This Bill by alicejenny


									                                  South Carolina General Assembly
                                      117th Session, 2007-2008

S. 116


General Bill
Sponsors: Senators Grooms and Campsen
Document Path: l:\s-res\lkg\001isol.kmm.doc

Introduced in the Senate on January 9, 2007
Currently residing in the Senate Committee on Agriculture and Natural Resources

Summary: Isolated Wetlands Act of 2007


    Date     Body     Action Description with journal page number
 12/6/2006   Senate   Prefiled
 12/6/2006   Senate   Referred to Committee on Agriculture and Natural Resources
  1/9/2007   Senate   Introduced and read first time SJ-76
  1/9/2007   Senate   Referred to Committee on Agriculture and Natural Resources SJ-76


 9                              A BILL
24   Whereas, the General Assembly finds that:
25        (1) isolated wetlands serve important environmental
26   functions such as: providing habitat for wildlife, protecting water
27   quality, and providing flood control;
28        (2) isolated wetlands offer important economic and
29   recreational benefits such as hunting, fishing, bird watching, and
30   tourism;
31        (3) the isolated wetlands in South Carolina have sustained a
32   historical degradation, resulting in the need for an effective
33   program to limit the degradation of isolated wetlands and to
34   provide, where and when appropriate, for long-term restoration
35   and enhancement of isolated wetlands in South Carolina that have
36   degraded or have been lost in the past;
37        (4) changes in federal, state, and local policies have
38   decreased the rate of isolated wetland losses in recent years;
39        (5) recent interpretations by the United States Supreme
40   Court regarding the scope and reach of the federal Clean Water
41   Act have limited the federal government’s role in regulating

     [116]                            1
 1   impacts on isolated wetlands, delegating much authority to the
 2   states;
 3        (6) the United States Supreme Court has indicated that
 4   regulation of land and water use is a traditional and primary power
 5   of the states;
 6        (7) many of the state’s isolated wetlands exist on privately
 7   owned property;
 8        (8) the State of South Carolina will implement an effective,
 9   balanced program to manage activities in and around isolated
10   wetlands that:
11           (a) conserves and enhances environmentally significant
12   isolated wetland functions;
13           (b) requires mitigation to compensate for unavoidable
14   isolated wetland disturbances;
15           (c) recognizes the need for essential public infrastructure,
16   such as highways, utilities, ports, airports, sewer systems, and
17   public water supply systems, and the need to preserve strong local
18   tax bases;
19           (d) respects and protects individual private property
20   rights; and
21           (e) provides for sustained economic growth.
23      Whereas, it is the policy of the State of South Carolina to:
24        (1) enact a permitting program for activities in isolated
25   wetlands under this act that balances isolated wetland protection
26   with economic growth;
27        (2) conserve isolated wetlands without significant adverse
28   impacts on the state, regional, and local economy, including
29   significant reductions in state and local tax receipts;
30        (3) encourage the conservation and restoration of isolated
31   wetland functions where appropriate;
32        (4) achieve the goal of no net loss of isolated wetlands,
33   except as otherwise stated in this act, when measured in terms of
34   functions provided by the isolated wetlands on a statewide basis;
35        (5) implement the regulatory program authorized under this
36   act to ensure that landowners are not denied the reasonable use of
37   their property;
38        (6) streamline the permitting process for minimal impact
39   projects in isolated wetlands;
40        (7) ensure an efficient and cost-effective isolated wetland
41   regulatory program; and

