Bill 4038

                    Current Status

Bill Number:               4038
Ratification Number:       722
Act Number                 585
Introducing Body:          House
Subject:                   Groundwater use act revised

(A585, R722, H4038)

AN ACT TO AMEND CHAPTER 5, TITLE 49, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE GROUNDWATER USE ACT, SO AS TO FURTHER PROVIDE FOR THE REGULATION OF GROUNDWATER AND OTHER WATER RESOURCES OF THE STATE INCLUDING PROVISIONS TO REVISE AND PROVIDE FOR ADDITIONAL DEFINITIONS IN REGARD TO THIS ACT, TO FURTHER PROVIDE FOR FACTORS WHICH THE WATER RESOURCES COMMISSION SHALL CONSIDER IN DETERMINING AND DECLARING CAPACITY USE AREAS IN THE STATE, TO REVISE THE PROCEDURES REQUIRED TO BE FOLLOWED IN DECLARING A CAPACITY USE AREA, TO FURTHER PROVIDE FOR THE PROMULGATION OF THE REGULATIONS TO BE APPLIED IN A CAPACITY USE AREA, TO REVISE THE CONDITIONS UNDER WHICH, PROCEDURES UNDER WHICH, AND DURATION OF GROUNDWATER USE PERMITS WHICH MAY BE ISSUED IN THE CAPACITY USE AREA, TO AUTHORIZE THE COMMISSION TO COOPERATE WITH OTHER STATE AGENCIES AND AGENCIES OF THE FEDERAL GOVERNMENT IN THE ADMINISTRATION OF THE PROVISIONS OF THIS ACT AND TO NEGOTIATE CERTAIN AGREEMENTS, ACCORDS, OR COMPACTS, TO AUTHORIZE THE IMPOSITION BY THE COMMISSION OF CERTAIN CIVIL PENALTIES FOR THE VIOLATION OF THIS ACT, AND TO PROHIBIT CERTAIN FLOWING WELLS AND TO PROVIDE EXCEPTIONS.

Be it enacted by the General Assembly of the State of South Carolina:

Groundwater Use Act revised

SECTION 1. Chapter 5 of Title 49 of the 1976 Code is amended to read:

Section 49-5-10. This chapter is known and may be cited as the Groundwater Use Act.

Section 49-5-20. The General Assembly declares that the general welfare and public interest require that the water resources of the State be put to beneficial use to the fullest extent to which they are capable, subject to reasonable regulation in order to conserve and protect these resources, prevent waste, and to provide and maintain conditions which are conducive to the development and use of water resources.

Section 49-5-30. Unless the context otherwise requires, the following terms as used in this chapter are defined as follows:

(1) 'Area of the State' means any municipality or county or portion of a county or municipality or other substantial geographical area of the State as may be designated by the Commission.

(2) 'Commission' means the South Carolina Water Resources Commission.

(3) 'Person' means individuals, firms, partnerships, associations, public or private institutions, municipalities or political subdivisions, governmental agencies, or private or public corporations organized under the laws of this State or any other state or county.

(4) 'Groundwater' means water of underground streams, channels, artesian basins, reservoirs, lakes, and other water under the surface of the earth whether percolating or otherwise, natural or artificial, which is contained within, flows through, or borders upon this State or any portion of this State, including those portions of the Atlantic Ocean over which this State has jurisdiction.

(5) 'Aquifer' means a geologic formation, group of these formations, or a part of such a formation that is water bearing.

(6) 'Domestic use' means a well appurtenant to a single family dwelling intended for household purposes, gardens, or livestock, except that this use is restricted to gardens and livestock for the personal use or consumption of the landowner or lessee operating the well but does not include gardens and livestock maintained for commercial purposes.

(7) 'Well' means any excavation that is cored, bored, drilled, jetted, dug, or otherwise constructed for the purpose of locating, testing, or withdrawing groundwater or for evaluating, testing, developing, draining, or recharging any groundwater reservoirs or aquifer, or that may control, divert, or otherwise cause the movement of water from or into any aquifer. This does not include surface water impoundments that normally receive inflow from or discharge into a surface watercourse.

(8) 'Flowing well' means a well releasing groundwater under such pressure that pumping is not necessary to bring it above the ground surface.

Section 49-5-40. (A) The commission, upon receipt of a request of a county, municipality, or other political subdivision of this State, may declare and delineate, and may modify, capacity use areas of the State where it finds that the use of groundwater requires coordination and regulation for protection of the interests and rights of residents or property owners of these areas or of the public interest.

