S.C. Code Regs. § § 19-450.9

Current through Register Vol. 48, No. 10, October 25, 2024

Section 19-450.9 - Review of Comments and Action by the Department

A. Review by the Department. The Department is responsible for assessing the total impact of the projected activity on the navigable waters and lands subject to the jurisdiction of this regulation, as well as the impact on the economy and natural resources of the state. The Department shall be concerned with the utilization and protection of important state resources and balance the extent and permanence of reasonably foreseeable benefits and detriments of the projected activity including its impact on conservation, economics, aesthetics, general environmental concerns, cultural values, fish and wildlife, navigation, erosion and accretion, recreation, water quality, water supply and conservation, and determine whether the projected activity is consistent with the needs and welfare of the public. In particular the Department shall consider the comments and objections of the affected agencies as well as the public, and the extent to which:

1. the activity requires construction in, on or over a navigable waterway, and the economic benefits to the state and public from such location;

2. the activity would harmfully obstruct navigability or the natural flow of navigable waters or cause erosion, shoaling of navigable channels, or the creation of stagnant waters;

3. the activity would impact fish and wildlife, water quality and other natural resource values or could affect the habitats or rare and endangered species of wildlife and irreplaceable historic and archaeological sites associated with public lands and waters;

4. the activity could affect public access to and use of public lands;

5. the economic benefits to the state and public from the authorized use of lands and waters meets or exceeds the benefits from preservation of the area in its unaltered state;

6. there is any adverse environmental impact which cannot be avoided by reasonable safeguards;

7. all feasible alternatives are taken to avoid adverse environmental impact resulting from the project; and,

8. the long range, cumulative effects of the project, including the cumulative effects of similar projects, may affect navigable waters.

B. Request For Proposal For Replacement or Compensation For Unavoidable Detriments.

1. If the Department tentatively determines: (1) that the proposed activity is likely to produce an adverse impact on navigable waters or other associated natural resources; (2) that the applicant has already agreed to or taken all reasonable and feasible measures to prevent the detriment; and (3) the adverse impact relative to the benefit is not so great as to automatically require a recommendation of disapproval of the proposed activity on that or other grounds; and (4) that the proposed activity otherwise meets the standards in 450.9(A), the Department may request the applicant to submit a proposal that provides or creates natural resource benefits that replace or compensate for the economic, environmental and natural resource benefits lost by the proposed activity so that even considering the detriment or negative impacts of the project, the proposal, including the compensation/replacement, results in a net gain of natural resource benefits to the state.

2. Provided, however, that no compensation or replacement (1) may be made for a project that produces no benefits to the public or state; (2) may be made where the proposed activity amounts to a taking of public land for private purposes; (3) when there is a reasonable, and feasible alternative, step, effort or activity is available that prevents or corrects a detriment created by the proposed activity. A feasible and reasonable alternative, step, effort or activity shall not be deemed unreasonable or infeasible because it would require the applicant to expend more time, effort or expense than the proposed replacement or compensation offered by the applicant.

3. The applicant shall inform the Department within fifteen (15) days whether it intends to submit a proposal for replacement or compensation. If no proposal is submitted the application shall be processed under 450.9(C).

4. The applicant shall submit the proposal for compensation/replacement to the Department which shall be a public record available to the public, and submit it to all commenting agencies which shall make its response to the Department within fifteen (15) days, or such other time as may be set. The Department may use the general procedures in the conciliation process under 450.7 when, in its opinion, it will expedite review of the proposal. In addition to the factors mentioned above, the commenting agencies shall consider:

(a) whether the replacement/compensation proposal provides resources of the same type, quality and extent as those destroyed or burdened by the proposed activity and replaces the same type of natural resource or benefit adversely affected by the projected activity so that the proposal, if accepted, results in compensation in kind rather than the substitution of poorer or more common natural resources for more valuable lands and waters or more rare resources;

(b) whether the replacement/compensation proposal will provide the public with comparable access as previously available to the lands or waters burdened by the projected activity;

(c) whether the replacement/compensation is located on or near the same area as the lands or waters burdened by the proposed activity;

(d) whether the replacement/compensation produces specific benefits to the state and public beyond those produced by compliance with existing state or federal regulation of the resources included in the proposal;

(e) whether the replacement/compensation proposal presently provides specific benefits without further effort or expense by the applicant or the state;

(f) whether the replacement/compensation proposal will require the state to incur costs in obtaining, maintaining or preserving the resources, land or waters in the proposal in appropriate condition;

(g) whether the replacement/compensation proposal is comparable to the lands and waters of the projected activity, when the areas surrounding the respective locations are considered.

(h) whether the replacement/compensation proposal provides permanent benefits.

(i) the likelihood that the benefits in the replacement/compensation proposal will occur, the person responsibility for monitoring the replacement/compensation to see that it does occur as proposed, and modifications or alternatives if the benefits do not occur.

(j) the necessity for obtaining financial guarantees including secured bonds to insure that the applicant complies with all of the terms and conditions of the replacement/compensation proposal.

(k) such other factors, conditions or requirements that may be necessary to insure that specific and permanent benefits accrue to the public or the state from the proposal that compensate or replace the resources burdened by the proposed permitted activity. After the agencies have reviewed the replacement/compensation proposal, and after any efforts to resolve objections have occurred if in the opinion of the Department such efforts would be useful, the applicant shall submit to the Department the proposal for replacement/compensation and the commenting agencies shall submit to the Department their comments or objections, if any to that proposal.

C. Notice of Proposed Decision

1. Promptly after the receipt of all written agency comments and objections to the proposed activity including an offer of replacement or compensation under 450.9(B), if any, the Department shall review all comments and supporting information and, the materials submitted by the applicant, and, in light of the standards listed above make its preliminary decision in the form of a Notice of Proposed Decision.

2. The preliminary decision shall be supported by findings on the relevant issues, including those raised by the comments and objections, if any. The findings shall be supported by materials in the record.

3. Whenever the preliminary decision is inconsistent with the written objection of the agency or other person to the application, the Department shall state the facts found by the Department and the reasons supporting its conclusions. For purposes of this section, the same or similar objections may be treated as one subject. If an objection by an agency or other person, or a response thereto by the applicant is without adequate support, Department shall so state, and may refuse to consider the objection or response and render decision accordingly.

4. The Department may conclude that the permit be granted, or denied, or conditionally granted or denied unless the applicant does or does not do certain activities in connection with the permitted activities.

5. The Notice of Proposed Decision shall advise of availability of related file information and shall be mailed to the following:

(a) the applicant;

(b) the authorized agent, if any;

(c) agencies having jurisdiction or interest over the activity site;

(d) owners or residents of property adjoining the area of the proposed activity; and

(e) those persons providing comment in response to the initial notice of application.

S.C. Code Regs. § 19-450.9

Added by State Register Volume 10, Issue No. 6, eff June 27, 1986. Amended by State Register Volume 19, Issue No. 6, eff June 23, 1995.