     [116]                            2
 1        (8) minimize regulatory gridlock by designating one state
 2   agency to implement the regulatory program for wetlands
 3   determined to be isolated by the federal government.
 5     Be it enacted by the General Assembly of the State of South
 6   Carolina:
 8   SECTION 1. Title 48 of the 1976 Code is amended by adding:
10                             “CHAPTER 38
12                            Isolated Wetlands
14     Section 48-38-10. This chapter may be cited as the ‘South
15   Carolina Isolated Wetlands Act of 2007’.
17      Section 48-38-20. For purposes of this chapter:
18      (1) ‘Abandoned’ means no construction, mining, processing, or
19   reclamation activities have occurred during the previous seven
20   years.
21      (2) ‘Activities’ means the discharge of dredged or fill material
22   into waters, as defined in Section 48-1-10(2), as well as the
23   draining, ditching, dewatering, or other alteration of the physical
24   and chemical integrity of a wetland.
25      (3) ‘Board’ means the Board of the South Carolina Department
26   of Health and Environmental Control.
27      (4) ‘Carolina Bay’ means a natural shallow depression largely
28   fed by rain and shallow groundwater, with an elliptical shape and
29   generally a northwest to southeast orientation.
30      (5) ‘Mitigation’ or ‘Mitigation project’ means in order of
31   acceptability:
32        (a) avoiding impact by not performing the activity in
33   isolated wetlands;
34        (b) minimizing impacts by limiting the degree or magnitude
35   of the action and its implementation;
36        (c) rectifying the impact by repairing, rehabilitating, or
37   restoring the affected environment;
38        (d) reducing or eliminating the impact over time by
39   preservation and maintenance operations during the life of the
40   action;
41        (e) compensating for the impact by replacing or providing
42   substitute resources or environments.

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 1      (6) ‘Department’ means the South Carolina Department of
 2   Health and Environmental Control.
 3      (7) ‘Discharge of dredged or fill material’ means the addition
 4   of dredged or fill material into isolated wetlands.
 5      (8) ‘Fill material’ means material placed in an isolated wetland
 6   where the material has the effect of:
 7         (a) replacing any portion of an isolated wetland with dry
 8   land; or
 9         (b) changing the bottom elevation of any portion of an
10   isolated wetland. Fill material includes, but is not limited to, rock,
11   sand, soil, clay, wood chips, overburden from mining or other
12   excavation activities, and materials used to create any structure or
13   infrastructure in an isolated wetland.
14      (9) ‘Feasible’ means available and capable of being done after
15   taking into consideration cost, existing technology, and logistics in
16   light of the overall project purposes.
17      (10) ‘Isolated wetlands’ means those areas that are inundated or
18   saturated by water at a frequency or duration sufficient to support,
19   and that under normal circumstances do support, a prevalence of
20   vegetation typically adapted for life in saturated soil conditions and
21   that are not regulated under the federal Clean Water Act. The term
22   ‘isolated wetlands’ does not include:
23         (a) waste treatment systems, including treatment ponds or
24   lagoons, not constructed in isolated wetlands, designed to comply
25   with water quality standards of the State;
26         (b) stormwater management facilities, or a drainage or
27   irrigation ditch, located in upland, including storm water retention
28   ponds;
29         (c) an artificially irrigated area that would revert to upland if
30   the irrigation ceased;
31         (d) a waterfilled depression created in uplands incidental to
32   construction activity, or to excavation activity, for the purpose of
33   obtaining fill, sand, gravel, aggregates, or minerals unless these
34   activities have been abandoned and the area otherwise meets the
35   definition of isolated wetlands; or
36         (e) depressions in upland soil resulting solely from traffic
37   from vehicles and human activity, excluding activity intended to
38   change the elevation, slope, or composition and structure of
39   wetland soils.
40      (11) ‘Mitigation bank’ means a site where wetlands are restored,
41   created, or preserved expressly for the purpose of providing
42   compensatory mitigation credits for compliance with mitigation