(B) Within the meaning of this chapter `a capacity use area' is one where the commission finds that the aggregate uses of groundwater in or affecting the area have developed or threatened to develop to a degree which requires coordination and regulation, or exceed or threaten to exceed or otherwise threaten or impair, the renewal or replenishment of the waters or any part of them. In making its findings, the commission shall consider, but is not limited to, determining whether there may be reason to believe that:

(1) groundwater levels (elevations relative to mean sea level of water table or artesian water head) in the area in question are declining or have declined excessively;

(2) the wells of two or more groundwater users within the area in question interfere substantially with one another;

(3) the available groundwater supply in the area in question is being or is about to be overdrawn;

(4) the flow of any surface watercourse is being affected by groundwater use; or

(5) groundwater level declines have resulted in or may result in compaction of aquifers with subsequent reduction in aquifer productivity or subsidence of land surface;

(6) groundwater level declines or fluctuations have resulted in or may result in the formation of sinkholes and dolines;

(7) groundwater withdrawals have resulted in or may result in the capture and diversion of natural or man-made contaminants; or

(8) other reasons exist, as determined by the commission, that substantially may threaten, limit, or impair the ability to use groundwater for the benefit of the general welfare and public interest.

(C) The commission may declare and delineate capacity use areas in accordance with the following procedures:

(1) Whenever the commission, after reviewing a request from a county, municipality, or subdivision of this State, believes that a capacity use situation exists or may be emerging in any area of the State, it may direct its executive director to conduct an investigation and report to the commission on this situation.

(2) In conducting the investigation the executive director shall consult with all interested persons, groups, and agencies, may retain consultants, and shall consider all factors relevant to the conservation and use of water in the area. The report must include the executive director's findings and recommendations as to the water use problems of the area involving groundwater, whether effective measures can be employed limited to groundwater, and whether timely action by any agency or person may preclude the need for additional regulation at that time. The report must also include those other findings and recommendations as may be considered appropriate, including recommended boundaries for any capacity use area that may be proposed.

(3) If the commission finds, following its review of the report (or following its evaluation of measures taken falling short of regulation) that a capacity use area should be declared, it may adopt an order declaring the capacity use area. Before adopting the order, the commission shall give notice of its proposed action and conduct one or more public hearings with respect to the proposed action.

(4) The notice must be given not less than thirty days before the date of the hearing and state the date, time, and place of hearing, the subject of the hearing, and the action which the commission proposes to take. The notice must either include details of the proposed action, or where the proposed action is too lengthy for publication, the notice must specify that a copy of the proposed action may be obtained on request from the commission.

(5) The notice must be published at least once in one newspaper of general circulation circulated in each county of the State in which the water area affected is located.

(6) Any person who desires to be heard at the public hearing shall give notice of this desire in writing to the commission on or before the first date set for the hearing. The commission is authorized to set reasonable time limits for the oral presentation of views by any one person at the public hearing. The commission shall permit anyone who so desires to file a written argument or other statement with the commission in relation to any proposed action of the commission any time within thirty days following the conclusion of any public hearing or within that additional time as the commission may allow by notice given as prescribed in this section.

(7) Upon completion of public hearings and consideration of relevant comments with respect to any proposed action by the commission pursuant to this section, the commission shall adopt its final action with respect to this matter and publish a notice of its action in the State Register. The commission is empowered to modify or revoke any final action previously taken by it pursuant to the provisions of this section, the modification, or revocation, however, is subject to the procedural requirements of this chapter, including notice and hearing. If the commission finds and orders that a capacity use area must be declared, its order must include a delineation of the boundary of the area, and the commission shall instruct its executive director to prepare proposed regulations consistent with the provisions of this chapter and commensurate with the degree of control needed from among the classes of permissible regulations set forth in Section 49-5-50.

Section 49-5-50. (A) Following the declaration of a capacity use area by the commission, it shall prepare proposed regulations to be applied in the area, containing such of the following provisions as the commission finds appropriate concerning the use of groundwaters:

(1) Provisions requiring water users within the area to submit reports not more frequently than at thirty-day intervals concerning quantity and quality of water used or withdrawn, sources of water, water levels, and the nature and distribution of the use of the water. The commission shall not require reports of public supply well water quality where the reports duplicate the requirements of the Department of Health and Environmental Control, are derived from samples collected at times and by methods suitable for the purposes of the commission, and are provided to the commission by the Department of Health and Environmental Control within forty-five days of the date of sample receipt.

(2) With respect to groundwaters provisions concerning the timing of withdrawals; provisions to protect against or abate saltwater encroachment; provisions to protect against or abate unreasonable adverse effects on other water users within the area, including, but not limited to, adverse effects on public use; and provisions to minimize waste by requiring users to employ water conservation measures.

