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TO AMEND TITLE 49, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO WATER, WATER RESOURCES, AND DRAINAGE, BY ADDING CHAPTER 30 SO AS TO ENACT THE "PUBLIC WATERS NUISANCE ABATEMENT ACT" WHICH PERMITS THE DEPARTMENT OF NATURAL RESOURCES TO REMOVE OR REQUIRE THE REMOVAL OF CERTAIN STRUCTURES FROM THE PUBLIC WATERS OF THIS STATE UNDER SPECIFIED CONDITIONS, TO PROVIDE PENALTIES FOR VIOLATION, TO PROVIDE FOR AUTHORITY OF THE ATTORNEY GENERAL AND A MUNICIPALITY OR COUNTY TO DECLARE THESE STRUCTURES NUISANCES AND REQUIRE THEIR REMOVAL, AND TO PROVIDE, FURTHER, FOR A CIVIL ACTION BY A PRIVATE CITIZEN.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 49 of the 1976 Code is amended by adding:
Section 49-30-10. This chapter is known and may be cited as the 'Public Waters Nuisance Abatement Act'.
Section 49-30-20. The General Assembly finds and declares that structures located upon public waters which are used as places of temporary or permanent habitation, dwelling, sojournment, or residence interfere with the state's proprietary interest or the public trust, or both, and must be removed to ensure the rights of the State and the people of the State of South Carolina to the use and enjoyment of these public waters. It is declared to be a policy of this State and the intent of this chapter to protect the public waters of the State by authorizing the removal of nuisance structures from these public waters in accordance with the procedures and within the timetable set forth in this chapter.
Section 49-30-30. As used in this chapter, the term:
(1) 'Department' means the South Carolina Department of Natural Resources.
(2) 'FERC licensee' means an entity that possesses a Federal Energy Regulatory Commissions (FERC) license to operate a licensed lake.
(3) 'Licensed lake' means a public water of the state consisting of an impoundment and its associated hydropower facility that is licensed by the Federal Energy Regulatory Commission (FERC).
(4) 'Structure' means any unpermitted structure located upon any public waters of this State, whether the structure is floating upon the waters and is made fast by the use of lines, cables, anchors, or pilings, or any combination of these, or is built upon pilings embedded in the beds of these public waters when the structure is being or has been used or is capable of being used as a place of habitation, dwelling, sojournment, or residence for any length of time; is not being used or is not capable of being used primarily as a means of transportation upon these public waters; and is not owned, occupied, or possessed pursuant to a permit issued by the department pursuant to this chapter. Such structures may include, but are not limited to, watercraft not being used in navigation; provided, however, that structures do not include watercraft that are capable of navigation and are in designated anchorage or legally moored to a dock or marina. Structures also may not include fishing camps, bait shops, restaurants, or other commercial establishments permitted under applicable South Carolina law, which do not discharge sewage into the public waters of the State and are operated in conformance with the zoning ordinances, if any, of the municipality or county in which they are located.
(5) 'Waters of the State' has the same meaning as in Section 50-21-10(28).
Section 49-30-40. The existence of a structure as defined in this chapter is declared to be a public nuisance and unlawful. However, this act does not prohibit a properly registered or documented watercraft from riding at anchor for a period not to exceed ten days in any single location.
Section 49-30-50. (A) Whenever a structure as defined in this chapter exists, the Attorney General may bring an action to declare the structure a public nuisance and require its removal at no cost to the State.
(B) A county or municipality with jurisdiction may initiate the appropriate action to declare the structure a public nuisance and require its removal at no cost to the county or municipality.
(C) Any citizen of this State who uses the public waters of the State where such structures are located may institute a civil action to have such structures declared public nuisances and require removal. The cost of the suit including attorneys fees and the cost removal shall be the sole responsibility of any person or persons in possession of the structure or a person claiming ownership of or an interest in the structure.
(D) Except as otherwise provided for in this chapter, any remedy provided for in this chapter must be in addition to any other remedy available to the State, any littoral proprietor within this State, or any other citizen of this State.
