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Current Status Bill Number:View additional legislative information at the LPITS web site.1037 Type of Legislation:General Bill GB Introducing Body:Senate Introduced Date:20000113 Primary Sponsor:Giese All Sponsors:Giese, Drummond, Ravenel, Leventis, Bryan Drafted Document Number:l:\council\bills\pt\1749djc00.doc Residing Body:Senate Current Committee:Medical Affairs Committee 13 SMA Subject:Riparian Buffer Zone Management Act of 2000, Conservation, Water, Health and Environmental Control History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ Senate 20000404 Co-Sponsor removed by Senator Ryberg Senate 20000113 Introduced, read first time, 13 SMA referred to Committee Versions of This Bill
TO AMEND TITLE 48, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO ENVIRONMENTAL PROTECTION AND CONSERVATION, BY ADDING CHAPTER 12 SO AS TO ENACT THE SOUTH CAROLINA RIPARIAN BUFFER ZONE MANAGEMENT ACT OF 2000; TO REGULATE RIPARIAN LAND USE AND VARIANCES SO AS TO PROVIDE FOR RIPARIAN BUFFER ZONES FOR STREAMS, RIVERS, ESTUARIES, AND OTHER WATERS OF THIS STATE; TO PROVIDE FOR IMPLEMENTATION OF RIPARIAN BUFFER ZONE REQUIREMENTS BY LOCAL GOVERNMENT ORDINANCES AND REGULATIONS ADOPTED BY THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL; TO PROVIDE THAT IF A LOCAL GOVERNMENT FAILS TO ADOPT AND ENFORCE THE MINIMUM RIPARIAN BUFFER PROTECTION PROGRAM REQUIREMENTS, THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL MUST ADMINISTER AND ENFORCE THE MINIMUM STATEWIDE RIPARIAN BUFFER ZONE REQUIREMENTS WITHIN ALL OR THE AFFECTED PORTION OF THE LOCAL JURISDICTION; TO PROVIDE FOR ENFORCEMENT PROCEDURES; AND TO PROVIDE FOR CIVIL AND CRIMINAL PENALTIES FOR VIOLATIONS OF THIS CHAPTER.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 48 of the 1976 Code is amended by adding:
Section 48-12-10. This chapter may be cited as 'The South Carolina Riparian Buffer Zone Management Act of 2000'.
Section 48-12-20. The General Assembly finds:
(1) that streams, rivers, lakes, estuaries, and other waters of this State supply much of the water required by counties, municipalities, and our citizens for drinking and other municipal and industrial uses; that the quality of the groundwater that is used for drinking and agricultural and industrial purposes in this State is connected with the quality of the surface water in the streams and rivers of the State flowing through the various counties and municipalities; that the people of South Carolina living in virtually all of the counties and municipalities use the surface waters for fishing, canoeing, and other recreational and economic purposes; and that the protection of streams and rivers of South Carolina as they flow through the various counties and municipalities across the State is vital to the health, safety, and economic welfare of the State as a whole as well as of its citizens.
(2) that streams, rivers, lakes, estuaries, and other waters of this State also provide habitat for aquatic flora and fauna, including some endangered and other species that are necessary and of economic importance to South Carolina's commercial fisheries.
(3) that riparian buffers adjacent to stream systems and coastal areas provide numerous environmental protection and resource management benefits that, depending on location and existing conditions, may include the following:
(a) restoring and maintaining the chemical, physical, and biological integrity of the State's water resources;
(b) removing pollutants delivered from urban stormwater;
(c) reducing erosion and sediment entering waters;
(d) stabilizing stream banks;
(e) providing infiltration of stormwater runoff;
(f) maintaining base flow of streams;
(g) contributing the organic matter that is a source of food and energy for the aquatic ecosystem;
(h) providing tree canopy to shade streams and protect aquatic organisms;
(i) providing riparian wildlife habitat; and
(k) furnishing scenic value and recreational opportunity.
