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(Statutory Authority: S.C. Code Section 48-39-10 et seq.)

30-1. Statement of Policy.

A. South Carolina Coastal Zone Management Act.

(1) The South Carolina Coastal Zone Management Act was passed by the 1977 General Assembly of South Carolina to provide for the protection and enhancement of the State's coastal resources. This legislation creates the South Carolina Coastal Council which is given the task of promoting the economic and social welfare of the citizens of this State while protecting the sensitive and fragile areas in the coastal counties and promoting sound development of coastal resources. The South Carolina Coastal Zone Management Act was amended by Act 181 of 1993 which merged South Carolina Coastal Council with the South Carolina Department of Health and Environmental Control. South Carolina Coastal Council became the Office of Ocean and Coastal Resource Management (OCRM).

(2) Through the efforts of an overall coastal zone management program and permitting process, the Department seeks to guide the wise preservation and utilization of coastal resources. These rules and regulations are intended to:

(a) aid developers and others in taking advantage of state-of-the-art techniques in developing projects compatible with the natural environment;

(b) insure consistent permit evaluations by the Department; and

(c) serve as a stimulus for implementation of better and more consistent management efforts for the coastal zone.

(3) These regulations are the Department statements of general public applicability that implement and prescribe policy and practice requirements of the Department. They are to be read as part of, and to be construed with, the policies set forth in the South Carolina Coastal Management Program.

B. The Value of Tidelands and Coastal Waters.

(1) The tidelands and coastal waters of the South Carolina coast are a very dynamic ecosystem and a valuable natural resource for the people of the State. The tides regularly ebb and flood through the coastal inlets, bays and marshes which constitute a fragile area, vulnerable to the impacts of many human activities. Tidelands and coastal waters are identified as "critical areas" over which the Department has direct permitting authority.

(2) The saline marshes are highly productive components of the marine food web of coastal waters and estuaries. Decaying organic material, called detritus, serves as the basis of the food web and is the major biological contribution of the saline marshes. Many commercially and recreationally important fish and shellfish species depend on the marshlands and estuaries for all or part of their life cycle. In addition, many birds and other forms of wildlife utilize wetlands as habitat as well as a source of food. Tidelands and coastal waters also have become increasingly important in recent years for the purposes of aquaculture.

(3) Among the important functions of the salt and brackish marshes is their role in protecting adjacent highlands from erosion and storm damage. Marsh vegetation absorbs and dissipates wave energy and establishes a root system which stabilizes the soils. Its effectiveness as a buffer depends on the surface area available which, combined with the composition of the underlying substrate, allows tidelands to act as "sponges," absorbing and releasing waters during storms or times of heavy riverine discharge.

(4) Marshes also perform a valuable waste treatment function since the dense vegetation acts as a filter, trapping sediments and pollutants which enter as run-off from the upland areas. The trapping of sediments helps maintain water clarity, a factor important to clam, oyster, and phytoplankton productivity. The marshes also assimilate pollutants and recycle nutrients through various biochemical processes.

(5) Coastal waters and the adjacent marshes are also significant as aesthetic, recreational and educational resources. Much of the expenditure for recreation and tourism in the South Carolina coastal zone is for purposes of enjoying outdoor activities and the aesthetic pleasures of undisturbed tideland areas. These natural areas lend themselves to meaningful and important academic pursuits such as bird-watching and wildlife population and nutrient recycling studies.

(6) These same unique natural resource areas face increasing land development pressure and negative impacts from human activities in and around them. The marshes constitute a fragile ecosystem; consequently, indiscriminate dredging and filling, degradation of water quality or unsound building and development practices can have long-term detrimental effects. All development need not be prohibited; rather, the range of favorable and unfavorable results needs to be realized, and analysis made to determine priorities, evaluate alternatives, anticipate impacts, and suggest the best methods and designs to carry out wise development of these resources.

C. The Value of Beaches and Dunes.

(1) In 1977, the South Carolina General Assembly enacted the Coastal Tidelands and Wetlands Act (Coastal Zone Management Act) to protect, preserve, restore and enhance the coastal resources of South Carolina. The Act created a new state agency, the South Carolina Coastal Council, and charged it with the responsibility of administering and enforcing the statute. This legislation, however, proved ineffective for managing the beach/dune system because regulatory authority over these areas given to the Coastal Council was not sufficient. From the State's beaches, the Coastal Council could regulate landward only to the primary oceanfront sand dune or to the highest uprush of the waves where no such dune existed.

(2) Lacking adequate authority, the Coastal Council was unable to prevent structures from being sited unwisely close to the eroding shore, thus making them extremely vulnerable to the effects of storms and high tides. The owners of the structures, in most instances, quickly sought permits from the Coastal Council (herein referred to as the Department) to construct hard erosion control devices in order to protect their erosion threatened structures. Unfortunately, hard erosion control devices can result in increased erosion, a lowering of the beach profile (thereby reducing the beach/dune system's tourist and recreational value), and a decrease in the ability of the beach/dune system to protect upland property from storms and high tides. Often the result of attempting to protect upland property with hard erosion control structures is that dry sand beaches disappear, thereby placing many millions of tourist dollars in jeopardy and destroying this natural legacy for future generations.

(3) In 1986, the Blue Ribbon Committee on Beachfront Management was formed in response to the growing recognition that existing law was inadequate to protect the fragile beach/dune resource. The Committee determined that the beach/dune system of the State was in a state of crisis. The report concluded that "over fifty-seven miles of our beaches are critically eroding. This erosion is threatening the continued existence of our beach/dune system and thereby threatening life, property, the tourist industry, vital State and local revenue, marine habitat, and a national treasure". The 1988 Beachfront Management Act was enacted by the South Carolina General Assembly in response to the concerns presented in this report.

(4) It has been clearly demonstrated that the erosion problems of this State are caused by a persistent rise in sea level, a lack of comprehensive beach management planning, and poorly planned oceanfront development, including construction of hard erosion control structures, which encroach upon the beach/dune system. Sea level rise in this century is a scientifically documented fact. Our shoreline is suffering from its effects today. It must be accepted that regardless of attempts to forestall the process, the Atlantic Ocean, as a result of sea level rise and periodic storms, is ultimately going to force those who have built too near the beachfront to retreat.

(5) There are three basic approaches to beachfront management:

(a) armor the beach with hard erosion control devices;

(b) renourish the beach with sand;

(c) retreat from the beach.

(6) The 1977 Coastal Zone Management Act, as amended, rejects construction of new erosion control devices and adopts retreat and renourishment as the basic state policy towards preserving and restoring the beaches of our state. The Department, as steward of the State's coastal resources, has the responsibility under the new statute to implement the forty-year retreat policy by designating a baseline and setback line on all oceanfront properties of the State, developing a long-range comprehensive State plan for management of the beach/dune resource, and supporting the efforts of local governments in developing local long-range beach management plans. In addition, the Department shall require property owners to move new construction and reconstruction as far landward as possible, to limit the size of structures within the constraints of the Act, and to seek innovative ways to ameliorate the effects of beach erosion.

(7) In the final analysis, the long-range public good is the same as the long-range private good. If the dry sand beaches of this State disappear because of the failure of its people and governmental natural resource managers to protect the beach/dune system, future generations will never have the opportunity to use and enjoy this valuable resource.

D. Definitions:

(1) Abandoned Vessels/Structures - Any boat, barge, dock, pier or other structure/vessel in the critical areas that is no longer functional for its primary, intended purpose and for which repair or salvage activity is not actively being pursued.

(2) Active Beach - the area seaward of the escarpment or the first line of stable natural vegetation, whichever first occurs, measured from the ocean landward.

(3) Administrative Law Judge - a judge appointed pursuant to SC Code Ann. Section 1-23-510 (1976) (as amended) who is assigned a particular matter by the Chief Administrative Law Judge, or if no administrative law judge has been assigned for a particular matter, the Chief Administrative Law Judge.

(4) Baselines:

(a) Within a standard erosion zone the baseline is established at the location of the crest of the primary oceanfront sand dune in that zone. In a standard erosion zone in which the shoreline has been altered naturally or artificially by the construction of erosion control devices, groins, or other man-made alterations, the baselines must be established by the Department using the best scientific and historical data, as where the crest of the primary ocean front sand dune for that zone would be located if the shoreline had not been altered.

(b) Within an unstabilized inlet zone the baseline must be determined by the Department as the most landward point of erosion at anytime during the past forty years, unless the best available scientific and historical data of the inlet and adjacent beaches indicate that the shoreline is unlikely to return to its former position. In collecting and utilizing the best scientific and historical data available for the implementation of the retreat policy, the Department as part of the State Comprehensive Beach Management Plan provided for in this chapter, among other factors, must consider: historical inlet migration, inlet stability, channel and ebb tidal delta changes, the effects of sediment bypassing on shorelines adjacent to the inlets, and the effects of nearby beach restoration project on inlet sediment budgets.

(c) Within a stabilized inlet zone the baseline location must be determined in the same manner as provided for in a standard erosion zone. However the actual location of the crest of the primary oceanfront sand dune of that erosion zone is the baseline of that zone, not the location if the inlet had remained unstabilized.

(5) Beach/Dune System - all land from the mean high-water mark of the Atlantic Ocean landward to the 40 year setback line described in Section 48-39-280.

(6) Best Management Practices - measures to reduce adverse environmental impacts.

(7) Boat - A vessel or watercraft of any type or size specifically designed to be self propelled, whether by engine, sail, paddle, or other means, which is used to travel from place to place by water.

(8) Boat Yard - a facility where boats are repaired.

(9) Bridge:

(a) Non-vehicular - bridges designed for use by pedestrians, golf carts or other maintenance vehicles, but not cars and trucks; are not docks; and can have a maximum clear width on the deck surface of six feet.

(b) Vehicular - bridges with a clear width on the deck surface of over six feet and designed to support traffic by cars and trucks.

