2017 Legislative Wrap Up

June 28, 2017

Reauthorizing the Conservation Bank:
We finally made progress this Year with both the Senate and the House holding subcommittee hearings on bills to reauthorize the Conservation Bank. The Conservation Bank was created 14 Years ago to safeguard our drinking water, preserve our history and culture, and protect our precious natural resources. It is the only statewide source of public funding available for willing landowners and their land trust partners to conserve important SC lands, and it will shut down if not reauthorized by June of 2018.

Despite significant media attention and robust testimony from the Bank, land trusts, state agencies, and agricultural landowners, neither the House nor Senate versions of the reauthorization bill made it out of subcommittee. Both subcommittee meetings gave opportunity for a great deal of discussion about how best to reauthorize this vital state agency and we look forward to continuing to work with the wide array of partners who support this effort. We saw the most discussion and brainstorming occur in the House Ways and Means subcommittee with Reps. Lowe, Pitts, M. Smith, Finlay, and Hosey. We look forward to working to improve and advance these bills as discussion continues in January of 2018.

The House and Senate passed vastly different versions of the Conservation Bank budget this Year. The House eliminated the deed stamp as a funding source for the Bank and gave it $5 million in non-recurring dollars. The Senate then restored the deed stamp funding source and fully funded the Conservation Bank at $16M with an additional $10M, for a total of $26M. In response, the House amended the budget by further reducing the Bank funding to $1. Both chambers also left in provisos from last Year to direct a total of $3 million to DNR for land management matching dollars. Ultimately, the Budget Conference Committee (Sens. Setzler, Bennett, and Leatherman plus Reps. Stavrinakis, Pitts, and White) voted to stick with the House proviso that stripped the funding source for 2017-2018 and gave the Bank $10 million, leaving $7 million for the Conservation Bank after $3 million transfers to DNR for the 2017-2018 budget.

Governor McMaster vetoed a proviso in the 2017-2018 budget that diverted $6.6 million from the carry forward balance in the Bank’s Trust Fund into the general fund. The Governor cited the need to protect our natural resources and our thriving tourism industry in his veto message. He also acknowledged the need to review the functions of the Bank, but recommended doing that through the legislative process, rather than through the budget. The House and Senate plan to address budget vetoes when they return in January 2018.

The Conservation Bank bills we’re following include:

• H.4014 (sponsored by White and Pitts) will reauthorize and restructure the Conservation Bank. The bill will change the funding source for the Bank, move the Bank under DNR, require more public access at Bank-funded properties, establish limits on the amount of funds that can be used on conservation easements, and eliminate the sunset and death clause. Supporters of the Bank are working with the House Ways and Means Subcommittee (Reps. Lowe, M. Smith, Hosey, Finlay, and Pitts) to address questions and concerns by suggesting a few improvements and adjustments to the Bill.
• S.219 (sponsored by Campsen, Malloy, Johnson, Talley, McElveen, Sheheen, Setzler, Courson, Alexander, Cromer, Hutto, McLeod, Young, Nicholson, Fanning, and Reese) reauthorizes the Conservation Bank for 10 Years and maintains reduced funding for the Bank even in lean budget Years (previously, the Bank was cut to $0 in lean budget Years).

Dam Safety Reform:
It has been almost 2 Years since the historic flooding in 2015. After the chaos subsided, we realized that DHEC’s dam safety program was understaffed, underfunded, and antiquated. Luckily, the General Assembly fully funded the program in 2016 and staffing levels improved. However, the DHEC dam safety staff need additional tools to do their jobs well. After nearly 18 months of focused debate and testimony, the House Agriculture and Natural Resources committee passed a Dam Safety bill that would give DHEC the authority it needs to move forward with creating a program to ensure safety of infrastructure, lives, and property.

