deemed necessary, the department may hold a public hearing on an application. When applicable, joint public hearings must be held with federal or other agencies.

(D) The department shall provide an explanation to an applicant for an individual permit of the basis for a proposed denial of an application.

(E) If no action has been taken by the department on an application for a permit after one hundred twenty days following submission of the completed application, the permit must be deemed to be issued unless the applicant agrees in writing to an extension.

(F) The department shall make a good faith determination of completeness of any application made. The department may not deny a permit without review and a basis for denial.

Section 48-38-60. (A)(1) The department shall determine whether to issue a permit for an activity in isolated wetlands larger than one contiguous acre classified under Section 48-38-30 based on a sequential analysis that seeks, to the maximum extent practical, to:

(a) avoid adverse impact on the isolated wetlands;

(b) minimize the adverse impact on isolated wetland functions that cannot be avoided; and

(c) compensate for any loss of wetland functions that may not be avoided or minimized at the rate of five credits per acre impacted by regulated activities;

(2) the department shall consider as relevant factors:

(a) the costs of mitigation requirements and the social, recreational, and economic benefits associated with the proposed activity, including local, regional, or national needs for improved or expanded infrastructure, minerals, energy, food production, housing, or recreation;

(b) the ability of the permittee to mitigate isolated wetland loss or degradation as measured by isolated wetland functions;

(c) the environmental benefit, measured by isolated wetland functions, that may occur through mitigation efforts, including restoring, preserving, enhancing, or creating isolated wetland functions; and

(d) whether the impact on the isolated wetland is temporary or permanent; and

(3) except as otherwise provided in this section, requirements for mitigation may be imposed when the department finds that an activity undertaken under this section will result in the loss or degradation of isolated wetland functions in an isolated wetland larger than one contiguous acre where the loss or degradation is not temporary or incidental to human activity. When determining mitigation requirements in a specific case, the department shall take into consideration the type of isolated wetland affected by the activity, the nature of the impact on wetland functions, whether any adverse effects on isolated wetlands are of a permanent or temporary nature, and the cost effectiveness of the mitigation, and shall seek to minimize the cost of the mitigation. The mitigation requirement must be calculated based upon the specific impact of a particular project. The department shall consider the mitigation requirement of this section to be met with respect to activities in isolated wetlands if the activities are carried out in accordance with an approved reclamation plan or permit that requires recontouring and revegetation.

(B) Any mitigation under this section must involve a clearly defined mitigation project that is subject to a formal agreement with the department and for which adequate assurance of success and timely implementation have been given, such as long-term monitoring and maintenance provisions and conservation easements. Mitigation banks approved under the Joint State and Federal Administrative Procedures for the Establishment and Operation of Wetland Mitigation Banks in South Carolina must be considered to be in compliance with the requirements of this subsection.

(C) Notwithstanding any other provision of this chapter, the department shall issue a permit if the application has clearly demonstrated that the applicant's property will have virtually no economic use unless a permit is issued for the proposed activity.

(D) Mitigation must be limited as prescribed in Section 48-38-50(H). If mitigation is required and if on-site mitigation is not a feasible alternative, then off-site mitigation is from a mitigation bank with available credits in the service area. Mitigation in a mitigation bank must be supplied from an approved mitigation bank where wetland functions have already been restored. If a mitigation bank is not available, then an in-lieu bank must be accepted. Mitigation may be in an isolated wetland or in a wetland under federal jurisdiction.

Section 48-38-70. (A) The following activities are not prohibited by or otherwise subject to regulation under this chapter:

(1) normal farming, silviculture, aquaculture, cropland, and ranching activities in existence on the effective date of this chapter including, but not limited to, plowing, seeding, cultivating, haying, grazing, normal maintenance activities, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices;

(2) activities for the purpose of maintenance including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, flood control channels or other engineered flood control facilities, water control structures, water supply reservoirs, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and transportation structures;

(3) activities for the purpose of maintenance of farm or stock ponds, wildlife management structures, or irrigation canals or ditches, or the maintenance of drainage ditches;

(4) activities for the purpose of construction of temporary stormwater management measures on a construction site that do not include placement of fill material into the navigable waters;

(5) activities for the purpose of construction or maintenance of farm roads, forest roads, temporary roads for moving mining equipment or mined materials, or access roads for utility lines, where the roads are constructed and maintained in accordance with best management practices to assure that the reach of the wetland is not decreased;