     [116]                              4
 1   requirements of an approved permit in accordance with the
 2   provisions of this chapter.
 3      (12) ‘Compensatory mitigation’ may include restoration,
 4   enhancement, preservation of wetlands or the debiting of credits
 5   from a wetlands mitigation bank.
 6      (13) ‘Person’ means an individual, public or private corporation,
 7   political subdivision, government agency, municipality, industry,
 8   co-partnership, association, firm, trust, estate, or any other legal
 9   entity.
11      Section 48-38-30. Wetlands regulated by the federal
12   government under the federal Clean Water Act are not under the
13   jurisdiction of the department for purposes of this chapter.
15      Section 48-38-40. A delineation approved by a federal agency
16   under Section 404 of the federal Clean Water Act within five years
17   of submittal to the department may be accepted by the department
18   but are not binding on the agency if there is evidence of fraud, bad
19   faith, mistake, inaccuracy, or negligent misrepresentation by the
20   applicant or agent procuring the delineation.
22      Section 48-38-50. (A) The department, after notice and
23   opportunity for comment by affected parties, and using the
24   procedures and criteria for permit issuance set forth in this chapter,
25   shall issue permits for the activities in isolated wetlands regulated
26   under this chapter.
27      (B) The content of the application for permits for activities in
28   isolated wetlands is specified below. Upon receipt of an
29   application, the department may require additional information to
30   make the application complete. At a minimum, the application
31   must contain:
32        (1) the name, address, phone numbers, and principal place of
33   business of the applicant; the name, address, and phone number of
34   the property owner, if different from the applicant; and, if
35   applicable, the name, address, and phone number of the agent for
36   the applicant;
37        (2) a complete description of the proposed permitted
38   activity, including the location, affected water bodies, purpose and
39   intent of the project, and maps, drawings, and plans sufficient for
40   review purposes; detailed engineering plans are not required;
41        (3) a description of all proposed activities reasonably
42   associated with the proposed permitted project either directly or

     [116]                             5
 1   indirectly, including planned or proposed future development that
 2   relate to water quality or other environmental considerations;
 3         (4) a description of the composition, source, and quantity of
 4   any material derived from activities as defined in Section 48-38-
 5   20(2) or to be dredged, or used as fill and a description of the area
 6   to be impacted, including the area of activities or fill in acres and a
 7   wetlands delineation or approximation, as appropriate;
 8         (5) the method used to carry out activities as defined in
 9   Section 48-38-20(2), or the method of dredging, or filling and
10   specific plans for disposal and control of dredge spoils; and
11         (6) the names and addresses of adjacent property owners.
12      (C) Within fourteen calendar days after the receipt of an
13   application for an individual permit, the department shall notify the
14   applicant if the application is complete. If the application is not
15   complete, the department shall include in the notice an itemized
16   list of the information or materials that are necessary to complete
17   the application. If the applicant fails to provide information or
18   materials that are necessary to complete the application within
19   forty-five calendar days after the department’s receipt of the
20   application, the department may return the incomplete application
21   to the applicant and take no further action on the application. The
22   department shall make a good faith determination of the
23   completeness of any application made.
24      (D) Except as provided in this section, the department shall
25   provide public notice of the receipt of a complete application for
26   an individual permit. Notices must be archived and posted on the
27   department’s website.        The notice must contain sufficient
28   information for the reader to understand the location, nature, and
29   extent of the proposed activity; solicit comments and state the
30   comment deadline and an address to which comments must be
31   sent; and provide a contact for further information. Public notice of
32   the application must be by each of the following methods:
33         (1) by the department mailing a copy of the Notice of
34   Application to:
35            (a) the applicant;
36            (b) any agency with jurisdiction over or interest in the
37   activity or disposal site;
38            (c) owners or residents of property adjoining the area of
39   the proposed activity as identified in the application;
40            (d) newspapers of local interest in the area;
41         (2) by the applicant publishing the Notice of Application in a
42   newspaper of local or general circulation reasonably expected to
43   cover the area affected by the activity. The publication must

