(A) A policy of beach preservation is established. The department must implement this policy and utilize the best available scientific and historical data in the implementation. The department must establish a baseline that parallels the shoreline for each standard erosion zone and each inlet erosion zone.

(1) The baseline for each standard erosion zone is established at the location of the crest of the primary oceanfront sand dune in that zone. In standard erosion zones in which the shoreline has been altered naturally or artificially by the construction of erosion control devices, the baseline must be established by the department using the best scientific and historical data, as where the crest of the primary oceanfront sand dune for that zone would be located if the shoreline had not been altered.

(2) The baseline for inlet erosion zones that are not stabilized by jetties, terminal groins, or other structures must be determined by the department as the most landward point of erosion at any time during the past forty years, unless the best available scientific and historical data of the inlet and adjacent beaches indicate that the shoreline is unlikely to return to its former position. In collecting and utilizing the best scientific and historical data available for the implementation of the beach preservation policy, the department, as part of the State Comprehensive Beach Management Plan provided for in this chapter, among other factors, must consider historical inlet migration, inlet stability, channel and ebb tidal delta changes, the effects of sediment bypassing on shorelines adjacent to the inlets, and the effects of nearby beach restoration projects on inlet sediment budgets.

(3) The baseline within inlet erosion zones that are stabilized by jetties, terminal groins, or other structures must be determined in the same manner as provided for in item (1). However, the actual location of the crest of the primary oceanfront sand dune of that erosion zone is the baseline of that zone, not the location if the inlet had remained unstabilized.

(4) A baseline established pursuant to this section must not move seaward from the most seaward location of the following:

(a) the location of the baseline as established during the 2008 through 2012 establishment cycle;

(b) the location of the baseline as proposed by the department on October 6, 2017; and

(c) the location of the proposed October 6, 2017, baseline as revised by the department pursuant to a review or an appeal initiated before January 1, 2018.

(B) To implement the beach preservation policy provided for in subsection (A), a setback line must be established landward of the baseline a distance which is forty times the average annual erosion rate or not less than twenty feet from the baseline for each erosion zone based upon the best historical and scientific data adopted by the department as a part of the State Comprehensive Beach Management Plan.

(C) The department must establish baselines and setback lines for all geographic areas where baselines and setback lines were established on or before January 31, 2012. The baselines and setback lines must be established anew during establishment cycles that are not less than every seven years, but not more than every ten years following a previous establishment cycle and must be based upon the best available data. Until the department establishes new baselines and setback lines for a geographic area, the existing baselines and setback lines for the geographic area must be used.

(D)(1) In each new establishment cycle of the baselines and setback lines, the department must:

(a) stagger the establishment of the baselines and setback lines by geographic area and provide a tentative schedule of establishment for each geographic area on the department's website at least one hundred twenty days prior to beginning a new establishment cycle;

(b) publish proposed locations of baselines and setback lines for a geographic area on the department's website for public input at least one hundred twenty days prior to establishing the baselines and setback lines for the geographic area;

(c) on the date of the publication of the proposed locations of baselines and setback lines for a geographic area:

(i) provide notice of the publication in a newspaper of general statewide circulation and a newspaper of local circulation in the geographic area; and

(ii) make readily available to the public, including on the department's website, the information and raw data that the department used to determine the locations of the proposed baselines and setback lines and explanations for these determinations;

(d) hold at least one public hearing in the county or municipality of a geographic area at least ninety days prior to establishing the baselines and setback lines for the geographic area; and

(e) accept and review data up to thirty days prior to establishing baselines and setback lines for a geographic area to determine if a proposed baseline or setback line for the geographic area should be revised.

(2) Baselines and setback lines for a geographic area are in effect upon the date of establishment and are subject to review pursuant to the provisions of subsection (F).

(E)(1) In order to locate the baselines and the setback lines, the department must establish monumented and controlled survey points in each county fronting the Atlantic Ocean. The department must acquire sufficient surveyed topographical information on which to locate the baselines.

(2) Surveyed topographical data typically must be gathered at two thousand foot intervals. However, in areas subject to significant near-term development and in areas currently developed, the interval, at the discretion of the department, may be more frequent. The resulting surveys must locate the crest of the primary oceanfront sand dune to be used as the baseline for computing the forty-year erosion rate. In cases where no primary oceanfront sand dune exists, a study conducted by the department is required to determine where the upland location of the crest of the primary oceanfront sand dune would be located if the shoreline had not been altered.

(3) The department, by regulation, may exempt specifically described portions of the coastline from the survey requirements of this section when, in its judgment, the portions of coastline are not subject to erosion or are not likely to be developed by virtue of local, state, or federal programs in effect on the coastline which would preclude significant development, or both.