(6) activities in isolated wetlands created as the result of normal human or vehicular activity;

(7) mining activities and associated stockpiling of mined materials in isolated wetlands conducted pursuant to a federal, state, regional, or local permit that requires the reclamation of the affected isolated wetlands if the reclamation shall be completed within a reasonable period of time after completion of activities at the site and, upon completion of the reclamation, the isolated wetlands shall support functions generally equivalent to the functions supported by the isolated wetlands at the time of commencement of such activities;

(8) activities for the placement of a structural member for a pile-supported structure, such as a pier or dock, or for a linear project such as a bridge, transmission or distribution line footing, power line structure, or elevated or other walkway. This includes special clearing activities or techniques that meet the Corps of Engineers criteria for exemption for wetlands permitting;

(9) activities related to the emergency maintenance or repair to electrical generation, transmission, or distribution systems, including their ancillary facilities, such as gas pipeline facilities, which are commenced following catastrophic events, whether natural or manmade, or under an emergency order to protect the public's health and safety;

(10) activities necessary for routine and emergency repair, maintenance, replacement of, or minor improvements to systems serving the public such as electricity, natural gas, communications, water, sewer, and railroad;

(11) construction of bulkheads or other structures for the sole purpose of preventing bank erosion or collapse provided no fill is necessary;

(12) repair or replacement of structures or fill in existence on the effective date of this chapter, so long as the original structure is not expanded so as to require additional square footage of regulated areas filled;

(13) fill required for remediation of any hazardous waste site, whether pursuant to the federal Resource Conservation and Recovery Act, or the federal Comprehensive Environmental Response, Compensation and Liability Act or the state's solid or hazardous waste provisions of law;

(14) fill required for compliance with a state or federal order related to enforcement of state or federal statutes regulating fill of waters or wetlands or navigable waters;

(15) activities in an isolated wetland of one contiguous acre or less in size provided that the nature and scope of the activity is reported to the department within sixty days of completion of the activity;

(16) transfer of property that is wholly owned by a head of household, or by the estate thereof, and transferred in whole or in part to his or her immediate heirs. This property must be used for continuous, private, residential purposes. This item is null and void if the property is sold to a developer;

(17) construction of transportation infrastructure projects for the state system.

Section 48-38-80. (A) The department, after notice and opportunity to affected parties for comment and a public hearing, shall issue general permits for any category of activities if the department determines that the activities in the category causes only minimal adverse environmental effects when performed separately, and shall have only minimal cumulative adverse effect on the environment. The department may prescribe best management practices for any general permit issued under this section. The department shall consider any optional mitigation proposed by an applicant in determining whether the net adverse environmental effects of a proposed activity are minimal.

(B) No general permit issued under this section may be for a period of more than five years after the date of its issuance and the general permit may be revoked or modified by the department if, after notice and opportunity to affected parties for comment and a public hearing, the department determines that the activities authorized by the general permit have an adverse impact on the environment or the activities are more appropriately authorized by individual permits.

Section 48-38-90. (A) Appeal of a federal delineation shall follow the federal appeals process.

(B) The applicant or other affected person with standing to contest the grant or denial of an application may request a contested case proceeding pursuant to the Administrative Procedures Act.

Section 48-38-100. (A) The department shall use this chapter as the sole authority for permitting of isolated wetlands. Notwithstanding any other provision of law or regulation, the department shall not use another permit or certification to enforce regulations or otherwise manage or govern activities in an isolated wetland.

(B) No regional or local government may prescribe or attempt to enforce any control or regulation with respect to any isolated wetland subject to the jurisdiction of the State under this act. Nothing in this section precludes a local government from adopting ordinances which are not inconsistent with this act.

Section 48-38-110. (A) The department, within eighteen months after the effective date of this chapter and in consultation with appropriate state agencies and stakeholders in the regulated community, shall issue regulations to implement this chapter.

(B) The department is authorized to promulgate a schedule of fees, subject to the Administrative Procedures Act, for providing services necessary to operate the permitting program and is further authorized to retain the fees for the operation of the permitting program. The amount of the fees may not exceed the cost of operating the isolated wetlands permitting program."

Section 48-38-130. Notwithstanding the provisions of this chapter, activities resulting in an impact to a Carolina Bay require a permit pursuant to Section 48-38-50.

Section 48-38-140. The Department of Health and Environmental Control shall provide an impact statement regarding this chapter every two years and report to the Governor and the general public.