(10) Coastal Island - an area of high ground above the critical area delineation that is separated from other high ground areas by coastal tidelands or waters. An island connected to the mainland or other island only by a causeway is also considered a coastal island. The purpose of this definition is to include all islands except those that are essentially mainland, i.e., those that already have publicly accessible bridges and/or causeways. The following islands shall not be deemed a coastal island subject to this section due to their large size and developed nature: Waites Island in Horry County; Pawleys Island in Georgetown County; Isle of Palms, Sullivans Island, Folly Island, Kiawah Island, Seabrook Island, Edisto Island, Johns Island, James Island, Woodville Island, Slann Island and Wadmalaw Island in Charleston County; Daniel Island in Berkeley County; Edisto Beach in Colleton County; Harbor Island, Hunting Island, Fripp Island, Hilton Head Island, St. Helena Island, Port Royal Island, Ladies Island, Spring Island and Parris Island in Beaufort County.

(11) Coastal Waters - the navigable waters of the United States subject to the ebb and flood of the tide and which are saline waters, shoreward to their mean high-water mark.

(12) Coastal Zone - all coastal waters and submerged lands seaward to the State's jurisdictional limits and all lands and waters in the counties of the State which contain any one or more of the critical areas. These counties are Beaufort, Berkeley, Charleston, Colleton, Dorchester, Horry, Jasper, and Georgetown.

(13) Coastal Zone Management Appellate Panel - the appellate body which conducts a quasi-judicial review of decisions from the Division pursuant to SC Code of Laws, Section 1-23-610 (1993 amend.) and 48-39-150(D) (1993 amend.).

(14) Critical Areas - any of the following: (1) coastal waters, (2) tidelands, (3) beach/dune systems and (4) beaches.

(15) Department - the South Carolina Department of Health and Environmental Control (also referred to as SCDHEC).

(16) Destroyed Beyond Repair:

(a) Habitable Structures - destroyed beyond repair means more than sixty-six and two-thirds percent of the replacement value of the habitable structure has been destroyed. See R.30-14(D)(3)(a).

(b) Pools - destroyed beyond repair means more than sixty-six and two-thirds percent of the replacement value of the pool has been destroyed. See R.30-14(D)(3)(b).

(c) Seawalls and Bulkheads - damage to seawalls and bulkheads must be judged on the percentage of the structure remaining intact at the time of the damage assessment. Erosion control structures or devices must not be repaired or replaced if destroyed:

(i) more than eighty percent above grade through June 30, 1995;

(ii) more than sixty-six and two-thirds percent above grade from July 1, 1995, through June 30, 2005;

(iii) more than fifty percent above grade after June 30, 2005. See R.30-14(D)(3)(c).

(d) Revetments - must be judged on the extent of displacement of the stone, effort to return this stone to the pre-storm event configuration of the structure or device, and the ability of the revetment to retain backfill material at the time of the damage assessment. See R.30-14(D)(3)(d).

(17) Division - the Administrative Law Judge Division.

(18) Dock - All docks defined herein refer to structures that provide docking space for ten boats or less.

(a) Boat Storage Dock - a floating structure that a vessel is parked on for purposes of out-of-water storage.

(b) Commercial Dock - a docking facility used for commercial purposes. A commercial dock is not necessarily a marina, a boat yard, or a dry storage facility.

(c) Community Dock - any docking facility that provides access for more than four families, has effective docking space of no more than 250 linear feet and is not a marina. Effective docking space means adequate length and water depth to dock a 20-foot boat.

(d) Joint use dock - any private dock intended for the use of two to four families.

(e) Private Dock - any facility that provides access for one family, and is not a marina.

(19) Emergency Orders - orders issued by an appointed official of a county or municipality or of the state acting to protect the public health and safety, upon written notification to the Department. However, with regard to the beach/dune critical area, only the use of sand bags, sand scraping, or renourishment, or a combination of them, in accordance with 30-15(G), is allowed pursuant to emergency orders.

(20) Emergency Repairs - repairs due to emergencies as defined in Section 48-39-10(U) to an existing bank, dike, fishing pier, or structure other than ocean front erosion control structures or devices which have been erected in accordance with federal and state laws or provided for by general law or acts passed by the General Assembly, if notice if given in writing to the Department within 72 hours of the onset of the needed repair.

(21) Erosion Control Structures and Beach Renourishment:

(a) Seawall - a special type of retaining wall that is specifically designed to withstand wave forces.

(b) Bulkhead - a retaining wall designed to retain fill material, but not to withstand wave forces on an exposed shoreline.

(c) Revetment - a sloping structure built along an escarpment or in front of a bulkhead to protect the shoreline or bulkhead from erosion.

(d) Beach Renourishment - the artificial establishment and periodic renourishment of a beach with sand that is compatible with the beach in such a way as to create a dry sand beach at all stages of the tide and/or provide some level of storm protection.

(22) Feasible (feasibility) - As used within these rules and regulations (e.g., "unless no feasible alternative exists"), feasibility is determined by the Department with respect to individual project proposals. Feasibility in each case is based on the best available information, including, but not limited to, technical input from relevant agencies with expertise in the subject area, and consideration of factors of environmental, economic, social, legal and technological suitability of the proposed activity and its alternatives. Use of this word includes, but is not limited to, the concept of reasonableness and likelihood of success in achieving the project goal or purpose. "Feasible alternatives" applies both to locations or sites and to methods of design or construction, and includes a "no action" alternative.

(23) GAPC (Geographic Areas of Particular Concern) - areas within South Carolina's coastal zone which have been identified in the State's Coastal Management Program as being of such importance as to merit special consideration during the Department review of permit applications. GAPC's consist of: (1) areas of unique natural resource value; (2) areas where activities, development, or facilities depend on proximity to coastal waters, in terms of use or access; and (3) areas of special historical, archeological or cultural significance.

(24) Garage - a structure built and used for the purpose of parking and protecting vehicles. The structure may be open or enclosed. An open parking area under a habitable structure will not be counted when computing the square footage of a habitable structure.

(25) Groin - a structure designed to stabilize a beach by trapping littoral drift. Groins are usually perpendicular to the shore and extend from the shoreline into the water far enough to accomplish their purpose. Groins are narrow and vary in length from less than one hundred feet to several hundred feet. Groin fields are a series of two or more groins which, because of their proximity to each other, have overlapping areas of influence. Consequently, the entire groin field must be considered as one system in order to accurately analyze beach response. The following is a list of the existing groins and groin fields in South Carolina as of 1991.

LIST OF EXISTING GROINS AND GROIN FIELDS IN SOUTH CAROLINA AS OF 1991

Garden City:

1. Six (6) groins south of the intersection of Yucca Street and Waccamaw Drive.

2. Two (2) groins south of the intersection of Dolphin Street and Waccamaw Drive.

Pawleys Island:

3. Twenty-three (23) groins along an area south of the northern causeway.

4. One (1) groin at the north end of the Island.

Isle of Palms:

5. One (1) groin at the north end of the Island along Dewees Inlet.

6. Two (2) groins at 42nd and 44th Avenues.

Sullivans Island:

7. Six (6) groins adjacent to Breach Inlet.

Folly Beach:

8. Forty-seven (47) groins.

Edisto Island:

9. Thirty-two (32) groins from the State Park south to Mikell Street.

10. Two (2) groins at Louise and Bailey Streets, along the South Edisto River.

Hunting Island:

11. One (1) groin at the north end of the Island.

Fripp Island:

12. One (1) groin at the north end of the Island.

13. Five (5) groins along the southern end of the Island.

Hilton Head Island:

14. Seventeen (17) groins in an area adjacent to Port Royal Sound.

15. Two (2) groins at the north end of Forest Beach, north of Yucca Drive.

16. Three (3) groins at Braddock Point, northwest of Merganser Court.

17. One (1) groin at Land's End, adjacent to Braddock Cove.

(26) Habitable Structure - a structure suitable for human habitation including, but not limited to, single or multi-family residences, hotels, condominium buildings, and buildings for commercial purposes. Each building of a condominium regime is considered a separate habitable structure, but if a building is divided into apartments, then the entire building, not the individual apartment is considered a single habitable structure. Additionally, a habitable structure includes porches, gazebos, and other attached improvements.

(27) Inlet Erosion Zone - a segment of shoreline along or adjacent to tidal inlets which is directly influenced by the inlet and its associated shoals.

(a) Unstabilized Inlets - inlets that have not been stabilized by jetties, terminal groins, or other structures.

(b) Stabilized Inlets - inlets which are stabilized by jetties, terminal groins, or other structures.

(28) Jetty - a structure that extends into the water to direct and confine river or tidal flow into a channel and to prevent or reduce shoaling of the channel by littoral material. Jetties are constructed for the purpose of stabilizing navigation channels.

(29) Joint Public Notice - a permit application public notice issued jointly between the Department and the United States Army Corps of Engineers or other agency and processed independently by the Department.

(30) Major Development Activity - any construction activity that is not a Minor Development Activity.

(31) Marinas - a marina is any of the following:

(a) locked harbor facility;

(b) any facility which provides fueling, pump-out, maintenance or repair services (regardless of length);

(c) any facility which has effective docking space of greater than 250 linear feet or provides moorage for more than 10 boats;

(d) any water area with a structure which is used for docking or otherwise mooring vessels and constructed to provide temporary or permanent docking space for more than ten boats, such as a mooring field; or

(e) a dry stack facility.

(32) Master Plan - a document or a map prepared by a developer or a city as a policy guide to decisions about the physical development of the project or community.

(33) Minor Development Activity - the construction, maintenance, repair or alteration of any private pier or erosion control structure, the construction of which does not involve dredging.

(34) Nonwater-dependent - a facility which cannot demonstrate that dependence on, use of, or access to coastal waters is essential to the functioning of its primary activity.

(35) Normal Maintenance and Repair - work performed on any structure within the critical area as part of a routine and ongoing program to maintain the integrity of the structure provided that the structure is still generally intact and functional in its present condition and the work only extends to the original dimensions of the structure. See R.30-5(D).

(36) OCRM - the South Carolina Department of Health and Environmental Control's Office of Ocean and Coastal Resource Management.

(37) Offshore Breakwater - a structure which is designed to protect an area from wave action, is generally built parallel to the shore, may or may not be submerged, and may be built singly or in series. Breakwaters may interfere with natural wave action and wave induced currents.

