Could a South Carolina town submit a boating ordinance to DNR for special local vessel rules?

Plain-English summary

In 2010, South Carolina's Department of Natural Resources asked how a municipality could make special rules for vessel operation on its waters. The AG agreed that the town could enact a local boating ordinance and forward it to DNR with “the reasons which make such special rules and regulations necessary or appropriate.” DNR could respond by letter that the ordinance was effective if those criteria were met.

This letter clarified a September 2010 AG opinion. That earlier opinion had said special local rules without general statewide applicability did not need promulgation under the Administrative Procedures Act, but it had also required an explanation of the special local circumstances. The October clarification addressed the municipal submission and DNR response, not a statewide rulemaking process.

Currency note

This opinion was issued in 2010. 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.

Common questions

Could a town initiate a special boating rule?
A: The AG said yes. The town could enact an ordinance about vessel operation on its waters and send it to DNR as part of the application process.

What had to accompany the ordinance?
A: The opinion said the municipality had to provide reasons showing why special rules were necessary or appropriate for those waters.

Could DNR answer with a letter?
A: The AG agreed DNR could send a letter confirming effectiveness once the statutory criteria were met.

Was statewide administrative rulemaking required?
A: The letter restated the earlier AG view that these special rules lacked general statewide applicability and therefore did not need Administrative Procedures Act promulgation.

Background and statutory framework

The opinion read two parts of the boating statute together: one preserved local ordinances on vessel operation and equipment, and another allowed a subdivision to apply to DNR for special rules, stating why they were needed. It accepted the department counsel's proposed ordinance-and-letter process within those provisions.

Citations and references

The opinion discussed South Carolina Code section 50-21-30 and the AG's September 13, 2010 opinion.

Official title

Referencing previous opinion dated September 13, 2010,

Requester

S.C. Code § 50-21-30.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-7-2010-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/mabry-b-s-jr-os-9157-10-07-10-rules-regulations-sc-dnr.pdf

Original opinion text

HENRY MCMASTER
ATIORNF..Y GENERAL

October 7, 2010

Buford S. Mabry, Jr., Chief Counsel
SC Department of Natural Resources
P. 0. Box 167
Columbia, South Carolina 29202
Dear Mr. Mabry:
In our telephone conversation you referenced the opinion of this office to you dated September 13, 2010 regarding S.C. Code Ann. § 50-21-30. That opinion concluded that inasmuch as the "special rules and regulations" set forth in such provision " ...do not have general statewide applicability, ... (such) ...would not have to be promulgated pursuant to the Administrative Procedures Act." However, we did state that " ...there must be an articulation of the special and unique circumstances that would necessitate special consideration." Subsection (1) of Section 50-21 -30 provides that (t)he provisions of Title 50 and other applicable laws of this State shall govern the operation, equipment, titling, numbering, and all other matters relating thereto for watercraft and water devices using or held for use on the waters of this State; but nothing in this chapter may be construed to prevent the adoption of any ordinance or local law relating to operation and equipment of watercraft.... Subsection (2) of such provision states that
[a]ny subdivision ofthis State may...make formal application to ...(DNR) ... for special rules and regulations with reference to the operation ofvessels on any waters within its territo1ial limits and shall set forth therein the reasons which make such special rules and regulations necessary or appropriate. We are in agreement with your position that a municipality could enact an ordinance related to the operation ofvessels on its waters and forward such to your department along with "the reasons which make such special rules and regulations necessary or appropriate." DNR could then respond

REMBc'R'r c. DCNN!S B UILDING • POST OfFICE Box 11549 • COLUMBIA, SC 29211-1549 • TELEPl-IONE 803-734-3970 • FACSIMILE 803-253-6283

Mr. Mabry
Page2
October 7, 2010

in a letter to the municipality that the ordinance would be effective inasmuch as the necessary criteria has been met. If there are any questions, please advise.

Very truly yours,
Henry McMaster
Attorney General

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By:

REVIEWED AND APPROVED BY:

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Robert D. Cook
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General