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TO AMEND CHAPTER 4, TITLE 49, CODE OF LAWS OF SOUTH CAROLINA, 1976, BY REDESIGNATING THE CHAPTER AS THE "SOUTH CAROLINA WATER WITHDRAWAL, PERMITTING, USE, AND REPORTING ACT", SO AS TO MAKE CERTAIN DECLARATIONS REGARDING THE STATE'S REGULATION OF RIPARIAN RIGHTS, TO PROVIDE CERTAIN DEFINITIONS, TO SPECIFY SPECIFIC EXEMPTIONS FROM THE CHAPTER, TO PROVIDE THAT USE OF THE WATERS OF THE STATE ON NONRIPARIAN LAND IS LAWFUL AND REQUIRES EQUAL CONSIDERATION WITH A USE ON A RIPARIAN LAND IN AN ADMINISTRATIVE OR JUDICIAL PROCEEDING RELATING TO AN ALLOCATION, WITHDRAWAL, OR USE OF WATER, OR TO A MODIFICATION OF A WATER RIGHT, AND VARIOUS PROVISIONS REGARDING THE PERMITTING AND REGULATION OF SURFACE WATER WITHDRAWERS; TO PROVIDE THAT THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL SHALL PROMULGATE A REGULATION PURSUANT TO CHAPTER 4, TITLE 49, RELATING TO SURFACE WATER WITHDRAWAL, PERMITTING, AND REPORTING, TO ESTABLISH A FEE NECESSARY TO IMPLEMENT THE PROVISIONS OF THIS CHAPTER, AND TO PROVIDE THAT UNTIL THE NEW REGULATION IS PROMULGATED, REGULATION 61-113, RELATED TO GROUNDWATER USE AND REPORTING, MUST REMAIN IN EFFECT; AND TO REPEAL CHAPTER 21, TITLE 49, RELATING TO THE INTERBASIN TRANSFER OF WATER.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 4, Title 49 of the 1976 Code is amended to read:
Section 49-4-10. This chapter may be cited as the South Carolina Surface Water Withdrawal and Reporting Act.
Section 49-4-20. As used in this chapter:
(1) "Board" means the Board of the Department of Health and Environmental Control.
(2) "Department" means the Department of Health and Environmental Control.
(3) "Dewatering operations" means an operation that is withdrawing surface water for the purpose of draining an excavation or preventing or retarding flow into an excavation. Such an operation would include, but is not limited to, water and sewer line construction and excavating for a building foundation.
(4) "Diffuse surface water" means water on the surface of the earth not located in defined courses, streams, or water bodies.
(5) "Emergency withdrawal" means the withdrawal of water, for a period not exceeding thirty days, for the purpose of firefighting, hazardous substance waste spill response, or both, or other emergency withdrawal of water as determined by the department.
(6) "Existing surface water withdrawer" means a surface water withdrawer withdrawing surface water or a proposed surface water withdrawer with its intakes under construction before January 1, 2000.
(7) "New surface water withdrawer" means a person who becomes a surface water withdrawer after December 31, 1999.
(8) "Person" means an individual, firm, partnership, association, public or private institution, municipality, or political subdivision, governmental agency, public water system, or a private or public corporation organized under the laws of this State or any other state or county.
(9) "Public water system" means a water system as defined in Section 44-55-20 of the State Safe Drinking Water Act.
(10) "Surface water" means all water, which is open to the atmosphere and subject to surface runoff which includes lakes, streams, ponds, and reservoirs.
(11) "Surface water withdrawer" means a public water system withdrawing surface water in excess of three million gallons during any one month and any other person withdrawing surface water in excess of three million gallons during any one month from a single intake or multiple intakes under common ownership within a one-mile radius from any one existing or proposed intake.
Section 49-4-30. The following are exempt from this chapter:
(1) dewatering operations;
(2) emergency withdrawals;
(3) a person withdrawing surface water for environmental remediation purposes;
(4) a person withdrawing surface water from any pond completely situated in private property and which is supplied only by diffuse surface water;
(5) a person required to obtain a permit under the Interbasin Transfer of Water Act, Section 49-21-10, et seq.;
(6) a person withdrawing, using, or discharging surface water for the purpose of wildlife habitat management.
