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COMMITTEE REPORT
April 2, 2008
S. 428
Introduced by Senators Hayes, Leventis, Gregory, Peeler, Short, Sheheen, Courson and Campsen
S. Printed 4/2/08--S.
Read the first time February 13, 2007.
To whom was referred a Bill (S. 428) 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", etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/ SECTION 1. Chapter 4 of 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, Permitting, Use, and Reporting Act.
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) "Affected area" means that portion of a county or counties, including downstream areas and basins, within a river basin that, under the circumstances, are determined by the department to likely be affected by a proposed surface water withdrawal.
(3) "Agriculture facility" means any land, building, structure, pond, impoundment appurtenance, machinery, or equipment which is used for the commercial production or processing of crops, trees, livestock, animals, poultry, honeybees, honeybee products, livestock products, poultry products, or used in commercial aquaculture.
(4) "Agricultural use" means:
(a) plowing, tilling, or preparing the soil at an agricultural facility;
(b) planting, growing, fertilizing, or harvesting crops, ornamental horticulture, floriculture, and turf grasses;
(c) application of pesticides, herbicides, or other chemicals, compounds, or substances to crops, weeds, or soil in connection with the production of crops, livestock, animals, or poultry;
(d) breeding, hatching, raising, producing, feeding, keeping, slaughtering, or processing livestock, hogs, aquatic animals, equines, chickens, turkeys, poultry, or other fowl normally raised for food, mules, cattle, sheep, goats, rabbits, or similar farm animals for commercial purposes;
(e) producing and keeping honeybees, producing honeybee products, and honeybee processing facilities;
(f) producing, processing, or packaging eggs or egg products;
(g) manufacturing feed for poultry or livestock;
(h) rotation of crops;
(i) commercial aquaculture;
(j) application of existing, changed, or new technology, practices, processes, or procedures to an agricultural use;
(k) the operation of a roadside market; and
(l) silviculture.
(1) "Board" means the Board of the Department of Health and Environmental Control.
(5) "Consumptive use" means any use of water which is not a nonconsumptive use.
(2)(6) "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)(7) "Diffuse surface water" means water on the surface of the earth not located in defined courses, streams, or water bodies.
(5)(8) "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)(9) "Existing surface water withdrawer" means a surface water withdrawer withdrawing surface water as of the effective date of this chapter or a proposed surface water withdrawer with its intakes under construction before January 1, 2000 the effective date of this chapter or with an intake permit application filed before January 1, 2008.
(10) "Farm pond" means a pond completely situated on private property that is used for providing water for agricultural uses that is supplied by diffuse surface water, a well or wells, springs completely situated on the private property, or an impoundment.
(11) "Impoundment" means a dam, dike, natural structure, or any combination thereof that is designed to hold an accumulation of surface water or impede the flow of surface water.
(12) "Minimum instream flow" means the minimum continuous flow at or immediately downstream from a point of the withdrawal, transfer, or impoundment necessary to maintain the biological, chemical, and physical integrity of the stream, taking into account downstream uses, navigability, and normal seasonal variations in flow and need.
(13) "Minimum water level" means the water level in an impoundment necessary to maintain the biological, chemical, and physical integrity of the surface water in the impoundment, taking into account downstream uses, navigability, and normal seasonal variations in flow and need.
(7) "New surface water withdrawer" means a person who becomes a surface water withdrawer after December 31, 1999.
(14) "Nonconsumptive use" means a use of surface water withdrawn in such a manner that it is returned to its waters of origin at or near its point of withdrawal with no or minimal changes in water quantity.
(15) "Permit" or "surface water withdrawal permit" means a written authorization issued to a person by the department that allows the person to hold and exercise a water right to withdraw surface water pursuant to the terms of the permit and this chapter.
(16) "Permitted surface water withdrawer" means a person withdrawing surface water pursuant to a surface water withdrawal permit.
(17) "Permittee" means a person authorized to make withdrawals of surface water pursuant to a surface water withdrawal permit issued by the department.