(3) With respect to groundwaters provisions concerning well depth and spacing controls; and provisions establishing a range of prescribed pumping levels (elevations below which water may not be pumped) or maximum pumping rates, or both, in wells or for the aquifer or for any part of the wells or aquifer based on the capacities and characteristics of the aquifer.

(4) With respect to groundwaters provisions concerning withdrawals to protect against or abate sinkholes and land subsidence resulting from or relating to these withdrawals.

(5) With respect to wells provisions concerning minimum well design standards; provisions requiring approval by the commission of well design plans before construction and the issuance of any permit under this chapter; provisions regarding technical upgrading requirements on, for, or to permitted wells consistent with the level of regulation necessary in the capacity use area; and provisions concerning the abandonment of wells.

(6) Those other provisions not inconsistent with this chapter as the commission finds necessary to implement the purposes of this chapter.

(B) In adopting any regulations and in considering permit applications, revocations, or modifications the commission shall consider:

(1) the number of persons using an aquifer and the object, extent, and necessity of their respective withdrawals or uses;

(2) the nature and size of the aquifer;

(3) the physical and chemical nature of any impairment of the aquifer, adversely affecting its availability or fitness for other water uses including public use;

(4) the probable severity and duration of the impairment under foreseeable conditions;

(5) the injury to public health, safety, or welfare which results if the impairment is not prevented or abated;

(6) the kinds of businesses or activities to which the various uses are related;

(7) the importance and necessity of the uses claimed by permit applicants under this section, or of the water uses of the area, and the extent of any injury or detriment caused or expected to be caused to other water uses including public use;

(8) the efficacy of conservation measures with respect to the extent of reuse, reduction of losses to the ground, surface, and atmosphere, and prevention of unreasonable or wasteful use;

(9) diversion from or reduction of flows in other watercourses or aquifers; and

(10) any other relevant factors.

(C) The commission may modify or revoke any final action previously taken by it pursuant to the provisions of this section.

Section 49-5-60. (A) In areas declared by the commission to be capacity use areas no person shall (after the expiration of that period, not in excess of twelve months, as the commission may designate) withdraw, obtain, or utilize groundwaters in excess of the following amounts for any purpose, nor construct a water well with the intent of pumping these amounts, unless the person first obtains a permit for this purpose from the commission:

(1) one hundred thousand gallons each day on any day;

(2) one million gallons each month in any month; or

(3) ten million gallons in any twelve consecutive months.

Applications for the permits must set forth those facts the commission considers necessary to enable it to establish and maintain adequate records of water uses within the capacity use area. No permit is required under this chapter for groundwater use which is for domestic use only.

(B) Upon receipt of an application for a groundwater use permit, which application must be submitted on forms supplied by the commission, the commission shall require the applicant to publish a notice, in that form as may be prescribed by the commission, in a newspaper of general circulation in the county where the groundwater use is proposed. Each applicant shall provide the commission an affidavit of publication, along with a copy of the notice published. The notice must inform interested persons of the submission of the application, the location of the well or proposed well, the maximum amount of groundwater to be used, the general nature of the use proposed for the groundwater, and other information considered relevant by the commission. Any interested person may submit written comments to the commission on any permit application within thirty days following publication of the notice required in this section. The commission may, in its discretion, conduct a public information hearing on any application for a groundwater use permit. The commission shall also provide a copy of this notice through regular mail to each permitted groundwater user within a one mile radius of the proposed groundwater withdrawal point.

(C) The commission shall notify each person making application for a permit of the commission's proposed action concerning the permit application, and transmit with the notice a copy of any permit it has proposed to issue, which permit becomes final unless a request for a hearing is made within fifteen days from the date of service of the notice. The commission has the power:

(1) to grant the permit with conditions the commission considers necessary to implement the regulations adopted pursuant to Section 49-5-50;

(2) to grant any temporary permit for the time the commission specifies where conditions make the temporary permit essential, even though the action allowed by the permit may not be consistent with the commission's regulations applicable to the capacity use area;

(3) to modify, suspend, or revoke any permit upon not less than thirty days' written notice to any person affected; and

(4) to deny the permit if the application for it or the effect of the water use proposed or described in the permit upon the water resources of the area is found to be contrary to public interest.

(D) Any person aggrieved in a manner or to a degree significantly different from the general public by the proposed action of the commission on any permit application as specified in subsection (C) may request a hearing on the proposed action. The hearing request must be submitted to the commission within fifteen days from the date of service of the notice on the person aggrieved. No person is considered an aggrieved party under this section unless the person submitted timely written comments on the application as authorized in subsection (B), except that any person submitting written comments under subsection (B) shall bear the responsibility of requesting the commission to inform the person of the proposed action required under subsection (C).

