ORDERS:
CONSENT ORDER OF DISMISSAL
This matter arises from
contested case hearings requested by Winyah Rivers Foundation, Inc. and the
Sierra Club challenging the decision of the South Carolina Department of Health
and Environmental Control (“DHEC”) in issuing DHEC Navigable Waters permit P/N
SC-04-053 and P/N SC-04-054 to Central Electric Power Cooperative, Inc. (“Central
Electric”) and the OCRM Division of DHEC Certifications of these permits.
On August 29, 2005 DHEC issued Navigable Waters permits P/N SC-04-053 and P/N SC-04-054 to Central
Electric for construction of a 115 KV overhead transmission line crossing the
Black River and Lane’s Creek in Georgetown County. The line will be eleven
miles long and will connect to substation to provide a redundant power source
to the portions of Georgetown and Horry Counties through which it passes. The
two Navigable Waters permits and the Certifications attendant to those permits
which were appealed allowed Central Electric to span both the Black River and
Lane’s Creek with the 115-volt line.
WHEREAS the parties
have come to an agreement to resolve all issues raised by the appeal herein.
NOW, THEREFORE, in
consideration of the mutual promises and undertakings contained herein of the
settlement of the above-referenced actions and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties have now reached an agreement to resolve this case and desire that
their agreement become incorporated into this final Consent Order.
1. Central Electric shall construct the transmission line in accordance
with the plan and profile sheets except for the 300-foot span of Candlewood Drive. The transmission line poles will be set back 150 feet from the center
line on either side of Candlewood Drive. Central Electric shall also establish
a 25-foot vegetated buffer on either side of Candlewood Drive within Central
Electric’s easement.
2. Under the permit, Central Electric is required to purchase 69.9
mitigation credits from a mitigation bank at a sum of $1800 per credit, for a
total of $125,820, to mitigate for impact to the bottomland hardwood swamp
ecosystem caused by the construction of the transmission line. In the interest
of preserving and protecting land similar to the system impacted by this
project, and to ensure that the mitigation funds are used to protect land
deemed high in conservation value, Central Electric shall make the payment of
the full sum of the mitigation credits, $125,820, to an escrow account to be
established by the S.C. Environmental Law Project (“SCELP”) as escrow agent for
the Winyah Rivers Foundation, the Sierra Club and DHEC. Upon payment by
Central Electric to the escrow account established by SCLEP, Central Electric’s
mitigation responsibility under the permits will be satisfied. DHEC accepts
this payment as fulfilling the mitigation commitment of Central Electric for
this project by Central Electric’s “Letter of Commitment” to Office of Ocean
and Coastal Resource Management dated April 5, 2006. SCELP will establish such account with the mitigation sums to be used solely for the purchase of land in
fee simple or through conservation easement for conservation and preservation.
SCLEP will maintain accounting records for the fund including records of
disbursements and interest earned. No legal fees, administrative costs or any
other fees may be paid from the fund. Upon five business-days’ notice to SCLEP
any party may audit the fund during the normal business hours of SCLEP.
3. The Winyah Rivers Foundation and the Sierra Club shall select said
property to be purchased for conservation and protection with the mitigation
funds, with the consent of DHEC. The property must be located in Georgetown or Williamsburg County, and must have high conservation value. The
conservation value of such property shall be determined in conjunction with
land conservation organizations, including The Nature Conservancy.
4. Prior to the expenditure of any funds for the purchase of any mitigation
property, the Winyah Rivers Foundation and Sierra Club shall submit to DHEC any
proposal for the purchase of such property. DHEC shall have forty-five (45)
days from the date that the proposal is submitted to approve or disapprove of
the selected mitigation site(s). If DHEC does not respond within the
forty-five (45) day period, the Winyah Rivers Foundation and the Sierra Club
may use the funds to purchase the property identified in the proposal. After
acceptance of the proposal, the funds shall be paid to a third party land
trust, as yet to be determined, that will purchase the easement or property in
fee simple. All property rights will be held by the land trust.
5. All interest generated from this $125,820 shall be added to the total
amount to be used by the Winyah Rivers Foundation and Sierra Club for the
purchase of conservation property.
6. If the $125,820 held in trust is not used for the purchase of
conservation property within 24 months from the date of this Consent Order,
DHEC shall be authorized to direct that the funds in the account be paid to
purchase credits from a mitigation bank equal to the total amount in the
account, including interest, provided the funds will be used for the protection
of land in Georgetown or Williamsburg County with high conservation value.
7. The parties to this Order may seek enforcement of its terms and
conditions, if needed, by petition to the Administrative Law Court with rights
of appeal or in any other appropriate jurisdiction.
8. This agreement is intended to settle and resolve this particular
controversy and the parties do not concede any arguments raised as a result of
this contested case.
The
undersigned has reviewed the agreement of the parties and hereby incorporates
this agreement as the final Order of the court. Now, therefore, by the joint
motion and consent of the parties,
THE
APPEALS ARE HEREBY DISMISSED with prejudice, subject to the enforcement
provisions incorporated in this Order.
AND IT IS SO ORDERED.
________________________________________
Marvin
F. Kittrell
Administrative
Law Judge
Columbia, South Carolina
June 15, 2006 |