(8)(18) "Person" means an individual, firm, partnership, trust, estate, association, public or private institution, municipality, or political subdivision, governmental agency, public water system, or a private or public corporation or other legal entity organized under the laws of this State or any other state or county.
(19) "Proposed registered surface water withdrawer" means a proposed surface water withdrawer whose planned operations would result in his withdrawals being subject to the reporting but not the permitting requirements of this chapter.
(9)(20) "Public water system" means a water system as defined in Section 44-55-20 of the State Safe Drinking Water Act.
(21) "Registered surface water withdrawer" means a person who makes surface water withdrawals for agricultural uses, at an agricultural facility, that is filing a report pursuant to Section 49-4-50.
(22) "River basin" means the area drained by a river and its tributaries or through a specified point on a river, as determined in Section 49-4-80(D)(2).
(23) "Safe yield" means the amount of water available for withdrawal from a particular surface water in excess of the minimum instream flow or minimum water level for that surface water. Safe yield is determined by comparing the natural and artificial replenishment of the surface water to the existing or planned consumptive and non-consumptive uses.
(10)(24) "Surface water" means all water that is wholly or partially within or bordering the State or within its jurisdiction, which is open to the atmosphere and subject to surface runoff, which includes including, but not limited to, lakes, streams, ponds, rivers, creeks, runs, springs, and reservoirs.
(11)(25) "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 for any purpose, other than an interbasin transfer as defined by Section 49-21-20, 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.
(26) "Withdrawal" means to remove or divert surface water from its natural course or location regardless of whether the water is returned to its waters of origin, consumed, or discharged elsewhere but does not include interbasin transfers.
Section 49-4-25. (A) This chapter relates to surface water withdrawals made solely within this State. This chapter does not apply to a person withdrawing water in such a manner or for purposes that require the person to obtain a permit under the Interbasin Transfer of Water Act, Section 42-21-10, et. seq.
(B) Except as provided in Sections 49-4-30, 49-4-35, 49-4-40, and 49-4-80 all surface water withdrawals by a surface water withdrawer are unlawful unless made pursuant to a surface water withdrawal permit issued pursuant to Section 49-4-90. The department may not issue a permit to an new applicant unless the department determines that the applicant's proposed use is reasonable.
Section 49-4-30. (A) The Surface water withdrawals for the following purposes are exempt from the permitting and reporting requirements provided for in this chapter:
(1) dewatering operations withdrawals associated with active instream dredging or sand mining operations or other non-consumptive instream mining operations undertaken pursuant to the South Carolina Mining Act;
(2) emergency withdrawals;
(3) a person withdrawing surface water for environmental remediation purposes; agricultural uses from farm ponds:
(i) owned by the person making the withdrawal; or
(ii) situated on two or more separately owned parcels of private property if each property owner agrees to the withdrawal.
(4) a person withdrawing surface water from any pond completely situated in on private property and which that is supplied only by diffuse surface water or springs completely situated on the private property; and
(5) a person required to obtain a permit under the Interbasin Transfer of Water Act, Section 49-21-10, et seq.
(6)(5) a person withdrawing, using, or discharging surface water for the purpose of wildlife habitat management.
(B) A withdrawal for non-consumptive, flow through hydropower generation is exempt from the permitting requirements of this chapter but not the reporting requirements in Section 49-4-50.
Section 49-4-35. (A) Registered surface water withdrawers must register their surface water use with the department on forms provided by the department and are subject only to the reporting requirements of Section 49-4-50. Registered surface water withdrawers are authorized to withdraw surface water up to their registered amount.
(B) An existing registered surface water withdrawer already reporting its withdrawals to the department as of the effective date of this section, may maintain its withdrawals at its reported level and is deemed to be registered with the department.
