2009-2010 Bill 4285: Surface Water Withdrawal, Permitting, Use and Reporting Act - South

1 South Carolina General Assembly 2 118th Session, 2009-2010 3 4 H. 4285 5 6 STATUS INFORMATION 7 8 General Bill 9 Sponsors: Reps. Bowen, R.L. Brown, Allen, Rice and Whipper 10 Document Path: l:\council\bills\dka\3804sd10.docx 11 Companion/Similar bill(s): 275, 452, 3577 12 13 Introduced in the House on January 12, 2010 14 Currently residing in the House Committee on Agriculture, Natural Resources and Environmental 15 Affairs 16 17 Summary: Surface Water Withdrawal, Permitting, Use and Reporting Act 18 19 20 HISTORY OF LEGISLATIVE ACTIONS 21 22 Date Body Action Description with journal page number 23 12/15/2009 House Prefiled 24 12/15/2009 House Referred to Committee on Agriculture, Natural Resources and Environmental 25 Affairs 26 1/12/2010 House Introduced and read first time HJ58 27 1/12/2010 House Referred to Committee on Agriculture, Natural Resources and Environmental 28 Affairs HJ59 29 1/13/2010 House Member(s) request name added as sponsor: R.L.Brown, Allen 30 1/14/2010 House Member(s) request name added as sponsor: Rice 31 2/24/2010 House Member(s) request name added as sponsor: Whipper 32 33 34 VERSIONS OF THIS BILL 35 36 12/15/2009 37 1 2 3 4 5 6 7 8 9 A BILL 10 11 TO AMEND CHAPTER 4, TITLE 49, CODE OF LAWS OF 12 SOUTH CAROLINA, 1976, RELATING TO THE SOUTH 13 CAROLINA SURFACE WATER WITHDRAWAL AND 14 REPORTING ACT, SO AS TO PROVIDE THAT SUBJECT TO 15 CERTAIN EXCEPTIONS, SURFACE WATER 16 WITHDRAWALS MUST BE MADE PURSUANT TO A 17 PERMIT, TO PROVIDE FOR COMPLETE EXEMPTIONS 18 FROM THE PERMITTING REQUIREMENT, TO PROVIDE 19 THAT REGISTERED SURFACE WATER WITHDRAWERS 20 MAY WITHDRAW SURFACE WATER WITHOUT A PERMIT 21 BUT SUBJECT TO CERTAIN RESTRICTIONS, TO PROVIDE 22 FOR NONCONSUMPTIVE SURFACE WATER 23 WITHDRAWAL PERMITS, TO PROVIDE FOR AN 24 APPLICATION PROCEDURE FOR SURFACE WATER 25 WITHDRAWERS THAT OWN AND OPERATE A LICENSED 26 IMPOUNDMENT OR NEW SURFACE WATER 27 WITHDRAWERS THAT WITHDRAW WATER FROM A 28 LICENSED IMPOUNDMENT, TO PROVIDE FOR REPORTS 29 TO THE DEPARTMENT OF NATURAL RESOURCES FROM 30 PERMITTED AND REGISTERED WATER WITHDRAWERS 31 AND THE CONTENTS OF THOSE REPORTS, TO PROVIDE 32 THAT REGISTERED AND EXEMPT SURFACE WATER 33 WITHDRAWERS MAY APPLY FOR A SURFACE WATER 34 WITHDRAWAL PERMIT, TO AUTHORIZE NONRIPARIAN 35 USE OF SURFACE WATER, TO PROVIDE FOR A 36 PERMITTING PROCESS FOR NEW SURFACE WATER 37 WITHDRAWERS, TO PROVIDE FOR THE CONTENTS OF 38 THE APPLICATION, TO PROVIDE FOR THE 39 DEPARTMENT’S DETERMINATION CONCERNING THE 40 PERMIT, TO PROVIDE FOR PUBLIC HEARINGS 41 CONCERNING NEW PERMIT APPLICATIONS FOR 42 INTERBASIN TRANSFERS, TO PROVIDE FOR THE

[4285] 2 1 CONTENTS OF ISSUED PERMITS AND THE RIGHTS 2 CONFERRED BY A PERMIT, TO PROVIDE FOR 3 CIRCUMSTANCES UNDER WHICH A PERMIT MAY BE 4 MODIFIED, SUSPENDED, OR REVOKED, TO PROVIDE FOR 5 NOTICE TO THE DEPARTMENT CONCERNING CERTAIN 6 NEW WATER INTAKES, TO PROVIDE FOR TEMPORARY 7 PERMITS, TO PROVIDE AUTHORIZED WITHDRAWAL 8 AMOUNTS, TO PROVIDE FOR OPERATIONAL AND 9 CONTINGENCY PLANS, TO PROVIDE FOR POWERS AND 10 DUTIES OF THE DEPARTMENT OF NATURAL RESOURCES 11 CONCERNING IMPLEMENTATION OF THE CHAPTER, TO 12 PROVIDE APPROPRIATE PENALTIES FOR VIOLATIONS, 13 TO PROVIDE FOR PERMIT APPLICATION FEES; AND TO 14 REPEAL CHAPTER 21, TITLE 49 RELATING TO THE 15 INTERBASIN TRANSFER OF WATER; TO PROVIDE THAT 16 CHAPTER 1, TITLE 49, RELATING TO GENERAL 17 PROVISIONS CONCERNING WATER, WATER RESOURCES, 18 AND DRAINAGE IS NOT AFFECTED BY AND 19 SUPERSEDED BY CHAPTER 4, TITLE 49. 20 21 Be it enacted by the General Assembly of the State of South 22 Carolina: 23 24 SECTION 1. Chapter 4, Title 49 of the 1976 Code is amended to 25 read: 26 27 “CHAPTER 4 28 29 SOUTH CAROLINA SURFACE WATER WITHDRAWAL, 30 PERMITTING, USE, AND REPORTING ACT 31 32 Section 49410. This chapter may be cited as the South 33 Carolina Surface Water Withdrawal, Permitting, Use, and 34 Reporting Act. 35 36 Section 49420. As used in this chapter: 37 (1) ‘Board’ means the Board of the Department of Health 38 and Environmental Control. ‘Affected area’ means that portion of 39 a county or counties within a river basin that, under the 40 circumstances, are determined by the department to likely be 41 affected by a proposed surface water withdrawal. 42 (2) ‘Agriculture facility’ means any land, building, structure, 43 pond, impoundment appurtenance, machinery, or equipment which