Section 49-4-40. (A) An existing surface water withdrawer in the State shall register its surface water use with the department on forms provided by the department no later than January 1, 2001.
(B) An existing surface water withdrawer already registered with the department is exempt from subsection (A).
(C) A surface water withdrawer shall submit a registration form to the department within thirty days after completing construction of its surface water intake.
Section 49-4-50. (A) A surface water user in the State shall file annually before January thirty with the department a report, on forms furnished by the department, of the quantity of water withdrawn.
(B) The quantity of surface water withdrawn must be determined by one of the following:
(1) flow meters accurate to within ten percent of calibration;
(2) the rated capacity of the pump in conjunction with the use of an hour meter, electric meter, or log;
(3) the rated capacity of the cooling systems;
(4) any standard or method employed by the United States Geological Survey in determining these quantities;
(5) any other method found to provide reliable water withdrawal data approved by the department.
(C) The surface water withdrawer is not required to submit the surface water withdrawal report required by subsection (A) if the monthly quantity withdrawn from each intake is being reported to the department as a result of another environmental program reporting requirement, permit condition, or consent agreement.
Section 49-4-60. The department may:
(1) adopt and modify regulations to implement the provisions of this chapter;
(2) perform acts and issue orders as necessary to carry out the purposes and requirements of this chapter;
(3) administer and enforce this chapter and regulations promulgated and orders issued or effective under this chapter; and
(4) present proper identification and then enter upon any land or water for the purpose of conducting an investigation, examination, or survey contemplated by this chapter.
Section 49-4-70. A registered surface water withdrawer shall notify the department in writing within thirty days of constructing a new intake changing the method of measuring the withdrawal, ceasing to withdraw surface water, abandoning an intake, or a change in ownership.
Section 49-4-80. (A) A person wilfully violating a provision of this chapter is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars a day for each violation.
(B) A violation of a provision of this chapter or a regulation promulgated under the authority of this chapter, renders the violator liable to the State for a civil penalty of not more than one thousand dollars a day for each violation.
(C) The department may administer penalties as otherwise provided herein for a violation of this chapter, an order, regulation, or standard or may request the Attorney General to commence an action under this subsection in an appropriate court of the State to secure a penalty.
(D) The department may cause to be instituted a civil action in any court of applicable jurisdiction for injunctive relief to prevent violation of this chapter or an order issued pursuant to this chapter.
(E) Civil penalties collected pursuant to this section must be deposited in the general fund of the State.
Section 49-4-10. This chapter may be cited as the 'South Carolina Surface Water Withdrawal, Permitting, Use and Reporting Act.'
Section 49-4-15. The General Assembly declares that water resources of the State and common law riparian rights are subject to regulation by the State. The waters of the state are a natural resource owned by the State in trust for the public and subject to the State's sovereign power to plan, regulate, and control the withdrawal and use of these waters, under applicable state law, in order to protect the public health, safety, and welfare. Further, the general welfare and public interest require that water resources of the State be put to reasonable 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 of the resource, provide for protection of the ecosystem, ensure navigability where appropriate, promote sustainable economic development, and to provide and maintain conditions which are conducive to the development and reasonable use of the State's water resources. To carry out this policy, the General Assembly finds that the Department of Health and Environmental Control must establish and implement an effective statewide water permitting and reporting program. In order to provide legal security for water rights within the constraints provided in this chapter, the chapter establishes a system of permits that make a water right a matter of legal record entitled to legal protection.
The surface waters of the state require integrated planning and management. South Carolina's rivers and streams flow long distances and support natural aquatic ecosystems, while providing many communities economic, social, and environmental benefits. The State is responsible for maintaining these water resources for the maximum physical and economic benefit of the people while sustaining a safe yield and a respect for natural systems, including all waters of the state. The State shall preserve minimum flows and levels in water sources as necessary to protect the designated uses of those water sources and support aquatic ecosystems by reserving such waters from allocation. This chapter is construed in such a manner as to be consistent with applicable federal laws and regulations as administered through federal agencies, and does not in any way diminish current water quality standards of the State of South Carolina.
Section 49-4-20. As used in this chapter:
(1) '7Q10' means the annual minimum seven day average flow rate that occurs with an average frequency of once in ten years as published or verified by the United States Geological Survey (USGS) or an estimate extrapolated from published or verified USGS data.
