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COMMITTEE REPORT
March 27, 2007
H. 3466
Introduced by Reps. Umphlett, Hinson, E.H. Pitts, Haley, Ballentine, Huggins, Vick, Agnew, Anderson, Battle, Bingham, R. Brown, Cato, Ceips, Chellis, Cobb-Hunter, Dantzler, Duncan, Funderburk, Hagood, Harvin, Herbkersman, Jefferson, Jennings, Knight, Limehouse, Lowe, Mahaffey, Merrill, Miller, Ott, Owens, Parks, Pinson, M.A. Pitts, Sandifer, Scarborough, Scott, Sellers, Simrill, Spires, Stavrinakis, Taylor, White, Whitmire, Williams, Toole, Bowen, Gullick and Hodges
S. Printed 3/27/07--H.
Read the first time February 7, 2007.
To whom was referred a Bill (H. 3466) 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, etc., respectfully
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 striking all after the enacting words and inserting:
/ SECTION 1. Title 49 of the 1976 Code is amended by adding:
Section 49-30-10. This chapter may be referred to and cited as the 'Public Waters Nuisance Abatement Act'.
Section 49-30-20. The General Assembly finds and declares that structures located upon the public waters of the State 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 South Carolina to use and enjoy the public waters of the State. It is declared to be the 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 the public waters of the State 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 Commission's (FERC) license to operate a licensed lake.
(3) 'Fund' means the Public Waters Nuisance Abatement Fund.
(4) '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).
(5) 'Removal' means to completely extricate the entire structure from the public waters of this State.
(6) 'Structure' means a 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 a combination of these, or is built upon pilings embedded in the beds of the public waters of the State when the structure is being used, 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. This definition includes, but is not limited to, watercraft not being used in navigation; provided, however, that this definition does not include registered or documented watercraft that are capable of navigation and are legally anchored or legally moored to a dock or marina. Also specifically excluded from this definition are fishing camps, bait shops, restaurants, or other commercial establishments, marinas, or docks permitted under applicable South Carolina or federal 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.
(7) 'Unpermitted structure' means a structure whose owner did not obtain a permit pursuant to this chapter or a structure remaining after the expiration or revocation of its permit.
(8) 'Waters of the State' has the same meaning as in Section 50-21-10(28).
Section 49-30-40. The Public Waters Nuisance Abatement Fund is created solely to pay for costs incurred by the State associated with removing unpermitted structures pursuant to this chapter. The fund may receive appropriations from the general fund, federal funds, donations, gifts, the proceeds of permit fees, and other monetary instruments of value. The proceeds contained in the fund may be carried forward from year to year and do not revert to the general fund of the State. The department must maintain and administer the fund. Proceeds from the fund may not be used to pay for costs associated with the removal of an unpermitted structure from licensed lakes.
Section 49-30-50. An owner of a structure existing on March 21, 2007, may apply for a permit from the department authorizing the owner to maintain his structure in its permitted location for five years. A permit may not be renewed, extended, or transferred.
Section 49-30-60. (A) For the privilege of maintaining a structure in its current location, the owner of the structure must obtain a permit for a fee of fifty dollars. The permit fee must be credited to the fund.
(B) To be issued a permit pursuant to this section an owner must:
(1) make a written request for a permit from the department containing:
(a) a sworn statement from all of the owners of the structure acknowledging ownership;
(b) the names and addresses of all owners;
(c) a detailed description of the structure;
(d) the structure's location. To identify the structure's location, the owner must use latitude and longitude or mark it on a United States Geological Survey topographic map; and
(2) establish to the satisfaction of the department that the structure does not present a hazard to navigation nor encroach upon private property or a wildlife management area;
(C) Upon the verification of the information contained in the written request and the department's satisfaction that the structure does not present a hazard to navigation nor encroach upon private property or a wildlife management area, the department shall issue a permit to the owner that must be prominently displayed on or about the structure. The permit must be conditioned expressly upon the owner being responsible for removal and all costs associated with removal. The department may not issue permits to applications postmarked or received later than ninety days after the effective date of this chapter.
(D) A permit may be revoked by the department if the:
(1) structure is moved from its permitted location for use in another location;
(2) owner fails to abide by any conditions upon which the permit was issued;
(3) structure becomes a hazard to navigation or encroaches on private property or a wildlife management area;
(4) structure is abandoned or becomes unusable; or
(5) owner transfers or attempts to transfer his permit, title, or any interest in the structure to another person.
Section 49-30-70. (A) An unpermitted structure is declared to be a public nuisance and shall be enjoined and abated as provided in this chapter. FERC licensees must survey their licensed lakes and the department must survey all other navigable waters of this State to determine the location of any unpermitted structures. A report must be promptly made to the Attorney General providing notice that an unpermitted structure exists and a reasonable description of where the unpermitted structure is located.
(B) Upon receiving notice of the existence of an unpermitted structure, the Attorney General may maintain an action to enjoin the use of the unpermitted structure and seek an order from the court that the unpermitted structure be removed. If the Attorney General does not commence an action within ninety days after receiving notice pursuant to this chapter, a citizen of this State may bring an action to enjoin the unpermitted structure's use and seek an order from the court requiring its removal. The prevailing party may recover the cost of the action, including attorney's fees. All costs associated with removing unpermitted structures must be borne by the owner.
(C) No proceeding against the owner of an unpermitted structure shall be commenced unless ten-days' written notice is given by the party instituting the action to the owner or his agent. If the party bringing the action cannot determine who owns the unpermitted structure, he may give notice of his intention to bring an action by forwarding a notice of his intention to a newspaper of general circulation in the county where the unpermitted structure is located with a request that it be published at least once a week for four consecutive weeks and by posting notice in at least three public places within the county where the unpermitted structure is located during the same four-week period. A notice by publication must describe the unpermitted structure, its location, and the intention of the party maintaining the action to enjoin the use of the unpermitted structure and obtain a court order to have it removed.
Section 49-30-80. (A) The department must contract to remove unpermitted structures pursuant to a court order and to the extent that the fund contains sufficient funds to cover the cost of removal.
(B) FERC licensees are authorized to remove unpermitted structures located on licensed lakes pursuant to a court order.
(1) A FERC licensee may recover from the owner of an unpermitted structure all costs associated its removal. The department must provide the FERC licensee with any information in the department's possession that may be used to identify and locate an owner from whom the FERC permittee is seeking to recover its costs.
(2) The provisions of this subsection do not create a new duty of care for FERC licensees.
Section 49-30-90. (A) Notwithstanding Chapter 3, Title 22, magistrate's court shall have jurisdiction over actions arising under this section.
(B) A permit holder that fails to remove his structure at the expiration of his permit, who violates a condition upon which the permit was granted, or abandons the structure is guilty of a misdemeanor and, upon conviction, must be fined up to five thousand dollars or imprisoned for up to thirty days, or both. The court must also require the permit holder to pay for all costs associated with the removal of the structure.
(C) Construction, placement, operation, occupation, or use of an unpermitted structure in, on, or about the waters of this State or on a licensed lake is a misdemeanor and, upon conviction, the offender must be fined up to five thousand dollars or imprisoned for up to thirty days, or both. The court must also require the offender to pay for all costs associated with the removal of the unpermitted structure."
SECTION 2. This act takes effect upon approval by the Governor.
Renumber sections to conform.
Amend title to conform.
WILLIAM D. WITHERSPOON for Committee.
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.
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