Section 48-38-150. This chapter does not apply to a critical area as defined in Section 48-39-10."

SECTION 3. Chapter 37 of Title 12 of the 1976 Code is amended by adding:

"Section 12-37-945. Property that is mapped or delineated as isolated wetlands must be considered undeveloped property for assessment purposes until such time as the landowner obtains a permit in the manner provided by law that allows the property to be developed."

SECTION 4. Chapter 1, Title 48 of the 1976 Code is amended by adding:

"Section 48-1-95. Any nationwide permit shall be deemed to comply with the applicable water quality criteria and coastal zone management criteria of the State without any further terms or conditions imposed by the department. The department may not impose any additional conditions, terms, or limitations on any nationwide permit. For the purposes of this section, a 'nationwide permit' shall be a permit promulgated pursuant to 33 C.F.R. Part 330, as amended, adopted, or approved by the Charleston District of the United States Army Corps of Engineers."

SECTION 5. Section 48-39-210 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:

"Section 48-39-210. (A) The department is the ~~only~~ sole state agency with authority to permit or deny any alteration or utilization within the critical area except for the exemptions granted under Section 48-39-130(D) and the application for a permit must be acted upon within the time prescribed by this chapter.

(B) A critical area delineation for coastal waters or tidelands established by the department is valid only if the line is depicted on a survey performed by a professional surveyor, the line is reviewed by the department, and the department validates the location of the boundaries of the coastal waters or tidelands critical area on the survey by affixing a stamp and date to the survey~~, and the survey contains clearly on its face in bold type the following statement:~~

'The area shown on this plat is a general representation of Coastal Council permit authority on the subject property. Critical areas by their nature are dynamic and subject to change over time. By generally delineating the permit authority of the Coastal Council, the Coastal Council in no way waives its right to assert permit jurisdiction at any time in any critical area on the subject property, whether shown hereon or not'.

(C) Notwithstanding any other provision of this chapter, a critical area line established pursuant to subsection (B) ~~that affects subdivided residential lots~~ expires after three years from the department date on the survey described in subsection (B). ~~For purposes of this section only, a critical area delineation existing on the effective date of this act is valid until December 31, 1993.~~

(D) Exceptions to subsection (C) are eroding coastal stream banks where it can be expected that the line will move due to the meandering of the stream before the expiration of the three- year time limit and where manmade alterations change the critical area line. Notwithstanding any other provision of this chapter, a critical area delineation incorporated or otherwise referenced in any provision of a permit issued by the department shall be valid for the term of the permit."

SECTION 6. This act takes effect January 1, 2005. /

Renumber sections to conform.

Amend title to conform.

Majority favorable. Minority unfavorable.

ROBERT L. WALDREP, JR. PHIL P. LEVENTIS

For Majority. For Minority.

A BILL

TO AMEND TITLE 48, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO ENVIRONMENTAL PROTECTION AND CONSERVATION, BY ADDING CHAPTER 38 SO AS TO ENACT THE "SOUTH CAROLINA ISOLATED WETLANDS ACT OF 2004" WHICH ESTABLISHES A PROGRAM TO REGULATE ISOLATED WETLANDS AND ACTIVITIES IN AND AROUND ISOLATED WETLANDS INCLUDING A REQUIREMENT FOR MITIGATION TO COMPENSATE FOR ISOLATED WETLAND DISTURBANCES, BY ADDING SECTION 12-6-1125 SO AS TO PROVIDE THAT GROSS INCOME SHALL NOT INCLUDE AN AMOUNT RECEIVED BY THE OWNER OF ISOLATED WETLANDS FOR ALLOWING A PERSON TO USE THE ISOLATED WETLANDS IN A COMPATIBLE USE; BY ADDING SECTION 12-6-3525 SO AS TO PERMIT A TAXPAYER TO ELECT TO CLAIM AN INCOME TAX CREDIT IN AN AMOUNT EQUAL TO TWENTY-FIVE PERCENT OF THE TOTAL AMOUNT OF THE FEDERAL DEDUCTION ATTRIBUTABLE TO THE DONATION OF THE ISOLATED WETLANDS LOCATED IN THIS STATE; BY ADDING SECTION 12-37-945 SO AS TO PROVIDE THAT PROPERTY THAT IS MAPPED OR DELINEATED AS ISOLATED WETLANDS MUST BE CONSIDERED UNDEVELOPED PROPERTY FOR AD VALOREM TAX PURPOSES UNTIL SUCH TIME AS THE LANDOWNER OBTAINS A PERMIT THAT ALLOWS THE PROPERTY TO BE DEVELOPED; TO ADD SECTION 48-1-95 SO AS TO PROVIDE THAT ANY NATIONWIDE PERMIT APPLICATION SUBMITTED TO THE DEPARTMENT FOR CONSIDERATION SHALL BE PRESUMED TO COMPLY WITH THE APPLICABLE WATER QUALITY CRITERIA AND COASTAL ZONE MANAGEMENT CRITERIA OF THE STATE WITHOUT ANY FURTHER TERMS OR CONDITIONS IMPOSED BY THE DEPARTMENT AND TO DEFINE "NATIONWIDE PERMIT" FOR THAT PURPOSE; AND TO AMEND SECTION 48-39-210, AS AMENDED, RELATING TO THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL BEING THE ONLY STATE AGENCY AUTHORIZED TO PERMIT OR DENY ALTERATIONS OR UTILITIZATIONS WITHIN CRITICAL AREAS, SO AS TO REVISE THE MANNER IN WHICH THESE ALTERATIONS OR UTILIZATIONS ARE PERMITTED AND GRANTED.