(C) Prior to constructing or installing a water intake, a proposed registered surface water withdrawer must report its anticipated withdrawal quantity to the department for determination as to whether that quantity is within the safe yield for that water source. Upon making a determination, the department must send a detailed description of its determination to the proposed registered surface water withdrawer by registered mail. A proposed registered surface water withdrawer may not begin his proposed withdrawals until he notifies the department of his anticipated withdrawals and the department provides written notification to the proposed registered surface water withdrawer that authorizes him to proceed, if the anticipated withdrawals are within the safe yield. If the department provides a proposed registered surface water withdrawer with written notification that the anticipated withdrawals are not within the safe yield, then the proposed registered surface water withdrawer may not proceed with the contruction or installation of a water intake. Proposed registered surface water withdrawers are authorized to make withdrawals up to the department approved anticipated withdrawal amounts during the first year of registration and are authorized to make withdrawals in the amounts permitted by subsection (A) during subsequent years.
(D) Registered surface water withdrawers that begin surface water withdrawal operations after the effective date of this section shall submit a registration form to the department within thirty days after completing construction of its surface water intake.
(E) An existing registered surface water withdrawer that would like to substantially increase the amount of surface water for which he is registered to withdraw, must submit the anticipated amount of the increase for consideration by the department in the manner provided for in subsection (C).
(F) The department may modify the amount a registered surface water withdrawer may withdraw, or suspend or revoke a registered surface water withdrawer's authority to withdraw water, if the registered surface water withdrawer withdraws substantially more surface water than he is registered for or anticipates withdrawing, as the case may be, and the withdrawals result in detrimental effects to the environment or human health.
(G) Nothing in this chapter prohibits registered user from applying for and obtaining a surface water withdrawal permit.
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. The department shall issue a permit for surface water withdrawals for non-consumptive uses upon a determination by the department that the proposed withdrawals will result in no or minimal changes in water quantity at or near the point of withdrawal.
(B) An existing surface water withdrawer already registered with the department is exempt from subsection (A). Permits issued pursuant to this section must identify the surface water withdrawer, the point of withdrawal, and the maximum withdrawal amounts.
(C) A surface water withdrawer shall submit a registration form to the department within thirty days after completing construction of its surface water intake. Except as otherwise provided in this section, non-consumptive use permit holders are subject only to the reporting requirements of Section 49-4-50.
Section 49-4-50. (A) A Each registered and permitted surface water user withdrawer in the State shall must file a report with the department of the quantity of water withdrawn by that surface water withdrawer annually before January thirty February first 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 Registered and permitted surface water withdrawer is withdrawers who are required to file a surface water withdrawal report with the department pursuant to subsection (A) are 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. The use of surface water on nonriparian land authorized pursuant to this chapter is lawful and is entitled to equal consideration with uses on riparian land in any administrative or judicial proceeding relating to the allocation, withdrawal, or use of water or to the modification of a water right. Nothing in this chapter may be construed to authorize access to waters of the State by a person seeking to make a nonriparian use apart from access otherwise lawfully available to that person.
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. (A) New surface water withdrawers must obtain a surface water withdrawal permit from the department before making surface water withdrawals. A permitted surface water withdrawer that would like to significantly increase its permitted withdrawal amount must apply to the department for the quantity requested in excess of the permitted amount.
(B)(1) An existing surface water withdrawer that applies for a permit pursuant to this chapter must be issued an initial permit that is not subject to the permitting criteria in Section 49-4-90(B) and (C). The initial permit must authorize the existing surface water withdrawer to withdraw surface water in an amount equal to its documented historical water use, current permitted treatment capacity as of the effective date of this chapter, capacity of a pending intake permit application, the safe yield of a public utilitiy's existing or permitted water supply only reservoir, an amount necessary to recover indebtedness from outstanding bonds or revenue certificates secured all or in part through the pledge of revenue derived from the sale of surface water, or whichever is greatest. An existing surface water withdrawer that applies for an initial permit may continue to withdraw surface water at its documented levels from the effective date of this act until its initial permit is issued pursuant to this section.
(2) For an existing surface water withdrawer, the operational and contingency plan required under Section 49-4-170 (A) shall only address appropriate industry standards for water conservation.