     [116]                              6
 1   contain sufficient information for the reader to understand the
 2   location, nature, and extent of the proposed activity and a contact
 3   for further information.        The applicant shall provide the
 4   department with an affidavit of publication from the newspaper
 5   within fifteen days of publication; and
 6         (3) by the department publishing on its website or equivalent
 7   publicly available electronic media, when available.
 8      (E) The department shall coordinate with other regulatory
 9   agencies and develop joint procedures for publication of notices of
10   applications, where feasible, to minimize duplication.
11      (F) The department shall accept comments and requests for a
12   public hearing from affected parties concerning the application for
13   thirty days following the publication of notice concerning the
14   application. If the department determines that an application is of
15   a type that is routinely granted and the impacts are minor, the
16   department may reduce the notice period to fifteen days. The
17   department shall hold a public informational hearing whenever
18   twenty or more individual written requests are received during the
19   public comment period and which raise water quality and
20   classified use issues. A hearing, conducted by department staff,
21   may also be held whenever department staff determines that it may
22   be useful in reaching a decision on an application. When
23   applicable, joint public hearings must be held with federal or other
24   agencies.
25      (G) The department may coordinate and receive comments
26   from other agencies before the department issues a permit. State
27   agencies that provide comments or object to the issuance of a
28   permit must defend their objection by providing testimony. The
29   department may deny a permit based on an objection of a federal
30   or state agency, but the department shall issue a permit over the
31   objection of another agency if the department finds justification for
32   issuing the permit.
33      (H) The department shall provide a written explanation to an
34   applicant for an individual permit on the basis of a proposed denial
35   of an application within thirty calendar days of the denial.
36      (I) The department may not deny a permit without review and
37   stating a basis for denial.
38      (J) The department shall make final decisions on all
39   applications within one hundred eighty calendar days or the
40   applicant is due a full refund of all fees paid to the department for
41   the application and processing the application. An administrative
42   appeal tolls the running of the one hundred eighty-day period.

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 1      Section 48-38-60. (A) The department shall determine whether
 2   to issue a permit for an activity in isolated wetlands based on a
 3   sequential analysis that, to the maximum extent practicable:
 4         (1) avoids adverse impact on the isolated wetlands;
 5         (2) minimizes the adverse impact on isolated wetland
 6   functions that cannot be avoided; and
 7         (3) compensates for any loss of isolated wetland functions
 8   that cannot be avoided or minimized.
 9      (B) A permit must be issued if the applicant has demonstrated
10   that the activity is consistent with the provisions of this chapter,
11   applicable regulations, the State Water Quality Standards provided
12   for in R. 61-68, and is not contrary to the public interest.
13      (C) Activities, as defined in Section 48-38-20(2), in wetlands,
14   are deemed to be permitted if the wetlands affected are less than or
15   equal to 0.5 acres. This provision is allowed only once for each
16   project site. Mitigation is not required for these impacts.
17      (D)(1) Except as otherwise provided in this section,
18   requirements for compensatory mitigation must be imposed when
19   the department finds that an activity undertaken under this section
20   will result in the unavoidable loss or degradation of isolated
21   wetland functions where the loss or degradation is not temporary.
22         (2) When determining mitigation requirements in a specific
23   case, the department shall take into consideration the type of
24   isolated wetland affected by the activity, and the nature of the
25   impact on wetland functions, or whether any adverse effects on
26   isolated wetlands are of a permanent or temporary nature. The
27   mitigation requirement must be calculated based upon the specific
28   impact of a particular project.
29         (3) The department shall consider the mitigation requirement
30   of this section to be met, with respect to activities in isolated
31   wetlands, if the activities are carried out in accordance with an
32   approved reclamation plan or permit that requires re-contouring
33   and re-vegetation so that preexisting wetlands functions are fully
34   restored.
35         (4) Compensatory mitigation requirements may be
36   calculated by use of the Charleston District Corps of Engineers’
37   Standard Operating Procedures for Compensatory Mitigation used
38   in South Carolina, or in accordance with standards promulgated by
39   the department in regulation.
40         (5) If mitigation is required and if on-site mitigation is not a
41   feasible alternative, then off-site mitigation may come from a
42   mitigation bank with available credits in the service area. Only
43   mitigation banks approved under the Joint State and Federal