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

SECTION 1. (A) The General Assembly finds that:

(1) isolated wetlands serve important environmental functions such as providing habitat for wildlife, protecting water quality, and providing flood control;

(2) isolated wetlands offer important economic and recreational benefits, such as hunting, fishing, bird watching, and tourism;

(4) changes in federal, state, and local policies have significantly decreased the rate of isolated wetland losses in recent years;

(5) recent interpretations by the court regarding the scope and reach of the federal Clean Water Act may limit the federal government's role in regulating impacts on isolated wetlands;

(6) the State of South Carolina will implement an effective, balanced, statewide program to manage activities in and around isolated wetlands that:

(a) conserves and enhances environmentally significant wetland functions;

(b) requires mitigation to compensate for isolated wetland disturbances;

(d) provides for sustained economic growth.

(B) It is the policy of the State of South Carolina to:

(1) enact a permitting program for activities in isolated wetlands under this act that balances isolated wetland protection with economic growth;

(2) conserve isolated wetlands without significant adverse impacts on the state, regional, and local economy, including significant reductions in state and local tax receipts;

(3) encourage the conservation and restoration of wetland functions where appropriate;

(4) implement the regulatory program authorized under this act to ensure that landowners are not denied the use of their property;

(5) streamline the permitting process for minimal impact projects in isolated wetlands;

(6) waive permitting under this act for disturbances of small isolated wetlands;

(7) ensure an efficient and cost-effective isolated wetland regulatory program; and

(8) minimize regulatory gridlock by designating one state agency to implement the regulatory program for wetlands determined to be isolated by the federal government.

SECTION 2. Title 48 of the 1976 Code is amended by adding:

"CHAPTER 38

Isolated Wetlands

Section 48-38-10. This chapter is known and may be cited as the 'South Carolina Isolated Wetlands Act of 2004'.

Section 48-38-20. For purposes of this chapter, the following definitions shall apply:

(1) 'Abandoned' means no construction, mining, processing, or reclamation activities have occurred during the previous ten years.

(2) 'Activities' means the discharge of dredged or fill material into waters as defined in Section 48-1-10(2).

(3) 'Discharge of dredged or fill material' means the addition of dredged or fill material into isolated wetlands that would have the effect of significantly degrading the wetlands. 'Discharge of dredged or fill material' does not include the excavation of wetlands or any fill associated with the excavation, including but not limited to, temporary stockpiling of excavated material within the wetlands.

(4) 'cropland' means agricultural land that is:

(a) manipulated, by drainage or other physical alteration to remove excess water from the land; or

(b) used for the production of any annual or perrenial agricultural crop including forage or hay, aquaculture product, nursery product, wetland crop, or livestock.

(a) return to the general condition in existence prior to the commencement of the activity; or

(6) 'Department' means the South Carolina Department of Health and Environmental Control and all of its subdivisions.

(7) 'Board' means the board of the department.