(4) If an erosion zone incurs extraordinary erosion due to the impact of a storm system or event named by the National Weather Service after June 1, 2018, then data collected from the erosion zone within eighteen months of the date of impact of the storm system or event must not be used to locate the crests of primary oceanfront sand dunes or to establish baselines pursuant to subsection (A)(1) and (A)(3).

(F)(1) A landowner claiming ownership of property adversely affected by the establishment of a baseline or setback line, upon submittal of substantiating evidence, must be granted a review of the baseline or setback line. Alternatively, the municipality or county in which the property is situated, acting on behalf of the landowner with his written authorization, or an organization acting on behalf of the landowner with his written authorization, upon submittal of substantiating evidence, must be granted a review of the baseline and setback line. A review is initiated by filing a request for a review conference with the department board via certified mail within one year of the establishment of the baseline or setback line and must include a one hundred-dollar-review fee per property.

(2) The initial decision to establish a baseline or setback line must be a department staff decision.

(3) No later than sixty calendar days after the receipt of a request for review, the board must:

(a) decline to schedule a review conference in writing; or

(b) conduct a review conference in accordance with the provisions of item (4).

(4) A review conference may be conducted by the board, its designee, or a committee of three members of the board appointed by the chair. The board shall set the place, date, and time for the conference; give twenty calendar days' written notice of the conference; and advise the landowner or the county, municipality, or organization acting on behalf of the landowner that evidence may be presented at the conference. The review conference must be held as follows:

(a) Review conferences are open to the public; however, the officers conducting the conference may meet in closed session to deliberate on the evidence presented at the conference. The burden of proof in a conference is upon the landowner or the county, municipality, or organization acting on behalf of the landowner. During the course of the review conference, the staff must explain the staff decision and the materials relied upon to support its decision. The landowner or the county, municipality, or organization acting on behalf of the landowner shall state the reasons for contesting the staff decision and may provide evidence to support amending the staff decision. The staff may rebut information and arguments presented by the landowner or the county, municipality, or organization acting on behalf of the landowner, and the landowner or the county, municipality, or organization acting on behalf of the landowner may rebut information and arguments presented by the staff. Any review conference officer may request additional information and may question the landowner or the county, municipality, or organization acting on behalf of the landowner and the staff.

(b) After the review conference, the board, its designee, or a committee of three members of the board appointed by the chair shall issue, based upon the evidence presented, a written decision to the landowner or the county, municipality, or organization acting on behalf of the landowner via certified mail no later than thirty calendar days after the date of the review conference. The written decision must explain the basis for the decision and inform the landowner or the county, municipality, or organization acting on behalf of the landowner of the right to request a contested case hearing before the Administrative Law Court.

(5) The landowner or the county, municipality, or organization acting on behalf of the landowner may file a request with the Administrative Law Court, in accordance with Chapter 23, Title 1, for a contested case hearing within thirty calendar days after:

(a) written notice is received by the landowner or the county, municipality, or organization acting on behalf of the landowner that the board declines to hold a review conference;

(b) the sixty-calendar-day deadline to hold the review conference has lapsed and no conference has been held; or

(c) the final agency decision resulting from the review conference is received by the landowner or the county, municipality, or organization acting on behalf of the landowner."

HISTORY: 1988 Act No. 634, Section 3; 1990 Act No. 607, Section 3; 1993 Act No. 181, Section 1235; 2006 Act No. 387, Sections 50, 51; 2016 Act No. 197 (S.139), Section 3, eff June 3, 2016; 2018 Act No. 173 (H.4683), Section 4, eff May 3, 2018.

Editor's Note

2018 Act No. 173, Sections 1 and 8, provide as follows:

"SECTION 1. This act must be known and may be cited as the 'Beachfront Management Reform Act'."

"SECTION 8. The Department of Health and Environmental Control must promulgate regulations to implement the provisions of this act, including regulations that the department will use to locate a primary oceanfront sand dune as defined by Section 48-39-10, by January 14, 2020."

Effect of Amendment

2016 Act No. 197, Section 3, rewrote the section, so as to prohibit the baseline from moving seaward from the position determined on December 31, 2017, and to eliminate the right to petition the administrative law court to move the baseline seaward upon completion of a beach renourishment project.

2018 Act No. 173, Section 4, rewrote the section, implementing a beach preservation policy, prohibiting the seaward movement of a baseline from a certain location, establishing that the Department of Health and Environmental Control must establish baselines and setback lines for certain areas, and establishing guidelines for review.