(38) Party - each person or agency named or admitted as a party or properly seeking and entitled to be admitted as a party, including a license or permit applicant.

(39) Planned Development - a development plan which has received local approval for a specified number of dwelling and other units. The siting and size of structures and amenities are specified or restricted within the approval. This term specifically references multi-family or commercial projects not otherwise referenced by the terms master plan or planned unit development.

(40) Planned Unit Development - a residential, commercial, or industrial development, or all three, designed as a unit and approved in writing by local government.

(41) Pool - a structure designed and used for swimming and wading.

(42) Primary Oceanfront Sand Dunes - those dunes which constitute the front row of dunes adjacent to the Atlantic Ocean, are partially or wholly seaward of the setback line, are not landward of an existing functional erosional control device, and have a minimum height of thirty-six (36) inches, as measured vertically from the crest to the toe of the dune. For purposes of establishing the baseline, this dune must also form a continuous line for 500 shore parallel feet.

(43) Public Interest - As used within these Rules and Regulations, public interest refers to the beneficial and adverse impacts and effects of a project upon members of the general public, especially residents of South Carolina who are not the owners and/or developers of the project. To the extent that, in the opinion of the Department, the value of such public benefits is greater than the public costs embodied in adverse environmental, economic and fiscal effects, a proposed project may be credited with net public benefits.

(44) Setback Area - the area located between the setback line and the baseline.

(45) Setback Line - the line landward of the baseline that is established at a distance which is forty times the average annual erosion rate as determined by historical and other scientific means and adopted by the Department in the State Comprehensive Beach Management Plan. However, all setback lines shall be established no less than twenty feet landward of the baseline, even in cases where the shoreline has been stable or has experienced net accretion over the past forty years.

(46) Significant Dune - A dune located completely seaward of the setback line, which because of its size and/or location is necessary to protect the beach/dune system of which it is a part.

(47) Special Geographic Circumstances - physical characteristics and land uses of surrounding uplands and waters which warrant additional consideration toward dock sizes. Special Geographic Circumstances identified by OCRM include: tidal ranges of greater than 6 feet; lots with greater than 500 feet of water frontage; and no potential access via dockage from the opposite side of the creek. At the discretion of Department staff, one or more of these circumstances may be applied to dock applications.

(48) Standard Erosion Zone - a segment of shoreline which is subject to essentially the same set of coastal processes, has a fairly constant range of profiles and sediment characteristics, and is not directly influenced by tidal inlets or associated inlet shoals.

(49) Tidelands - all areas which are at or below mean high tide and coastal wetlands, mudflats, and similar areas that are contiguous or adjacent to coastal waters and are an integral part of the estuarine systems involved. Coastal wetlands include marshes, mudflats, and shallows and means those areas periodically inundated by saline waters whether or not the saline waters reach the area naturally or through artificial water courses and those areas that are normally characterized by the prevalence of saline water vegetation capable of growth and reproduction. Provided, however, nothing in this definition shall apply to wetland areas that are not an integral part of an estuarine system. Further, until such time as the exact geographic extent of this definition can be scientifically determined, the Department shall have the authority to designate its approximate geographic extent.

(50) Transmittal Form - the official form prepared by the agency with subject matter jurisdiction that is filed with the division notifying it of a request by any person for a contested case hearing.

(51) Water-dependent - a facility which can demonstrate that dependence on, use of, or access to coastal waters is essential to the functioning of its primary activity.

(52) Waterfront property - For purposes of these regulations, waterfront property will generally be defined as upland sites where a straight-line extension of both, generally shore perpendicular, upland property lines reaches a navigable watercourse within 1000' of the marsh critical line. Waterfront property may also be identified via an approved dock master plan where designated corridors differing from upland property line extensions are delineated.

30-2. Applying for a Permit.

A. Preliminary Review: The Department encourages the submission of development plans for preliminary review. If a permit is necessary, the Department will make every effort to assist the applicant in expediting the administrative aspects of filing an application.

B. Permit Application: Except for those exemptions as specified in the 1977 Coastal Zone Management Act, as amended, any person wishing to alter a critical area must receive a permit from the Department. Section 48-39-140(B) directs that certain information be included in the permit application submitted to the Department. The following minimum information shall ordinarily be required before a permit application is considered complete:

(1) Name and address of the applicant;

(2) A plan or drawing showing the applicant's proposal and the manner or method by which the proposal shall be accomplished;

(3) A plat or a copy of a plat of the area in which the proposed work will take place;

(4) A certified copy of the deed, lease or other instrument under which the applicant claims title, possession or permission from the owner of the property to carry out the proposal;

(5) A list of all adjoining landowners and their addresses or a sworn affidavit that with due diligence such information is not ascertainable. When considered appropriate by the Department, additional information may be required concerning affected landowners;

(6) A brief description of the proposed alteration, its purpose and intended use, including a drawing of the type of structure, a description of the method of construction, and identification of materials and equipment to be used. In some instances, a registered survey may be required as part of the application package, particularly those involving docks in excess of 900 feet in length.

(7) A copy of the newspaper public notice:

(a) Minor developments (see R.30-1(D)): In the case of applications for minor development permits, the applicant shall publish notice at least once in a newspaper of local circulation in the county of the proposed activity. The newspaper notice should be published within 15 days of the date of Public Notice (see R.30-2(C)). No permit shall be issued by the Department until at least 10 days following the date of newspaper publication. The following form shall be used for newspaper publication:

PUBLIC NOTICE

SC DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL

OFFICE OF OCEAN AND COASTAL RESOURCE MANAGEMENT

(Name of applicant) will apply (has applied) to SCDHEC-OCRM for a permit to (description of work) for (public/private) use, at/in (location and name of waterway). Comments will be received by (insert local OCRM office address) until (insert date, 10 days after date of this newspaper notice).

(b) Other activities: In the case of applications for other than minor development permits, the applicant shall publish notice at least once in both a newspaper of general statewide circulation (The State, Post and Courier, or The Greenville News) and a newspaper of local circulation in the county of the proposed activity. The newspaper notices should be published within 15 days of the date of Public Notice (see R.30-2(C)). No permit shall be issued by the Department until at least 15 days following the date of the last published newspaper publication. The following form shall be used for newspaper publication:

PUBLIC NOTICE

SC DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL

OFFICE OF OCEAN AND COASTAL RESOURCE MANAGEMENT

(Name of applicant) will apply (has applied) to SCDHEC-OCRM for a permit to (description of work) for (public/private) use, at/in (location and name of waterway). Comments will be received by SCDHEC-OCRM, (insert Charleston OCRM office address) until (insert date, 15 days after date of this newspaper notice).

(8) When considered appropriate by the Department, additional information may be required. For major development activities this additional information may include but is not limited to a stormwater management plan, approved freshwater wetland delineation, and cultural resource and endangered species survey. The plat or copy of a plat submitted for those activities subject to the Beach Management Act (Sections 48-39-270 through 350) shall show the location of the baseline and setback line, applicable to the subject property. The lines shall be derived from information available from the Department. The lines shall be part of the plat and sealed by a South Carolina Registered Land Surveyor and may not be placed on the application by anyone other than a South Carolina Registered Land Surveyor or a member of the Department staff.

(9) The administrative fees for permit applications are included in R.61-30.G(13).

C. Notification: The Department shall within thirty days of receiving either a Joint Public Notice or SCDHEC-OCRM permit application, notify in writing interested agencies, all adjoining landowners, local government units in which the land is located and other interested persons. This notice shall indicate the nature and extent of the applicant's proposal.

D. Permit Processing: Permit processing shall commence immediately upon receipt of either a Joint Public Notice or a SCDHEC-OCRM permit application and shall proceed concurrently but separately from any Federal authorization.

E. Comments on Application: All interested federal and state agencies, all adjoining landowners, local government units and other interested persons to have thirty days after the receipt of Public Notice of permit application from the Department to file written comments pertaining to the application. Only those comments received within the thirty day period must be considered in the Department's decision on a permit application. Any persons wishing to receive notice of the initial decision on a permit application shall notify the Department within this comment period. Comments on permit applications for minor development activities, as defined in Section 48-39-10(N), must be received within fifteen days after receipt of Public Notice of permit application.

F. Public Information: The complete file on each permit application, including all comments received, will be made available, upon request, for inspection by any member of the general public during regular business hours at the principal office for SCDHEC-OCRM.

G. State Comment: Issuance or denial of the permit by the Department shall be the State comment on the corresponding federal permit application.

H. Water Quality Certificate: If a water quality certificate is not required by a Federal permitting agency under Section 401 of P.L. 92-500, the Department may evaluate whether there is a reasonable assurance the project will not contravene State Water Quality Standards. The Department will not issue a separate 401 water quality certification for an activity which requires a direct permit for alteration of the critical area of the coastal zone pursuant to applicable regulations governing issuance of permits for alternation of the critical area of the coastal zone. The Department will process permit applications pursuant to applicable regulations governing issuance of permits for alteration of the critical area of the coastal zone with coordination and input from appropriate staff regarding water quality impacts. The direct permit will serve as the 401 water quality certification for an associated Federal permit.

I. Applications Involving Adjoining Landowners Claiming Ownership of Critical Area

(1) All permit applicants must provide information in writing concerning the ownership of critical area in or over which a project is to be constructed.

(2) The alleged adjoining landowner of critical area must be notified pursuant to the provisions of Section 48-39-140(C) and R.30-2.

(3) If the alleged adjoining landowner of critical area files a written objection to the permit application within the period prescribed in Section 48-39-140 (15 days for minor and 30 days for major permits) based upon a claim of ownership and indicates an intention to file a court action pursuant to Section 48-39-220, the application will be deemed incomplete and further processing of the permit will not take place until a final judicial decision is rendered by a court of competent jurisdiction. However, written proof of filing a court action pursuant to Section 48-39-220 must be received by the Department within 30 days of the date of the expiration of the comment period. If no such written proof is timely received, the permit will be processed pursuant to law.

(4) If the final judicial decision determines that the critical area in question is owned by the adjoining critical area landowner and that the critical area landowner has a right to exclude others as part of the title, the permit will not be issued unless the applicant presents the Department with a copy of a deed, lease, or other instrument from the adjudicated critical area landowner that would allow construction of the proposed project, or written permission from such owner to carry out the proposal as provided for in Section 48-39-140(B)(4).