The term 'isolated wetland' does not include:

(i) waste treatment systems, including treatment ponds or lagoons, designed to comply with water quality standards of the State;

(ii) stormwater management facilities, a drainage, or irrigation ditch located in upland;

(iii) an artificially irrigated area that would revert to upland if the irrigation ceased;

(iv) a waterfilled depression created incidental to construction activity, or to excavation activity for the purpose of obtaining fill, sand, gravel, aggregates, or minerals;

(v) cropland;

(vi) depressions in soil resulting from traffic from vehicles and human activity.

(9) 'Visible surface water connection' means a connection via:

(a) contiguous wetlands; or

(b) perennial or intermittent streams.

(10) 'Feasible' means available and capable of being accomplished after taking into consideration cost, existing technology, and logistics in light of the overall project purposes.

(11) 'Mitigation' or 'Mitigation project' means the restoration, enhancement, or creation of wetlands to compensate for impacts to other isolated wetlands. 'Mitigation project' includes using credits from a wetlands mitigation bank.

(12) 'Mitigation bank' means a site where wetlands are restored, created, or preserved expressly for the purpose of providing compensatory mitigation credits for compliance with mitigation requirements of an approved permit in accordance with the provisions of this chapter.

Section 48-38-40. (A) A delineation approved by a federal agency under Sectio 404 of the federal Clean Water Act are binding for the purposes of this chapter absent the showing of fraud, bad faith, or negligent misrepresentation by the applicant or agent procuring the delineation.

(B) A delineation approved by this section is binding absent a showing of fraud, bad faith, or negligent misrepresentation.

(D) The department may coordinate and receive comments from other agencies before the department issues a permit. State agencies that provide comments or object to the issuance of a permit must defend their objection by providing testimony in defense thereof. The department may deny a permit based on an objection of a federal or state agency, but the department shall issue a permit over the objection of another agency if the department finds justification for issuing the permit.

(E) The department shall provide an explanation to an applicant for an individual permit of the basis for a proposed denial of an application.

(F) If no action has been taken by the department on an application for a permit after one hundred twenty days following submission of the completed application, the permit must be deemed to be issued unless the applicant agrees in writing to an extension.

(G) The department shall make a good faith determination of completeness of any application made. The department may not deny a permit without review and a basis for denial.

(H)(1) applicants are allowed to perform regulated activities in isolated wetlands of up to five contiguous acres. No permit or other department approval is required. However, proof of mitigation must be provided through notification to the department. Proof of mitigation includes, but is not limited to, any one of the following:

(a) documentation of on-site or off-site mitigation in the form of preservation, creation, or buffering or other best management practices that enhance water quality;

(b) proof of purchase of mitigation credits from an appropriate mitigation bank;

(2) an individual or entity that mitigates on-site or off-site through preservation, creation, or enhancement shall utilize a ratio of not less than one-to-one;

(3) an individual or entity that mitigates through the purchase of mitigation credits shall utilize a ratio of five credits per acre of regulated impact.

Section 48-38-60. (A)(1) The department shall determine whether to issue a permit for an activity in isolated wetlands larger than five contiguous acres classified under Section 48-38-30 based on a sequential analysis that seeks, to the maximum extent practical, to:

(a) avoid adverse impact on the isolated wetlands;

(b) minimize the adverse impact on isolated wetland functions that cannot be avoided; and

(c) compensate for any loss of wetland functions that may not be avoided or minimized at the rate of five credits per acre impacted by regulated activities;

(2) the department shall consider as relevant factors:

(b) the ability of the permittee to mitigate isolated wetland loss or degradation as measured by isolated wetland functions;

(d) whether the impact on the isolated wetland is temporary or permanent; and

(3) except as otherwise provided in this section, requirements for mitigation may be imposed when the department finds that an activity undertaken under this section will result in the loss or degradation of isolated wetland functions in an isolated wetland larger than five contiguous acres where the loss or degradation is not temporary or incidental to human activity. When determining mitigation requirements in a specific case, the department shall take into consideration the type of isolated wetland affected by the activity, the nature of the impact on wetland functions, whether any adverse effects on isolated wetlands are of a permanent or temporary nature, and the cost effectiveness of the mitigation, and shall seek to minimize the cost of the mitigation. The mitigation requirement must be calculated based upon the specific impact of a particular project. The department shall consider the mitigation requirement of this section to be met with respect to activities in isolated wetlands if the activities are carried out in accordance with an approved reclamation plan or permit that requires recontouring and revegetation.