(4) that effective protection of water resources requires a cooperative program of watershed management and protection which includes restoration, maintenance and protection of riparian buffers to be administered by local governments consistent with minimum statewide management requirements established by the Department of Health and Environmental Control.
(5) that it is necessary, and therefore the intent of The South Carolina Riparian Buffer Zone Act, to require counties and municipalities to establish new riparian buffer zones of restricted development and limited land use adjacent to all surface waters in all of the counties and municipalities of this State.
Section 48-12-30. For purposes of this chapter:
(1) 'Existing land use' means a land use which, prior to the effective date of this section, is either:
(a) completed;
(b) ongoing, as in the case of agricultural activity;
(c) under construction;
(d) fully approved by the governing authority; or
(e) the subject of a fully completed application, with all necessary supporting documentation, which has been submitted for approval to the governing authority or the appropriate government official, for any construction related permit.
(2) 'Impervious surface' means any paved, hardened, or structural surface which does not allow for complete on-site infiltration of precipitation including, but not limited to, buildings, driveways, streets, parking lots, swimming pools, dams, tennis courts, and any other paved, hardened, or structural surface which does not allow for complete on-site infiltration of precipitation.
(3) 'Land disturbing activity' means any grading, scraping, excavating or filling of land, clearing of vegetation and any construction, rebuilding or significant alteration of a structure.
(4) 'Protected area' means any land and vegetation that lies within a riparian buffer zone.
(5) 'Riparian buffer zone' or 'RBZ' is an overlay zone that encompasses all land within one hundred feet on either side of all steams, rivers, and other waters situate wholly or in part in, or flowing through, a county or municipality in this State, measured as a line extending perpendicularly from the stream or river bank.
(6) 'Stream' or 'river' means all of the following:
(a) any perennial stream or river or portion thereof that is portrayed as a solid line on a United States Geological Survey Map of the most recent edition; and
(b) any intermittent stream or river or portion thereof that is portrayed as a dashed line on a United States Geological Survey Map of the most recent edition; and
(c) any lake or impoundment that does not lie entirely within a single parcel of land;
(d) any brackish, estuarine, or salt water; and
(e) any other stream or river as may be identified by the governing body of a county or municipality.
(7) 'Stream bank' means the uppermost limit of the active stream channel, usually marked by a break in slope.
(8) 'Major variance' is a reduction in riparian buffer zone width that is not balanced by a corresponding increase in buffer width elsewhere on the same property, or a reduction in buffer width to less than seventy-five feet.
(9) 'Minor variance' means a reduction in buffer width over a portion of a property in exchange for an increase in buffer width elsewhere on the same property such that the average buffer width remains one hundred feet.
(10) 'Local planning commission' means a municipal planning commission, a county planning commission, a joint city-county planning commission, or a consolidated planning commission created under the authority of Chapter 29, Title 6, the South Carolina Local Government Comprehensive Planning Enabling Act of 1994.
Section 48-12-40. (A) Except for land uses and variances permitted by this chapter, all riparian buffer zones in this State must be returned to natural habitat and maintained in a naturally vegetated state.
(B) All real estate or portions thereof within a riparian buffer zone is subject to the restrictions of the riparian buffer zone as well as to all other zoning regulations and restrictions that apply to the land.
Section 48-12-50. (A) Except as allowed in subsection (B) the following land uses are prohibited within the protected area or a riparian buffer zone:
(1) any land disturbing activity;
(2) septic tanks and septic tank drain fields;
(3) buildings, accessory structures, and all types of impervious surfaces;
(4) hazardous or sanitary waste landfills;
(5) receiving areas for toxic or hazardous waste or other contaminants;
(6) mining;
(7) storm water retention and detention facilities, except those built as constructed wetlands that meet the approval of a local planning commission having jurisdiction over the area in which the facility is located.