(5) Permit applicants who are vested with the power of eminent domain shall be exempt from the provisions of paragraphs (3) and (4) of R.30-2(I).

30-3. Public Hearings.

Section 48-39-140(C) directs the Department to hold public hearings on permit applications if it is deemed necessary. Section 48-39-150(B) requires the Department to convene a public hearing before acting on an application if twenty or more citizens or residents of the affected county or counties request such a hearing. Each request must be in writing and on a separate sheet of paper and be received within thirty days after publication of a Public Notice of the permit application (15 days for a minor activity). In all cases, the public hearing shall be held in the county where the land is located, and if in more than one county, the Department shall determine in which county to hold the hearing or may hold hearings in more than one county. When applicable and practical, joint public hearings will be held with the United States Army Corps of Engineers and/or other agencies.

30-4. Decisions on a Permit.

A. Permit Approval:

(1) The Department is allowed, under, Section 48-39-150(B) to issue a conditional permit approval. Under this provision, the Department may direct the applicant to amend his proposal to take specific measures necessary to protect the public interest. The Department, at its discretion, may seek additional public comment on major modifications to a permit application.

(2) If the Department has approved an application, Section 48-39-150(B) also allows the Department, at its discretion, to support the applicant in a Federal permitting process for the same activity.

B. Permit Denial: A Permit denial shall cite facts upon which the denial was based and the reasons for denial.

C. Action Upon a Permit: The Department according to Section 48-39-150.C shall act upon an application for a permit within ninety days. This ninety-day period shall begin when the application is administratively complete and filed in approved form. The file is administratively complete when all required information, including fees, newspaper notices, proof of ownership and certifications have been received. Exceptions of the 90-day deadline are applications for minor development activities on which action must be taken in thirty days. Permits are deemed issued after signature by applicant and appropriate OCRM staff. See R.61-30 for further descriptions of the administrative processes governing action on a permit.

D. Completion of Work: Section 48-39-150(F) requires a permit holder to complete work within five years from the date of permit issuance. The Department may extend this five-year period upon showing of good cause indicating that due diligence toward completion of the work has been made, evidenced by significant work progress. The permit holder must request an extension in writing prior to the permit's expiration date. Permits which have expired may not be extended. Work shall be continuous and expeditious whenever possible.

E. Property Rights Not Affected; No State Liability; Other Permit Requirements: No permit shall convey, nor be interpreted to convey, a property right in the land or water in which the permitted activity is located. No permit shall be construed as alienating public property for private use or as alienating private property for public use. In no way shall the State be liable for any damage as a result of the erection of permitted works. A SCDHEC-OCRM permit in no way relieves the holder from responsibility for compliance with other applicable Federal, State, or local permit requirements.

F. Legally Commenced Use: Section 48-39-130(C) reads as follows, "Ninety days after the effective date of this act no person shall fill, remove, dredge, drain or erect any structure on or in any way alter any critical area without first obtaining a permit from the Department. Provided, however, that a person who has legally commenced a use such as those evidenced by a state permit, as issued by the Budget and Control Board, or a project loan approved by the rural electrification administration or a local building permit or has received a United States Corps of Engineers or Coast Guard permit, where applicable, may continue such use without obtaining a permit. Any person may request the Department to review any project or activity to determine if he is exempt under this section from the provisions of this act. The Department shall make such determinations within forty-five days from the receipt of any such request."

G. Mitigation Criteria:

(1) The avoidance of tidelands is preferable to mitigation. The mitigation of tideland impacts is considered only after the policies, law, and rules and regulations of the Department have been addressed and the tideland impacts are unavoidable and are allowed by law. Mitigation may be required for any projects impacting tidelands at the discretion of the Department.

(2) Mitigation shall take the form of wetland creation and/or wetland enhancement and restoration. Wetland creation shall be performed at a ratio of 2:1, wetland created to wetland altered, for private projects and 1:1, wetland created to wetland altered, for projects deemed in the public interest. Enhancement and restoration projects should normally be coupled with some wetland creation and must clearly be an improvement ecologically over the existing system. Approved mitigation work must be performed and completed concurrently with permitted work unless otherwise authorized by the Department.

H. Amendment to a Permit: An amendment to a permit can be made without the requirements of a new permit if the proposed change on the amendment does not significantly increase the size or change the use of the permitted project. Otherwise, the amendment proposal will require a fee, a newspaper notice and will be placed on public notice by DHEC-OCRM.

I. After-the-Fact Permits: The staff does not have authority to consider an after-the-fact application unless:

(1) All fines are paid before application;

(2) The permit would legitimize an activity that in the opinion of the Department appears to be a routine permitting matter that would meet all rules and regulations;

(3) Any portion of the activity or structure that is in violation of the Act or rules and regulations is corrected prior to the application;

(4) An after-the-fact application can not be made until conclusion of the administrative appeal, if taken.

30-5. Exceptions.

A. List of Exceptions: Section 48-39-130(D) lists several exceptions which do not require a permit. These are as follows:

(1) The accomplishment of emergency orders of an appointed official of a county or municipality or of the state acting to protect the public health and safety, upon written notification to the Department. However, with regard to the beach/dune critical area, only the use of sandbags, sand scraping, or renourishment, or a combination of them is allowed, in accordance with R.30-5(B) and R.30-15(G).

(2) Hunting, erecting duckblinds, fishing, shellfishing and trapping when and where otherwise permitted by law; the conservation, replenishment and research activities of State agencies and educational institutions; or boating or other recreation provided that such activities cause no material harm to the flora, fauna, physical, or aesthetic resources of the area.

(3) The discharge of treated effluent as permitted by law; provided, however, that the Department shall have the authority to review and comment on all proposed permits that would affect critical areas.

(4) Dredge and fill performed by the United States Corps of Engineers for the maintenance of harbor channels and the collection and disposal of the materials so dredged; provided, however, that the Department shall have authority to review and certify all such proposed dredge and fill activities.

(5) Construction of walkways over sand dunes in accordance with R.30-13(B).

(6) Emergency repairs to an existing bank, dike, fishing pier, or structure other than oceanfront erosion control structures or devices which have been erected in accordance with federal and state laws or provided for by general law acts passed by the General Assembly, if notice is given in writing to the Department within 72 hours of the onset of needed repairs.

(7) Maintenance and repair of drainage and sewer facilities constructed in accordance with federal or State laws, and normal maintenance and repair of any utility or railroad.

(8) Normal maintenance or repair to any pier or walkway, provided that such maintenance or repair shall not involve dredge or fill.

(9) Construction or maintenance of a major utility facility where the utility has obtained a certificate for such facility under "The Utility Facility Siting and Environmental Protection Act" (Sections 58-33-10 through 58-33-430 of the 1976 Code). Provided, however, that the South Carolina Public Service Commission shall make the Department a party to certification proceedings for utility facilities within the coastal zone.

(10) Habitable structures and pools determined to be damaged less than sixty-six and two-thirds percent pursuant to R.30-14(D)(3)(a) and (b) may be repaired after acceptable documentation is provided to the Department.

(11) Erosion control structures or devices determined to be damaged less than eighty percent above grade through June 30, 1995, sixty-six and two-thirds percent above grade from July 1, 1995, through June 30, 2005, or fifty percent above grade after June 30, 2005, pursuant to R.30-14(D)(3)(c) and (d) may be repaired after acceptable documentation is provided to the Department.

B. Notification to the Department of Emergency Orders:

(1) As in A(1) above, the Department must be notified of emergency orders that normally would require a Department permit. Notification to the Department must be made in writing prior to commencement of the activity if possible and must state the following:

(a) the nature of the emergency;

(b) the substance of the emergency order;

(c) the time the order will be issued, or if circumstances preclude prior notice, when the order was issued;

(d) the name of the local official executing the order and the authority under which that person is acting;

(e) the location of the activity ordered;

(f) the estimate of when such order shall be withdrawn.

(2) If the Department is not notified within seventy-two hours of the issuance of the emergency action taken, the official issuing such order or ordering such emergency action shall be in violation of the Act and these rules and regulations. Within seventy-two hours after the emergency order, the official ordering the emergency action shall put the above six elements in writing and file them with the Department.

(3) The official issuing the emergency order shall be deemed in violation of the Act if the emergency conditions do not conform with the definition of emergency in Section 48-39-10(U).

C. Emergency Repairs to any Existing Bank and Dike or Fishing Pier: As in A(6) above, notice by telephone, telegram or radio of emergency repairs to any existing bank, dike or fishing pier must be given to the Department within seventy-two hours from the onset of needed repairs. Within five days after the commencement of repairs, written notification must be filed with the Department. If such notification is not received, the person(s) performing the work will be in violation of the Act and these rules and regulations.

D. Normal Maintenance and Repair: Normal maintenance and repair applies only to work on a structure which has been previously permitted or is grandfathered or exempted and is still generally intact and functional in its present condition. The work may only extend to the original dimensions of the structure, and any expansion, additions, or major rebuilding will require either a Department permit or documentation to and written approval from the Department.

30-6. Contested Case Process for Permitting.

A. Notice of Intent to File a Request for Hearing: Any person adversely affected by the Department's staff's initial permitting application decision has the right to file a request for a contested case hearing before an administrative law judge. Notice of Request for a contested case hearing must be filed with the Department in writing within fifteen days of notification to the applicant and other persons who requested notification of the initial staff action (See R.30-2(E)). The Request shall contain the following information:

(1) The name of the party requesting the hearing and the issues(s) for which the hearing is requested;

(2) The permit number or other information sufficient to identify the decision, order, action or inaction which is the subject of the hearing;

(3) The relief requested.

B. Notification of the Division: The Department shall file the request for a contested case hearing by completing and forwarding a transmittal form to the Administrative Law Judge Division within five days of receipt of the request, and serving a copy on all parties. Upon transmittal, the Division's Rules of Procedure govern jurisdiction of the case.