(2) 'Agriculture' means engaging in a farming practice on property owned by an individual, family unit, or partnership devoted to the commercial growth and management of food, fiber, an animal, or an animal product by the systematic raising of plants and animals for human consumption and use.
(3) 'Board' means the Board of the Department of Health and Environmental Control.
(4) 'Department' means the Department of Health and Environmental Control.
(5) 'Basin' means a hydrologic unit as defined by the department by regulation.
(6) 'Consumptive use' means any use of water as defined by this chapter including, but not limited to, evaporation or the incorporation of the water into a product or crop. A consumptive use is one that diminishes the quantity or quality of water in surface water, water withdrawn that is evaporated, transpired, incorporated into products or crops, consumed by humans or livestock, or otherwise removed from the immediate surface water.
(7) 'Dewatering operation' means an operation that is withdrawing surface water for the purpose of draining an excavation or preventing or retarding flow into an excavation. Such an operation would include, but is not limited to, water and sewer line construction and excavating for a building foundation.
(8) 'Diffuse surface water' means water on the surface of the earth not located in defined courses, streams, or water bodies.
(9) 'Emergency withdrawal' means the withdrawal of water, for a period not exceeding thirty days, for the purpose of firefighting, hazardous substance waste spill response, or both, or other emergency withdrawal of water as determined by the department.
(10) 'Existing surface water withdrawer' means a surface water withdrawer who withdraws surface water or a proposed surface water withdrawer:
(a) with an intake under construction or permitted for construction before the effective date of this chapter; or
(b) with an intake permit filed before January 1, 2007.
(11) 'Interbasin transfer' means the withdrawal of surface water and the movement of that water to a surface water basin different from the source of the withdrawal.
(12) 'Losing surface water' means surface water that sustains a decrease in water as the result of withdrawal, or diversion, or a transfer of water.
(13) 'Minimum instream flow' means the minimum continuous flow at or immediately downstream of the point of withdrawal, transfer, or impoundment not subject to allocation by the State that is necessary to maintain the biological, chemical, and physical integrity of the stream during normal flow conditions.
(14) 'Minimum water level' means the water level in an impoundment not subject to allocation by the State that is necessary to maintain the biological, chemical, and physical integrity of the impoundment and maintain minimum instream flow immediately below the impoundment during normal flow conditions.
(15) 'Nonconsumptive use' means a use of water withdrawn from surface water in such a manner that it is returned to the waters of origin at or near its point of withdrawal without significant changes in water quantity or quality.
(16) 'Permittee' means a person issued a surface water withdrawal permit in accordance with this chapter.
(17) 'Person' means an individual person, firm, partnership, association, public or private institution, municipality, or political subdivision, governmental agency, public water system, trust, estate, any other legal entity whatsoever, or an agent or employee thereof, or a private or public corporation organized under the laws of this State or any other state or county.
(18) 'Public water system' means a water system as defined in Section 44-55-20 of the State Safe Drinking Water Act.
(19) 'Receiving surface water' means surface water that is the recipient of an increase in water, over and above that occurring naturally, as the result of a diversion or interbasin transfer of water.
(20) 'Safe yield' means, with respect to a water source, the amount of water available for withdrawal without impairing the long-term utility of the water source. Safe yield is determined by comparing the natural and artificial replenishment of the water source to existing or planned consumptive and nonconsumptive uses.
(21) 'Surface water' or 'surface waters of the State' means water that is open to the atmosphere and subject to surface runoff that includes lakes, streams, ponds, and reservoirs.
(22) 'Surface water withdrawer' means a public water system withdrawing surface water totaling three million gallons during any one month, and any other person withdrawing surface water totaling three million gallons during any one month from a single intake or multiple intakes under common ownership within a one-mile radius from any one existing or proposed intake.
(23) 'Surface water withdrawal permit' under this chapter means a written authorization issued by the department to a person entitling that person to hold and exercise a water right involving the withdrawal of a specific quantity of surface water, at a specific time and place for a specific reasonable use as described in the written authorization.
(24) 'Use' means how the withdrawn surface water is utilized including, but not limited to, aquaculture, agriculture, golf course irrigation, hydroelectric, industrial, thermoelectric, and water supply.