The bill passed the House by a 104-3 margin on February 1, 2017. But once the bill hit the Senate, the momentum stalled. The bill sat in the Senate Agriculture and Natural Resources committee (Chaired by Senator Verdin) all session and did not receive a subcommittee hearing. When the Senate returns in January of 2018, we look forward to working with them to consider and pass H.3218.

• H.3218 (sponsored by Lucas, Hiott, V.S. Moss, Pitts, West, and Crosby) ensures that DHEC is aware of any transfer of ownership of dams, that dam owners regularly update their contact information with DHEC, provide information on activity related to their dam, and provide the already required emergency action plan to DHEC, downstream homeowners, and emergency access professionals. After passing the House, the bill is waiting for action in the Senate next Year.

Solar Market Growth:
In the final minutes of 2016 session, the clock ran out on legislation to encourage solar market growth in SC . We tried again in 2017 to move the needle with our solar and renewable energy partners.

After landmark clean energy legislation passed in 2014 (Act 236), South Carolina is now one of the fastest growing solar markets in the nation. In order to maintain expansion of renewables in South Carolina, we supported S.44 to provide clear guidance for reasonable property tax treatment of renewable energy equipment installed in our state.

The bill passed the Senate easily 38-4 on February 1, 2017. Unfortunately, it was stalled in House Ways and Means. It finally got a subcommittee hearing on May 2, 2017, after Reps. J. Smith and Loftis formally requested a hearing. After hours of debate and testimony, Reps. Pitts, White, and Whitmire voted to adjourn debate with Rep. Anthony as the hold out on the subcommittee who supported solar growth. We are grateful for Rep. Anthony’s support and look forward to continuing to work on this bill in 2018.

• S.44 (sponsored by Gregory and Reese) establishes a clear and consistent path for property tax treatment of solar panels and other renewable energy installations, providing an 80% reduction of Fair Market Value for purposes of property tax assessment. The bill also exempts all residential solar panels from property tax. Together, these changes will help solar continue to grow in South Carolina and will bring $1 billion in investment to our state – helping solar continue to grow in South Carolina.
• H.3079 (sponsored by Loftis, J.E. Smith, Funderburk, Pope, Clary, W. Newton, Brown, Whipper and Blackwell) is a similar, companion bill. The committee did not amend the bill to match the Senate version because it never received a subcommittee hearing in 2017. The focus for 2018 will be on S.44.

Offshore Drilling:
In the face of a recent Executive Order and ongoing discussion at the federal level about offshore drilling in the Atlantic, a flurry of offshore drilling related bills were introduced late in the 2017 session.

• A bipartisan group of Representatives introduced an anti-drilling bill, H.4307, in the last week of session to stop the onshore infrastructure that would allow offshore drilling. In response, several inland Representatives introduced legislation, H.4334, to require the approval of onshore drilling infrastructure.
• In addition, Senator Goldfinch introduced S.712, which calls for a ballot referendum in the 2018 primary to ask voters if they support “environmentally sensitive” offshore drilling. However, the ballot question is written to show bias for offshore drilling, with numerous qualifiers that cannot be guaranteed in a real-world situation.

The House bills were referred to the Agriculture and Natural Resources Committees in their respective chambers. As a result, the House Ag Committee has formed an ad-hoc committee on offshore drilling in order to become familiar with federal offshore drilling regulations and develop a list of suggestions for any potential legislation. Representatives Burns, Chumley, Davis, Dillard, Hewitt, Hixon, Kirby, V.S. Moss, and Ott were appointed to serve on the ad hoc committee, with Representative Hixon as the Chair. We look forward to working with the committee on their efforts to find the right solution for SC.

• H.4307 (Reps. Stavrinakis, Cogswell, Sottile, W. Newton, J.E. Smith, Gilliard, Mack, Bernstein, Brown, Herbkersman and Crosby) would block state agencies from approving the infrastructure needed to pursue offshore oil and gas drilling.
• H.4334 (Reps. Burns, Chumley, and V.S. Moss) would require state agencies to approve the infrastructure needed to pursue offshore oil and gas drilling.
• S.712 (Sen. Goldfinch) would place a question on the 2018 primary ballot to ask if SC residents support “good” offshore drilling.

