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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;
(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 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) 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:
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.
(4) 'Prior converted cropland' means agricultural land that was, before the effective date of this chapter:
(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.
(6) 'Department' means the South Carolina Department of Health and Environmental Control.
(7) 'Board' means the board of the department.
(8) 'Vegetation' means vegetation typically adapted for life in saturated soil conditions as determined by the federal government. Vegetation typically adapted for life in saturated soil conditions shall not include plants that have a similar likelihood of occurring in both isolated wetlands and uplands.
(9) '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) prior converted cropland;
(vi) noncontiguous areas of less than five acres in size; and
(vii) depressions in soil resulting from traffic from vehicles and human activity.
(10) 'Visible surface water connection' means a connection via:
(a) contiguous wetlands; or
(b) perennial or intermittent streams.
(11) 'Feasible' means available and capable of being accomplished after taking into consideration cost, existing technology, and logistics in light of the overall project purposes.
(12) '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.
(13) '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 48-38-30. 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. Isolated wetlands are considered private property.
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.
(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 residents or citizens of the affected county or counties 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 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.
Section 48-38-60. (A)(1) The department shall determine whether to issue a permit for an activity in isolated wetlands 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 cannot be avoided or minimized;
(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 where such 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 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 to a maximum ratio of two to one, where two is the area of mitigation and one is the area of the affected wetland. 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;
(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 sedimentation basins 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 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 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.
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.
(C) Adoption or change of a general permit under this chapter must be noticed in the South Carolina State Register.
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 hearing before the board, or its designee, regarding the department's decision. The request must be made in writing to the department within ten days from the receipt of the notice of the decision. The burden of proof in a contested case hearing must be upon the moving party. The contested case hearing before the board or its designee is conducted as a contested case under the Administrative Procedures Act. The issues considered at the contested case hearing are limited to those presented or considered during the staff review and decision-making process. Once a contested case hearing has been requested, any additional applications or appeals are not considered competing applications.
(C) The board's decision shall become final thirty days after it is mailed, unless any party who participated in the contested case hearing and is adversely affected by the board's decision, within the thirty-day period, appeals the decision to a court of competent jurisdiction as provided by law.
(D) After the contested case hearing is concluded and a final board decision is made, a party who participated in the contested case hearing and who is affected adversely by the board's decision may obtain judicial review of the decision in the circuit court pursuant to the Administrative Procedures Act.
Section 48-38-100. 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. 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.
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 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 3. Chapter 6, Title 12 of the 1976 Code is amended by adding:
"Section 12-6-1125. (A) Notwithstanding any other provision of law, gross income shall not include any amount received by the owner of isolated wetlands for allowing any person to use the isolated wetlands in a compatible use.
(B) As used in this section, the term 'compatible use' has the meaning given this term in the regulation prescribed below. The department shall prescribe regulations identifying those activities that constitute compatible uses for purposes of this section, including any pertinent restrictions on the activities. The activities include fishing, hunting, and other activities determined to be appropriate by the department, but shall not include any activity that degrades the functions of isolated wetlands.
(C) This section shall apply to amounts received after the effective date of this section."
SECTION 4. Chapter 6 of Title 12 of the 1976 Code is amended by adding:
"Section 12-6-3525. (A) A taxpayer who has qualified for and claimed on the taxpayer's federal income tax return a charitable deduction for a qualified conservation contribution of isolated wetlands donated after the effective date of this section, on a qualified real property interest located in this State, may elect to claim an income tax credit for the applicable tax year 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. However, the credit is subject to the caps provided in subsection (C). If the amount of the credit exceeds the taxpayer's state income tax liability for the taxable year, or if it exceeds the maximum credit that may be used in any particular taxable year as provided in subsection (C)(2), the excess credit may be carried forward to succeeding taxable years until all the credit is claimed. The credit allowed by this section that may be used to offset state income tax liability in any one taxable year is limited to an amount that, when combined with all other state income tax liability for the taxable year, does not exceed the taxpayer's total state income tax liability for the taxable year. The fair market value of donations made pursuant to this section must be substantiated by a 'qualified appraisal' prepared by a 'qualified appraiser' as those terms are defined under applicable federal law and regulations applicable to charitable contributions.
(B) For purposes of this section:
(1) 'qualified conservation contribution' and 'qualified real property interest' are defined as provided in Internal Revenue Code Section 170(h);
(2) 'upland buffer' means upland areas that protect and increase the overall ecological functioning of the isolated wetlands.
(C) For purposes of this section:
(1) the credit provided for in this section may not exceed two hundred fifty dollars per acre of property to which the donation of isolated wetlands for conservation applies. For the purpose of calculating the per acre tax credit cap of this subsection, all isolated wetland acreage and upland buffer subject to the qualified conservation contribution shall be taken into account;
(2) regardless of the amount of the credit allowed by this section, the total credit a taxpayer may use under this section for any particular taxable year may not exceed fifty thousand dollars;
(3) for purposes of applying the per acre limitation and per taxpayer limitation on the credit allowed by this section, the attribution rules of Section 267 of the Internal Revenue Code apply.
(D) The Department of Revenue shall report to the Governor and the General Assembly on the activity generated on calendar years 2005 and 2006 state income tax returns by the credit allowed by this section."
SECTION 5. 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 ad valorem tax purposes until such time as the landowner obtains a permit in the manner provided by law that allows the property to be developed."
SECTION 6. Chapter 1, Title 48 of the 1976 Code is amended by adding:
"Section 48-1-95. 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. 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. The presumption of certification and compliance may be rebutted only by a showing of clear and convincing evidence by the department that the issuance of the permit to that person would violate the applicable criteria."
SECTION 7. 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:
'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 8. This act takes effect January 1, 2005.
This web page was last updated on Thursday, June 25, 2009 at 10:00 A.M.