(3) An existing surface water withdrawer may request that its initial permit allow the surface water withdrawer to withdraw a reasonable amount in excess of the amount provided for in subitem (1). The department must use the criteria established in Section 49-4-90 to make its determination concerning approval of the quantity requested in excess of the quantity provided for in subitem (1).
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. An applicant's compliance with licenses, permits, or certifications, including, but not limited to water quality certifications issued by the department pursuant to Section 401 of the Clean Water Act, issued by a South Carolina regulatory agency that require the applicant to meet criteria that are substantially similar to the permit criteria contained in this chapter constitutes compliance with the substantially similar permit criteria required to obtain a surface water withdrawal permit. Any criteria required to obtain a surface water withdrawal permit that are not substantially similar to the criteria contained in licenses, permits, or certifications held by an applicant must be considered by the department in the manner provided in this chapter before the permit may be issued.
(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. The department shall issue, upon proper application, a surface water withdrawal permit to an applicant when:
(1) the applicant is in compliance with a valid license, permit, or certification, including but not limited to a certification issued pursuant Section 401 of the Clean Water Act, issued by a regulatory authority that requires the consideration of criteria during the licensing process that are substantially similar to all of the permit criteria contained in this chapter;
(2) the license, permit, or certification was issued pursuant to a public process;
(3) the department had the opportunity to or did actively participate in aspects of the licensing, permitting, or certification process related to the permit criteria contained in this chapter; and
(4) the applicant's proposed withdrawals are within the safe yield of that withdrawal point or impoundment.
(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. The department must develop and utilize a permit application procedure to issue surface water withdrawal permits to applicants that meet the requirements of this section.
(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 49-4-90. (A) An application for a surface water withdrawal permit must contain at least the following information:
(1) the name and address of the applicant;
(2) the location of the applicant's intake facilities;
(3) the place and nature of the proposed use of the surface water withdrawn; and
(4) the quantity of surface water requested for the applicant's proposed use.
(B) To determine whether an applicant's proposed use is reasonable, the department must first make a determination as to the minimum instream flow or minimum water level for the water source and then consider the following criteria:
(1) the minimum instream flow or minimum water level and the safe yield for the surface water at the location of the proposed surface water withdrawal;
(2) the anticipated effect of the applicant's proposed use on existing users of the same surface water, including, but not limited to present agricultural, municipal, industrial, electrical generation, and instream users;
(3) the reasonably foreseeable future need for the surface water, including, but not limited to reasonably foreseeable agricultural, municipal, industrial, electrical generation, and instream uses;
(4) the applicant's reasonably foreseeable future water needs from that surface water;
(5) the beneficial impact on the State and its political subdivisions from a proposed withdrawal;
(6) the impact of applicable industry standards on the efficient use of water, if followed by the applicant;
(7) the anticipated effect of the applicant's proposed use on:
(a) interstate and intrastate water use if the permit is granted;
(b) the likelihood of a significant detrimental impact of a proposed withdrawal on navigation, fish and wildlife habitat, or recreation;
(c) public health and welfare; and
(d) economic development and the economy of the State;
(8) applicable federal laws and interstate agreements and compacts; and
(9) any other reasonable criteria that the department promulgates by regulation that it considers necessary to make a final determination.
(C) The department may conduct or may require an applicant to conduct appropriate stream modeling to predict the safe yield that may be withdrawn from the surface water.
(D) The department may take action on more than one application at a time that seeks to withdraw water from the same stream segment. However, the final decision for those applications must be rendered in the order that they were received.
(E) Upon a determination by the department that, based upon its examination of the criteria in subsection (B), the applicant's use is reasonable, the department shall issue a permit to the applicant.
