Could South Carolina DNR use the Water Recreational Resources Fund to buy watercraft in 2004?

Plain-English summary

In January 2004, South Carolina’s Attorney General concluded that the Department of Natural Resources could not use the Water Recreational Resources Fund to buy watercraft. The statute directed spending toward acquiring, creating, or improving public waters that were naturally occurring or provided habitat for fish, aquatic animals, or waterfowl, and provided recreation opportunities. The office agreed with DNR’s counsel that buying boats did not fit that purpose.

The opinion also explained who controlled the fund. County legislative delegations could recommend projects, and DNR had to give those recommendations primary consideration, but DNR made the spending decision. A statutory allowance for limited promotion of on-water recreation did not displace the requirement that the fund serve water recreational resources.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

DNR and county delegations

The AG read the amended law as placing ultimate expenditure authority with DNR after an earlier version had allowed legislative delegations to approve or reject spending. Delegations retained a recommendation role, with their projects receiving primary consideration. The recommended project still had to improve, create, or acquire a water recreational resource as the statute defined it.

Boating and recreation groups

The opinion distinguished a project that improved public waters, such as the physical water resource or connected facilities, from purchasing watercraft. It did not treat the fund as general support for any activity involving boats.

Common questions

Could DNR buy boats with this fund because people would use them for recreation?
No. The AG concluded that the statute did not authorize fund spending on watercraft purchases.

Could a county delegation direct DNR to make the purchase?
No. Under the amended statute, delegations could recommend projects and DNR had to give them primary consideration, but DNR held final spending authority.

Did the limited promotion allowance permit any boating-related expense?
The AG read that allowance together with the fund’s core purpose: spending still had to acquire, create, or improve water recreational resources as defined in the statute.

Background and statutory framework

DNR’s counsel requested review of his conclusion that a proposed watercraft purchase was outside the fund’s authority. The AG read the 2002 amendment after a South Carolina Supreme Court separation-of-powers ruling and considered longstanding DNR and AG interpretations of the fund’s physical-resource purpose.

Citations and references

The opinion discussed S.C. Code Ann. Section 12-28-2730 and its amendment by Act No. 187 of 2002.

Official title

Regarding the expenditure of the Water Recreational Resources Fund (the Fund), which is administered by the Department of Natural Resources (DNR).

Requester

Buford S. Mabry, Jr., Chief Counsel, South Carolina Department of Natural Resources

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-15-2004/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/04jan15mabry.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsrER
ATIDRNEY GENERAL

January 15, 2004

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Buford S. Mabry, Jr., Chief Counsel
South Carolina Department of Natural Resources
Post Office Box 167
Columbia, South Carolina 29202
Dear Mr. Mabry:
You have requested an opinion regarding the expenditure of the Water Recreational Resources Fund (the Fund), which is administered by the Department of Natural Resources (DNR). You have included your memorandum dated April 8, 2003 to the Director of DNR. Therein, you concluded that the usage of Fund proceeds to purchase watercraft, as recommended by a county legislative delegation, is outside the parameters of ''water recreational resources" as contemplated in S.C. Code Ann. Section 12-28-2730. This statute provides that DNR may "acquire, create, or improve water recreational resources."

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You indicate that the General Assembly has defined ''water recreational resources" in 2002 amendments to § 12-28-2730(B) as "public waters which are naturally occurring or which provide habitat for fish, aquatic animals, or waterfowl and which must provide public recreation opportunities." In addition, you have referenced a previous opinion of this Office, Op. S.C. Atty. Gen., Op. No. 88-53(July14, 1988), which advised that the expenditure of the Water Recreational Resources Fund "is restricted ... and that the term 'resource' means that the physical property from which the water recreation is obtained or provided." You have also cited a 1982 statement offered by the State Auditor which stated that ''these funds should be used for permanent improvement." Based upon these authorities, it is your conclusion that DNR's expenditure ofFund proceeds to purchase watercraft is not authorized by state law. You have now requested this Office's opinion as to these conclusions. We concur in your analysis as explained in the April 8, 2003 memorandum.

