2015 Legislative Wrap-Up
The 2015 legislative Year can be described as full of talk and little action. We joined our partners in the Conservation Coalition in successfully securing increased funding for the Conservation Bank and fought rollbacks that would have weakened coastal protections, removed the automatic stay and struck the PCA savings clause. Very few bills passed this Year, including the symbolic but benign litter coordination bill titled as the Palmetto Pride Where You Live Act. The Senate’s resistance to confirming an unqualified nominee as Director of DHEC was a highlight, and we were encouraged by the subsequent choice of a Director with knowledge of both the energy and environmental sectors.
It’s important to note that the Conservation Coalition has successfully defeated “bad bills” that threatened to rollback important regulatory protections for three Years in a row. Without this strong work of the Coalition, South Carolina’s environment would be at risk.
When the session resumes in January, we will return to reauthorization of the Conservation Bank, Pinewood, Regulatory Rollbacks, shoreline management and transportation and infrastructure funding.
The Conservation Bank was ultimately authorized to receive $15 million by the budget conference committee (Senators Leatherman, Setzler, Peeler, Representatives White, Pitts, and Clyburn). You may remember that funding last Year was capped at $9.8 million, about $3 million below what would have been provided by the percentage of the deed stamp dedicated to the Bank. This Year, the House attempted to again tap funding at $9.8 million, but the Senate authorized $22 million. The SC Board of Economic Advisors (BEA) estimated Bank formula revenues at approximately $15-16 million.
This Year, we successfully opposed House proposals (and budget provisos) to divert millions from the Conservation Bank to DNR for management of Wildlife Management Areas (WMAs). Although, we never disputed DNR’s legitimate need for increased funding to enhance its WMAs and make them more available to public use, we opposed “back door” agency funding.
House and Senate leaders are also working to negotiate differences between the Bank bills S.519 (Campsen) and H.3868 (Pitts) that would extend the sunset, add the additional 5 cents and get rid of the death clause. Both bills have been carried over until next Year.
S.139 and H.3378 – Legislation sponsored by Sen. Cleary (Georgetown) and Rep. Herbkersman (Beaufort) will finally put into law some of the recommendations from DHEC’s Blue Ribbon Committee on Shoreline Management. The most important aspects of these bills are 1) the establishment of a permanent baseline that will prevent development from moving closer to the ocean then the present-day line allows and 2) the prohibition of any new groins, except for groins at the terminus of an inlet. Representative Burns offered amendments that would allow the baseline, and thus development, to move closer to the ocean and that would eliminate the prohibition on groins.
We opposed both of these amendments and both bills are stalled in the respective Senate and House committees until next Year.
Coastal Conservation League (CCL) successfully advocated to remove the proviso to allow DHEC’s Ocean and Coastal Resource Management to issue a special permit for the Debordieu seawall in the House, but Senator Cleary once again inserted the proviso language to the Senate budget on the floor.
The proviso survived the budget conference committee and was not removed in the final version of the appropriations bill.
S.522 (Senator Bennett) and H.3797 (Reps. Murphy and Horne) would redefine the county’s coastal zone in such a way that would remove 90 percent of Dorchester’s total 577 square miles from protection under the current bill. Of that portion slated for removal, at least 30 percent, or 155 square miles, contains critical wetlands of some kind including portions of the Ashley and Edisto rivers.
After being placed on the calendar without reference in the House, we successfully lobbied for a floor vote to send this bill back to the Agriculture and Natural Resources Committee. It has not had a subcommittee vote and has been carried over until next Year.
After being passed out of the Ag and Natural Resources Subcommittee, the Senate bill has not been scheduled for another full committee meeting and has been carried over until next Year. Senators proposed an amendment to form a study committee to study the Coastal Zone Management Act in Dorchester, but the amendment has not yet been drafted or passed.
S.229 (Sens. Campbell and Turner) would amend the Savings Clause of the Pollution Control Act to preserve only pending actions and suits, with no protection of rights, liabilities and duties to sue for clean-up of past, unpermitted pollution that we may not yet know about. The bill violates the PCA compromise that was agreed to by all parties in 2012; and equates to issuing an unconstitutional amnesty for past, unpermitted pollution.
After contentious debate on the Senate floor, we agreed to a compromise amendment introduced by Senator Brad Hutto. The friendly amendment lessened the scope of the Savings Clause but retained the cause of action for past pollution caused by toxics as defined by EPA, coal ash pollution, and hazardous pollution from waste sites like Pinewood and Barnwell. It ultimately passed the Senate and special thanks go to Sen. Hutto, Sheheen, Courson, Johnson, and McElveen for their help.
In the House Judiciary Committee, the Manufacturer’s Alliance and State Ports Authority derailed S.229 by amending it to remove the toxics language (from Sen. Hutto’s amendment that passed the Senate) and to insert language from S.228, eliminating DHEC Board Review. In the resulting confusion, Representatives Thayer and Brannon worked with us to clarify the impact of the insertion and to stop the progress of the botched bill. In addition, thanks to added help by Representative J.E. Smith, it never reached a committee vote in the House and is stalled there until next Year.
The House version of the bill, H.3371 (Reps. Hiott, Lucas, Burns, and V.S. Moss) never moved after introduction.