[4285] 3 1 is used for the commercial production or processing of crops, trees, 2 livestock, animals, poultry, honeybees, honeybee products, 3 livestock products, poultry products, or products which are used in 4 commercial aquaculture. 5 (3) ‘Agricultural use’ means: 6 (a) plowing, tilling, or preparing the soil at an agricultural 7 facility; 8 (b) planting, growing, fertilizing, or harvesting crops, 9 ornamental horticulture, floriculture, and turf grasses; 10 (c) application of pesticides, herbicides, or other 11 chemicals, compounds, or substances to crops, weeds, or soil in 12 connection with the production of crops, livestock, animals, or 13 poultry; 14 (d) breeding, hatching, raising, producing, feeding, 15 keeping, slaughtering, or processing livestock, hogs, aquatic 16 animals, equines, chickens, turkeys, poultry, or other fowl 17 normally raised for food, mules, cattle, sheep, goats, rabbits, or 18 similar farm animals for commercial purposes; 19 (e) producing and keeping honeybees, producing 20 honeybee products, and honeybee processing facilities; 21 (f) producing, processing, or packaging eggs or egg 22 products; 23 (g) manufacturing feed for poultry or livestock; 24 (h) rotation of crops; 25 (i) commercial aquaculture; 26 (j) application of existing, changed, or new technology, 27 practices, processes, or procedures to an agricultural use; 28 (k) the operation of a roadside market; and 29 (l) silviculture. 30 (4) ‘Consumptive use’ means any use of water which is not 31 a nonconsumptive use. 32 (2)(5) ‘Department’ means the Department of Health and 33 Environmental Control. 34 (3) ‘Dewatering operations’ means an operation that is 35 withdrawing surface water for the purpose of draining an 36 excavation or preventing or retarding flow into an excavation. 37 Such an operation would include, but is not limited to, water and 38 sewer line construction and excavating for a building foundation. 39 (4)(6) ‘Diffuse surface water’ means water on the surface of 40 the earth not located in defined courses, streams, or water bodies. 41 (5)(7) ‘Emergency withdrawal’ means the withdrawal of 42 water, for a period not exceeding thirty days, for the purpose of 43 firefighting, hazardous substance waste spill response, or both, or

[4285] 4 1 other emergency withdrawal of water as determined by the 2 department. 3 (6)(8) ‘Existing surface water withdrawer’ means a surface 4 water withdrawer withdrawing surface water as of the effective 5 date of this chapter or a proposed surface water withdrawer with its 6 intakes under construction before January 1, 2000 the effective 7 date of this chapter or with an intake permit application filed 8 before January first of the year of the effective date of this act. 9 (7) ‘New surface water withdrawer’ means a person who 10 becomes a surface water withdrawer after December 31, 1999. 11 (9) ‘Farm pond’ means a pond completely situated on 12 private property that is used for providing water for agricultural 13 uses. 14 (10) ‘Impoundment’ means a dam, dike, natural structure, or 15 any combination thereof that is designed to hold an accumulation 16 of surface water or impede the flow of surface water. 17 (11) ‘Interbasin transfer’ means the withdrawal of surface 18 water from a river basin and the movement of that water to a river 19 basin different from the source of the withdrawal. 20 (12) ‘Minimal changes in water quantity’ means that greater 21 than ninety percent of the water withdrawn is returned to the 22 waters of origin based on the previous twentyfour months of 23 historical data. 24 (13) ‘Minimum instream flow’ means the flow that provides 25 an adequate supply of water at the withdrawal point to maintain 26 the biological, chemical, and physical integrity of the stream 27 taking into account downstream users, recreational and 28 navigational needs. The minimum instream flow for surface water 29 withdrawal points not influenced by an impoundment shall be 30 twenty percent of mean annual daily flow (MADF) for that stream 31 segment. For surface water withdrawal points located on a surface 32 water segment downstream of and influenced by a licensed or 33 otherwise flow controlled impoundment, the minimum instream 34 flow shall be the lowest flow specified in the license by the 35 appropriate government agency. 36 (14) ‘Minimum water level’ means the water level in an 37 impoundment necessary to maintain the biological, chemical, and 38 physical integrity of the surface water in the impoundment taking 39 into account downstream uses, withdrawals from the 40 impoundment, and recreational and navigational needs. 41 (15) ‘Nonconsumptive use’ means a use of surface water 42 withdrawn in such a manner that it is returned to its waters of

