South Carolina’s 401 Certification Program: Opportunities and Challenges

Association of State Wetland ManagersState/Tribal/Federal Coordination MeetingShepherdstown, WV – March 22-24, 2011

Heather Preston, SCDHEC

South Carolina 401 Program• SC is a smaller state in area and population

(40th in land area and 24th 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

SC Regulation 61-101, Water Quality Certification

• R.61-101 governs issuance of 401 Water Quality Certifications

• R.61-101.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

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

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

States with Wetland Regulatory Programs

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.

SCDHEC’s Response to SWANCC• SCDHEC proposed to

revise R.61-101 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.

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

• R. 61-101, provides very broad authority to review applications for 401 Water Quality Certifications.

• R.61-101.F.3.(b) requires the Department to consider whether there are feasible alternatives to the activity.

• R.61-101.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.

South Carolina 401 Program

• R. 61-101.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.

South Carolina 401 Program

H.3587

A297, R215, H4445

A JOINT RESOLUTION TO EXTEND CERTAIN GOVERNMENTAPPROVALS AFFECTING THE DEVELOPMENT OF REALPROPERTY WITHIN THE STATE.

Whereas, there exists a state of economic emergency in the State of SouthCarolina and the nation, which has drastically affected various segments ofthe 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 declinedue to the creation, bundling, and widespread selling of leveragedsecurities, such as credit default swaps, and due to excessive defaults onsub-prime mortgages and the resultant foreclosures on a vast scale…

• 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 – 4,171.5– 2010 agency FTEs – 3,548.5

* Not including fees or Federal grant dollars

Funding & Staff Reductions

401 Project Managers by County - 2008

401 Project Managers by County - 2011

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

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.

• 2010 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.

Questions?

Heather Prestonprestohs@dhec.sc.gov