Law I Analysis
Section 12-28-2730 was last amended by Act No. 187 of2002. This amendment was enacted as a result of the South Carolina Supreme Court's decision in Knotts v. S.C. Department ofNatural Resources, 348 S.C. 1, 558 S.E.2d 511 (2002), which struck down the prior version of the statute as a violation of separation of powers. Pursuant to the previous version, the legislative delegation possessed the authority to approve or reject any expenditure of the Fund by DNR. See, 348 S.C., xJ/lA,,,4.,,._/,

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TB.EPHONE: 803-734-3970

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FACS!Mll.E: 803-253-6283

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Mr. Mabry
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January 15, 2004

supra at 4. In the Court's view, this legislative exercise of executive power violated Article I, § 8 ofthe South Carolina Constitution which requires the separation oflegislative, executive and judicial powers. Supra at 6. As a result, the General Assembly rewrote§ 12-28-2730. The primary change in the law was to bestow upon DNR the ultimate control over expenditures from the Fund. Rather than being given authority over these expenditures, the delegations may now only make recommendations as to how the Fund is allocated by DNR. However, the statute directs DNR to give those recommendations primary consideration. As amended, § 12-28-2730 provides in pertinent part as follows:

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(A)

One percent of the proceeds from thirteen cents of the gasoline tax imposed pursuant to this chapter must be transmitted to the Department of Natural Resources for a special water recreational resources fund in the State. All balances in the fund must be carried forward annually so that no part of it reverts to any other fund.

(B)

The fund must be apportioned based upon the number of registered boats or other watercraft in each county and expended by the department to acquire. create, or improve water recreational resources. As used in this section, ''water recreational resources" means public waters which are naturally occurring or which provide habitat for fish, aquatic animals, or waterfowl and which must provide recreational opportunities. These funds may be used to promote activities that take place on the water for recreation provided that no more than ten percent may be used for this purpose beginning July 1, 2003.

(C)

Each county delegation may make recommendations to the South Carolina Department of Natural Resources for projects to acquire, create, or improve water recreational resources. The department must give these recommendations primary consideration over any other projects.

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In answering your question, a number ofprinciples of statutory construction are pertinent. The primary objective in construing statutes is to determine and effectuate legislative intent if it is at all possible to do so. Bankers Trust of South Carolina v. Bruce, 275 S.C. 35, 267 S.E.2d 424 (1980). A statute must receive a practical, reasonable, and fair interpretation consonant with the purpose, design and policy of the lawmakers. Caughman v. Cola. Y.M.C.A., 212 S.C. 337, 47 S.E.2d 788 ( 1948). Words used must be given their plain and ordinary meaning without resort to subtle or forced construction either to limit or expand the statute's operation. State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1990).

Furthermore, it is well established that the meaning of a statute should not be sought in any single section but should be sought in all parts of the statute together in relation to the end intended by the statute. DeLoach v. Scbeper, 188 S.C. 21, 198 S.E. 409 (1938). All parts ofa statute must be

Mr.Mabry
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January 15, 2004

given effect, State ex rel. McLeod v. Nessler, 273 S.C. 371, 256 S.E.2d 419 (1979), and harmonized with one another to render them consistent with the general purpose of the act. Crescent Mfg. Co. v. Tax Commission, 129 S.C., 480, 124 S.E. 761 (1924). When the Legislature has expressed its intention in one part of an act, it must be presumed that such intention is applicable to all parts. State v. Sawyer, 104 S.C. 342, 88 S.E. 894 (1916).

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As you point out in your memorandum to Mr. Frampton, the new legislative definition of "water recreational resource" replicates the interpretation recognized in previous opinions of this Office. In an opinion dated March 12, 1997, we opined that the Fund could not be used to provide public swimming lessons. There, we reasoned that such expenditures were not in accordance with
§ 12-28-2730 for the following reasons:
The word "resources" is commonly defined as
money or any property that can be converted into supplies; means of raising money or supplies; capabilities of raising wealth or capability of any kind. Shelby County v. Tennessee Centennial Exposition Co. 96 Tenn. 653, 36 S.W. 694, 33 L.R.A. 717 Cerenzia v. Department of Social Security of Washington, 18 Wash.2d 230, 138 P.2d 868, 871.