[4285] 5 1 origin within the boundaries of the property owned by the surface 2 water withdrawer with no or minimal changes in water quantity. 3 (16) ‘Permit’ or ‘surface water withdrawal permit’ means a 4 written authorization issued to a person by the department that 5 allows the person to hold and exercise a water right to withdraw 6 surface water pursuant to the terms of the permit and this chapter. 7 (17) ‘Permitted surface water withdrawer’ means a person 8 withdrawing surface water pursuant to a surface water withdrawal 9 permit. 10 (18) ‘Permittee’ means a person authorized to make 11 withdrawals of surface water pursuant to a surface water 12 withdrawal permit issued by the department. 13 (8)(19) ‘Person’ means an individual, firm, partnership, 14 trust, estate, association, public or private institution, municipality, 15 or political subdivision, governmental agency, public water 16 system, or a private or public corporation or other legal entity 17 organized under the laws of this State or any other state or county. 18 (20) ‘Proposed registered surface water withdrawer’ means a 19 proposed surface water withdrawer whose planned operations 20 would result in his withdrawals being subject to the reporting but 21 not the permitting requirements of this chapter. 22 (9)(21) ‘Public water system’ means a water system as 23 defined in Section 445520 of the State Safe Drinking Water Act. 24 (22) ‘Registered surface water withdrawer’ means a person 25 who makes surface water withdrawals for agricultural uses, at an 26 agricultural facility, that is filing a report pursuant to Section 27 49450. 28 (23) ‘River basin’ means the area drained by a river and its 29 tributaries or through a specified point on a river, as determined in 30 Section 49480(D)(2). 31 (24) ‘Safe yield’ means the amount of water available for 32 withdrawal from a particular surface water in excess of the 33 minimum instream flow or minimum water level for that surface 34 water. Safe yield is determined by comparing the natural and 35 artificial replenishment of the surface water to the existing or 36 planned consumptive and nonconsumptive uses. 37 (10)(25) ‘Surface water’ means all water that is wholly or 38 partially within or bordering the State or within its jurisdiction, 39 which is open to the atmosphere and subject to surface runoff 40 which includes lakes, streams, ponds, and reservoirs, including, 41 but not limited to, lakes, streams, ponds, rivers, creeks, runs, 42 springs, and reservoirs, but not including water and wastewater 43 treatment impoundments or storage structures constructed by the

[4285] 6 1 surface water withdrawer to provide adequate seasonal supplies of 2 surface water during low flow conditions. 3 (11)(26) ‘Surface water withdrawer’ means a public water 4 system withdrawing surface water in excess of three million 5 gallons during any one month and any other person withdrawing 6 surface water in excess of three million gallons during any one 7 month from a single intake or multiple intakes under common 8 ownership within a one mile radius from any one existing or 9 proposed intake. 10 (27) ‘Withdrawal’ means to remove surface water from its 11 natural course or location, or exercising physical control over 12 surface water in its natural course or location, regardless of 13 whether the water is returned to its waters of origin, consumed, 14 transferred to another river basin, or discharged elsewhere. 15 16 Section 49425. Except as provided in Sections 49430, 17 49435, 49440, and 49445, all surface water withdrawals by a 18 surface water withdrawer are unlawful unless made pursuant to a 19 surface water withdrawal permit issued pursuant to Section 49480. 20 The department may not issue a permit to a new applicant unless 21 the department determines that the applicant’s proposed use is 22 reasonable pursuant to section 49480. 23 24 Section 49430. (A) The Surface water withdrawals for 25 following purposes are exempt from the permitting and reporting 26 requirements provided for in this chapter: 27 (1) dewatering operations withdrawals associated with active 28 instream dredging or sand mining operations or other 29 nonconsumptive instream mining operations undertaken pursuant 30 to the South Carolina Mining Act; 31 (2) emergency withdrawals; 32 (3) a person withdrawing surface water for environmental 33 remediation purposes agricultural uses from farm ponds: 34 (a) owned by the person making the withdrawal; or 35 (b) situated on two or more separately owned parcels of 36 private property if each property owner agrees to the withdrawal; 37 (4) a person withdrawing surface water from any pond 38 completely situated in on private property and which is supplied 39 only by diffuse surface water or springs completely situated on the 40 private property; 41 (5) a person required to obtain a permit under the Interbasin 42 Transfer of Water Act, Section 492110, et seq.; naturally occurring 43 evaporation from impoundments; and

[4285] 7 1 (6) a person withdrawing, using, or discharging surface 2 water for the purpose of wildlife habitat management. 3 (B) Hydropower generation, including pumped storage, is 4 exempt from the permitting requirements of this chapter but not 5 the reporting requirements in Section 49450. 6 7 Section 49435. (A) Registered surface water withdrawers 8 must register their surface water use with the department on forms 9 provided by the department and are subject to only to the reporting 10 requirements of Section 49450. Registered surface water 11 withdrawers are authorized to withdraw surface water up to their 12 registered amount. 13 (B) An existing registered surface water withdrawer already 14 reporting its withdrawals to the department as of the effective date 15 of this section may maintain its withdrawals at its highest reported 16 level and is deemed to be registered with the department. 17 (C) Prior to constructing or installing a water intake, a proposed 18 registered surface water withdrawer must report its anticipated 19 withdrawal quantity to the department for determination as to 20 whether that quantity is within the safe yield for that water source 21 at the time of the request. Upon making a determination, the 22 department must send a detailed description of its determination to 23 the proposed registered surface water withdrawer by registered 24 mail. A proposed registered surface water withdrawer may not 25 begin his proposed withdrawals until he notifies the department of 26 his anticipated withdrawals and the department provides written 27 notification to the proposed registered surface water withdrawer 28 that authorizes him to proceed, if the anticipated withdrawals are 29 within the safe yield at the time of the request. If the department 30 provides a proposed registered surface water withdrawer with 31 written notification that the anticipated withdrawals are not within 32 the safe yield, then the proposed registered surface water 33 withdrawer may not proceed with the construction or installation 34 of a water intake. Proposed registered surface water withdrawers 35 are authorized to make withdrawals up to the department approved 36 anticipated withdrawal amounts during the first year of registration 37 and are authorized to make withdrawals in the amounts permitted 38 by subsection (A) during subsequent years. 39 (D) Registered surface water withdrawers that begin surface 40 water withdrawal operations after the effective date of this section 41 shall submit a registration form to the department within thirty 42 days after completing construction of its surface water intake. An 43 existing registered surface water withdrawer that would like to