Regulatory Rollbacks:
Protecting Home Rule (Plastic Bags):
For the second Year in a row, House members introduced a bill intended to support the plastics and disposable containers industry by eliminating the ability of local communities to establish plastic bag policies.

Unfortunately, the House LCI Committee limited debate in Subcommittee and ignored the groundswell of opposition to the bill. The bill quickly moved to the House floor for a vote. After intense debate about the roles of state and local government and the detrimental effect of plastics on our coastal economies, conservation champions were able to kill the bill for the Year by getting it “continued” until January of 2018 with a 50-49 vote.

We are grateful for the support of Representatives Brown, Clary, Cobb-Hunter, Cogswell, Erickson, Herbkersman, McCoy, McKnight, Newton, Ott, J. Smith, Stavrinakis, Sottile, and Williams during the debate and vote. The bill will be on the House calendar when they return in January.

• H.3529 (sponsored by Bedingfield, Sandifer, Hamilton, Forrester, Atwater, Yow, Clemmons, Crawford, Fry, Hill, Lowe, Pitts, Putnam, Anderson, Martin and G.R. Smith) sought to prevent towns and cities from enacting their own local waste-reduction solutions, including banning plastic bags, despite SC being a “home rule” state.

Immunity from Nuisance Suits:
For the second session in a row, legislators introduced two companion bills this Year that would remove the rights of neighboring landowners to ensure the safe and healthy use of their property if a nearby industry expanded. Supporters of the bill argued, inaccurately, that the bill would only codify nuisance common law and prevent an existing industry from a lawsuit from a new neighbor. However, the bills actually provide a blanket immunity for any nuisance impacts to nearby neighbors. H.3653 flew through the House Labor, Commerce, and Industry (LCI) Committee as they cut off testimony and respectful discussion with concerned citizens (led by Chairman Sandifer and Rep. Forrester). Unfortunately, after Rep. Clary attempted to improve the House bill with an amendment on the floor, H.3653 passed 78-27 on March 22, 2017.

Instead of also taking up H.3653 in Committee, Senators bypassed the Committee process and voted to bring the bill up for debate on the Senate floor with a 15-1 vote from the LCI Committee on the Senate floor. S.323 was discussed at length in the Senate LCI Committee by Subcommittee Chairman Massey, but unfortunately still passed.

Thankfully, both bills had several objections from our conservation champions – Sen. Malloy, Bright Matthews, and Sheheen – which prevented debate and a vote in the Senate. Both bills now rest on the Senate calendar and will still be on the Senate calendar next Year.

• S.323 (sponsored by Sens. Campbell, Turner, Talley, Bennett, Climer, Nicholson, Cromer, Reese, Grooms, Hembree, Verdin, Massey, Alexander, Williams, Johnson, Gambrell, Sabb, Young, Shealy, Scott, Corbin and Jackson) and H.3653 (sponsored by Reps. Forrester, Yow, Loftis, Henegan, Spires, Anderson, Burns, V.S. Moss, Crawford, Hamilton, Felder, Norman, Anthony, Chumley, Erickson, Gagnon, Hayes, Henderson, Hosey, Jefferson, S. Rivers, Ryhal, Sandifer, Thayer, Willis, Atkinson, Alexander, West, Hixon, Murphy, Arrington, Bennett and Crosby) remove the rights of neighboring landowners to take action to ensure the safe and healthy enjoyment of their property. The bills provide industry a blanket immunity from noise and odor impacts to nearby properties (these, among others, are called nuisance complaints). If passed, citizens would not be able to take action to protect their property from nuisance issues if an industry changes or expands its operations on nearby property.

Saving the Automatic Stay:
For the fifth Year in a row, bills intended to weaken an important part of the permitting process – the Automatic Stay – were ultimately blocked at the State House, despite early movement in the Senate.