(C) Notwithstanding the provisions of this section, the department may waive requirements for compensatory mitigation if the department finds that there is an abundance of similar isolated wetland functions in the watershed in which the proposed activity is to occur that will continue to serve the functions lost or degraded as a result of the activity, taking into account the impacts of the proposed activity and the cumulative impacts of similar activities in the watershed.

(D) Notwithstanding any other provision of this chapter, the department shall issue a permit if the application has clearly demonstrated that the applicant's property will have virtually no economic use unless a permit is issued for the proposed activity.

(E) Compensatory mitigation must be limited as prescribed in Section 48-38-50(H). If mitigation is required and if on-site mitigation is not a feasible alternative, then off-site mitigation is from a mitigation bank with available credits in the service area. Mitigation in a mitigation bank must be supplied from an approved mitigation bank where wetland functions have already been restored. If a mitigation bank is not available, then an in-lieu bank must be accepted. Mitigation may be in an isolated wetland or in a wetland under federal jurisdiction.

Section 48-38-70. (A) The following activities are not prohibited by or otherwise subject to regulation under this chapter:

(1) normal farming, silviculture, aquaculture, prior converted crop fields, and ranching activities in existence on the effective date of this chapter including, but not limited to, plowing, seeding, cultivating, haying, grazing, normal maintenance activities, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices;

(3) activities for the purpose of maintenance of farm or stock ponds, wildlife management structures, or irrigation canals or ditches, or the maintenance of drainage ditches;

(4) activities for the purpose of construction of temporary stormwater management measures on a construction site that do not include placement of fill material into the navigable waters;

(6) activities in isolated wetlands created as the result of normal human or vehicular activity;

(11) construction of bulkheads or other structures for the sole purpose of preventing bank erosion or collapse provided no fill is necessary;

(13) fill required for remediation of any hazardous waste site, whether pursuant to the federal Resource Conservation and Recovery Act, or the federal Comprehensive Environmental

Response, Compensation and Liability Act or the state's solid or hazardous waste provisions of law;

(14) fill required for compliance with a state or federal order related to enforcement of state or federal statutes regulating fill of waters or wetlands or navigable waters;

(15) activities in an isolated wetland of one contiguous acre or less in size;

(16) property that is wholly owned by a head of household, or by the estate thereof, and transferred in whole or in part to his or her immediate heirs;

(17) construction of transportation infrastructure projects for the state system.

Section 48-38-90. (A) Appeal of a federal delineation shall follow the federal appeals process.

(B) The applicant or other affected person with standing to contest the grant or denial of an application may request a contested case proceeding pursuant to the Administrative Procedures Act.

Section 48-38-130. Notwithstanding the provisions of this chapter, activities resulting in an impact to a Carolina Bay are prohibited. These activities include, but are not limited to:

(1) discharge of dredge or fill material;

(2) construction of ditches and other drainage structures.

SECTION 3. Chapter 37 of Title 12 of the 1976 Code is amended by adding:

SECTION 4. Chapter 1, Title 48 of the 1976 Code is amended by adding:

"Section 48-1-95. Any nationwide permit shall be deemed to comply with the applicable water quality criteria and coastal zone management criteria of the State without any further terms or conditions imposed by the department. The Department may not impose any additional conditions, terms, or limitations on any nationwide permit. For the purposes of this section, a 'nationwide permit' shall be a permit promulgated pursuant to 33 C.F.R. Part 330, as amended, adopted, or approved by the Charleston District of the United States Army Corps of Engineers."

SECTION 5. Section 48-39-210 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:

"Section 48-39-210. (A) The department is the only state agency with authority to permit or deny any alteration or utilization within the critical area except for the exemptions granted under Section 48-39-130(D) and the application for a permit must be acted upon within the time prescribed by this chapter.

(B) A critical area delineation for coastal waters or tidelands established by the department is valid only if the line is depicted on a survey performed by a professional surveyor, the line is reviewed by department, and the department validates the location of the boundaries of the coastal waters or tidelands critical area on the survey by affixing a stamp and date to the survey~~, and the survey contains clearly on its face in bold type the following statement:~~

(C) Notwithstanding any other provision of this chapter, a critical area line established pursuant to subsection (B) ~~that affects subdivided residential lots~~ expires after three years from the department date on the survey described in subsection (B). For purposes of this section only, a critical area delineation existing on the effective date of this act is valid until December 31, 1993.

SECTION 6. This act takes effect January 1, 2005.

----XX----

This web page was last updated on Monday, December 7, 2009 at 10:40 A.M.