(F)(1) Upon receipt of a new surface water withdrawal permit application or an application to significantly increase the amount of water that may be withdrawn under an existing permit and the appropriate filing fee, the department must, within thirty days, provide the public with notice of the application. In addition to the department's usual public notice procedures, the department must conspicuously post notice of the application on its website and the applicant must publish notice of the application in a newspaper of statewide circulation and in the local newspaper with the greatest general circulation in the affected area. The public notice must contain the location and amount of the proposed withdrawal, the use for which the water will be withdrawn, and the process for requesting a public hearing concerning the application. If within thirty days of the publication of the public notice the department receives a request to hold a public hearing from at least twenty citizens or residents of the affected area, the department must conduct a hearing. The hearing must be held within ninety days at an appropriate time and in an appropriate location near the specific site from which surface water withdrawals are proposed to be made.
(2) The department shall by regulation delineate and designate river basins to be used when determining the affected area for a particular surface water withdrawal application.
Section 49-4-100. (A) Surface water withdrawal permits issued by the department must:
(1) identify the location of the permitee's intake facility used or constructed to make withdrawals pursuant to the permit;
(2) specify the amount of water that may be withdrawn;
(3) clearly state the permit's expiration date;
(4) clearly state that the terms and conditions of the permit are subject to the provisions of the South Carolina Drought Response Act; and
(5) include any other reasonable information the department considers necessary.
(B) Permits issued by the department, unless revoked or suspended pursuant to this chapter, shall be valid for a period to represent the economic life of initial investments made by the permittee necessary to carry out the permittee's use of the withdrawn water. Permits must be issued for:
(1) twenty years, or a greater period the department considers reasonable based upon its review of all the facts and circumstances relevant to a proposed withdrawal not to exceed an additional twenty years;
(2) thirty years for a permittee entitled to an initial permit pursuant to Section 49-4-70(B), or a greater period the department considers reasonable based upon its review of all the facts and circumstances relevant to the proposed withdrawal not to exceed an additional ten years; or
(3) any period necessary, not to exceed fifty years, for a municipality or other governmental body to recover indebtedness from outstanding bonds or revenue certificates issued to finance the construction of waterworks that were secured all or in part through the pledge of revenue derived from the sale of surface water.
Section 49-4-110. (A) A surface water withdrawal permit confers upon the permittee a right to withdraw and use surface water pursuant to the terms and conditions of the permit and this chapter. The permit does not convey a property right in the water to the permittee.
(B) Surface water withdrawals made by permitted surface water withdrawers in compliance with the terms and conditions of their permits and registered users within their registered amounts shall be presumed to be reasonable. No private cause of action for damages arising directly from a surface water withdrawal by a permitted or registered surface water withdrawer may be maintained unless the plaintiff can show a violation of a valid permit or registration.
Section 49-4-120. (A) The department may modify, suspend, or revoke a permit under the following conditions:
(1) the permit holder withdraws an amount of water not authorized by his permit or fails to comply with the terms and conditions of his permit;
(2) the permit holder obtains a permit by misrepresentation or fails to disclose a material fact in his application;
(3) the permit holder ceases to withdraw water for a period of at least thirty-six consecutive months; or
(4) a change in circumstances results in a permitted activity endangering human health or the environment and can only be prevented by a temporary or permanent modification or termination.
(B) Surface water permits are non-transferable except with the prior written consent of the department. The department may only consent to a permit transfer if the transferee's use and the quantity of water to be withdrawn by the transferee is similar to the transferor's use and permitted withdrawal levels.
(C)(1) A permittee may apply for a renewal of his permit no sooner than six months before his permit expires. A permit shall remain valid during the department's consideration of a renewal application if the permittee files a renewal application prior to the expiration date of his permit. Renewal applications take priority over permit applications for new withdrawals.
(2) An application to modify an existing permit for a significant increase in the quantity of the withdrawal must be evaluated using the criteria provided in Section 49-4-90(B).
Section 49-4-130. A surface water withdrawer must provide the department with prior written notice of the construction of a new surface water intake that changes the method of measuring the water the permittee is withdrawing, cessation of its surface water withdrawals, a proposed change in ownership, or the abandonment of a surface water intake.
