Moss, 040819 SCAGO, AGO 3137

• Case Date: April 08, 2019
• Court: South Carolina

Mr. W. Dean Moss, Jr., Chairman AGO 3137 No. 3137 South Carolina Attorney General Opinion State of South Carolina Office of the Attorney General April 8, 2019          Mr. W. Dean Moss, Jr., Chairman          Savannah River Maritime Commission          P.O. Box 7396          Columbia, SC 29202-7396          Dear Chairman Moss:          You seek our opinion regarding the new Savannah Bluff Lock and Dam ("NSBLD"). Specifically you provide the following background information as stated in your letter:

I request the opinion of your office regarding the respective jurisdictions of the Savannah River Maritime Commission (SRMC) and the South Carolina Department of Health and Environmental Control (DHEC) for a project proposed by the U.S. Army Corps of Engineers (Corps) at the New Savannah Bluff Lock and Dam (NSBLD). Specifically, based on certain amendments to federal law, I am requesting an opinion as to whether the SRMC's jurisdiction extends to the portion of the Savannah River that includes the NSBLD, which is located approximately 13 miles below Augusta, Georgia and approximately 170 miles above the Savannah River Harbor, and how that jurisdiction, if applicable, intersects with the jurisdiction of DHEC over the proposed NSBLD project. The Corps has proposed substantial modifications and alterations to the NSBLD, which raises questions regarding the permitting and authorization of these modifications and alterations by the State of South Carolina. This, in turn, presents questions regarding review and decisions on the appropriate licenses, permits, certifications, or authorizations for the proposed modifications and alterations of the NSBLD. In sum, I am respectfully requesting an opinion of your office with respect to the following two questions:

1. What is the scope of the State's regulatory authority applicable to the Corps' proposed modifications and alterations of the NSBLD?

2. Assuming the State's regulatory authority is triggered, what are the respective delineations of the exercise of that jurisdiction between the SRMC and DHEC with respect to the Corps' proposed modifications and alterations of the NSBLD?

         Background          The NSBLD was constructed on the Savannah River approximately 13 miles below Augusta, Georgia in 1937 as part of the ongoing federal Savannah River below Augusta, Georgia Project (the Project). The Project begins at mile 21.31 of the Savannah River, which is the end of the Savannah Harbor, and continues to mile 202.6 near Augusta. The original purpose of the Project was to assist in commercial navigation of the Savannah River from Savannah Harbor to Augusta via steamship and commercial barge. The Project authorizes maintenance of a channel through the Savannah River that is nine feet deep and 90 feet wide.          The nine-foot authorized depth of the Project would support only the operation of commercial freight barges, but not ocean-going container ships. Modern barges used on inland waterways typically have a minimum draft of nine feet. In contrast, the typical draft for a Panamax ship carrying between 3,001 and 5,100 TEU . . .—a smaller modern oceangoing container ship—is 39.5 feet. These ships also have a beam, or width, of approximately 106 feet. Even the smaller seagoing container vessels that carry around 300 TEU and are used as feeder ships ... have a minimum draft of approximately 20 feet. These smaller feeder ships also typically have a beam of approximately 75 feet.          In implementation, however, it appears that the Project did not live up to its intended commercial navigational purpose even for barges. In 1970, the Industrial Development Division Staff of the Georgia Institute of Technology generated a report noting that, with respect to the area governed by the Project, the "navigation channel has many sharp curves and, most of the time, depth is unsatisfactory, with the result that barges have to limit their draft to 6 14 feet." Robert E. Van Geuns, "The Development of Barge Traffic on Georgia's Inland Waterways. 1958'1968. and Some Development Potentials" at 8, Eng'g Experiment Station, Georgia Institute of Technology (Aug. 1970).          Only a few years after this report, around 1978, commercial traffic ceased on the Savannah River around Augusta and the Corps of Engineers has not maintained the Project or the nine-foot channel since 1978. In fact, in 2016, a syngas converter was delivered to the ramp at the NSBLD—not using the lock itself—by commercial barge, marking the first time that freight had been delivered by barge to Augusta since the late 1970s. Mary Carr Mayle, "Barge Delivers First Cargo up Savannah River in 40 Years" www.savannahnow.com (June 11, 2016). Significantly, the Corps of Engineers notes on its website that "Commercial navigation through the lock ceased in 1979" and that "the lock is no longer operated for fish passage or recreational boating."          Thus, the NSBLD has fallen into disrepair over the years due to lack of funding and use. Over the years, various tentative and ultimately unfulfilled steps have been taken with respect to the NSBLD. The Water Resources Development Act of 2000 approved rehabilitation of the NSBLD and the subsequent transfer of the facility to the City of North Augusta/Aiken County, South Carolina. The 2001 Consolidated Appropriations Act added a fish passage to the rehabilitation project, but removed the estimated cost of the rehabilitation from the available appropriations. Consequently, no substantive steps were taken by the Corps to rehabilitate the NSBLD.          As part of...