     [116]                             8
 1   Administrative Procedures for the Establishment and Operation of
 2   Wetland Mitigation Banks in South Carolina or the Federal
 3   Guidance for the Establishment, Use and Operation of Mitigation
 4   Banks (60 C.F.R. 58,605 (November 28, 1995)) or under such
 5   guidelines as may be promulgated by the department in regulation,
 6   and with an appropriate service area may be considered to be in
 7   compliance with the requirements of this subsection. Mitigation
 8   from a mitigation bank must be supplied from an approved
 9   mitigation bank where wetland functions have already been
10   restored. If a mitigation bank is not available, an in-lieu bank must
11   be accepted if the service area is appropriate. Where possible,
12   mitigation should be in an isolated wetland.
13        (6) Any mitigation under this section must involve a clearly
14   defined mitigation project that is subject to a formal agreement
15   with the department and for which adequate assurance of success
16   and timely implementation have been given including, but not
17   limited to, long-term monitoring and maintenance provisions and
18   appropriate protective mechanisms.
19      (E) No activity may be permitted in a Carolina Bay of any size
20   except public transportation projects where the impact to the
21   human or natural environment caused by avoiding the Carolina
22   Bay would be significantly greater than the impact to the Carolina
23   Bay; activities that restore or enhance the isolated wetlands; and
24   activities associated with National Pollutant Discharge Elimination
25   System permitted discharges approved pursuant to the federal
26   Clean Water Act and state water quality standards.
28      Section 48-38-70. (A) The following activities are not
29   prohibited by or otherwise subject to regulation under this chapter:
30         (1) normal farming, silviculture, aquaculture, and ranching
31   activities including, but not limited to, plowing, regeneration of
32   forest stands, seeding, cultivating, haying, grazing, normal
33   maintenance activities, minor drainage, harvesting for the
34   production of food, fiber, forest products, or upland soil and water
35   conservation practices;
36         (2) activities for the purpose of maintenance, including
37   emergency reconstruction of recently damaged parts, of currently
38   serviceable structures including, but not limited to, dikes, dams,
39   levees, flood control channels or other engineered flood control
40   facilities, water control structures, water supply reservoirs, groins,
41   riprap, breakwaters, causeways, and bridge abutments or
42   approaches, and transportation structures;

     [116]                             9
 1         (3) activities for the purpose of maintenance of farm or stock
 2   ponds, or irrigation canals or ditches, or the maintenance of
 3   drainage ditches;
 4         (4) activities for the purpose of construction of temporary
 5   sedimentation basins on a construction site which do not include
 6   placement of fill material into waters of the State;
 7         (5) activities for the purpose of construction or maintenance
 8   of farm roads, forest roads, temporary roads for moving mining
 9   equipment, or access roads for utility lines if the roads are
10   constructed and maintained in accordance with best management
11   practices to ensure that the reach of the wetland is not decreased;
12         (6) mining activities in isolated wetlands conducted pursuant
13   to a federal, state, regional, or local permit that requires the
14   reclamation of the affected isolated wetlands if the reclamation
15   will be completed within a reasonable period of time after
16   completion of activities at the site and, upon completion of the
17   reclamation, the isolated wetlands will support functions generally
18   equivalent to the functions supported by the isolated wetlands at
19   the time of commencement of the activities; and
20         (7) activities for the management, enhancement, or creation
21   of a wetland habitat to enhance isolated wetlands for waterfowl
22   hunting, if the wetland and surrounding area are kept in an
23   otherwise natural condition.
24         (8) activities related to routine and emergency maintenance,
25   repair, replacements of, or minor improvements to, utility and
26   common carrier facilities including, but not limited to, electricity,
27   natural gas, communications, water, sewer, transportation, and
28   railroad facilities, as long as those activities do not result in an
29   enlargement of the project or result in a discharge. The term
30   ‘emergency’ as used in this subsection includes catastrophic
31   events, whether natural or manmade, or emergency orders to
32   protect the public’s health and safety. The term ‘maintenance’ as
33   used in this subsection includes the cutting of vegetation not
34   regulated by the Army Corps of Engineers for jurisdictional
35   wetlands.
36      (B) Any activity in items (1) through (8) of subsection (A) that
37   brings an isolated wetland into a use not included in items (1)
38   through (8) is subject to permitting under this section. Any
39   transportation project permitted pursuant to Section 404 of the
40   federal Clean Water Act does not require a permit under this
41   section so long as the requirements related to federal jurisdictional
42   wetlands, including mitigation as defined in Section 48-38-20(5),
43   are equally applied to isolated wetland impacts.