S.105 passed out of the Senate Judiciary Committee with an amendment that was meant to improve the bill, although we disagreed with the amendment and would have preferred to have the bill die in committee. Then, through a series of maneuvers in early March, Senator Massey used his leverage as Majority Leader and Chairman of the Senate Rules Committee to bring S.105 up for debate on the Senate floor, despite a formal objection on the bill from Senator McElveen.

After extended debate on the Senate floor and adoption of an amendment negotiated by Senators on both sides of the issue, the bill passed 26-6. The amendment limits the stay to 90 days, requires a hearing within 30 days, shifts the burden of proof to the public rather than the permittee to show why the stay should be kept in place, stipulates that a case cannot be found moot if the stay is lifted and work on the permit proceeds, and requires the Administrative Law Court address the case within 12 months. The bill also provides an exception for hazardous waste permits, requiring these to follow the “old” version of the automatic stay law.

While we still oppose the bill, and did not agree to the Senators’ compromise, we are grateful that it was improved. We are grateful for the help of Senators McElveen, Kimpson, Sheheen, Hutto, Senn, Allen, Fanning, Young, and Scott to improve and oppose the bill.

The Senate compromise was removed from S.105 in the House Judiciary Subcommittee. After being defeated for the Year by a strong 14-5 vote to “adjourn debate” on the bill at the full Committee level, the bill is still in front of the full House Judiciary Committee for 2018. We are grateful for the following Representatives that voted with us: J. Smith, Newton, Tallon, Whipper, Clary, Caskey, Delleney, Rutherford, Bernstein, Norrell, Murphy, D. Moss, Funderburk, and Weeks. Many thanks to legislative champion Rep. James Smith for drafting hundreds of amendments to share concerns of legislators and the conservation community after it was amended at the Subcommittee level.

H.3565 was also amended in the House Judiciary Committee to try to address concerns about the use of the stay with permit renewals. We thank Reps. Bernstein, King, and D. Moss for working in subcommittee to debate the bill. At full Committee, Representatives J.E. Smith, Bernstein, King, Norrell, Clary, McEachern, Newton, and D. Moss were instrumental in improving the bill. We continue to oppose H.3565, which is on the House floor and will be on the House calendar when they return next Year.

• S.105 and H.3565 will weaken citizens’ ability to successfully challenge the government when a citizen believes a permit is incorrectly issued (before it’s finalized). These bills neuter what is known as the Automatic Stay – a pause button that prevents harm from occurring while a permit challenge is considered as part of the administrative process in the Administrative Law Court.

Poultry Industry Expansion:
In an effort to reduce the amount of poultry permits that are appealed in SC, the poultry industry introduced a bill this Year to reduce the ability of neighbors and DHEC to address the negative impacts such operations may have on adjacent lands and natural resources. It is yet another attempt to reduce people’s ability to engage in the permitting process. After much discussion with stakeholders and the House Ag and Natural Resources Committee, led by Chairman Hiott, two improvements were made to the bill: the $5,000 filing fee for appealing a permit was removed and vegetative buffer language was reinserted, taking that section back to the wording of current law.

We still have concerns about the bill’s attempt to limit citizens who live outside a one-mile radius from participating in the public decision making process. Current law sets this radius at two miles. We also have concerns with the bill’s attempt to strip DHEC of the ability to establish site-specific setbacks for poultry operations.

Rep. Clary attempted to address these concerns through floor amendments, but the bill ultimately passed 77-12 as amended in committee. We are grateful that the committee improved the bill, but there is more work to be done in the Senate next Year.

• H.3929 (sponsored by Hiott, Pitts, Kirby, Forrest, Yow, Sandifer, Atkinson, Hayes, Hixon, V.S. Moss, S. Rivers, Magnuson, Long, Chumley, Burns, Loftis and Gagnon) would weaken existing laws for poultry operations. The bill would create a system that allows poultry operations to ignore the concerns of their neighbors.