[4285] 8 1 substantially increase the amount of surface water for which he is 2 registered to withdraw must submit the anticipated amount of the 3 increase for consideration by the department in the manner 4 provided for in subsection (C). 5 (E) The department may modify the amount an existing 6 registered surface water withdrawer may withdraw, or suspend or 7 revoke a registered surface water withdrawer’s authority to 8 withdraw water, if the registered surface water withdrawer 9 withdraws substantially more surface water than he is registered 10 for or anticipates withdrawing, as the case may be, and the 11 withdrawals result in detrimental effects to the environment or 12 human health. 13 (F) Nothing in this chapter prohibits a registered surface water 14 user from applying for and obtaining a surface water withdrawal 15 permit. 16 17 Section 49440. (A) An existing surface water withdrawer in 18 the State shall register its surface water use with the department on 19 forms provided by the department no later than January 1, 2001 20 The department shall issue a permit for surface water withdrawals 21 for nonconsumptive uses. 22 (B) An existing surface water withdrawer already registered 23 with the department is exempt from subsection (A) Permits issued 24 pursuant to this section must identify the surface water withdrawer, 25 the point of withdrawal, and the maximum withdrawal amounts. A 26 permit for a nonconsumptive use is subject only to the reporting 27 requirements of Section 49450. 28 (C) A surface water withdrawer shall submit a registration form 29 to the department within thirty days after completing construction 30 of its surface water intake Prior to issuing a permit for a 31 nonconsumptive use, the department must determine that the 32 proposed withdrawals will result in no or minimal changes in 33 water quantity. 34 35 Section 49445. (A)(1) A new surface water withdrawer that 36 owns and operates a licensed impoundment that utilizes water 37 withdrawn from its licensed impoundment and such withdrawal is 38 subject to review and approval of applicable state and federal laws 39 and regulations, including its impoundment licensing authority, 40 shall be issued a surface water withdrawal permit upon proper 41 application. 42 (2) Any other new surface water withdrawer that utilizes 43 water withdrawn from a licensed impoundment shall be issued a

[4285] 9 1 surface water withdrawal permit upon proper application in 2 accordance with the criteria contained in this chapter. If this new 3 surface water withdrawer has been issued a license, permit, and/or 4 certification through a state or federal process that reviewed 5 criteria substantially similar to some or all of the surface water 6 withdrawal criteria contained in this chapter, then the application 7 for the new surface water withdrawal is only required to address 8 the criteria not addressed when the new surface water withdrawer 9 was issued a license, permit or certification through a state or 10 federal process. 11 (B) Permits issued pursuant to this section will be required to 12 identify the surface water withdrawer, the point of withdrawal, and 13 the maximum withdrawal amounts and will also require that the 14 applicant comply with the reporting requirements of Section 15 49450. 16 (C) Nothing in this chapter shall be construed to diminish the 17 department’s authority to regulate facilities under any other 18 applicable laws. 19 20 Section 49450. (A) A Each permitted or registered surface 21 water user in the State shall file annually before January thirty 22 withdrawer must file a report with the department a report of the 23 quantity of water withdrawn by that surface water withdrawer 24 annually before February first, on forms furnished by the 25 department, of the quantity of water withdrawn. 26 (B) The quantity of surface water withdrawn must be 27 determined by one of the following: 28 (1) flow meters accurate to within ten percent of calibration; 29 (2) the rated capacity of the pump in conjunction with the 30 use of an hour meter, electric meter, or log; 31 (3) the rated capacity of the cooling systems; 32 (4) any standard or method employed by the United States 33 Geological Survey in determining these quantities; 34 (5) any other method found to provide reliable water 35 withdrawal data approved by the department. 36 (C) The Permitted and registered surface water withdrawer is 37 not withdrawers who are required to submit the file a surface water 38 withdrawal report required by subsection (A) are not required to 39 submit the report if the monthly quantity withdrawn from each 40 intake is being reported to the department as a result of another 41 environmental program reporting requirement, permit condition, or 42 consent agreement. 43

[4285] 10 1 Section 49455. (A) A registered surface water withdrawer 2 is not prohibited from applying for a surface water withdrawal 3 permit. The permit application must be considered using the 4 criteria established in the section establishing the permit for which 5 the registered surface water withdrawer is applying. A registered 6 surface water withdrawer that obtains a surface water withdrawal 7 permit must abide by all of the terms of this chapter related to 8 permit holders and is entitled to all of the rights conferred upon 9 permit holders by this chapter. 10 (B) An exempt surface water withdrawer is not prohibited from 11 applying for a surface water withdrawal permit pursuant to Section 12 49470 or from registering its use pursuant to Section 49435. An 13 exempt surface water withdrawer’s application for a permit must 14 be evaluated by the department using the criteria established in 15 Section 49480, unless the withdrawer qualifies for a Section 49440 16 permit, in which case the criteria established in Section 49440 17 must be used to evaluate the application. An exempt surface water 18 withdrawer that obtains a permit or registers its use is entitled to all 19 of the rights conferred upon a permit holder or a registered surface 20 water withdrawer, as the case may be, by this chapter. 21 22 Section 49460. The department may: 23 (1) adopt and modify regulations to implement the 24 provisions of this chapter; 25 (2) perform acts and issue orders as necessary to carry out 26 the purposes and requirements of this chapter; 27 (3) administer and enforce this chapter and regulations 28 promulgated and orders issued or effective under this chapter; and 29 (4) present proper identification and then enter upon any 30 land or water for the purpose of conducting an investigation, 31 examination, or survey contemplated by this chapter. 32 The use of surface water on nonriparian land authorized 33 pursuant to this chapter is lawful and is entitled to equal 34 consideration with uses on riparian land in any administrative or 35 judicial proceeding relating to the allocation, withdrawal, or use of 36 water or to the modification of a water right. Nothing in this 37 chapter may be construed to authorize access to waters of the State 38 by a person seeking to make a nonriparian use apart from access 39 otherwise lawfully available to that person. 40 41 Section 49470. A registered surface water withdrawer shall 42 notify the department in writing within thirty days of constructing 43 a new intake changing the method of measuring the withdrawal,

