§ 48-39-150 — Approval or denial of permits; appeal to council; exceptions.

South Carolina § 48-39-150

• Jurisdiction: South Carolina
• Title 48: ENVIRONMENTAL PROTECTION AND CONSERVATION
• Ch. 39: COASTAL TIDELANDS AND WETLANDS

Text

(A) In determining whether a permit application is approved or denied the department shall base its determination on the individual merits of each application, the policies specified in Sections 48-39-20 and 48-39-30 and be guided by the following general considerations: (1) The extent to which the activity requires a waterfront location or is economically enhanced by its proximity to the water. (2) The extent to which the activity would harmfully obstruct the natural flow of navigable water. If the proposed project is in one or more of the State's harbors or in a waterway used for commercial navigation and shipping or in an area set aside for port development in an approved management plan, then a certificate from the South Carolina State Ports Authority declaring the proposed project or activity would not unreasonably interfere with commercial navigation and shipping must be obtained by the department prior to issuing a permit. (3) The extent to which the applicant's completed project would affect the production of fish, shrimp, oysters, crabs or clams or any marine life or wildlife or other natural resources in a particular area including but not limited to water and oxygen supply. (4) The extent to which the activity could cause erosion, shoaling of channels or creation of stagnant water. (5) The extent to which the development could affect existing public access to tidal and submerged lands, navigable waters and beaches or other recreational coastal resources. (6) The extent to which the development could affect the habitats for rare and endangered species of wildlife or irreplaceable historic and archeological sites of South Carolina's coastal zone. (7) The extent of the economic benefits as compared with the benefits from preservation of an area in its unaltered state. (8) The extent of any adverse environmental impact which cannot be avoided by reasonable safeguards. (9) The extent to which all feasible safeguards are taken to avoid adverse environmental impact resulting from a project. (10) The extent to which the proposed use could affect the value and enjoyment of adjacent owners. (B) After considering the views of interested agencies, local governments and persons, and after evaluation of biological and economic considerations, if the department finds that the application is not contrary to the policies specified in this chapter, it shall issue to the applicant a permit. The permit may be conditioned upon the applicant's amending the proposal to take whatever measures the department feels are necessary to protect the public interest. At the request of twenty citizens or residents of the county or counties affected, the department shall hold a public hearing on any application which has an effect on a critical area, prior to issuing a permit. Such public hearings shall be open to all citizens of the State. When applicable, joint public hearings will be held in conjunction with any such hearings required by the U. S. Army Corps of Engineers. On any permit application pertaining to a specific development which has been approved by the department, the department may support the applicant with respect to any federal permit applications pertaining to the same specific development. (C) The department shall act upon an application for a permit within ninety days after the application is filed. Provided, however, that in the case of minor developments, as defined in Section 48-39-10, the department shall have the authority to approve such permits and shall act within thirty days. In the event a permit is denied the department shall state the reasons for such denial and such reasons must be in accordance with the provisions of this chapter. (D) An applicant having a permit denied or a person adversely affected by the granting of the permit has the right of direct appeal from the decision of the administrative law judge pursuant to Section 1-23-610. An applicant having a permit denied may challenge the validity of any or all reasons given for denial. (E) Any permit may be revoked for noncompliance with or violation of its terms after written notice of intention to do so has been given the holder and the holder given an opportunity to present an explanation to the department. (F) Except for maintenance dredging permits, work authorized by permits issued under this chapter must be completed within five years after the date of issuance. Maintenance dredging permitted under this chapter must be completed within ten years after the date of issuance. The time limit may be extended for good cause showing that due diligence toward completion of the work has been made as evidenced by significant work progress. An extension only may be granted if the permitted project meets the policies and regulations in force when the extension is requested or the permittee agrees to accept additional conditions which would bring the project into compliance. The time periods required by this subsection must be tolled during the pendency of an administrative or a judicial appeal of the permit issuance. (G)(1) A property that is deemed eligible under a general permit issued by the United States Army Corp of Engineers is exempt from the permitting requirements set forth in this chapter for routine, normal, or emergency maintenance or repair activities pursuant to the general permit within currently functioning: (a) tidal impoundment fields located in tidal navigable waters of the United States, as the term is used in Section 10 of the Rivers and Harbors Act of 1899; or (b) adjacent nontidal fields that rely on the outgoing tide to drain, where the water regimes of the fields are currently being manipulated for wildlife management or where the fields have all of the necessary embankments and structures in place to allow for the manipulation of the water regimes for wildlife management. (2) The division may enforce the conditions of the general permit issued by the United States Army Corp of Engineers in the same manner and with the same authority as if the division had approved the permit pursuant to the provisions of this chapter.

Legislative History

HISTORY: 1977 Act No. 123, SECTION 15; 1982 Act No. 410, SECTION 2; 1993 Act No. 126, SECTION 1; 1993 Act No. 181, SECTION 1235; 2006 Act No. 387, SECTION 31; 2011 Act No. 41, SECTION 3, eff June 7, 2011; 2016 Act No. 204 (S.788), SECTION 2, eff June 3, 2016. Editor's Note 2011 Act No. 41, SECTION 6 provides as follows: "Nothing in this act shall be construed to expand or increase the department's jurisdiction or to require permits for activities or projects that are not currently subject to regulation by the department. Except for the extension of the permit duration for maintenance dredging permits to ten years, nothing in this act shall be construed to impact any pending request or application for any license or approval from the department." 2016 Act No. 204, SECTIONS 1, 3, provide as follows: "SECTION 1. This act must be known and may be cited as the 'Managed Tidal Impoundment Preservation Act'." "SECTION 3. The intent of the General Assembly is to make this act applicable to property deemed eligible under the United States Army Corps of Engineers, Charleston District's Managed Tidal Impoundment General Permit Number SAC-2011-1157 and its successors." Effect of Amendment The 2011 amendment, in subsection (F), in the first sentence, substituted "Except for maintenance dredging permits, work" for "Work"; and inserted the second sentence. 2016 Act No. 204, SECTION 2, added (G), relating to permit exemption under certain circumstances.