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Blacks Law Dictionary, Fourth Edition. The common meaning of ''resource" is "[ s]omething that can be used for support or help. 2. An available supply that can be drawn on when needed." Thus, an interpretation of "water recreation resources" which is limited to "permanent improvement" or importing the "acquisition or improvement of the actual resource for recreational purposes" is a reasonable construction. Secondly, in an Opinion dated October 7, 1987, (as well as in Opinion No. 8853), we recognized that "[t]he Wildlife Department has maintained for some time that 'purpose of water recreational resources' is served by actual physical improvements to water resources, such as boat ramps and connected facilities." We noted that"[ t]his interpretation appears to be in accord with the literal language of§ 12-27-390 .... " As our Court emphasized in State v. Salmon, 279 S.C. 344, 306 S.E.2d 620 (1983) where the terms of a statute are clear and unambiguous, they must be applied according to their literal meaning. Third, the Department of Natural Resources' longstanding interpretation has been consistently viewed by this Office as the correct one. When the Legislature fails to modify a long-standing agency interpretation which has been found to be correct by this Office on a number of occasions, the courts will adopt this construction as the prevailing law.

Mr. Mabry
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January 15, 2004

Finally, it is also well established that"[ a]n officer may pay out public money only in the manner prescribed by law." McQuillin, Municipal Corporations, § 12.217. Accordingly, it is my opinion that Dr. Timmerman's letter correctly states the law and that this fund may not be used for the desired purpose expressed in your letter, without a change in the law. As I understand it, a proviso in the Budget Bill recently passed the House which required DNR to transfer a certain portion of this Fund to Richland County for the renovation of the Lake Murray Tourism Visitor Center. You may thus wish to pursue a similar legislative remedy with respect to your proposed project as well. It is true that in amending § 12-28-2730 by Act No. 187 of 2002, the General Assembly provided that "[t]hese funds may be used to promote activities that take place on the water for recreation provided that no more than ten percent of each annual allocation may be used for this purpose beginning July 1, 2003." However, this language must be read in conjunction with the requirement contained in the very same paragraph that "[t]he fund must be ... expended by the department to acquire, create,, or improve water recreational resources .... " As noted, the Act now defines this term as "public waters which are naturally occurring or which provide habitat for fish, aquatic animals, or waterfowl and which must provide recreational opportunities." Reading the amended version of§ 12-28-2730, we thus agree with your conclusion in your memorandum of April 8, 2003 ''that any recommended project from the county delegation must be for the acquisition of, the creation of or the improvement of water recreational resources. Improving water recreational resources is limited to those projects which make better or increase the value of the public waters of the State."

As you note, and as documented above, "[t]he new legislative definition of water recreational resource follows the interpretation of both the Office of the State Auditor and the Office of the Attorney General and the longstanding interpretation by [DNR] ... concerning the use of the Water Recreational Resources Fund." It is generally recognized that longstanding administrative interpretations are not overturned absent cogent reasons. Op. S.C. Atty. Gen., October 20, 1997, citing Logan v. Leatherman, 290 S.C. 400, 351 S.E.2d 146, 148 (1986). Moreover, it is well settled that "where an administrative interpretation of a statute has been applied for a number of years without being changed by the Legislature despite amendments to the statute, a presumption is created that such interpretation is correct." Op. S.C. Atty. Gen., November3, 1983,citingRyderTruckLines. Inc. v. South Carolina Tax Commission, 248 S.C. 148, 149 S.E.2d 435, 437 (1966); EtiwanFertilizer Co. v. South Carolina Tax Commission, 217 S.C. 354, 60 S.E.2d 682, 684 (1950). This rule is particularly applicable when the Legislature does not change or alter the law in light of an existing Opinion of the Attorney General. See, Op. S.C. Atty. Gen., July 23, 1999. Here, there are no cogent reasons to change or modify this Office's previous interpretations of§ 12-28-2730 in the opinions referenced above. Indeed, it appears that the General Assembly has, in the most recent amendments by Act No. 187 of 2002, incorporated these interpretations as part of the statute.

Mr. Mabry
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Conclusion

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Accordingly, we concur in your interpretation of§ 12-28-2730 that "any recommended project from the county delegation must be for the acquisition of, the creation of or the improvement of water recreational resources." Likewise, we, therefore, concur that § 12-28-2730 does not authorize expenditures from the Water Recreational Resources Fund for the purchase of watercraft. Very truly yours,

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Robert D. Cook
Assistant Deputy Attorney General