C. Public Notice:

(1) At the same time as the Department transmits the request for a contested case to the Division, the Department shall notify in writing interested agencies, all adjoining landowners, local government units and other interested persons. This notice shall, to the extent that the information is available, indicate the following:

(a) The names of all parties including the agency, the petitioner(s) and the permittee(s).

(b) The initial action of the agency.

(c) The nature and extent of the contested case.

(2) All parties desiring to intervene in the contested case hearing must file a Motion to Intervene with the Administrative Law Judge Division pursuant to the Division's Rules of Procedure.

D. Review by Coastal Zone Management Appellate Panel. Pursuant to Section 1-23-610, S.C. Code of Laws (1976), for quasi-judicial review of any final decision of an administrative law judge, a petition by an aggrieved party must be filed with the Department and served on the opposing party not more than thirty days after the party receives the final decision and order of the administrate law judge.

E. Decision on Appeal. A decision on the contested case may be made by the Panel immediately after the presentation of oral arguments but, in any case, no later than 65 days after the presentation. Each party shall be notified in writing of the decision. The final Panel decision shall be in the form of a written Final Administrative Order. The Final Administrative Order shall be reviewed by the panel after which it will be signed by the Chairman. The Order shall be served on each party to the case.

30-7. Judicial Appeal.

A. Exhaustion of Administrative Remedies: Pursuant to Section 1-23-380, SC Code of Laws (1976) a party must seek relief through the appeals process set forth in R.30-6 above before seeking judicial review of the agency's action.

B. Time Period for Filing: The 30 day time period for filing an appeal in the circuit court will commence to run from date of receipt of the Panel's Final Administrative Order.

30-8. Enforcement.

A. Permit Revocation Process: All permits issued by the Department are revocable licenses. Section 48-39-50(H) provides that the Department can revoke or suspend permits of persons "who fail or refuse to carry out or comply with the terms or conditions of the permit." Additionally, the Department is charged with the responsibility in Section 48-39-50(M) to implement the state policies and in Section 48-39-50(O) to exercise all incidental powers necessary to carry out the provisions of this chapter. The Department has the right to revoke any permits where materially erroneous or fraudulent information has been provided by either the permit applicant, or resource agencies charged with the responsibility of providing background information for the permitting process. The Department may also revoke any permit where the permittee is violating the terms and/or conditions of the permit, has changed the use of the structure so as to violate the policies or rules and regulations promulgated under the Act, and for inappropriate violations of law. If a determination is made by the Department that there are sufficient grounds for revocation of the permit, the Department shall follow the following procedure:

(1) The permittee shall be notified by the Department of the grounds for revocation of the permit by certified letter or personal service.

(2) The permittee must respond in writing to the written allegations of the Department within 20 days of receipt of the Notice of Intent to Revoke. Failure to timely respond shall result in a Default Order being issued by the Department. The permittee has the right to file a request for a contested case hearing in writing within fifteen days of notification of the Order pursuant to R. 30-6 above. In the event that the permittee agrees that there are grounds for revocation then the Department shall have the authority to issue an order revoking the permit, and take such other action as may be made legally authorized pursuant to the Act.

(3) Pending resolution of revocation action, the Department may suspend work on, and/or use of, the affected project.

B. Cease and Desist Directive: When any person is found altering a critical area without a permit and such activity is not exempted by Section 48-39-130(D), or is in violation of the terms and/or conditions of a permit, the Department may issue a cease and desist directive. This directive shall inform the person that he is in violation of the Act and shall cease the unauthorized activity. The Department may then order the person to restore the area to its original condition. If the person responsible for the unauthorized activity refuses to comply with the Department directive, the Department may then file suit in the appropriate circuit court as outlined in Section 48-39-160.

C. Arrest Warrants: When a person is found altering a critical area without a permit and such activity is not exempted by Section 48-39-130(D), has not been authorized by a permit, or is in violation of the terms and/or conditions of a Department permit, the Department may cause to be issued a warrant for the arrest of the violator.

D. Penalties: As stated in Section 48-39-170 any person found guilty of violation of the Act shall be punished by imprisonment of not more than six months or by a fine of not more than five thousand dollars, or both for the first offense; and by imprisonment of not more than one year or by a fine of not more than ten thousand dollars, or both, for each subsequent offense. In lieu of or in addition to any civil fine, the Department may employ other means of enforcement resolution, including but not limited to mitigation or supplemental restoration/enhancement activities.

E. Judicial Enforcement: Section 48-39-160 provides the Department, the Attorney General or any person adversely affected with a remedy to restrain violations of the Act.

F. Enforcement Orders and Enforcement Process: Pursuant to Section 48-39-170, the Department may issue administrative orders requiring persons to comply with any permit, regulation, standard, or requirement under the Act and to restore the environment when deemed appropriate. Prior to issuance of an enforcement order and appeal, the Department shall initiate the following process:

(1) If no acceptable resolution of a violation is reached, the Department shall send an Admission Letter setting forth all facts and grounds for violation.

(2) Within 15 days from receipt of the Admission Letter the responsible party must either admit the contents to be true or send the Department their version of the facts setting forth why the Department's facts are incorrect. Failure to respond shall result in a conclusion by the Department that the contents of letter are true.

(3) If no response is timely made to the Admission Letter, or if the response fails to resolve the Department's concerns, an Enforcement Order shall be issued based on the facts as stated by the Department in the Admission letter.

(4) Once the Enforcement Order is issued the responsible party has 15 days to appeal the Order to the Administrative Law Judge Division pursuant to R.30-6. Failure to act within 15 days will result in the Department seeking enforcement of the order in Circuit Court.

30-9. Other Provisions.

A. Savings Clause: If any provisions of the Act or of these Rules and Regulations are adjudged invalid or unconstitutional, the remainder of the Act and these Rules and Regulations and/or the application of their provisions to other persons or circumstances shall not be affected thereby.

B. Bonding by the Department: To insure that the holder complies with all limitations and conditions of the permit, the Department may, at its discretion, require a secured bond before issuance of the permit. The Department may also require the applicant to submit proof of financial responsibility.

C. Transfer of Permits: Permits are issued in the name of the applicant and may not be assigned to another without written permission of the Department.

D. Declaratory Rulings: Interested persons may petition to the Department for declaratory rulings. The Department shall rule on each petition, in writing, within 45 days of receipt.

30-10. Critical Area Boundaries.

A. Coastal Waters and Tidelands:

(1) The Department has permit authority over the coastal waters and tidelands critical areas defined in Section 48-39-10 as follows:

(a) "Coastal waters" means the navigable waters of the United States subject to the ebb and flood of the tide and which are saline waters, shoreward to their mean high-water mark. Provided, however, that the Department may designate boundaries which approximate the mean extent of saline waters until such time as the mean extent of saline waters can be determined scientifically.

(b) "Tidelands" means all areas which are at or below mean high tide and coastal wetlands, mudflats, and similar areas that are contiguous or adjacent to coastal waters and are an integral part of the estuarine systems involved. Coastal wetlands include marshes, mudflats, and shallows and means those areas periodically inundated by saline waters whether or not the saline waters reach the area naturally or through artificial water courses and those areas that are normally characterized by the prevalence of saline water vegetation capable of growth and reproduction. Provided, however, nothing in this definition shall apply to wetland areas that are not an integral part of an estuarine system. Further, until such time as the exact geographic extent of this definition can be scientifically determined, the Department shall have the authority to designate its approximate geographic extent.

(2) Using biological field surveys and aerial photography, the Department has found the point on the upper reaches of the estuarine systems where tideland vegetation changes from predominately brackish to predominately fresh and has established a boundary using the nearest recognizable physical features within this area. This boundary has been posted on an official map in SCDHEC-OCRM'S principal offices of business and is available for public review. An approximate description of this boundary is as follows: On the south at the intersection of the South Carolina-Georgia border and the old track bed of the Seaboard Coastline (SCL), approximately 1.75 miles above the U.S. Highway 17-A bridge across the Savannah River; thence, northeastward along the track bed until its intersection with S. C. 462 near Euhaw Creek; thence, northward along S. C. 462 until its intersection with U.S. Highway 17/U.S. Interstate 95 near Coosawhatchie; thence, northeastward along U.S. 17/U.S. Interstate 95 until U.S. Highway 17 and U.S. Interstate 95 intersect at Point South, thence, northeastward along U.S. 17 until its intersection with S-15-26, approximately two miles east of Green Pond; thence, southward along S-15-26 (Bennetts Point Road) until its intersection with the old SCL track bed near Airy Hall; thence, east-northeastward along the track bed on its intersection with S. C. 174; thence, northward along S. C. 174 for approximately 1.5 miles until its intersection with S. C. 164; thence, east-northeastward approximately three miles along S. C. 164 until its intersection with S. C. 165; thence, northward along S. C. 165 (Bacons Bridge Road) until its intersection with S. C. 642 (Dorchester Road); thence, southeastward along S. C. 642 until its intersection with U.S. Interstate 26; thence, southward along I-26 until its intersection with S. C. 7 (Cosgrove Avenue); thence, northeastward on S. C. 7 until its intersection with the SCL track bed adjacent to S-10-32 (Spruill Avenue); thence, northward along this track bed until its intersection with the Charleston County/Berkeley County line, approximately one-fifth mile north of S-10-13 (Remount Road); thence, east-northeastward along the county line until its intersection with the Cooper River at Goose Creek; thence, eastward by a straight line across the Cooper River and mouth of Yellow House Creek to Jessen Road at the Cainhoy Industrial Park, thence southeastward until its intersection with (Clements Ferry Road); thence, northeastward along S-8-33 until its intersection with S-8-100 (Resurrection Road) until its intersection with S. C. 41, thence northeastward on S-8-100 (Halfway Creek Road); thence, northeastward along S-8-100 until its intersection with S-10-98 (Guerins Creek Bridge Road); thence, southward along S-10-98 until its intersection with U.S. Highway 17; thence, northeastward along U.S. Highway 17 until its intersection with S-27-30 north of the North Santee River; thence, eastward along S-27-30 for approximately five miles; thence, northward along S-27-30 until its intersection with S-27-18; thence, northwestward along S-27-18 until its intersection with U.S. Highway 17 south of Georgetown, thence northeastward along U.S. Highway 17 (Frasier Street) through Georgetown, thence northeastward along U. S. Highway 17 until the intersection of U.S. Highway 17 Business and U.S. Highway 17 Bypass south of Murrells Inlet; thence, northeastward along U.S. Highway 17 Business (Kings Highway) through Murrells Inlet, Garden City, Surfside Beach, and Myrtle Beach until its intersection U.S. Highway 17 north of Myrtle Beach; thence northeastward along U.S. Highway 17 until its intersection with the South Carolina-North Carolina border. In determining the exact location of this boundary, only those lands seaward of the right-of-way line located on the upstream side of road beds and track beds described shall be included in the tidelands and coastal waters critical areas.