(25) 'Withdrawal' or 'withdrawing' means to withdraw, remove, divert, transfer, or pump surface water.
Section 49-4-30. Specifically exempt from a permitting provision of this chapter are:
(1) an agricultural use;
(2) a withdrawal associated with an active instream dredging or sand mining operation;
(3) an emergency withdrawal;
(4) a nonconsumptive flow-through hydropower generator licensed by the Federal Energy Regulatory Commission; or
(5) a withdrawal from a pond completely situated on privately-owned property with a water supply exclusively provided from either:
(a) diffuse surface water on that privately-owned property; or
(b) a spring situated entirely on that privately-owned property.
Section 49-4-32. The use of the waters of the State on nonriparian land is lawful and requires equal consideration with a use on a riparian land in an administrative or judicial proceeding relating to an allocation, withdrawal, or use of water, or to a modification of a water right. A person seeking to make a nonriparian use apart from access otherwise lawfully available to that person may construe nothing in this chapter to authorize access to the waters of the State.
Section 49-4-34. A service water withdrawer with a nonconsumptive use designation may receive a permit containing a clause exempting the withdrawer from criteria requirements of Section 49-4-57. A surface water withdrawer may petition the department for a nonconsumptive use designation by demonstrating that their withdrawal has no negligible impact upon the minimum instream flow of its surface water area.
Section 49-4-35. A surface water withdrawer that exists on the effective date of this chapter and does not have an interbasin transfer permit or interbasin registration issued pursuant to the provisions of Chapter 21, Title 49, shall apply to the department for a surface water withdrawal permit within one hundred twenty days from the effective date of a regulation promulgated pursuant to this chapter. An existing surface withdrawer may receive a permit for an amount equal to its documented existing water use, current permitted treatment capacity, or an amount consistent with the quantity to recover existing outstanding indebtedness from an existing bond or revenue certificate issued through the sale of surface water, whichever is greatest. An existing surface water withdrawer may also request an additional reasonable withdrawal based on criteria in this chapter. Once the department issues a permit, an existing surface water withdrawer is considered a surface water withdrawer as defined in this chapter. A permitted withdrawal amount issued to an existing surface water withdrawer under this section is continued upon a permit renewal, but a request to increase a permit withdrawal is subject to the criteria in this chapter. A current interbasin transfer permits or interbasin registrations expiration date remains effective and may be renewed subject to the requirements of this chapter.
Section 49-4-50. (A) A surface water withdrawer shall file annually before January thirtieth a report stating the quantity and use of water withdrawn during the previous year with the department. The report must be made on a form furnished or approved by the department.
(B) The quantity of surface water withdrawn must be determined by:
(1) flow meters accurate to within ten percent of calibration;
(2) the rated capacity of the pump in conjunction with the use of an hour meter, electric meter, or log;
(3) the rated capacity of the cooling systems;
(4) a standard or method employed by the United States Geological Survey in determining a quantity of surface water withdrawn; or
(5) another method found to provide reliable water withdrawal data approved by the department.
(C) The surface water withdrawer is not required to submit the surface water withdrawal report required by subsection (A) if the monthly quantity withdrawn from each intake is being reported to the department as a result of another environmental program reporting requirement, permit condition, or consent agreement.
Section 49-4-55. (A) A person must file an application for a surface water withdrawal permit with the department and obtain a surface water withdrawal permit from the department before he may become a surface water withdrawer.
(B) A surface water withdrawer or proposed surface water withdrawer must obtain a new surface water removal permit reflecting the requested increase from the department and provide a construction plan indicating requested water intake amounts from the department before it may construct a new intake that would have the capacity to increase the withdrawal rate beyond the withdrawal rate of an existing intake.
(C) The department may grant a temporary surface water withdrawal permit for no more than one hundred eighty days or until either it makes a final decision on the application. The department may only issue a temporary surface water withdrawal permit if an imminent hazard to public health exists or an applicant demonstrates that physical or financial damage will likely occur if a temporary permit is not issued. The issuance of a temporary permit does not guarantee that the department will issue a surface water withdrawal permit.
(D) The department may revoke a surface water withdrawal permit if it determines information in a permit application is false or a permittee fails to comply with the conditions of the permit.