[4285] 11 1 ceasing to withdraw surface water, abandoning an intake, or a 2 change in ownership. (A) After the effective date of regulations 3 promulgated by the department pursuant to this section, a new 4 surface water withdrawer must obtain a surface water withdrawal 5 permit from the department before making surface water 6 withdrawal. A permitted surface water withdrawer that would like 7 to increase its permitted withdrawal amount must apply to the 8 department for the increased amount. 9 (B)(1) An existing surface water withdrawer must apply for a 10 permit pursuant to this chapter within one hundred eighty days of 11 the effective date of regulations promulgated by the department 12 pursuant to this section. An existing surface water withdrawer that 13 applies for a permit must be issued an initial permit but the initial 14 permit and subsequent renewals are not subject to the permitting 15 criteria in Section 49480(B) and are not subject to Section 494150. 16 The initial permit must authorize the existing surface water 17 withdrawer to withdraw surface water in an amount equal to its 18 highest documented historical water use, current permitted 19 treatment capacity, design capacity of the intake structure as of the 20 effective date of this chapter, design capacity of a pending intake 21 structure permit application, or an amount necessary to recover 22 indebtedness from an outstanding bond or revenue certificate 23 issued through the sale of surface water, whichever is greatest. An 24 existing surface water withdrawer that applies for an initial permit 25 may continue to withdraw surface water at its documented levels 26 from the effective date of this act until its initial permit is issued 27 pursuant to this section. 28 (2) For an existing surface water withdrawer, the operational 29 and contingency plan required under Section 494160 will only 30 address appropriate industry standards for water conservation. 31 (3) An existing surface water withdrawer may request that 32 its initial permit allow the surface water withdrawer to withdraw a 33 reasonable amount in excess of the amount provided for in item 34 (1). The department must use the criteria established in Section 35 49480 to make its determination concerning approval of the 36 quantity requested in excess of the quantity provided for in item 37 (1). However, any increase requested by a surface water 38 withdrawer issued a permit pursuant to Section 49440 or Section 39 49445 shall be subject only to the requirements contained in that 40 section. 41 (C) The expiration date of an interbasin transfer permit or an 42 interbasin registration in existence on the effective date of this 43 chapter remains effective. A renewal of an interbasin transfer

[4285] 12 1 permit or registration must be made pursuant to the criteria 2 established in this chapter. 3 (D) The department shall promulgate regulations necessary to 4 implement the provisions of this section. 5 6 Section 49480. (A) A person wilfully violating a provision 7 of this chapter is guilty of a misdemeanor and, upon conviction, 8 must be fined not more than one thousand dollars a day for each 9 violation. An application for a surface water withdrawal permit 10 must contain the following information: 11 (1) the name and address of the applicant; 12 (2) the location of the applicant’s intake facilities; 13 the place and nature of the proposed use of the surface water 14 withdrawn; and 15 (3) the quantity of surface water requested for the 16 applicant’s proposed use. 17 (B) A violation of a provision of this chapter or a regulation 18 promulgated under the authority of this chapter, renders the 19 violator liable to the State for a civil penalty of not more than one 20 thousand dollars a day for each violation. To determine whether 21 an applicant’s proposed use is reasonable, the department must 22 consider the following criteria: 23 (1) the minimum instream flow or minimum water level and 24 the safe yield for the surface water at the location of the proposed 25 surface water withdrawal as determined pursuant to Section 26 494150; 27 (2) the anticipated effect of the applicant’s proposed use on 28 existing users of the same surface water including, but not limited 29 to, present agricultural, municipal, industrial, electrical generation, 30 and instream users; 31 (3) the reasonably foreseeable future need for the surface 32 water including, but not limited to, reasonably foreseeable 33 agricultural, municipal, industrial, electrical generation, and 34 instream uses; 35 (4) the applicant’s reasonably foreseeable future water needs 36 from that surface water; 37 (5) the beneficial impact on the State and its political 38 subdivisions from a proposed withdrawal; 39 (6) the impact of applicable industry standards on the 40 efficient use of water, if followed by the applicant; 41 (7) the anticipated effect of the applicant’s proposed use on 42 the following if the permit is granted: 43 (a) interstate and intrastate water use;