(3) All coastal waters and tidelands seaward from this boundary to the State jurisdictional limit are included within the critical areas.

B. Beaches and Beach/Dune System: The Department has permitting authority over beaches and the beach/dune system. In determining the boundaries of this critical area, the Department will be guided by Section 48-39-270, Section 48-39-280 and Section 48-39-360.

30-11. General Guidelines for All Critical Areas.

A. Preface: The critical areas are of vital importance to the State, and there is strong and growing pressure for the development of these areas. The Department has established these rules and regulations for permit applications in an effort to reduce the irreversible loss of productive tidelands, coastal waters, beaches, and dunes while meeting long-range State development needs.

B. General Considerations: In assessing the potential impacts of projects in critical areas, the Department will be guided by the policy statements in Sections 48-39-20 and 48-39-30 and the following ten considerations in Section 48-39-150:

(1) The extent to which the activity requires a waterfront location or is economically enhanced by its proximity to the water;

(2) The extent to which the activity would harmfully obstruct the natural flow of navigable water. If the proposed project is in one or more of the State's harbors, or in a waterway used for commercial navigation and shipping, or in an area set aside for port development in an approved management plan, then a certificate from the South Carolina State Ports Authority declaring that the proposed project or activity would not unreasonably interfere with commercial navigation and shipping must be obtained by the Department prior to issuing a permit;

(3) The extent to which the applicant's completed project would affect the production of fish, shrimp, oysters, crabs, or clams or any marine life or wildlife, or other natural resources in a particular area, including but not limited to water and oxygen supply;

(4) The extent to which the activity could cause erosion, shoaling of channels or creation of stagnant water;

(5) The extent to which the development could affect existing public access to tidal and submerged lands, navigable waters and beaches, or other recreational coastal resources;

(6) The extent to which the development could affect the habitats for rare and endangered species of wildlife or irreplaceable historic and archeological sites of South Carolina's coastal zone;

(7) The extent of the economic benefits as compared with the benefits from preservation of an area in its unaltered state;

(8) The extent of any adverse environmental impact which cannot be avoided by reasonable safeguards;

(9) The extent to which all feasible safeguards are taken to avoid adverse environmental impact resulting from a project;

(10) The extent to which the proposed use could affect the value and enjoyment of adjacent owners.

C. Further Guidelines: In the fulfilling of its responsibility under Section 48-39-150, the Department must in part base its decisions regarding permit applications on the policies specified in Sections 48-39-20 and 48-39-30, and thus, be guided by the following:

(1) The extent to which long-range, cumulative effects of the project may result within the context of other possible development and the general character of the area.

(2) Where applicable, the extent to which the overall plans and designs of a project can be submitted together and evaluated as a whole, rather than submitted piecemeal and in a fragmented fashion which limits comprehensive evaluation.

(3) The extent and significance of negative impacts on Geographic Areas of Particular Concern (GAPC). The determination of negative impacts will be made by the Department in each case with reference to the priorities of use for the particular GAPC. The priorities of use are found in Chapter IV of the Coastal Management Program.

D. General Guidelines for Beaches and the Beach/Dune System: In addition to the provisions of the South Carolina Coastal Management Act of 1977, the policies of the South Carolina Coastal Management Program, and applicable rules and regulations, the Department shall base its decisions on activities in the beach/dune system on the findings and policies specified in Section 48-39-250 and Section 48-39-260 of the 1977 Coastal Zone Management Act, as amended, and the following:

(1) The Department shall discourage new construction in the beach/dune system and encourage those who have erected structures within the system to retreat.

(2) The Department shall promote soft-solutions to erosion within the context of a policy of retreat of development from the shore and prevent the strengthening and enlargement of existing erosion control structures.

(3) The Department shall promote public access to the beaches of this state.

(4) The Department shall consider state and local comprehensive plans. No permit shall be issued which is inconsistent with the state plan, and all permits issued shall be consistent with local plans to the maximum extent practicable.

(5) The Department shall be guided by the prohibitions against construction contained in Section 48-39-290 and Section 48-39-300 which are based upon the conclusion that ill-planned development, whether habitable structures, recreational amenities, erosion control devices or other manmade structures, will now and in the future adversely impact the fragile beach/dune system. These structures interfere with the natural system and impact the highest and best uses of the system. In order to protect the highest and best uses of the beach/dune system, the Department, in its management capacity, shall encourage minimal development therein.

(6) The destruction of beach or dune vegetation seaward of the setback line is prohibited unless there is no feasible alternative. When there is destruction of vegetation permitted seaward of the setback line, mitigation, in the form of planting new vegetation to rectify the destruction is required as a permit condition. In no event shall any part of a building be constructed on a primary oceanfront sand dune.

E. Abandoned Vessels and Structures. Abandoned vessels and structures, as defined in R.30-1(D) have the potential to harm critical area environments through their physical presence and the release of contaminants that may be associated with them. In addition, they may also be a hazard to navigation, public access and sources of unsightly and dangerous floating debris as they deteriorate and break apart. Specific standards for abandoned vessels and structures are as follows:

(1) Vessels or structures determined to be abandoned by OCRM may be required to be removed from the critical area.

(2) Upon notification by OCRM, the owner of the abandoned vessel or structure will have 30 days from date of notification to remove it from the critical area at his or her expense.

(3) Abandoned boats, barges, or other watercraft whose ownership cannot be established may be removed from the critical area by any person, at their expense, and in accordance with Section 50-23-135 of the SC Code of Laws, 1976.

(4) Structures, other than watercraft, whose ownership cannot be established may be removed by any person, at their expense, provided notification is provided to OCRM prior to removal. Such notification shall include date and method of removal.

(5) OCRM may require a Department permit for removal of any vessel or structure if it is deemed that the removal process will significantly impact the surrounding marsh environment.

30-12. Specific Project Standards for Tidelands and Coastal Waters.

A. Docks and Piers: A dock or pier is a structure built over and/or floating on water and is used to provide access to water and for the mooring of boats. Docks and piers are the most popular method of gaining access to deep water. Docks and piers sometimes pose navigational problems, restrict public use of the water and, under certain circumstances, possess potential for creating environmental problems. This section is divided in five parts providing standards for 1) all, 2) private and joint use, 3) master planned, 4) commercial and (5) community docks. Docks are defined in 30-1.D(16) Docks. Community docks have less environmental impact than multiple private or joint use docks. One or more community dock(s) in a development will be permitted when sufficient numbers of private or joint use docks are eliminated and other applicable Department regulations are met. This section does not include standards for marinas, which are addressed in 30-12.E. Marinas by definition include docks with more than 250 linear feet of effective docking space.

(1) The following standards are applicable for construction of all docks and piers:

(a) Docks and piers shall be limited to one structure per parcel and shall not restrict the reasonable navigation or public use of State lands and waters;

(b) Docks and piers shall be constructed in a manner that does not restrict water flow;

(c) The size and extension of a dock or pier must be limited to that which is reasonable for the intended use;

(d) Docks and piers should use the least environmentally damaging alignment;

(e) All applications for docks and piers should accurately illustrate the alignment of property boundaries with adjacent owners and show the distance of the proposed dock from such extended property boundaries. For the purpose of this section, the extension of these boundaries will be an extension of the high ground property line. The Department may consider an alternative alignment if site specific characteristics warrant or in the case of dock master plans, when appropriate.

(f) Walkways leading to the dock or pier should be elevated at least three feet above mean high water.

(g) Dry storage in uplands will be encouraged in preference to moorage in crowded areas;

(h) Developers of subdivisions and multiple family dwellings are encouraged to develop plans which include joint-use docks and/or community docks at the time of required dock master plans. Dock corridors on the approved Dock Master Plan (DMP) must be shown with bearings or State Plane Coordinates on a recordable subdivision plat for the development, and recorded in the appropriate County Office of Deeds. Subsequent re-surveys or modifications to lots shall reference the dock corridors on the recorded subdivision plat and be submitted to the Department. Reference to this DMP must be given in all contracts for lot sales.

(i) Project proposals shall include facilities for the proper handling of litter, waste, refuse and petroleum products, where applicable;

(j) Where docks and piers are to be constructed over tidelands utilized for shellfish culture or other mariculture activity, the Department will consider rights of the lessee and the public prior to approval or denial.

(k) Docks cannot be enclosed by walls or screens.

(l) Docks longer than 1,000 feet over critical area are prohibited. This is inclusive of pierheads, floats, boatlifts, ramps, mooring pilings and other associated structures.

(m) Handrails, if proposed, shall be limited to a maximum height of 36"' above the walkway or pierhead decking.

(n) Docks must extend to the first navigable creek, within extensions of upland property lines or corridor lines, that has a defined channel as evidenced by a significant change in grade with the surrounding marsh; or having an established history of navigational access or use. Rare geographic circumstances, such as very close proximity of a significantly larger creek within extensions of property or corridor lines, may warrant dock extension to a creek other than the first navigable creek. A creek with an established history of navigational use may also be considered as navigable. Such creeks cannot be bridged in order to obtain access to deeper water. However, pierheads must be located over open water and floating docks that rest upon the bottom at mean low tide will not normally be permitted. In exceptional cases, the Department may allow an open water channel to be bridged if current access is prohibited by other man made or natural restrictions or if site-specific conditions warrant such a crossing.

(o) This section applies to lots subdivided or resubdivided after May 23, 1993. Additionally, lots subdivided or resubdivided after June 27, 1997 must meet the minimum, local requirements to construct a habitable structure in order to qualify for a dock.