(E) The department may revoke a temporary surface water withdrawal permit if the permittee fails to adhere to a condition of the temporary permit or provide a timely response to a request for information made pursuant to the department's review of the application.
(F) The department may develop a process for notifying the public about a request for a new permit of surface water withdrawals or for an increase in the amount of a surface water withdrawal under an existing permit.
(G) Upon receipt of an application for an interbasin transfer, the department shall hold a public hearing on the proposed transfer after providing at least a thirty day notice of the hearing. The notice must be:
(1) by publication in the South Carolina State Register;
(2) by publication in a newspaper of general circulation in the area of the river basin downstream from the point of withdrawal;
(3) by publication on the Department's web site; and
(4) through standard United States mail to:
(a) a person holding a permit issued by the department for a water withdrawal or transfer from the river basin from where the water for the proposed transfer would be withdrawn;
(b) a person holding a National Pollutant Discharge Elimination System (NPDES) wastewater discharge permit for a discharge in the river basin as the proposed withdrawal point of the proposed transfer;
(c) a city government and county government of a county located entirely or partially within a river basin that is the source of the proposed transfer;
(d) a governing body of a public water supply system that withdraws water in the same basin as the withdrawal point of the proposed transfer; and
(e) an agency from another state where an interstate basin is a source of a proposed transfer. The notice must:
(i) include a nontechnical description of the applicant's request;
(ii) include a conspicuous statement in bold type as to the effects of the water interbasin transfer on the source and receiving river basins; and
(ii) indicate the procedure that a person must follow to submit a comment on the proposed water interbasin transfer.
(H) The department shall develop a general permit for a surface water withdrawal, as the department considers appropriate.
(I) The issuance of a surface water withdrawal permit does not convey a property right to a permittee regarding a water withdrawal amount. The department expressly reserves the right to increase or decrease a permitted surface water withdrawal based upon prevailing conditions.
Section 49-4-57. (A) The department may grant, deny, or issue a surface water withdrawal permit with consideration of conditions relating to quantities of water in order to protect minimum instream flows and maintain minimum water levels necessary to maintain a balanced ecosystem. A permit may be granted to any person for withdrawal of surface water upon formal application for said permit and reasonable opportunity for public comment, if the department finds the criteria in subsections (B), (C), (D), and (E) to be satisfied.
(B) An applicant shall specify the location of his collection, withdrawal, and transportation facilities, the quantity of water requested for the use, and additional information required by the department.
(C) When determining whether to grant a surface water withdrawal permit and whether the proposed withdrawal is a reasonable and beneficial use of water, the department shall consider:
(1) the protection of present stream uses of the losing surface water, including, but not limited to, present agricultural, municipal, industrial, and instream uses and assimilative needs;
(2) the reasonably foreseeable future water need of the losing surface water, including, but not limited to, present agricultural, municipal, industrial, electrical generation, and instream uses;
(3) the applicant's reasonably foreseeable future water need for the water to be withdrawn, including methods of water use and efficiency of use;
(4) the beneficial impact of a proposed withdrawal on the State and its local subdivisions;
(5) the capability of the applicant to implement effectively his responsibilities under the requested permit;
(6) the nature of the permittee's use of the water, and if the water use is largely consumptive or nonconsumptive, to determine if it is reasonable;
(7) the impact on interstate and intrastate water use;
(8) a requirement or recommendation of another state or federal agency with authority relating to water resources;
(9) water conservation and the availability of water in the losing surface water for, among other things, a response to an emergency including drought;
(10) the likelihood of a significant detrimental impact of a proposed withdrawal on navigation, fish and wildlife habitat, or recreation;
(11) an impact on public health, public welfare, economic development, and the economy of the State;
(12) the impact of an applicable industry standard for the efficient use of water; and
(13) another fact or circumstance as the department considers necessary to carry out a purpose of this chapter.
(D)(1) The department may conduct or require an applicant to conduct instream sample monitoring or hydraulic steam modeling to predict the volume of water that may be withdrawn in order to protect a water use of the losing surface water. An applicant may provide hydraulic stream modeling data for the department to consider in making a decision on a permit request or to justify the amount of water withdrawal to be approved. The department shall consider both the quantity of water to be withdrawn and the quantity of water to be returned to the waters of origin by the applicant in determining the amount of water withdrawal to be approved.
