S.C. Code Regs. 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.
Notes
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