[4285] 13 1 (b) likelihood of a significant detrimental impact of a 2 proposed withdrawal on navigation, fish and wildlife habitat, or 3 recreation; 4 (c) public health and welfare; 5 (d) economic development and the economy of the State; 6 and 7 (e) applicable federal laws and interstate agreements and 8 compacts; and 9 (8) any other reasonable criteria that the department 10 promulgates by regulation that it considers necessary to make a 11 final determination. 12 (C) The department may administer penalties as otherwise 13 provided herein for a violation of this chapter, an order, regulation, 14 or standard or may request the Attorney General to commence an 15 action under this subsection in an appropriate court of the State to 16 secure a penalty The department shall determine safe yield and 17 may perform hydraulic stream modeling to predict the safe yield 18 that may be withdrawn from the surface water. 19 (D) The department may cause to be instituted a civil action in 20 any court of applicable jurisdiction for injunctive relief to prevent 21 violation of this chapter or an order issued pursuant to this chapter 22 Upon a determination by the department that, based upon its 23 examination of the criteria in subsection (B), the applicant’s use is 24 reasonable, the department shall issue a permit to the applicant. 25 (E)(1) Civil penalties collected pursuant to this section must be 26 deposited in the general fund of the State. Except as provided in 27 Section 49490, upon receipt of a new surface water withdrawal 28 permit application or an application to significantly increase the 29 amount of water that may be withdrawn under an existing permit 30 and the appropriate filing fee, the department must, within thirty 31 days, provide the public with notice of the application. In addition 32 to the department’s usual public notice procedures, the department 33 must publish notice of the application in a newspaper of statewide 34 circulation and in the local newspaper with the greatest general 35 circulation in the affected area and on the department’s website. 36 The public notice must contain the location and amount of the 37 proposed withdrawal, the use for which the water will be 38 withdrawn, and the process for requesting a public hearing 39 concerning the application. If within thirty days of the publication 40 of the public notice the department receives a request to hold a 41 public hearing from at least twenty citizens or residents of the 42 affected area, the department must conduct a hearing. The hearing 43 must be held within ninety days at an appropriate time and in an

[4285] 14 1 appropriate location near the specific site from which surface water 2 withdrawals are proposed to be made. 3 (2) The department shall by regulation delineate and 4 designate river basins to be used when determining the affected 5 area for a particular surface water withdrawal application. In 6 undertaking this task, the department shall initially establish eight 7 river basins, including the watershed of each of the following eight 8 rivers or river systems: 9 (a) Savannah; 10 (b) Saluda; 11 (c) Broad; 12 (d) Catawba; 13 (e) Pee Dee; 14 (f) Santee; 15 (g) Edisto; and 16 (h) Salkehatchie. 17 18 Section 49490. (A) The department must hold a public 19 hearing concerning new surface water withdrawal permit 20 applications for interbasin transfers. The hearing must be held at 21 an appropriate time and in an appropriate location near the 22 withdrawal point of the interbasin transfer. The hearing may not 23 be held until after at least thirty days notice is given to the public 24 in the manner provided in this section. The notice must: 25 (1) include a nontechnical description of the applicant’s 26 request; 27 (2) include a conspicuous statement in bold type describing 28 the effects of the interbasin transfer on the river basin from which 29 the water will be withdrawn and the river basin into which the 30 withdrawn water will be transferred; and 31 (3) describe the procedure that a person must follow to 32 submit a comment concerning the proposed interbasin transfer. 33 (B) Upon the receipt of a new surface withdrawal permit 34 application for an interbasin transfer and the appropriate filing fee, 35 the department must, within thirty days, provide notice as required 36 in this section, in the following manner: 37 (1) by publication in the South Carolina State Register; 38 (2) by publication in a newspaper of general circulation in 39 the affected area of the river basin downstream from the point of 40 withdrawal; 41 (3) by publication on the department’s website; and 42 (4) through standard United States mail to:

[4285] 15 1 (a) any person holding a permit issued by the department 2 authorizing surface water withdrawals, including interbasin 3 transfers, from the river basin from which the water for the 4 proposed transfer would be withdrawn; 5 (b) any person holding a National Pollutant Discharge 6 Elimination System (NPDES) wastewater discharge permit 7 authorizing wastewater discharge into the river basin where the 8 proposed withdrawal point of the proposed interbasin transfer is 9 located; 10 (c) any city or county governing body whose jurisdiction 11 is located entirely or partially within the river basin that is the 12 source of the proposed transfer; 13 (d) the governing body of a public water supply system 14 that withdraws water from the same river basin where the proposed 15 withdrawal point of the proposed transfer is located; and 16 (e) any agency from another state where an interstate 17 water basin is the source of the proposed transfer. 18 19 Section 494100. (A) Surface water withdrawal permits 20 issued by the department must: 21 (1) identify the location of the permittee’s intake facility 22 used or constructed to make withdrawals pursuant to the permit; 23 (2) specify the amount of water that may be withdrawn; 24 (3) specify the date upon which the permit expires; and 25 (4) clearly state that the terms and conditions of the permit 26 are subject to the provisions of the South Carolina Drought 27 Response Act. 28 (B) Permits issued by the department, unless revoked or 29 suspended pursuant to this chapter, shall be valid for a period to 30 represent the economic life of any investments made by the 31 permittee necessary to carry out the permittee’s use of the 32 withdrawn water. Permits must be issued for: 33 (1) twenty years, or a greater period the department 34 considers reasonable based upon its review of all the facts and 35 circumstances relevant to a proposed withdrawal not to exceed an 36 additional twenty years; 37 (2) thirty years for a permittee entitled to an initial permit 38 pursuant to Section 49470(B), or a greater period the department 39 considers reasonable based upon its review of all the facts and 40 circumstances relevant to the proposed withdrawal not to exceed 41 an additional ten years; or