(i) To be eligible for a private, community or commercial dock, a lot must have:

(a) 75 feet of frontage at the marsh edge, and

(b) 75 feet between its extended property lines at the location in the waterbody of the proposed dock.

(ii) Joint use docks will be considered for adjacent waterfront properties each of which must have:

(a) 50 feet of frontage at the marsh edge, and

(b) 50 feet between its extended property lines at the location in the waterbody of the proposed dock.

(iii) Lots less than 50 feet wide are not eligible for a dock.

(p) No docks, pierheads or other associated structures will be permitted closer than 20 feet from extended property lines with the exception of joint use docks shared by two adjoining property owners. However, the Department may allow construction closer than 20 feet or over extended property lines where there is no material harm to the policies of the Act.

(q) If a dock is destroyed, the dock may be rebuilt to its previous configuration so long as reconstruction is completed within five years of the date of the event unless there are extenuating circumstances justifying more time.

(r) In the event that a dock owner intends to change the use of a dock from the permitted use or non-permitted grandfathered use, a new permit must be obtained prior to the change in use. The change in use is based on the types of docks distinguished by these regulations.

(2) The following standards in addition to those in R.30-12(A)(1) are applicable for the construction of private and joint use docks:

(a) Storage on docks will be limited to a bench-like locker no larger than 3 feet high, by 3 feet deep, by eight feet long.

(b) Walkways leading to a dock or pier shall not exceed 4 feet in width. For handicapped access, the Department may utilize The Americans with Disabilities Act (ADA) recommendations for walkway width and other structural configurations. Reference 28 CFR Part 36.

(c) The Department sets forth the following standards for size and use of pierheads and floating docks. Total allowable dock square footage as used in this section includes the areas of any fixed pierheads, floating docks, the area of boat storage docks, additional areas covered by a roof, and areas bounded by an unroofed boat lift, davit or similar structure; and excludes walkways, ramps, mooring buoys, and mooring piles. For boatlifts, davits, or similar structures the square footage will be determined by the area bounded by the structure or 120 square feet, whichever is greater. Where otherwise allowed by these regulations, the Department will allow an applicant to choose either one boat lift or one boat storage dock with an impact area not to exceed 160 square feet that will not count against the total allowable dock square footage. For purposes of determining creek width, if marsh vegetation does not exist, the Department will utilize other indicators of channel width such as changes in grade and the critical area boundary. Lots in subdivisions with approved DMPs as of May 24, 2002, are exempt from R.30-12.A(2)(c)(i) and (ii) as amended on May 24, 2002. R.30-12.A(2)(c)(i) and (ii) as amended on May 24, 2002, does not apply to lots of record that existed as of May 24, 2002, until the later of July 1, 2007, or the expiration of any permit issued prior to that date.

(i) Docks will not be permitted on creeks less than 10 feet wide as measured from marsh vegetation on each side.

(ii) Docks will not be permitted on creeks less than 20 feet wide as measured from marsh vegetation on each side unless one of the following two special geographic circumstances exists: a lot has greater than 500 feet of water frontage or no potential access via dockage from the opposite side of the creek. If special geographic circumstances exist, total allowable dock square footage will be restricted to 50 square feet. Boat lifts, davits, and boat storage docks will not be permitted on any dock allowed in creeks less than 20 feet wide.

(iii) On creeks between 20 and 50 feet, as measured from marsh vegetation on each side, total allowable dock square footage shall be restricted to 120 square feet unless special geographic circumstances and land uses warrant a larger structure.

(iv) On creeks between 51 and 150 feet, as measured from marsh vegetation on each side, total allowable dock square footage shall be restricted to 160 square feet unless special geographic circumstances and land uses warrant a larger structure.

(v) On creeks larger than 150 feet, as measured from marsh vegetation on each side, total allowable dock square footage shall be restricted to 600 square feet unless special geographic circumstances and land uses warrant a larger structure;.

(vi) Grandfathered or previously permitted fixed and floating docks which are larger than allowed in R.30-12(A)(2)(c)(ii-v) may not be enlarged.

(vii) Enclosed boathouses are prohibited.

(viii) Boats moored at docks cannot restrict the reasonable navigation or public use of State lands and waters. Under no circumstance are live-aboards allowed at private docks. Commercial activities are prohibited at private docks unless they are water-dependent and approved by the Department. Illegal use of a private dock is grounds for permit revocation.

(ix) Boat storage docks, elevated boatlifts or davits will not count against the total dock square footage as outlined in 30-12.A(2)(c)(ii-vi) if the size of the structure is 8 feet by 20 feet or less. The area of any larger structure greater than 160 square feet will count against the total allowable dock square footage.

(d) Roofs on private docks will be permitted on a case-by-case basis, with consideration given to the individual merits of each application. Precedent in the vicinity for similar structures will be considered as well as the potential for impacting the view of others. Roofs that have the potential to seriously impact views will not be allowed, while those that have minimal impact may be allowed. The following standards will be used in evaluating applications for roofs.

(i) Roofs shall be clearly shown on the public notice application drawings, and described in the written description of the project. Attics or enclosed ceiling storage on roofed docks are prohibited.

(ii) Flat roofs are prohibited. Where a roof is otherwise permissible, maximum allowable roof height shall be 12' as measured from the floor decking of the dock to the highest point of the roof including any ornamental structures.

(iii) Rails on decks are not to be incorporated into roofs and no steps, ladders or other means of accessing the roof on a permanent basis are allowed.

(e) Boat lifts or davit systems are allowed, provided the entire docking system is limited to the minimum structure size needed to accomplish the intended use. The following standards will be used in evaluating applications for boatlifts and davits:

(i) Single family docking facilities will be normally limited to one lift per structure.

(ii) Hull scraping, sandblasting, painting, paint removal, and major engine repair are prohibited on lifts and davits.

(iii) Boat lifts must be open sided with no enclosures. Catwalks are allowed to provide access on one side and shall be a maximum of 3 feet wide.

(3) The following procedures in addition to those in R.30-12(A)(1) will be followed for docks covered by Dock Master Plans (DMPs):

(a) A permit may be issued for docks covered by a DMP, as outlined in CH.III.VI.D of the Coastal Zone Management Plan. This permit for multiple docks must be placed on public notice and processed as a major application. If a DMP is approved by the Department, but no permit is applied for or issued, the approved DMP will be used as a framework for future permitting decisions, subject to comments received during the public review process.

(b) Before individual structures covered by the permit are constructed, written notice must be given to and a construction placard received from the Department to insure the docks are built according to the plan.

(c) Major modifications of individual structures that would require a new public notice will not be permitted; however those modifications that are minor in nature will be considered as long as the request is in keeping with the spirit of the DMP.

(d) If the permit expires before all of the docks permitted have been constructed, subsequent permit applications for the remaining structures will be reviewed for consistency with the DMP unless the DMP no longer reflects Department policies and regulations.

(e) Extensions of permits for multiple docks will be issued upon a showing of significant activity under the permit.

(4) The following standards in addition to those in R.30-12(A)(1) apply to construction of commercial docks that are not marinas:

(a) The size and extension of the dock must be limited to that which is reasonable for the intended use and the geographic circumstances of the site. However, no docks will be permitted in creeks less than 20 feet wide as measured from marsh vegetation on each side.

(b) Each applicant for a commercial dock must submit an Operations and Maintenance Manual with the permit application.

(c) New commercial docks are not allowed in waters classified for shellfish harvesting if their proposed uses would result in the closure of additional waters for shellfish harvesting.

(d) Commercial docks should be located in areas that will have minimal adverse impact on wetlands, water quality, wildlife and marine resources, or other critical habitats.

(e) Where commercial dock construction would affect shellfish areas, the Department must consider the rights of the lessee, if applicable, and the public, as well as any possible detrimental impacts on shellfish resources.

(f) Project proposals shall include facilities for the proper handling of litter, waste and other refuse in accordance with DHEC regulations.

(g) Adequate parking for users of the commercial dock shall be demonstrated.

(h) The criteria for determining roof construction described in 30-12A(2)c apply to commercial docks.

(5) The following standards in addition to those in R.30-12(A)(1) apply to construction of community docks that are not marinas:

(a) The size and extension of the community dock must be limited to that which is reasonable for the intended use.

(b) No leasing or other transfer of space to individuals who do not reside in the community or other commercial uses are allowed at community docks.

(c) Community docks are strongly encouraged and will only be permitted in lieu of multiple single-family docks. Eliminating private docks on small creeks in exchange for permitting of community docks on larger waterbodies minimizes environmental impacts. If a sufficient number of private docks are eliminated, the Department will consider permitting more than one community dock for a subdivision provided no applicable Department regulations are contravened. The ratio for determining community dock size (or slip moorage) in exchange for single-family docks will be 2 to 1 or 40 feet of community dock length for each private dock that is eliminated. If a joint use dock is eliminated, the number of lots served by the dock will count as the number of docks eliminated.

(d) No section of any community dock (pierheads or other associated structures) will be permitted closer than 20 feet from extended property lines. However, the Department may allow construction closer than 20 feet or over extended property lines where there is no material harm to the policies of the Act.

(e) Community docks will be prohibited on creeks less than 20 feet in width, however on creeks larger than 20 feet the size of the structure will be determined by the language in 30-12.A(5)(a) as well as (c).

(f) Walkways leading to a dock or pier shall not exceed 6 feet in width. For handicapped access, the Department may utilize The Americans with Disabilities Act (ADA) recommendations for walkway width and other structural configurations. Reference 28 CFR Part 36.

B. Boat ramps:

(1) Boat ramps provide access to the water for those who do not have water access by means of docks, piers, or marinas. However, boat ramp construction may require filling or, in some cases, dredging of wetland areas.

(2) Specific standards which shall apply are as follows:

(a) Filling or excavating of vegetated wetlands for boat ramp construction is prohibited unless no feasible alternatives exist in non-vegetated wetland areas. In addition, the area to be filled or excavated must be limited to that which is reasonable for the intended use;

(b) Boat ramps must consist of environmentally acceptable materials, demonstrate sound design and construction so that they could reasonably be expected to be safe and effective, and minimize adverse effects.