Section 49-30-60. (A) The department may issue a permit for any structure existing on the effective date of this chapter, allowing the structure to remain in its place for a period not to exceed five years, unless the structure is a hazard to navigation or is an encroachment on private property or property that is in the wildlife management program. That permit must be conditioned on and provide for the responsibility of the permit holder for removing the structure upon expiration of the permit. A permit may be revoked by the department at any time during its term for failure to continue to meet the conditions of the permit.
(B) A permit must not be renewed, extended, or transferred. A permitted structure may not discharge wastewater directly into the receiving waters. A permit holder who fails to remove a structure upon expiration of the permit or violates the terms of the permit or any other necessary permits is guilty of a misdemeanor and upon conviction must be fined not more than five thousand dollars or imprisoned for not more than thirty days. In addition the permit holder must pay for all removal expenses incurred by any party removing the structure and for litigation costs including attorneys fees.
(C) Notwithstanding another provision of the law, the magistrate's court has jurisdiction to try any criminal case that arises under this chapter and to impose the penalties set forth in subsection (B).
(D) The construction, placement, operation, occupation, or use of an unpermitted structure in, on, or above public trust resources is a misdemeanor, and upon conviction, is punishable by a fine of five thousand dollars or imprisonment for thirty days in jail or payment of restitution for removal costs as ordered by the presiding judge. Jurisdiction for actions brought pursuant to this provision lies in magistrate's court.
Section 49-30-70. (A) Whenever the Department determines that any structure as defined in this chapter exists, it may issue an order directed 'TO ALL PERSONS IN POSSESSION OR CLAIMING OWNERSHIP OF THIS STRUCTURE'.
(B) Notice and service of process must be provided pursuant to Rule 4 of the South Carolina Rules of Civil Procedure. Service on unknown parties must comply with Section 15-9-720.
(C) The order must describe the structure in reasonable detail, set forth the unlawful nature of the structure, and order that the structure be removed within a reasonable time after the order becomes final.
Section 49-30-80. (A) A person in possession of the structure or person claiming ownership of or an interest in the structure which is the subject of an order issued pursuant to Section 49-30-70, upon petition in writing within thirty days after service of the order, has a right to a hearing before an administrative law judge. The petition must be filed with the administrative law judge and must be received by the administrative law judge within the thirty-day period.
(B) The hearing before the administrative law judge must be conducted in accordance with the South Carolina Administrative Procedures Act.
(C) A decision of the administrative law judge is final and a party to the hearing, including the department, has the right to judicial review of the decision in accordance with the Administrative Procedures Act.
Section 49-30-90. (A) Whenever an order issued by the department becomes final or an order adverse to the owner or possessor of a structure issued by the administrative law judge becomes final by being unappealed or affirmed upon appeal, the structure is deemed unlawful.
(B) Upon the designation of the structure as unlawful, the duly authorized agents of the department shall seize and remove the structure, to the extent a separate and distinct cleanup fund is appropriated for that purpose for the department, and may sell or dispose of the structure in the manner the department directs.
(C) If the department sells the structure or the materials of the structure, it may credit and retain the proceeds of the sale against the cost of the removal and disposal of the structure. Costs of removal and disposal not recouped through sale of the structure or its parts is the sole responsibility of a person in possession of the structure or a person claiming ownership of or an interest in the structure.
(D) FERC licensees are responsible for the removal of structures located on their licensed lakes.
(1) After a final determination that a structure located on a licensed lake is unlawful under this chapter, the department shall direct and authorize the FERC licensee to remove the unlawful structure.
(2) The FERC licensee may use all legal remedies established in law to recover the costs associated with removing the unlawful structure from the unlawful structure's owner. To the extent permissible by law, the department shall assist the FERC licensee in recovering the costs associated with removing an unlawful structure from the unlawful structure's owner.
(3) This subsection does not create a new duty of care for FERC licensees.
(4) FERC licensees may further regulate structures on their licensed lakes."
SECTION 2. This act takes effect upon approval by the Governor.
This web page was last updated on Monday, June 22, 2009 at 2:39 P.M.