(2) An amount that can be withdrawn may vary to accommodate seasonal water conditions in the losing surface water.
(3) A withdrawal permit may authorize no withdrawal of surface water in an amount that would cause:
(a) the remaining instream flow at the point of withdrawal in the losing surface water, or immediately downstream of that point, to be less than the 7Q10 flow as established before the withdrawal;
(b) an instream flow insufficient to maintain a 7Q10 flow plus an additional flow needed to ensure the availability of water to downstream surface water withdrawers; and
(c) the water level of a lake to be less than the level needed to protect a classified and existing use.
(4) When a withdrawal point is located on a stream segment influenced by an impoundment, a withdrawal permit may not authorize a withdrawal of surface water in an amount that would cause:
(a) the remaining instream flow at the point of withdrawal in the losing surface water, or immediately downstream of that point, to be less than the minimum instream flow as established before the withdrawal;
(b) an instream flow to be insufficient to maintain the minimum instream flow plus an additional flow needed to ensure the availability of water to downstream surface water withdrawers; and
(c) less than the minimum water level being available in lakes to protect existing uses.
(5) An applicant does not have to provide additional justification to the department on a case-by-case basis for a specific surface water where a withdrawal is authorized under this subsection and a previous hydraulic water model has demonstrated a withdrawal can be accommodated.
(6) Where a withdrawal point is located on an imoundment, a withdrawal permit may not authorize a withdrawal of surface water that would cause:
(a) a reservoir level to drop below minimum water level; or
(b) a reservoir to be unable to release the minimum instream flow required by the Federal Energy Regulatory Commission or another agency's applicable jurisdictional requirements. The department may consider relevant modeling data or other applicable data from a reservoir owner in analyzing (a) or (b) above.
(E) A permit must specify the location of a collection, withdrawal, transmission, and discharge facility to be used or constructed to effectuate a withdrawal and the amount that may be withdrawn. An applicant shall submit as part of the application an operational and contingency plan for circumstances during which the actual flow of the surface water is less than the minimum instream flow specified pursuant to subsections (D) to promote an adequate water supply for the State, and to mitigate any adverse conditions or effects that the department finds to exist but that are not sufficient to require denial of the permit. The plan must provide an implementation strategy of selected alternatives to address low flow conditions such as water conservation, alternative water supplies, off-stream water storage, seasonal water flow fluctuation withdrawals, and hydroelectric operations in controlled surface waters. During a drought condition, an additional requirement may be necessary to comply with the South Carolina Drought Response Act, Chapter 23, Title 49 of the 1976 Code. An operational and contingency plan must be an enforceable part of the permit.
(F) In addition to a requirement of this chapter, the department shall, with respect to an interbasin transfer, protect water quality of the receiving surface water by ensuring the permitted transfer would not violate the water quality standards of the receiving surface water.
Section 49-4-60. In addition to the powers granted by Section 48-1-50, the department may:
(1) adopt and modify a regulation to implement the provisions of this chapter;
(2) perform an act or issue an order necessary to carry out a purpose or requirement of this chapter;
(3) administer or enforce a provision of this chapter, a regulation promulgated to effectuate this chapter, and an order pursuant to this chapter;
(4) enter upon any land or water for the purpose of conducting an investigation, examination, or survey contemplated by this chapter, but only after presenting proper identification;
(5) evaluate and conduct an investigation regarding a surface water characteristic, model, or other engineering, scientific, or economic analyses, including the establishment of a minimum instream flow and surface water level to carry out a provision of this chapter. In conducting these investigations, the department shall consider and use, as appropriate, a report, research, or study of a federal, state, or local agency or other government entity. A result of an investigation must serve as the basis for evaluating an application and determining an applicable permit condition;
(6) negotiate an agreement, accord, or compact relating to a withdrawal or diversion of surface water that impacts the surface water of this State or surface water connected to those waters:
(a) on behalf of the State;
(b) in the name of the State;
(c) with another state, or an agency or department of another state;
(d) with the United States, or an agency or department of the United States; and
(e) with an agency or department of a state or the United States.