(c) Justification for boat ramp construction in environmentally sensitive areas shall be considered using the following priorities:

(i) Public use - open to all citizens;

(ii) restricted use - open to citizens of a particular area or organization only;

(iii) private use - use for one citizen or family;

(d) In cases where private use is necessary, siting of ramps must, wherever feasible, be located in areas where the least environmental impact will accrue to the area and be limited to 12 feet in width;

(e) Boat ramp location requiring dredging or filling of wetlands to provide deep water access to the ramp, parking areas for the ramp, or other associated facilities are prohibited unless no feasible alternatives exist and environmental impacts can be minimized;

(f) The siting of "public use" boat ramps is encouraged in easily accessible areas such as bridges and existing, abandoned causeways, provided that these sites comply with other applicable regulations.

C. Bulkheads and Revetments (Rip-rap) (Other than ocean front, as covered under R.30-13(N)):

(1) In an attempt to mitigate certain environmental losses that can be caused by these structures, the following standards are adopted:

(a) Structures must be designed to conform to the critical area line (upland boundary), to the maximum extent feasible, and constructed so that reflective wave energy does not destroy stable marine bottoms or constitute a safety hazard;

(b) Structures may be constructed up to 18 inches from the existing escarpment. In situations where this is not feasible, Department staff will determine the location of the bulkhead or revetment on a site by site basis;

(c) Bulkheads and revetments will be prohibited where marshlands are adequately serving as an erosion buffer, where adjacent property could be detrimentally affected by erosion or sedimentation, or where public access is adversely affected unless upland is being lost due to tidally induced erosion.

(d) Bulkheads and revetments will be prohibited where public access is adversely affected unless no feasible alternative exists.

D. Cables, Pipelines, and Transmission Lines:

(1) Installation of cables, pipelines, and transmission lines is preferred in non-wetland areas. Excavating activities in critical areas are sometimes required with the preferred alternative being directional boring. Excavation and filling also are sometimes required to construct foundation structures attendant to the installation of overhead transmission line crossings. These installations shall be designed to minimize adverse environmental impacts.

(2) In addition to standards for dredging and filling, the following standards are applicable:

(a) To the maximum extent feasible, alignments must avoid crossing the critical areas;

(b) Creation of permanent open water canals to install pipelines is prohibited since such projects usually interfere with drainage patterns and may adversely affect water quality through accelerated bank erosion;

(c) Dimensions of temporarily excavated canals for cables and pipelines should be minimal. Silt curtains are required for all excavations;

(d) Wherever feasible, all excavations in wetland areas must be backfilled with the excavated material after installation of the appropriate structure, while being careful to maintain the original marsh elevation. In addition, excavated material must be stockpiled on highground whenever feasible;

(e) Appropriate erosion control measures shall be employed during the crossing of wetland areas. Where appropriate, revegetation with suitable wetland species will be required;

(f) Alignments of new projects should be designed to utilize existing rights-of-way and topographic features, wherever feasible;

(g) The extension of public services, such as sewer and water facilities, involving the expenditure of public funds or issuance of government revenue bonds to previously undeveloped barrier islands will not be approved unless an overriding public interest can be demonstrated.

E. Marinas, including commercial and community docks with more than 250 linear feet of effective docking space.

(1) In addition to standards applicable for bulkheads and seawalls, dredging and filling, and navigation channels and access canals, the following standards apply to all structures defined as marinas in 30-1(D):

(a) Each applicant for a marina must submit an Operations and Maintenance Manual with the permit application. This Operations and Maintenance Manual must be in accordance with 30-12(E)(6), and approved in writing by the Department staff. The requirements for the Operations and Maintenance Manual may be modified if deemed necessary by the Department.

(b) All marinas affect aquatic habitats to some degree, but adverse effects can be minimized by utilizing proper location and design features. Applications for marinas shall include a comprehensive site plan showing location and number of all water-dependent and upland facilities such as parking and storage facilities.

(c) New marinas, which includes all structures defined as marinas in 30-1(D), are not allowed in waters classified for shellfish harvesting, except for any locked harbor, dry stack or expanded existing marina that does not close any additional waters for shellfish harvesting.

(i) An applicant for any marina in waters classified for shellfish harvesting, can request that the S.C. Department of Natural Resources (DNR) comment in writing on whether the area around the proposed marina is suitable or not suitable for the natural growth and propagation of shellfish. The permit shall not be issued unless the Department, after giving great weight to the comments of the DNR, determines that natural physical conditions in the area surrounding the proposed marina preclude the natural propagation of shellfish.

(ii) The DNR's comments shall be based on criteria including:

(1) intertidal bottom types (including shell matrix depth and composition - shell, clay, silt);

(2) density of naturally occurring oyster beds (oyster strata types, bottom coverage, acreage);

(3) presence or absence of significant subtidal oyster populations;

(4) water depth;

(5) oyster population elevations;

(6) salinity regimes (including a review of historic data and recognition of possible future changes that could affect hydrography);

(7) presence or absence of significant clam populations;

(8) potential for expansion of existing natural oyster beds through cultivation;

(9) potential for shellfish production with non-traditional methods;

(10) the current shellfish management and water quality classifications;

(11) and any other factors relating to the natural physical conditions in the area deemed appropriate by the DNR including whether the area is likely to support the natural growth and propagation of shellfish in the reasonably foreseeable future.

(iii) This determination in no way affects or limits the ability of DNR to comment on the entire permit application before the Department.

(d) Marinas should be located in areas that will have minimal adverse impact on wetlands, water quality, wildlife and marine resources, or other critical habitats;.

(e) Marinas must extend to the first navigable creek, within extensions of upland property lines or corridor lines, that has a defined channel as evidenced by a significant change in grade with the surrounding marsh; or having an established history of navigational access or use. Rare geographic circumstances, such as very close proximity of a significantly larger creek within extensions of property or corridor lines, may warrant marina extension to a creek other than the first navigable creek. A creek with an established history of navigational use may also be considered as navigable. Such creeks cannot be bridged in order to obtain access to deeper water. However, pierheads must be located over open water and floating docks which rest upon the bottom at mean low tide will not normally be permitted. In exceptional cases, the Department may allow an open water channel to be bridged if other man made or natural restrictions prohibit current access or if site-specific conditions warrant such a crossing.

(f) To be eligible for a marina, a lot must have a minimum of 150 feet of frontage at the marsh edge, and 150 feet between its extended property lines at the location in the waterbody of the proposed structure.

(g) No marinas or other associated structures will be permitted closer than 20 feet from extended property lines with the exception of common marinas shared by two adjoining property owners. However, the Department may allow construction closer than 20 feet or over extended property lines where there is no material harm to the policies of the Act.

(h) Existing permitted and grandfathered marinas as of the effective date of these regulations may be maintained and rebuilt to their pre-existing size and configuration if damaged or destroyed. However, these marinas cannot expand beyond their current footprint if such expansion violates the requirements of 30-12.E(1)(g) and (h). Marinas that do not meet the frontage and offset requirements of 30-12.E(1)(g) and (h) may expand channelward provided all other applicable Department standards are met. Additionally, at such time as these marinas expand, even when remaining within their existing footprint, a permit will be required and applicable Department standards, including 30-12.E(2) and (3) relating to operation and maintenance, must be met.

(i) Marinas proposed for the exclusive use of occupants of the adjoining development will only be permitted in lieu of multiple private docks. Eliminating private docks on small creeks in exchange for permitting a marina with private slips on a larger waterbody is the preferred alternative of the Department. To determine the number of slips allowed within this type of marina, a ratio of 2.5 to 1 or 50 feet of slip length for every private dock (or lot served by a joint use dock) eliminated will be utilized. No leasing, or other transfer of space to individuals who do not reside in the community or other commercial uses are allowed at these marinas.

(j) Marinas shall not restrict the reasonable navigation or public use of State lands and waters.

(k) Marinas shall be constructed in a manner that does not restrict water flow and must avoid or minimize the disruption of currents. Dead-end or deep canals without adequate circulation or tidal flushing will not be permitted.

(l) The size and extension of the marina must be limited to that which is reasonable for the intended use.

(m) Marinas should use the least environmentally damaging alignment.

(n) Where marina construction would affect shellfish areas, the Department must consider the rights of the lessee, if applicable, and the public, and any possible detrimental impacts on shellfish resources.

(o) Marinas should be located in areas where the least initial and maintenance dredging will be required. New marinas that require initial and maintenance dredging must provide a permanent, dedicated spoil area capable of holding both the initial dredge volume and all anticipated maintenance needs. This spoil area must be reserved using deed restrictions or other legal instruments.

(p) Marinas must avoid or minimize the disruption of currents. Dead-end or deep canals without adequate circulation or tidal flushing will not be permitted.

(q) Marina design must minimize the need for the excavation and filling of shoreline areas;.

(r) Open dockage extending to deep water is preferable to excavation for boat basins, and it must be considered as an alternative to dredging and bulkheading for marinas;.

(s) Turning basins and navigation channels shall be designed to prevent long-term degradation of water quality. In areas where there is poor water circulation, the depth of boat basins and access canals should not exceed that of the receiving body of water to protect water quality.

(t) Project proposals shall include facilities for the proper handling of petroleum products, sewage, litter, waste, and other refuse in accordance with Department regulations.

(u) Dry storage type marinas are preferred whenever feasible, and an applicant for a marina permit will be required to show why a dry storage facility is infeasible, in whole or in part. Infeasibility may be shown where the applicant seeks a facility for large boats that cannot be accommodated in a dry storage facility or where there is inadequate upland space for the facility.

(v) Applications for marinas must include maintenance dredging schedules and dredged material disposal sites when applicable.

(w) Adequate parking for users of the marina shall be demonstrated as either one parking space for every three wet and/or dry slips or the spaces required by the applicable local government parking regulation, whichever is greater.

(x) Mooring fields associated with marinas are encouraged in place of pierheads and floating docks where the size of the waterbody and other site specific conditions are suitable. These mooring fields must be in compliance with R.30-12(P).

(2) The following standard conditions, along with any special conditions that may be appropriate, will be included in all permits for marinas unless the Department determines that such standard