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 1     (C) Any state or otherwise publicly-owned isolated wetlands
 2   located upon lands otherwise open for public recreation, including
 3   waterfowl hunting, must be open to the same type of public
 4   recreation, subject to state and federal law.
 5     (D) Activities in the Coastal Zone that require a permit or
 6   notification, pursuant to the South Carolina Stormwater
 7   Management and Sediment Reduction Act, provided the permit
 8   application is filed with the department prior to the effective date
 9   of this chapter, are not prohibited by or otherwise subject to
10   regulation under this chapter.
12      Section 48-38-80. (A) The department, after notice and
13   opportunity to affected parties for comment and a public hearing,
14   shall issue general permits for any category of activities similar in
15   nature and effect if the department determines that the activities in
16   the category causes only minimal adverse environmental effects
17   when performed separately, and will have only minimal
18   cumulative adverse effect on the environment. The department
19   may prescribe best management practices or other appropriate
20   special conditions for any general permit issued under this section
21   for isolated wetlands larger than 0.5 acre in size.
22      (B) No general permit issued under this section may be
23   effective for a period of more than five years after the date of its
24   issuance and the general permit may be revoked or modified by the
25   department if, after notice and opportunity to affected parties for
26   comment and a public hearing, the department determines that the
27   activities authorized by the general permit are not in compliance
28   with the requirements of this chapter.
29      (C) A notice of the adoption or change of a general permit
30   under this chapter must be published in the South Carolina State
31   Register.
32      (D) Consistent with the above requirements, general permits are
33   envisioned for the following:
34         (1) activities impacting one acre or less but more than 0.5
35   acre of isolated wetlands, if adequate mitigation is provided;
36         (2) activities for the placement of a structural member for a
37   pile-supported structure, such as a pier or dock, or for a linear
38   project such as a bridge, transmission, or distribution line footing,
39   or elevated or other walkway. These activities do not include
40   special clearing activities or techniques that meet the Army Corps
41   of Engineers criteria for exemption for jurisdictional wetlands
42   permitting;

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 1        (3) construction of bulkheads or other structures for the sole
 2   purpose of preventing bank erosion or collapse if no fill is
 3   necessary;
 4        (4) repair or replacement of structures or fill in existence on
 5   the effective date of this chapter, so long as the original structure is
 6   not expanded so as to require additional square footage of
 7   regulated areas impacted;
 8        (5) fill required for remediation of any hazardous waste site,
 9   whether pursuant to RCRA, CERCLA, or the state’s solid or
10   hazardous waste statutes; and
11        (6) fill required for compliance with a state or federal order
12   related to enforcement of state or federal statutes regulating fill of
13   waters or wetlands or navigable waters.
15      Section 48-38-90. (A) Appeals from decisions pursuant to this
16   chapter must comply with the Administrative Procedures Act.
17   However, appeals of federal delineations, as allowed under Section
18   48-38-30, generally must follow the federal appeals process, unless
19   a party is appealing a decision with respect to areas determined to
20   be outside federal jurisdiction, and these appeals may be included
21   in an appeal of a permit decision pursuant to the Administrative
22   Procedures Act.
23      (B) The applicant or other affected person with standing to
24   contest the grant or denial of an application may request a
25   contested case hearing regarding the department’s decision. The
26   request must be made in accordance with the regulations of the
27   department and the Rules of Procedure for the Administrative Law
28   Court.
30     Section 48-38-100. (A) The department, within eighteen
31   months after the effective date of this chapter and in consultation
32   with appropriate state agencies and stakeholders in the regulated
33   community, and other interested and affected parties, shall issue
34   regulations to implement this chapter. In promulgating these
35   regulations, the department must be guided by wetlands
36   regulations currently in effect under existing federal and state
37   wetlands programs.
38     (B) Until these regulations are promulgated and take effect, the
39   department shall implement this chapter using its inherent
40   authority under the South Carolina Pollution Control Act and the
41   regulations promulgated or to be promulgated thereunder
42   consistent with the dictates of this chapter.

