South Carolina s 401 Certification Program: Opportunities and Challenges

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1 South Carolina s 401 Certification Program: Opportunities and Challenges Association of State Wetland Managers State/Tribal/Federal Coordination Meeting Shepherdstown, WV March 22-24, 2011 Heather Preston, SCDHEC

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3 South Carolina 401 Program SC is a smaller state in area and population (40 th in land area and 24 th in population) SC s 401 Water Quality Certification Program also smaller 2006: 535 applications 2007: 481 applications 2008: 440 applications 2009: 334 applications 2010: 283 applications

4 SC Regulation , Water Quality Certification R governs issuance of 401 Water Quality Certifications R A.2. requires that the State issue a certification for any activity that requires a Federal permit or license and may result in a discharge to State waters Limits our certifications to Federal permits or license such as 404 permits, Section 10 permits, FERCs and NRC licenses Majority of certifications are for 404 permits issued by the Corps

5 FERCs to include but not be limited to Santee-Cooper Santee River Expired 2006 Duke Energy - Catawba-Wateree Expired 2008 (denied and appealed) SCE&G Saluda River Expired 2010 (401 issued 2010) Lockhart Power Pacolet River Expires 2012 (401 issued 2011) Duke Energy Keowee/Toxaway Expires 2016

6 Nuclear Regulatory Commission VC Summer SCE&G/Santee Cooper Final EIS due this Spring Public Notice and 401 application shortly after Lee Nuclear Duke Energy Draft EIS possibly this summer

7 States with Wetland Regulatory Programs

8 Solid Waste Authority of Northern Cook County (SWANCC) Supreme Court Decision Following the Supreme Court s January 2001 SWANCC Decision, SCDHEC undertook an effort to promulgate a state 401 permitting mechanism to address gap in wetlands regulation created by SWANCC.

9 SCDHEC s Response to SWANCC SCDHEC proposed to revise R to create a permitting program to regulate discharges into isolated waters. In January 2004, the SCDHEC Board approved the proposed regulations. SCDHEC is overseen by a seven member Board that is appointed by the Governor.

10 South Carolina 401 Program In SC, all regulations promulgated by the executive branch must be approved by the SC General Assembly (with minor exceptions) SC General Assembly failed to approve regulations in 2004 that would have established a state 401 permitting program

11 South Carolina 401 Program R , provides very broad authority to review applications for 401 Water Quality Certifications. R F.3.(b) requires the Department to consider whether there are feasible alternatives to the activity. R F.3.(c) requires the Department to consider all potential water quality impacts, both direct and indirect, over the life of the project including: Impact on existing and classified uses; Physical, chemical, and biological impacts including cumulative impacts; The effect on circulation patterns and water movement; The cumulative impacts of the proposed activity and reasonably foreseeable similar activities of the applicant and others.

12 South Carolina 401 Program R F.5 requires the Department to deny certification if: Proposed activity permanently alters aquatic ecosystem in vicinity of project such that its functions and values are eliminated or impaired; There is a feasible alternative which reduces impacts on water quality and classified uses; Proposed activity adversely impacts waters containing rare, threatened or endangered species; Proposed activity adversely impacts special or unique habitats.

13 H.3587

14 A297, R215, H4445 A JOINT RESOLUTION TO EXTEND CERTAIN GOVERNMENT APPROVALS AFFECTING THE DEVELOPMENT OF REAL PROPERTY WITHIN THE STATE. Whereas, there exists a state of economic emergency in the State of South Carolina and the nation, which has drastically affected various segments of the South Carolina economy, but none as severely as the state s banking, real estate, and construction sectors; and Whereas, the real estate finance sector of the economy is in severe decline due to the creation, bundling, and widespread selling of leveraged securities, such as credit default swaps, and due to excessive defaults on sub-prime mortgages and the resultant foreclosures on a vast scale

15 Funding & Staff Reductions Since 2008, the state funds have been drastically reduced*: FY09 (July 1, 2008) Agency state funds were $147,280,917 FY10 (July 1, 2009) Agency state funds were $103,104,422 During FY10 Agency state funds further reduced to $97,949,201 FY11 (July 1, 2010) Agency state funds were $81,953,599 Full-time equivalent (FTE) positions have also been reduced by 15%: 2008 agency FTEs 4, agency FTEs 3,548.5 * Not including fees or Federal grant dollars

16 401 Project Managers by County

17 401 Project Managers by County

18 Resource Reduction Efforts Notice published on October 22, 2010 in SC State Register Four 401 Certifications have been waived since notice issued First time SCDHEC has had to waive a 401 Certification Appeal received on October 28, 2010

19 EPA Wetland Program Development Grants 2006 Grant - Identification of Compensatory Mitigation Sites within Priority Watershed and Development of Ephemeral, Intermittent, and Perennial Streams Guidebook. Building staff capacity and training in wetlands assessment methodologies. Developing a guidebook for identifying ephemeral, intermittent and perennial streams Grant Southeast Wetlands Monitoring Intensification Grant (AL, NC and SC) Monitor 20 sites in each state (Piedmont and Coastal Plain) in accordance with EPA s National Wetland Condition Assessment and provide additional monitoring data. Possible applications for future wetlands standards.

20 Questions? Heather Preston