(E) In any proceeding pursuant to this section or Section 49-5-70, in which an administrative hearing is required, the commission shall give notice with respect to all steps of the proceeding only to each person directly affected by the proceeding who is made a party to the proceeding.

(F) The following provisions are applicable in connection with hearings pursuant to this section:

(1) All notices which are required to be given by the commission or by any party to a proceeding must be given by registered or certified mail to all persons entitled to notice, including the commission. The date of receipt or refusal for the registered or certified mail is the date when the notice is considered to have been given. Notice by the commission may be given to any person upon whom a summons may be served in accordance with the provisions of law covering civil actions in the circuit courts of this State. The commission may prescribe the form and content of any particular notice.

(2) All hearings under this section must be before the commission or before one or more of its members, one or more of its qualified employees, or a hearing officer retained by the commission. All hearings must be open to the public. Any member or employee of the commission or special hearing officer to whom a delegation of power is made to conduct a hearing shall report the hearing with its evidence and record, along with proposed findings of fact and conclusions of law, to the commission for decision.

(3) A full and complete record of all proceedings at any hearing under this chapter must be taken by a reporter appointed by the commission or by other method approved by the Attorney General. Any party to a proceeding is entitled to a copy of the record upon the payment of the reasonable cost for it as determined by the commission.

(4) The burden of proof at any hearing under this chapter is upon the person or the commission, as the case may be, at whose instance the hearing is being held.

(5) The commission has the authority to adopt a seal which must be judicially noticed by the courts of the State. Any document, proceeding, order, degree, special order, regulation, rule of procedure, or any other official act or records of the commission or its minutes may be certified by the executive director of the commission under his hand and the seal of the commission and when so certified must be received in evidence in all actions or proceedings in the courts of the State without further proof of the identity of the records if the records are competent, relevant, and material in the action or proceeding. The commission shall have the right to take judicial notice of all studies, reports, statistical data, or any other official reports or records of the federal government or of any sister state and all these records, reports, and data may be placed in evidence by the commission or by any other person or interested party where material, relevant, and competent.

Section 49-5-70. (A) A permit under Section 49-5-60 must be issued for a period specified as follows:

(1) ten years; or

(2) a period found by the commission to be reasonable based upon review of relevant factors and circumstances pertaining to the proposed groundwater use.

Permits may be renewed following their expiration upon compliance with the provisions of Section 49-5-60.

(B) Permits may not be transferred except with the approval of the commission.

(C) Every person in a capacity use area who is required by this chapter to secure a permit shall file with the commission in the manner prescribed by the commission a certified statement of quantities of water used and withdrawn, sources of water, and the nature of the use of the water not more frequently than thirty-day intervals. These statements must be filed on forms furnished by the commission within ninety days after the adoption of an order by the commission declaring a capacity use area.

(D) If any person who is required to secure a permit under this chapter is unable to furnish accurate information concerning amounts of water being withdrawn or used, or if there is evidence that his certified statement is false or inaccurate or that he is withdrawing or using a larger quantity of water or under different conditions than has been authorized by the commission, the commission has the authority to require the person to install water meters, or some other more economical means for measuring water use acceptable to the commission. In determining the amount of water being withdrawn or used by a permit holder or applicant the commission may use the rated capacity of his pumps, the rated capacity of his cooling system, data furnished by the applicant, or the standards or methods employed by the United States Geological Survey in determining these quantities or by any other accepted method.

(E) The commission may require an applicant or permittee to construct, test, maintain, and monitor observation wells if reasonably necessary to evaluate the impact of a proposed or permitted well, mine, or pond on aquifers, water courses, existing or potential water users, land subsidence, or groundwater quality.

(F) In any case where a permit applicant can prove to the commission's satisfaction that the applicant was withdrawing or using water before the date of declaration of a capacity use area, the commission shall take into consideration the extent to which the prior use or withdrawal was reasonably necessary in the judgment of the commission to meet his needs and grant a permit which meets those reasonable needs. The granting of the permit must not encourage waste and must not have unreasonably adverse effects upon other water uses in the area, including public use, and including potential as well as present use.

(G) The commission shall also take into consideration in the granting of any permit the prior investments of any person in lands and plans for the usage of water in connection with these lands which plans have been submitted to the commission within a reasonable time after the declaration of a capacity use area. The granting of the permit must not have unreasonably adverse effects upon other water uses in the area, including public use, and including potential as well as present use.