DHEC Board Review
By sending appeals straight to the Administrative Law Court (ALC), S.228 (Sen. Campbell) and H.3370 (Reps. Pitts, Burns, and V.S. Moss) would significantly increase legal expenses for everyone and reduce the DHEC Board’s accountability.
H.3370 did not move out of House Judiciary, but S.228 passed out of the Senate Medical Affairs Committee with an amendment. We avoided a Senate floor vote with Senators Sheheen and Lourie objecting to the bill.
The Automatic Stay is an Administrative Procedures Act feature that temporarily prevents construction activities when a permit is challenged. The “stay” allows the Administrative Law Court to assess the facts and law and determine whether the permit was properly authorized by the agency. The “stay” avoids irreparable harm to an affected party or place before that harm occurs. “Stays” are useful to businesses like landfills, hospitals and also local governments, homeowners associations, and individuals by ensuring that an agency decision is well-founded before permanent construction occurs.
S.165 (Sens. Hembree, Turner, Bennett, and Massey) and H.4011 (Reps. Hardwick, Goldfinch, Clemmons, and Crawford) would allow projects to be built while environmental permits are under appeal by limiting the stay to 30 days, allowing development to continue after that date and potentially bypassing a judicial decision.
S.165 passed out of the Senate Judiciary Committee after contentious hearings and debate. Sen. Hutto offered a friendly amendment in committee that effectively nullified the intent of the proposed legislation bill; and it passed out unanimously. With the help of friends like Sens. Hutto, McElveen and Johnson, we avoided a vote on the Senate floor. This will be up for a vote when we return in 2016.
H.4011 did not move out of House Judiciary.
Prioritization of State Transportation Infrastructure Bank (STIB) projects and gubernatorial appointment of the Secretary of Transportation are unsettled issues at this time. The major focus of the Legislature continues to be on the level of transportation funding and the source of that funding. Lawmakers are divided into three groups: one that favors raising the gas tax as a permanent and stable source of money for roads and bridges; one that wants to raise the gas tax and other highway user fees while cutting the state income tax to lessen the blow of the gas tax increase; and one that doesn’t want any kind of tax increase, arguing that there’s already enough money in the state budget to maintain roads.
At the end of session, a proposal from the House Ways and Means Committee to spend $216 million in surplus cash (the supplemental budget) on state secondary roads was adopted. According to the House Ways & Means Committee, that money could only be used on bridges, potholes or paving such roads. The House inserted a proviso into the final budget amendment to maintain the Governor’s ability to appoint the Secretary of Transportation for another Year.
In 2016, the focus will remain on objective prioritization of all road construction projects, including new projects that often pose a threat to rural and ecologically valuable lands.
H.3564 (Reps. J.Smith, Taylor, Hodges, Herbkersman, Newton, G.M. Smith, Merrill, Bamberg, Ballentine, R.L. Brown, Henderson, and Whipper) would amend the 2010 Surface Water Withdrawal, Permitting & Reporting Act by treating all users the same if they are pulling more than 3 million gallons per month from our rivers, essentially eliminating the special exemption that only requires registrations (rather than permits) from agricultural users. Thanks to the efforts of the SC Rivers Forever Coalition, the Ag Subcommittee (Reps. Steve Moss, Russell Ott, Greg Duckworth, and Bill Chumley) held a hearing on H.3564 but voted to adjourn debate in order to give more consideration to issues raised in the hearing. We expect them to take it up when they return in January 2016.
We had two bills this Year promoting offshore wind energy development: H.3026 (Reps. Clemmons, Duckworth, and George) and S.166 (Sen. Hembree, Grooms). At a subcommittee hearing in the House on the offshore wind legislation, numerous concerns were raised by members. We are working with a stakeholder group to address those concerns for the 2016 session and hope to move the legislation forward in both the House and Senate next Year.
Conservation Coalition members are already working with DHEC and utilities to develop the best Clean Power Plan for South Carolina to limit carbon pollution form power plants. Once EPA clarifies its rule and timetable (expected in August), stakeholders will finalize a plan to ultimately present to the General Assembly for approval. As the Aiken Standard editorialized, “the best and the cheapest way to cut carbon pollution is to produce more power from the cleanest sources and use that energy more efficiently.”
H.3035 (Rep. Cobb-Hunter, et al.), The Palmetto Pride Where You Live Act, passed overwhelmingly this Year with 26 co-sponsors. The bill will improve litter control coordination between state and local agencies.
H.3899 (Reps. Limehouse, Quinn, Hicks, Sottile, and Toole): This bill affirmed the Atlantic Compact limiting additional low-level radioactive waste at the Barnwell site. This was a preemptive measure after rumors surfaced of a potential Senate bill to reopen the site for more waste. The bill remains in House Judiciary, and no bills to reopen Barnwell were introduced.
South Carolina continues to be on the hook for the clean-up of the Pinewood hazardous waste site — a private company’s mess, more than a decade after they declared bankruptcy and left town. Taxpayers are spending millions of dollars a Year keeping the site up, and Senators on a Joint Pinewood Subcommittee began work this Year demanding answers on how that money is being spent. We thank the Senators for their focus on keeping hazardous waste out of Lake Marion. Senators McElveen and Johnson–as well as Representatives Murrell Smith and Joe Neal–have led on this effort. We hope the General Assembly continues to hold DHEC accountable for the site and adequately funds its maintenance to protect South Carolinians.