Section 49-4-140. The department may issue a temporary surface water withdrawal permit to a applicant while his application is pending if the temporary permit is necessary to address an imminent hazard to public health or the applicant demonstrates that without a temporary permit he will suffer physical or financial damage. A temporary permit must contain an expiration date, which must not be more than one hundred eighty days after the date upon which it was issued. The issuance of a temporary permit does not guarantee that the department will issue a permanent permit to the applicant.
Section 49-4-150. (A)(1) For each surface water withdrawal permit application, the department shall establish the minimum instream flow in the surface water segment or the minimum water level in the impoundment from which the withdrawal is to be made. For surface water withdrawal points located on a surface water segment downstream of and influenced by a flow controlled impoundment, the minimum instream flow must be no less than the lowest flow specified by the appropriate regulatory authority pursuant to the controlling law in effect at the time of the permit application, as may be amended or superceded. Surface water withdrawal points downstream of a flow controlled impoundment are presumed to be influenced by the impoundment unless it can be demonstrated by the department through flow modeling or analysis of flow data that the withdrawal point is no longer influenced by the impoundment.
(2) The applicant may seek to have the minimum instream flow or minimum water level set at a site-specific flow or level different than the flow established for a surface water segment or water level for an impoundment pursuant to subitem (A)(1). The applicant must provide written notice to the department of its intent to seek a site-specific minimum instream flow or water level.
(3)(a) To set a site-specific flow or level pursuant to an applicant's request, the department must concur with the applicant's justification for the site-specific flow or level by determining that the requested amount is sufficient to maintain the biological, chemical, and physical integrity of the surface water, taking into account downstream uses, navigability, and normal seasonal variations in flow and need. In reaching a decision, the department must base its decision upon the entire record, taking into account anything in the record that detracts from the weight of the decision, and must be supported by evidence that a reasonable mind might accept as adequate to support the decision. The department must provide the applicant in person or by registered mail a detailed written explanation of its decision.
(b) If the department concurs with the justification presented by the applicant, then the minimum instream flow or minimum water level will be set at the requested site-specific level.
(B) When performing mass balance calculations to determine the amount of water available to be withdrawn by future surface water withdrawers in a particular stream segment, the department shall determine the inflow at the beginning of the stream segment, as well as, the inflow from tributaries, based upon the historical flow in the segment. Also, the department shall account for all returns of water to the stream segment from all sources, including, but not limited to, municipalities, utilities, and industry.
Section 49-4-160. [RESERVED]
Section 49-4-170. (A) Each permittee must prepare and maintain on site, available for inspection, an operational and contingency plan to promote an adequate water supply from the surface water during times when the actual flow of the surface water is less than the minimum instream flow for that particular surface water. The plan must provide an implementation strategy of selected alternatives to address low flow conditions, including water conservation, alternative water supplies, off-stream water storage, seasonal water flow fluctuation withdrawals, and hydroelectric operations in controlled surface waters. The existence of a plan is deemed to be an enforceable part of the permit under which the permittee is withdrawing surface water and shall be deemed to control a permitted surface water withdrawal in situations where the actual flow of the surface water is less than the minimum instream flow for that particular stream segment.
(B) Nothing in this section limits or precludes any action authorized by the South Carolina Drought Response Act. In the event that an action authorized by the South Carolina Drought Response Act conflicts with this subsection or a permitted use, the action taken pursuant to the South Carolina Drought Response Act supersedes any actions taken pursuant to this subsection or the permit.
Section 49-4-180. (A) In addition to any other powers and duties, the department may:
(1) promulgate regulations necessary to implement the policies and purposes of this chapter, including, but not limited to, establishing presumptive minimum instream flows for rivers and streams not influenced by a flow controlled impoundment;
(2) enter upon any land or water of an applicant, a permittee, or a registered user for the purpose of conducting investigations, examinations, or surveys necessary to carry out its duties and responsibilities provided in this chapter;
(3) receive financial and technical assistance from private entities, the federal government, or another state agency; and
(4) take any action reasonable and necessary to enforce the provisions of this chapter.
(B) The appropriate state agencies must carry out ongoing data collection, surveys, research, and investigations into the availability and quantity of surface water and report their findings to the General Assembly on an annual basis.