(B) The following land uses are permitted:
(1) existing land uses, except as follows:
(a) when the existing land use, or any building or structure involved in that use, is enlarged, increased or extended to occupy a greater area of land;
(b) when the existing land use, or any building or structure involved in that use, is moved in whole or in part to any other portion of the property;
(c) when the existing land use ceases for a period of more than one year; and
(d) existing land uses that involve agricultural production and management shall be consistent with all state and federal laws and regulations, and best management practices established by the United States Natural Resource Conservation Service and conservation practices described in the publication 'Farming for Clean Water in South Carolina'.
(2) selective logging, except within fifty feet of a stream, provided logging practices comply with the best management practices set by the Forestry Commission.
(3) crossings by transportation facilities and utility lines; however, issuance of permits for such uses or activities is contingent upon the completion of a feasibility study that identifies alternative routing strategies that do not violate the riparian buffer zone, as well as a mitigation plan to minimize impacts on the riparian buffer zone.
(4) temporary stream, stream bank, and vegetation restoration projects, the goal of which is to restore the stream or riparian zone to an ecologically healthy state.
(5) docks, boat launches, public water supply intake structures, facilities for natural water quality treatment and purification, public wastewater treatment plant sewer lines and outfalls, and similar structures which, by their nature, cannot be located anywhere except within the riparian buffer zone.
(6) wildlife and fisheries management activities necessary to carry out the provisions of Title 50.
(7) construction of a single family residence, including the usual appurtenances, provided that, as of the effective date of this act:
(a) based on the size, shape, or topography of the property, it is not reasonably possible to construct a single family dwelling without encroaching upon the riparian buffer zone;
(b) the dwelling conforms with all other zoning regulations;
(c) the dwelling is located on a tract of land containing at least two acres;
(d) for purposes of these standards, the size of the tract of land shall not include any area that lies within the protected river or stream;
(e) there shall be only one such dwelling on each two-acre or larger tract of land; and
(f) septic tank drain fields shall not be located within the buffer area, although a septic tank or tanks serving such a dwelling may be located with the riparian buffer zone.
(8) other uses permitted by the Department of Health and Environmental Control or under Section 404 of the Clean Water Act.
(D) Notwithstanding the provisions of this section, all excepted uses, structures, or activities shall comply with the requirements of the Stormwater Management and Sediment Reduction Act of 1991 and all applicable best management practices and shall not diminish water quality as defined by the Clean Water Act and the Department of Health and Environmental Control. All excepted uses must be located as far from the stream bank as reasonably possible.
Section 48-12-60. (A) A property owner may request a major variance from the requirements of a riparian buffer zone by application to the local planning commission.
(B) An applicant for a major variance must submit documentation that substantiates the fact that issuance of the variance will not result in a reduction in water quality together with documentation that describes:
(1) existing site conditions, including the status of the protected area; and
(2) the needs and purpose for the proposed project; and
(3) justification for seeking the variance, including how buffer encroachment will be minimized to the greatest extent possible; and
(4) a proposed mitigation plan that offsets the effects of the proposed encroachment during site preparation, construction, and post construction phases.
(C) A major variance may not be issued unless the local planning commission determines from clear and cogent evidence before it that, as of the effective date of this act:
(1) the requirements of the riparian buffer zone represent an extreme hardship for the landowner such that little or no reasonable economic use of the land is available without reducing the width of the riparian buffer zone; or
(2) the size, shape, or topography of the property is such that it is not possible to construct a single family dwelling without encroaching upon the riparian buffer zone.
(D) All major variances issued by a local planning commission must meet the following conditions:
(1) the width of the riparian buffer zone is reduced only by the minimum extent necessary to provide relief; and
(2) land-disturbing activities must comply with the requirements of the Stormwater Management and Sediment Reduction Act of 1991 and all applicable best management practices. Such activities shall not impair water quality, as defined by the federal Clean Water Act and Department of Health and Environmental Control; and
(3) as an additional condition of issuing the variance, the local planning commission may require water quality monitoring downstream from the site of land disturbing activities to ensure that water quality is not impaired.