[4285] 16 1 (3) any period necessary, not to exceed fifty years, for a 2 municipality or other governmental body to retire a bond it issued 3 to finance the construction of waterworks. 4 5 Section 494110. (A) A surface water withdrawal permit 6 confers upon the permittee a right to withdraw and use surface 7 water pursuant to the terms and conditions of the permit and this 8 chapter. The permit does not convey a property right in the water 9 to the permittee. Nothing in this chapter shall affect any 10 requirement under any other law or regulation, including any 11 requirement for the owner or operator of a proposed new or 12 expanding water withdrawal facility that will be constructed within 13 the boundaries of a reservoir operated by a different entity to 14 obtain the reservoir operator’s approval before constructing and 15 operating the proposed new water withdrawal facility or expanding 16 an existing water withdrawal facility. 17 (B) Surface water withdrawals made by permitted or registered 18 surface water withdrawers shall be presumed to be reasonable. No 19 private cause of action for damages arising directly from a surface 20 water withdrawal by a permitted or registered surface water 21 withdrawer may be maintained unless the plaintiff can show a 22 violation of a valid permit or registration. 23 (C) Issuance of a surface water withdrawal permit under this 24 chapter does not relieve the permittee from being required to 25 obtain and comply with any other permits or approvals that may be 26 required under other laws, or existing agreements, or under 27 common law. Nothing in this chapter shall prevent an 28 impoundment licensee from requiring persons seeking to withdraw 29 water from a licensed reservoir to comply with any and all 30 conditions that the licensee is empowered to require under its 31 license and applicable laws. 32 33 Section 494120. (A) The department may modify, suspend, 34 or revoke a permit under the following conditions: 35 (1) the permit withdraws water not authorized by his permit 36 or fails to comply with the terms and conditions of his permit; 37 (2) the permit holder obtains a permit by misrepresentation 38 or fails to disclose a material fact in his application; 39 (3) the permit holder ceases to withdraw water for a period 40 of at least thirtysix consecutive months; or 41 (4) a permanent change in natural conditions results in a 42 permitted activity endangering human health or the environment.

[4285] 17 1 (B) Surface water permits are transferable with the prior written 2 consent of the department. 3 (C)(1) A permittee may apply for a renewal of his permit no 4 sooner than six months before his permit expires. A permit shall 5 remain valid during the department’s consideration of a renewal 6 application if the permittee files a renewal application prior to the 7 expiration date of his permit. Renewal applications take priority 8 over permit applications for new withdrawals. The renewed 9 permit must be issued in accordance with the criterion applicable 10 to the issuance of the initial permit and for a quantity at least equal 11 to the expired permit. 12 (2) An application to modify an existing permit for a 13 significant increase in the quantity of the withdrawal must be 14 evaluated using the criteria provided in Section 49480(B). 15 However, any significant increase in surface water withdrawals 16 authorized pursuant to Section 49440 or Section 49445 shall be 17 subject only to the requirements set forth in that section. 18 19 Section 494130. A surface water withdrawer must provide the 20 department with prior written notice of the construction of a new 21 surface water intake that changes the method of measuring the 22 water the permittee is withdrawing, cessation of its surface water 23 withdrawals, a proposed change in ownership, or the abandonment 24 of a surface water intake. 25 26 Section 494140. The department may issue a temporary 27 surface water withdrawal permit to a new applicant while his 28 application is pending, if the temporary permit is necessary to 29 address an imminent hazard to public health or the applicant 30 demonstrates that without a temporary permit he will suffer 31 physical or financial damage. A temporary permit must contain an 32 expiration date, which must not be more than one hundred eighty 33 days after it was issued. The issuance of a temporary permit does 34 not guarantee that the department will issue a permanent permit to 35 the applicant. 36 37 Section 494150. (A) The surface water withdrawal permit 38 authorizes withdrawals up to the permitted amount in accordance 39 with this chapter’s minimum instream flow definition and the 40 following: 41 (1) The minimum instream flow for surface water 42 withdrawal points not influenced by an impoundment is twenty 43 percent of MADF for that stream segment.

[4285] 18 1 (2) For surface water withdrawal points located on a surface 2 water segment downstream of and influenced by a licensed or 3 otherwise flow controlled impoundment, the minimum instream 4 flow shall be the lowest flow specified in the license by the 5 appropriate government agency. Surface water withdrawal points 6 downstream of a licensed or otherwise flow controlled 7 impoundment are considered to be influenced by the impoundment 8 unless it can be demonstrated by the department through flow 9 modeling and analysis of flow data that the withdrawal point is no 10 longer influenced by the impoundment. If a withdrawal point 11 located downstream of an impoundment is determined to be 12 beyond the influence of the impoundment, minimum instream flow 13 at that point shall be twenty percent of MADF for that stream 14 segment. 15 (3) When actual flow of the surface water is less than or 16 equal to minimum instream flow for that particular surface water 17 segment, the surface water withdrawer will discontinue withdrawal 18 of water from the stream unless previously authorized by the 19 department to continue such withdrawal. The surface water 20 withdrawer’s demonstration to the department that all reasonable 21 contingency plan measures have been implemented will be a 22 significant factor in the department’s decision to authorize the 23 withdrawal of water from the stream when the actual flow of the 24 surface water is less than or equal to minimum instream flow for 25 that particular stream segment. 26 (4) When a surface water withdrawal point is located on a 27 licensed or otherwise flow controlled impoundment, a withdrawal 28 permit may not authorize the withdrawal of surface water in an 29 amount that would cause a reservoir: 30 (a) water level to drop below its minimum water level; or 31 (b) to be unable to release the minimum instream flow 32 specified in the license for that impoundment as issued by the 33 appropriate government agency. 34 (5) When a surface water withdrawal point is located on an 35 impoundment that serves as a water supply for a federally licensed 36 facility that is also an existing surface water withdrawer, a 37 withdrawal permit may not authorize to any new surface water 38 withdrawer the withdrawal of surface water in an amount that 39 would negatively impact the continued operations of the federally 40 licensed facility. 41 (6) The requirements of Section 494150(A)(1)(3) do not 42 apply to public water suppliers. Public water suppliers are 43 required to implement their contingency plan measures, applicable