(C)(1) The department 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 any agency, department, or commission of either, or both, relating to transfers of water that impact waters of this State, or are connected to or flowing into waters of this State, unless the Governor selects another representative to negotiate for the State. The department may also represent the state in connection with water withdrawals, diversions, or transfers occurring in other states which may affect this State, unless the Governor selects another representative for the State. Any agreements, accords, or compacts made pursuant to this section must be approved by concurrent resolution of the General Assembly prior to being implemented. The provisions in this section do not apply to the Office of Attorney General or any pending or future criminal or civil actions, lawsuits, or causes in which the State is a party or interested.
(2) The department must notify the Chairman of the Senate Agriculture and Natural Resources Committee and the Chairman of the House Agriculture, Natural Resources, and Environmental Affairs Committee when the department enters into negotiations or otherwise represents the State as provided in subsection (1). The department must also periodically report, as necessary or upon request, to the chairmen concerning the progress of the negotiations or representation.
Section 49-4-185. (A) Before the department may promulgate regulations setting minimum instream flow standards for the State's rivers, the department must convene a Minimum Instream Flow Advisory Council. The council may not meet to begin its deliberations until all members of the council have been appointed and qualified. Service on the commission by an elected or appointed public official is deemed not to be an office within the constitutional proscriptions on dual office holding.
(B) The council is composed of eleven members who must have scientific or technical knowledge and experience relevant to making minimum flow determinations. One member must be the Chairman of the Senate Committee on Agriculture and Natural Resources, or his designee from among the membership of the committee, ex officio; one member must be the Chairman of the House of Representatives Committee on Agriculture, Natural Resources, and Environmental Affairs, or his designee from among the membership of the committee, ex officio; one member must be the Director of the Department of Natural Resources, or his designee; and one member must be the Commissioner of the Department of Health and Environmental Control, or his designee. The Governor, with the advice and consent of the Senate, must appoint the remaining seven members as follows:
(1) one member representing environmental interests;
(2) one member representing recreational interests;
(3) one member representing manufacturing, business, and industry;
(4) one member representing the agricultural industry;
(5) one member representing energy producers;
(6) one member representing public water utilities; and
(7) one member from the State at-large to serve as the chairman who may vote only in the event of a tie.
(C)(1) The council must study and analyze the current and historical flow of the State's surface water systems and make recommendations to the department concerning appropriate presumptive minimum flow levels for unregulated rivers.
(2) The department must consider the council's advice and recommendations when promulgating minimum instream flow regulations.
(D) The council is dissolved on the date that the regulations for which it made recommendations become effective. A new advisory council must be convened before minimum instream flow regulations may be amended or repealed.
Section 49-4-190. (A) A surface water withdrawer who commits a violation of this chapter:
(a) is subject to a civil penalty of not more than ten thousand dollars for each day that the violation occurred; or
(b) is guilty of a misdemeanor, and upon conviction, must be fined not more than three thousand dollars for each day that the violation occurred, if the violation is willful.
(B) All penalties and fines assessed and collected pursuant to this chapter must be deposited in the South Carolina general fund."
SECTION 2. Section 48-2-30(B) of the 1976 Code is amended by adding an appropriately numbered new subitem to read:
"( ) Surface Water Withdrawal, Permitting, Use, and Reporting Act."
SECTION 3. Section 48-2-50(H)(1) of the 1976 Code is amended by adding:
"(8) Surface Water Withdrawals
(a) Section 49-4-70 surface water withdrawal permit application processing fee $5,000.00
(b) Section 49-4-40 surface water withdrawal permit application processing fee $2,500.00
SECTION 4. Section 49-21-30(B) of the 1976 Code is amended to read:
"(B)(1) The applicant shall specify the location of all collection, withdrawal, and transportation facilities and additional information as the department may require. The department shall publish notice of the permit application once a week for four consecutive weeks in a newspaper of general circulation in each river basin area to be affected by the transfer; the department shall publish the notice in the State Register; and the department shall provide notice to each holder of an interbasin water transfer permit within the proposed losing river basin by mailing a notice by registered or certified mail, return receipt requested.