(H) Pending the issuance or denial of a permit pursuant to subsection (F) or (G) of this section, the applicant may continue the same withdrawal or use which existed before the date of declaration of the capacity use area.

Section 49-5-80. The commission may conduct those investigations as may reasonably be necessary to carry out its duties prescribed in this chapter, and for this purpose to enter at reasonable times upon any property, public or private, for the purpose of investigating the condition, withdrawal, or use of any waters, investigating water sources, or investigating the installation or operation of any well and to require written statements or the filing of reports under oath with respect to pertinent questions relating to the installation or operation of any well. No person may be required to disclose any secret formula, processes, or methods used in any manufacturing operation or any confidential information concerning business activities carried on by him or under his supervision. No person may refuse entry or access to any authorized representative of the commission who requests entry for the purposes of a lawful inspection and who presents appropriate credentials, nor may any person obstruct, hamper, or interfere with this representative while in the process of carrying out his official duties consistent with the provisions of this chapter.

Section 49-5-90. (A) The commission may adopt and modify regulations to implement the provisions of this chapter.

(B) The commission is authorized to cooperate with other state agencies and agencies of the federal government to the extent practical in the implementation of this chapter. The commission may enter into or execute memoranda of understanding, agreements, or like instruments for purposes of coordinating administration of the programs of this chapter with any related or similar programs administered by a federal agency or another agency of the State.

Section 49-5-100. (A) Any person violating any provision of this chapter is guilty of a misdemeanor and, upon conviction, must be fined not less than one hundred dollars nor more than one thousand dollars for each violation. In addition, if any person is adjudged to have committed the violation wilfully, the court may determine that each day during which the violation continued constitutes a separate offense.

(B) Upon violation of any of the provisions of this chapter, or the regulations of the commission, the executive director, either before or after the institution of criminal proceedings, may also institute a civil action in the circuit court in the name of the State for injunctive relief. Neither the institution of the actions nor any of the proceedings on the actions relieve any party to the proceedings from the penalty prescribed by this chapter for any violation of these provisions or regulations.

(C) In addition to the criminal penalties authorized in subsection (A) and the injunctive relief authorized in subsection (B), any person whom the commission determines to be in violation of any provision of this chapter or any regulation, permit or permit condition, final determination or order of the commission may be assessed a civil penalty by the commission of not less than fifty dollars nor more than one thousand dollars for each day of violation. The commission may also issue an order requiring the person to comply with the provisions of this chapter, regulation, permit or permit condition, final determination or order, including an order requiring modification or abandonment of any well when considered necessary to protect groundwater.

All civil penalties collected pursuant to this subsection must be deposited in the general fund of the State.

Section 49-5-110. Flowing wells that flow at a rate of greater than five thousand gallons a day at any time are an unreasonable use of groundwater constituting waste and are prohibited, except that these wells may be utilized as artesian wells to the extent actually necessary for a specific use. These wells must be fitted with a mechanism to restrict the flow of water if the flow is in excess of that necessary for the specific use. The commission may promulgate regulations to govern use of these wells in this State.

Section 49-5-120. Nothing contained in this chapter changes or modifies existing common or statutory law with respect to the rights of the use of surface water in this State.

Section 49-5-130. The commission may negotiate agreements, accords, or compacts on behalf of and in the name of the State with other states or the United States, or both, with an agency, department, or commission of either, or both, relating to withdrawal or diversion of groundwater that impacts the groundwater of this State, or are connected to those waters. Any interstate compacts made by the commission by authority of this chapter are subject to approval by joint resolution of the General Assembly. The commission may represent this State in connection with groundwater withdrawals, diversions, or transfers occurring in other states which may affect this State."

Application of provisions

SECTION 2. (A) The amendments to Section 49-5-100 of the 1976 Code, as contained in Section 1 of this act, do not have the effect of releasing or extinguishing a penalty, forfeiture, or liability incurred under Section 49-5-100 (formerly Section 49-5-110) before the effective date of this act, and the penalty, forfeiture, or liability must be treated as remaining in force for the purpose of sustaining a proper action or prosecution for the enforcement of the penalty, forfeiture, or liability.

(B) The amendments to Section 49-5-100 (formerly Section 49-5-110) of the 1976 Code, as contained in Section 1 of this act, in addition to prospective application may be applied retroactively to a person violating a provision of Chapter 5, Title 49 of the 1976 Code before the effective date of this act.

Time effective

SECTION 3. This act takes effect upon approval by the Governor.

Approved the 12th day of June, 1990.