SC Lawyer, January 2011, #5. Protecting South Carolina Water: The Surface Water Withdrawal Act.

• Author: By Sen. Robert W. Hayes Jr. and Randolph R. Lowell

South Carolina BAR Journal

2011.

SC Lawyer, January 2011, #5.

Protecting South Carolina Water: The Surface Water Withdrawal Act

South Carolina LawyerJanuary 2011Protecting South Carolina Water: The Surface Water Withdrawal ActBy Sen. Robert W. Hayes Jr. and Randolph R. Lowell In recent years South Carolinians have experienced a heightened sensitivity to the availability and use of water. For example, South Carolina has experienced several severe droughts in the last 10 years. Moreover, South Carolina has initiated litigation in the United States Supreme Court with its neighbor North Carolina over the availability of water, spurred by water withdrawals in the Catawba-Wateree river system. Water issues with Georgia are in a slow boil, particularly in the Lower Savannah river system.

To help South Carolinians protect the future viability of this natural resource and to place South Carolina in a better position vis-a-vis its neighboring states, after several years of negotiating, the General Assembly enacted the South Carolina Surface Water Withdrawal, Permitting, Use and Reporting Act (Act) at the end of session in June 2010, effective on January 1, 2011. S.452, Act No. 247 of 2010.

Overview

Surface water is "all water that is wholly or partially within the State, including the Savannah River, or within its jurisdiction, which is open to the atmosphere and subject to surface runoff, including, but not limited to, lakes, streams, ponds, rivers, creeks, runs, springs, and reservoirs." S.C. Code Ann. § 49-4-20(27). The Act creates a permitting process for both existing and new surface water withdrawers.

A threshold amount of three million gallons of surface withdrawn during any one month from a single intake, or multiple intakes under common ownership within a certain distance of one another, triggers the permitting requirements. By way of example, an Olympic-size swimming pool typically contains approximately a half million gallons of water. The next step is the promulgation of accompanying regulations to give the Act full effect. The Department of Health and Environmental Control (DHEC), with input from the Department of Natural Resources (DNR) on technical environmental issues, is responsible for promulgating the accompanying regulations and for granting the surface water withdrawal permits authorized by the Act.

The Act exempts certain individuals from the permitting requirements, and it requires the issuance of permits to certain individuals. Exempt persons include water withdrawals associated with mining, agriculture and hydropower. S.C. Code Ann. § 49-4-30. Existing surface water withdrawers essentially are grandfathered and need only submit an application for a surface water withdrawal permit, which DHEC must issue at the highest of several defined levels. S.C. Code Ann. § 49-4-70(B). Whereas before the passage of this Act one needed only register to withdraw surface water, there is now the necessity of obtaining a permit to legally withdraw surface water within 180 days of the effective date of the implementing regulations.

There are six main types of surface water withdrawals under the Act:

1. Exempt surface water withdrawals;

2. Registered surface water withdrawals; 3. Nonconsumptive surface water withdrawals; 4. Existing surface water withdrawals; 5. Interbasin transfers of water; and 6. New surface water withdrawals. Most persons under the Act are subject to a reporting requirement, which requires an annual report due prior to February 1 of each year setting forth the quantity of surface water withdrawn as measured by an approved method. S.C. Code Ann. § 49-4-50. However, the annual report is not required if the surface water withdrawals are being reported as part of a permit condition for another permit.

Exempt surface water withdrawals

Exempt from this requirement of the Act are eight categories of water usages. S.C. Code Ann. § 49-4-30. These categories are:

1. Withdrawals associated with mining operations undertaken pursuant to the South Carolina Mining Act; 2. Emergency withdrawals...