Section 48-12-70. (A) A property owner may request a minor variance from the requirements of a riparian buffer zone by application to the local planning commission.
(B) An applicant for a minor variance must submit documentation that substantiates the fact that issuance of the variance will not result in a reduction in water quality.
(C) All minor variance shall adhere to the following criteria:
(1) the width of the riparian buffer zone shall be reduced by the minimum amount possible, and never to less that seventy-five feet or twenty-five feet less than the buffer width at any point;
(2) reductions in the width of the riparian buffer zone shall be balanced by corresponding increases in the riparian buffer zone elsewhere on the same property, such that the total area included in the riparian buffer zone is the same as if it were one hundred feet or width specified above wide; and
(3) land-disturbing activities must comply with the requirements of the Stormwater Management and Sediment Reduction Act of 1991 and all applicable best management practices.
(D) A minor variance may not be issued that decreases the width of a one hundred foot riparian buffer zone to less that seventy-five feet or that reduces the width of a riparian buffer zone of less than one hundred feet to less than twenty-five feet of the buffer width.
Section 48-12-80. Notwithstanding any other provision of law, no major variance, no minor variance, and no exception to riparian buffer zone standards may be granted which would reduce the riparian buffer zone to a width less than the minimum standards established by state or federal law or to permit the use of land in a manner inconsistent with the requirements of Article 3 of this chapter.
Section 48-12-90. In the event of a conflict between the provisions of this chapter and the provisions of a county or municipal ordinance relating to the same or similar subject matter, the requirement that is most restrictive and protective of riparian buffer zones and water quality shall apply.
Section 48-12-310. The Department of Health and Environmental Control must adopt regulations for the management and enforcement of this chapter. The Department of Health and Environmental Control may designate certain waters or portions thereof as critical watersheds and impose riparian buffer requirements that are more stringent than the minimum state or local requirements. Any variance from the minimum statewide riparian buffer requirements must be approved by the Department of Health and Environmental Control prior to the issuance of a variance by a local government. Except as otherwise provided by law, the power to implement this section with respect to development or construction activities that are conducted by state agencies is vested exclusively in the Department of Health and Environmental Control.
Section 48-12-320. (A) The department shall assist local governments to develop riparian buffer protection programs that comply with this chapter. Local government compliance programs must include an implementing local ordinance and shall provide for maintenance, inspection, and enforcement procedures. As part of its assistance to local governments, the Department of Health and Environmental Control shall approve and make available a model local riparian buffer ordinance. The model ordinance adopted by the Department of Health and Environmental Control shall, at a minimum, include provisions controlling development density, providing for performance-based alternatives to development density controls that are based on sound engineering principles, and a combination of both. Local governments must administer and enforce the minimum management requirements.
(B) Every local government must submit its riparian buffer protection ordinance to the Department of Health and Environmental Control for approval. Local governments may adopt such ordinances pursuant to their general police power, power to regulate the subdivision of land, zoning power, or any combination of such powers. In adopting a local ordinance that imposes riparian buffer management requirements that are more stringent than those adopted by the Department of Health and Environmental Control, a county or municipality must comply with the notice provisions required by law.
(C) This section shall not be construed to affect the validity of any local ordinance adopted for the protection of riparian buffers prior to completion of the review of the ordinance by the Department of Health and Environmental Control or prior to the assumption by the Department of Health and Environmental Control of responsibility for a riparian buffer protection program. Local governments may create or designate agencies to administer and enforce such programs. The Department of Health and Environmental Control shall approve a local program only if it determines that the requirements of the program equal or exceed the minimum statewide riparian buffer protection requirements adopted pursuant to this section.