(2) The department must hold a public hearing concerning applications for interbasin transfers. The hearing must be held at an appropriate time and in an appropriate location near the withdrawal point of the interbasin transfer. The hearing may not be held until after at least thirty days notice is given to the public in the manner provided in this section. The notice must:
(a) include a nontechnical description of the applicant's request;
(b) include a conspicuous statement in bold type describing the effects of the interbasin transfer on the river basin from which the water will be withdrawn and the river basin into which the withdrawn water will be transferred; and
(c) describe the procedure that a person must follow to submit a comment concerning the proposed interbasin transfer.
(3) Upon the receipt of an application for an interbasin transfer and the appropriate filing fee, the department must, within thirty days, provide notice as required in this Section, in the following manner:
(a) by publication in the South Carolina State Register;
(b) by publication in a newspaper of general circulation in the affected area of the river basin downstream from the point of withdrawal;
(c) by publication on the department's web site; and
(d) through standard United States mail to:
(i) any person holding a permit issued by the department authorizing surface water withdrawals and interbasin transfers from the river basin from which the water for the proposed transfer would be withdrawn;
(ii) any person holding a National Pollutant Discharge Elimination System (NPDES) wastewater discharge permit authorizing wastewater discharge into the river basin where the proposed withdrawal point of the proposed interbasin transfer is located;
(iii) any city or county governing body whose jurisdiction is located entirely or partially within the river basin that is the source of the proposed transfer;
(iv) the governing body of a public water supply system that withdraws water from the same river basin where the proposed withdrawal point of the proposed transfer is located; and
(v) the North Carolina Department of Environment, Health and Natural Resources, where an interstate water basin shared with North Carolina is the source of the proposed transfer, and the Georgia Department of Natural Resources where an interstate water basin shared with Georgia is the source of the proposed transfer.
SECTION 5. (A) No later than April 1, 2009, the Minimum Instream Advisory Council must report its findings to the General Assembly, the Governor, the Director of the Department of Natural Resources, and the Commissioner of the Department of Health and Environmental Control.
(B) The Department of Natural Resources must update its 1989 report written by James Bulak and Garrett Jobsis entitled "South Carolina Instream Flow Studies: A Status Report - Minimum Instream Flow."
SECTION 6. Chapter 1 of Title 49 is not affected and supercedes Chapter 4 of Title 49 as amended by Section 1 of this act.
SECTION 7. The General Assembly finds this act does not supercede, modify, amend, or otherwise effect the public trust doctrine in the context of surface water resources within the borders of this State as recognized and applied by the courts of this State.
SECTION 8. (A) The repeal or amendment by this act of any law, whether temporary or permanent, does not affect pending actions, rights, duties, or liabilities founded on it, or alter, discharge, release, or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision expressly provides it. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws. Any state agency, board, commission, or council to which are transferred the powers, duties, and functions of any state agency, board, commission, or council relating to the pending proceeding must be substituted as a party in interest.
(B) Any statute enacted and any rule or regulation made in respect to any state agency, board, commission, or council or function transferred to, or consolidated, coordinated, or combined with any other state agency, board, commission, or council or function under the provisions of this act before the effective date of the transfer, consolidation, coordination, or combination, except to the extent repealed, modified, superseded, or made inapplicable by or under the authority of law, shall have the same effect as if the transfer, consolidation, coordination, or combination had not been made. But when any such statute, rule, or regulation has vested functions in the state agency, board, commission, or council from which the transfer is made under the act, the functions, insofar as they are to be exercised after the transfer, must be considered as vested in the state agency, board, commission, or council to which the transfer is made under the act.
SECTION 9. 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 10. This act takes effect July 1, 2008. /
Renumber sections to conform.
Amend title to conform.
Majority favorable. Minority unfavorable.
DANIEL B. VERDIN III PHIL P. LEVENTIS
For Majority. For Minority.
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.