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Regulatory Pathfinder
for Coastal Development in South Carolina

Federal Laws Pertaining to Coastal Development in South Carolina

  1. Antiquities Act of 1906, 16 U.S.C. Sections 431 to 433. Intended to protect prehistoric Indian ruins and artifacts, the Antiquities Act "authorized presidents to proclaim 'historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest' as national monuments." National Park Service History: Antiquities Act of 1906. President Theodore Roosevelt interpreted the language broadly to include cultural features as well and much land he protected was later converted to national park status. Every U.S. president has used this act to designate monuments. There are penalties for "[a]ny person who... appropriate[s], excavate[s], injure[s], or destroy[s] any historic or prehistoric ruin or monument, or any object of antiquity, situated on lands owned or controlled by the government." Id. at Section 433.
  2. Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. Sections 1251 to 1387 (2000). What has come to be called The Clean Water Act (CWA) was passed in 1972 to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. Section 1251(a). The CWA is the cornerstone of surface water quality protection in the United States. It does not deal directly with ground water or water quantity. The statute employs a variety of regulatory and non-regulatory tools to control direct pollutant discharges into waterways, finance municipal wastewater treatment facilities, and manage polluted runoff. These tools are employed to achieve the broader goal of restoring and maintaining the chemical, physical, and biological integrity of the nation's waters so that they can support "the protection and propagation of fish, shellfish, and wildlife and recreation in and on the water." Id. Divided into 6 subchapters, the third and fourth subchapters are of particular interest to coastal development. Subchapter three structures water quality standards development, including point source effluent limitations. State Section 401 water quality certifications derive from these standards. The fourth subchapter regulates activities in waters of the United States, including wetlands, and requires application for and granting of permits for activities that "may result in any discharge into the navigable waters." Id. at Section 1341(a).
  3. Coastal Wetlands Planning, Protection, and Restoration Act, 16 U.S.C. Sections 3951 to 3956 (2000). This Act authorizes grants to coastal states for coastal wetlands conservation projects. Id. at Sections 3954(a). Grants are made in the form of cost-sharing plans where states provide matching, non-federal funds. Approved federal appropriations make funding available to provide grants.
  4. Coastal Zone Management Act of 1972, 16 U.S.C. Sections 1451 to 1463 and 1463(b) to 1465 (2000). Under the Coastal Zone Management Act (CZMA) the federal government provides grants to States for development and administration of coastal management plans. State programs must be approved by the federal government to make sure program provisions are consistent with any relevant federal agency operating in the area. The Secretary of Commerce also reviews performance of the programs. Special programs exist for national estuarine sanctuaries and reserves. Additionally, a National Coastal Resources Research and Development Institute was created to "research the 'efficient and responsible development of ocean and coastal resources.'" Id. at Section 1463(b) and summary.
  5. Endangered Species Act of 1973, 16 U.S.C. Sections 1531 to 1544 (2000). The Endangered Species Act (ESA) is designed to protect endangered and threatened species as well as the ecosystems on which they depend on in order to conserve those species through whatever steps may be appropriate. Id. at Section 1531(b). Lands can be acquired by the federal government and management agreements can be created between the federal government and individual states in order to achieve this goal. The importation, exportation or sale of protected species is prohibited except in very limited circumstances. Id. at Sections 1538(a)-(b) and 1539(a)-(b). Civil and criminal penalties exist for violations. Both the Fish and Wildlife Service (Department of the Interior) and the National Marine Fisheries Service (Department of Commerce) are responsible for enforcement. States are encouraged to enter into partnerships for species development and financial assistance and incentives are available to attract state participation. Id. at Section 1534. Incentives also exist for private landowners to comply. Civil and criminal penalties exist for violations by both private and public entities. Violations occur when an endangered or threatened species is harassed, harmed, pursued, hunted, shot, wounded, killed, trapped, captured or collected, or when there is an attempt to engage in any of the listed behaviors. Id. at Section 1532(19).
  6. Migratory Bird Treaty Act of 1918, 16 U.S.C. Sections 703 to 712 (2000). The Migratory Bird Treaty Act implements numerous treaties between the U.S. and Japan, Mexico, Canada and Russia to protect migratory birds. Under the Act, it is a violation to "hunt, take, capture, kill, etc." a migratory bird under the Treaty. Some activities, determined by the Secretary of Agriculture, are deemed consistent with the Act. It is also illegal "to ship, transport, or carry, by any means whatever, from one state, territory, or district to or through another state, territory, or district ... any bird, or any part, nest or egg thereof ... contrary to the laws of the state, territory, or district in which it was captured." Id. at Section 705.
  7. National Environmental Policy Act of 1969, 42 U.S.C. Sections 4321 to 4370(b). The general purpose of the National Environmental Policy Act (NEPA) is to ensure that federal actions consider the environmental impacts of the project or activity prior to undertaking or committing significant financial resources to the project or activity. An Environmental Assessment (EA) is required for any federal action (which covers activities funded, authorized or carried out by the federal government). An Environmental Impact Statements (EIS) will be required for a major federal action significantly affecting the quality of the human environment. Agencies must consult with other federal agencies with expertise or interest in the issues presented by the proposed project under NEPA. Environmental assessments have a strict analytical process to evaluate impacts. However, there is no requirement that an agency choose the most environmentally friendly option once all the procedural requirements are met.
  8. Pollution Prevention Act of 1990, 42 U.S.C. Sections 13101 to 13109 (2000). The Pollution Prevention Act was adopted to prevent pollution through a "multi-media approach to source reduction." Id. at Sections 13101(a) and 13103. Grants are available to states "to promote the use of source reduction techniques by businesses." Id. at Section 13104. EPA initiatives under this Act focus on promoting environmental justice, improving urban environmental quality, and reducing risks from toxic air pollutants.
  9. Rivers and Harbors Act of 1899, 33 U.S.C. Sections 401, 403, 404, 406 to 409, 411 to 416, 418, 502, 687 (2000). The Rivers and Harbors Act of 1899 regulates the building of docks, piers and marinas, by making it illegal to obstruct a navigable waterway without a permit. Section 10 of the Act prohibits bridges, dams, dikes, etc. from being constructed over any navigable water "until the consent of Congress to the building of such structures shall have been obtained and until the plans for (1) the bridge or causeway shall have been submitted to and approved by the Secretary of Transportation, or (2) the dam or dike shall have been submitted to and approved by the Chief of Engineers and Secretary of the Army" Id. at Section 401. Other sections make it illegal to discharge refuse material and provide for enforcement mechanisms. Id. at Sections 406, 407, 411, 413.
  10. Safe Drinking Water Act, 42 U.S.C. Sections 300(f) to 300(j) -25 (2000). Under the Safe Drinking Water Act, EPA can establish maximum contaminant levels for drinking water. States are charged with enforcement and setting state standards that must be at least as stringent as those set by the EPA. Id. at Sections 300(g)-2(a). These standards apply to all drinking water, including wells and municipally supplied sources.

Last Updated October 29, 2010

ABOUT THIS PATHFINDER

This project was supported through a generous grant from the South Carolina Sea Grant Consortium. The principal investigator is Professor Kim Diana Connolly at the University of South Carolina School of Law. Two law students, Keith Bartlett and Valerie Cochran, provided invaluable work toward project completion. Technical assistance with web design was provided by USC School of Law webmaster Tobias Brasier. Broken links should be reported to lawweb@law.sc.edu. This website is NOT intended as legal advice, and particularized analysis by professionals should be sought wherever appropriate.

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