In negotiating an agreement, the department shall consider appropriate information provided by a potentially affected federal, state, or local agency or department of government, and shall advise these entities of the department's final action. An interstate compact entered into by the State by authority of this chapter is subject to approval by joint resolution of the General Assembly. The department shall represent this State in connection with surface water withdrawals, diversions, or transfers occurring in other states that may affect this State;
(7) receive financial and technical assistance from a private agency, the federal government, or another public agency;
(8) establish and collect a fee for a permit, technical study, monitor, or another action necessary to carry out a provision of this chapter; and
(9) establish, in coordination with a local government or water user, a surface water management plan.
Section 49-4-70. A surface water withdrawer shall notify the department in writing before constructing a new intake changing the method of measuring the withdrawal, ceasing to withdraw surface water, abandoning an intake, or a change in ownership.
Section 49-4-75. (A) The department shall issue a permit for a period of time to represent the economic life of a necessary investment. Ownership of a permit is not transferable and the time periods for a permit to be issued are:
(1) twenty years, or a greater period the department considers reasonable, based on its review of all facts and circumstances relevant to a proposed withdrawal, but for a period no more than forty years;
(2) thirty years for an initial surface water withdrawal for an existing surface water withdrawer, or a greater period that the department considers reasonable based upon its review of facts and circumstances relevant to the proposed withdrawal, but no more than forty years; or
(3) as necessary for a municipality or other governmental body to retire a bond it issued to finance the construction of waterworks not to exceed a permit duration of fifty years.
(B) The department may modify, suspend, or revoke a withdrawal permit for good cause when necessary to protect public health and the environment. A good cause includes:
(1) where a permit holder fails to withdrawal water as authorized by this chapter or comply with the terms and conditions of a permit issued pursuant to this chapter;
(2) where a permit holder obtains a permit issued pursuant to this chapter by misrepresentation or a failure to disclose a relevant fact to the department;
(3) the department's determination that a permitted activity endangers human health or the environment and can only be regulated to an acceptable level by a permit modification or termination; or
(4) where a change in a natural condition requires either a temporary or permanent reduction or termination.
(C) A permit may be reissued for another permit period upon filing of a timely application with the department and an applicant's demonstrated compliance with applicable requirements.
(D) A permit may not be transferred except with the department's prior approval.
(E) A provision of this chapter takes precedence over another state regulatory provision pertaining to the subject of this chapter.
(F) A permittee may apply for a renewal of a surface water withdrawal permit six months before the permit's expiration. An application for renewal renders an existing permit effective until the department renders a final determination on the renewal of the permit. An application to renew or modify a permit issued pursuant to this chapter received before the permit expires must be evaluated by the same applicable criteria in this chapter, except that such a renewal or modification must be favored over a competing application for a new withdrawal and be given consideration to the prior investment pursuant to a valid water right in a related facility.
Section 49-4-80. (A) A person who wilfully violates a provision of this chapter is guilty of a misdemeanor and, upon conviction, must be fined not more than ten thousand dollars a day for each violation.
(B) A person who violates a provision of this chapter or a regulation promulgated under the authority of this chapter, is subject to a civil penalty of not more than ten thousand dollars a day for each violation.
(C) The department may administer a penalty as otherwise provided herein for a violation of this chapter, an order, a regulation, or a standard, and may institute a civil action in any court of competent jurisdiction to enforce a penalty, or may request the Attorney General to commence an action under this subsection in an appropriate court of the State to secure a penalty.
(D) The department may institute in any court of competent jurisdiction, a civil action for injunctive relief to prevent violation of this chapter or an order issued pursuant to this chapter.
(E) A decision made by the department pursuant to this chapter or a regulation promulgated pursuant to this chapter is subject to appeal pursuant to the APA and a rule promulgated under the APA.
(F) A civil penalty collected pursuant to this section must be deposited in the general fund of the State."
SECTION 2. Regulation 61-113, relating to Groundwater Use and Reporting, remains in effect until regulations are promulgated by the department pursuant to Chapter 4, Title 49 of the 1976 Code, as added by Section 1 of this act.
SECTION 3. Chapter 21, Title 49 of the 1976 Code is repealed.
SECTION 4. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 5. This act takes effect upon approval by the Governor.
This web page was last updated on Monday, June 22, 2009 at 2:50 P.M.