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 1     (C) The department is authorized to promulgate a schedule of
 2   fees for providing services necessary to operate the permitting
 3   program and is further authorized to retain the fees for the
 4   operation of the permitting program. The amount of the fees may
 5   not exceed the cost of operating the isolated wetlands permitting
 6   program. The schedule of fees must be evaluated annually by the
 7   department.
 9      Section 48-38-110. (A) The        department     may      conduct
10   inspections for determining compliance with isolated wetlands
11   permits issued under this chapter.
12      (B) No person may violate any condition imposed by the
13   department in an isolated wetlands permit issued under this
14   chapter, and no person may conduct an activity in an isolated
15   wetland, unless the activity is specifically exempted by this chapter
16   or department regulations, without first obtaining a permit pursuant
17   to this chapter.
18      (C) Pursuant to the South Carolina Pollution Control Act, the
19   department may issue cease and desist orders, require restoration
20   or similar activities, and assess penalties for any violations under
21   this chapter.
23      Section 48-38-120. (A) Nothing in this chapter precludes or
24   denies the right of any local government entity to control or
25   regulate activities in any isolated wetlands within the jurisdiction
26   of the regional or local government; provided any local ordinance,
27   regulation, or standard must be consistent with and not more
28   restrictive than the provisions of this chapter.
29      (B) Nothing in this chapter precludes adoption and enforcement
30   of ordinances relating to land use regulations pursuant to Chapter
31   29 of Title 6, or ordinances to protect public safety and health.”
33     SECTION 2. If         any     section,    subsection,    paragraph,
34   subparagraph, sentence, clause, phrase, or word of this act is for
35   any reason held to be unconstitutional or invalid, such holding
36   shall not affect the constitutionality or validity of the remaining
37   portions of this act, the General Assembly hereby declaring that it
38   would have passed this act, and each and every section, subsection,
39   paragraph, subparagraph, sentence, clause, phrase, and word
40   thereof, irrespective of the fact that any one or more other sections,
41   subsections, paragraphs, subparagraphs, sentences, clauses,
42   phrases, or words hereof may be declared to be unconstitutional,
43   invalid, or otherwise ineffective.

     [116]                             13
 2      SECTION 3. The repeal or amendment by this act of any law,
 3   whether temporary or permanent or civil or criminal, does not
 4   affect pending actions, rights, duties, or liabilities founded thereon,
 5   or alter, discharge, release or extinguish any penalty, forfeiture, or
 6   liability incurred under the repealed or amended law, unless the
 7   repealed or amended provision shall so expressly provide. After
 8   the effective date of this act, all laws repealed or amended by this
 9   act must be taken and treated as remaining in full force and effect
10   for the purpose of sustaining any pending or vested right, civil
11   action, special proceeding, criminal prosecution, or appeal existing
12   as of the effective date of this act, and for the enforcement of
13   rights, duties, penalties, forfeitures, and liabilities as they stood
14   under the repealed or amended laws.
16     SECTION 4. This act takes effect upon approval by the
17   Governor.
19                                 ----XX----

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