Section 48-12-330. The Department of Health and Environmental Control may, by contract or memorandum of understanding, designate another state agency to administer the minimum statewide riparian buffer protection requirements applicable to agriculture and silviculture activities. If the Department of Health and Environmental Control designates another state agency to administer the minimum riparian buffer protection requirements applicable to agriculture and silviculture activities, management requirements adopted by local governments shall not apply to such activities.
Section 48-12-340. If a local government fails to adopt a riparian buffer protection program or does not adequately carry out its responsibility to enforce the minimum riparian buffer protection requirements of its approved program, the Department of Health and Environmental Control must administer and enforce the minimum statewide requirements. The Department of Health and Environmental Control shall assume responsibility for riparian buffer protection, within all or the affected portion of a local jurisdiction when a local government fails to adopt a program that meets the requirements of this chapter or whenever a local government fails to adequately administer and enforce the provisions of its program. The Department of Health and Environmental Control shall not assume responsibility for an approved riparian buffer protection program until it or its designee notifies the local government in writing by certified mail, return receipt requested, of local program deficiencies, recommendations for changes and improvements in the local program, and the deadline for compliance. The Department of Health and Environmental Control shall allow a local government a minimum of one hundred twenty days to bring its program into compliance. The Department of Health and Environmental Control shall order assumption of an approved local program if it finds that the local government has made no substantial progress toward compliance. The Department of Health and Environmental Control shall make such finding at any time between one hundred twenty days and three hundred sixty-five days after receipt of notice under this subsection by the local government, with no further notice. Proceedings to review orders issued by the Department of Health and Environmental Control shall be conducted pursuant to the Administrative Procedures Act.
Section 48-12-350. (A) A local government that fails to adopt a riparian buffer protection program as required by this section or wilfully fails to administer or enforce the provisions of its program in substantial compliance with the minimum statewide riparian buffer zone requirements shall be subject to a civil penalty pursuant to this chapter.
(B) In any area of the State that is not covered by an approved local riparian buffer protection program, any person who violates or fails to act in accordance with any minimum statewide riparian buffer protection requirement or more stringent management requirement adopted by the Department of Health and Environmental Control for a critical watershed established pursuant to this chapter shall be subject to a civil penalty as specified in Article 5 of this chapter.
Section 48-12-360. (A) The Budget and Control Board may make annual grants to local governments for the purpose of assisting in the development of riparian buffer protection programs from funds appropriated for that purpose. The Budget and Control Board shall utilize the expertise of the Department of Health and Environmental Control and other state agencies to develop and administer generally applicable criteria under which local governments may qualify for such assistance. The criteria adopted must give priority to local governments that are not then administering riparian buffer protection ordinances.
(B) All state agencies shall act in a manner consistent with the policies and purposes of this section, and shall comply with the minimum statewide riparian buffer protection requirements adopted by the Department of Health and Environmental Control and with all riparian buffer protection ordinances adopted by local governments.
Section 48-12-510. Any person who wilfully or negligently violates any of the provisions of this chapter, or any rule or regulation, permit or permit condition, final determination or order of the department, shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than five hundred dollars nor more than twenty-five thousand dollars for each day's violation or be imprisoned for not more than two years, or both.
Section 48-12-520. Any person violating any of the provisions of this chapter, or any rule or regulation, permit or permit condition, final determination or order of the department, shall be subject to a civil penalty not to exceed ten thousand dollars per day of such violation.
Section 48-12-530. Any person who knowingly makes any false statement, representation or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter or who falsifies, tampers with or knowingly renders inaccurate any monitoring device or method required to be maintained under this chapter, shall be subject to the civil or criminal provisions contained in this chapter.
Section 48-12-540. All penalties assessed under this chapter are held as a debt payable to the State by the person against whom they have been charged and constitute a lien against the property of the person. One-half of the penalties collected inure to the benefit of the county or municipality in which the violation occurred."
SECTION 2. This act takes effect upon approval by the Governor.
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