[4285] 19 1 to their service territory, commensurate with the drought level 2 declared by the State Drought Response Committee and in 3 accordance with any drought response plan required by the owner 4 of a licensed impoundment. 5 (B) When determining the amount of water available to be 6 withdrawn by future surface water withdrawers in a particular 7 stream segment, the department shall determine the inflow at the 8 beginning of the stream segment, as well as the inflow from 9 tributaries, based upon the historical flow. Also, the department 10 shall account for returns of water to the stream segment from all 11 sources including, but not limited to, municipalities, utilities, and 12 industries. 13 14 Section 494160. (A) Each permittee must prepare and 15 maintain on site, available for inspection, an operational and 16 contingency plan to promote an adequate water supply from the 17 surface water during times when the actual flow of the surface 18 water is less than the minimum instream flow for that particular 19 surface water segment. The plan must identify actions to be taken, 20 as applicable, to address low flow conditions, including water 21 conservation, alternative water supplies, offstream water storage, 22 seasonal water flow fluctuation withdrawals, and hydroelectric 23 operations in controlled surface waters. The existence of a plan is 24 deemed to be an enforceable part of the permit under which the 25 permittee is withdrawing surface water and shall be deemed to 26 control a permitted surface water withdrawal in situations where 27 the actual flow of the surface water is less than the minimum 28 instream flow for that particular stream segment. 29 (B) Nothing in this section limits or precludes any action 30 authorized by the South Carolina Drought Response Act. In the 31 event that an action authorized by the South Carolina Drought 32 Response Act conflicts with this subsection or a permitted use, the 33 action taken pursuant to the South Carolina Drought Response Act 34 supersedes any actions taken pursuant to this subsection or the 35 permit. 36 37 Section 494170. (A) In addition to any other powers and 38 duties, the department may: 39 (1) promulgate regulations necessary to implement the 40 policies and purposes of this chapter; 41 (2) enter upon any land or water for the purpose of 42 conducting investigations, examinations, or surveys necessary to 43 carry out its duties and responsibilities provided in this chapter;

[4285] 20 1 (3) receive financial and technical assistance from private 2 entities, the federal government, or another state agency; and 3 (4) take any action reasonable and necessary to enforce the 4 provisions of this chapter. 5 (B) The department must carry out ongoing data collection, 6 surveys, research, and investigations into the availability and 7 quantity of surface water and report its findings to the General 8 Assembly on an annual basis. 9 (C)(1) The department may negotiate agreements, accords, or 10 compacts on behalf of and in the name of the State with other 11 states or the United States, or both, with any agency, department, 12 or commission of either, or both, relating to transfers of water that 13 impact waters of this State, or are connected to or flowing into 14 waters of this State. Any agreements, accords, or compacts made 15 by the board pursuant to this section must be approved by 16 concurrent resolution of the General Assembly prior to being 17 implemented. The department may also represent the State in 18 connection with water withdrawals, diversions, or transfers 19 occurring in other states which may affect this State. 20 (2) The department must notify the Chairman of the Senate 21 Agriculture and Natural Resources Committee and the Chairman 22 of the House Agriculture, Natural Resources, and Environmental 23 Affairs Committee when the department enters into negotiations or 24 otherwise represents the State as provided in item (1). The 25 department must also periodically report, as necessary or upon 26 request, to the chairmen concerning the progress of the 27 negotiations or representation. 28 29 Section 494180. (A) A surface water withdrawer who 30 commits a violation of this chapter: 31 (1) is subject to a civil penalty of not more than ten thousand 32 dollars for each day that the violation occurred; or 33 (2) is guilty of a misdemeanor and, upon conviction, must be 34 fined not more than ten thousand dollars for each day that the 35 violation occurred, if the violation is willful. 36 (B) All penalties and fines assessed and collected pursuant to 37 this chapter must be deposited in the general fund of the State.” 38 39 SECTION 2. Section 48230(B) of the 1976 Code is amended by 40 an appropriately numbered new item at the end to read: 41 42 “( ) Surface Water Withdrawal, Permitting, Use, and 43 Reporting Act.”

[4285] 21 1 2 SECTION 3. Section 48250(H) of the 1976 Code is amended by 3 adding an appropriately numbered item at the end to read: 4 5 “( ) Surface Water Withdrawals: 6 (a) Section 49470(A) surface water withdrawal permit 7 application processing fee $5,000; 8 (b) Section 49470(B) surface water withdrawal permit 9 application processing fee $2,500; 10 (c) Section 49440 surface water withdrawal permit 11 application processing fee $2,500; 12 (d) Section 49445 surface water withdrawal permit 13 application processing fee $2,500; 14 (e) Section 49435 surface water withdrawal registration 15 fee $500.00” 16 17 SECTION 4. A.Chapter 21, Title 49 of the 1976 Code is repealed. 18 19 B. Chapter 1, Title 49 of the 1976 Code is not affected by and 20 supersedes Chapter 4, Title 49 of the 1976 Code, as amended by 21 SECTION 1 of this act. 22 23 SECTION 5. (A) The repeal or amendment by this act of any 24 law, whether temporary or permanent, does not affect pending 25 actions, rights, duties, or liabilities founded on it, or alter, 26 discharge, release, or extinguish any penalty, forfeiture, or liability 27 incurred under the repealed or amended law, unless the repealed or 28 amended provision expressly provides it. After the effective date 29 of this act, all laws repealed or amended by this act must be taken 30 and treated as remaining in full force and effect for the purpose of 31 sustaining any pending or vested right, civil action, special 32 proceeding, or appeal existing as of the effective date of this act, 33 and for the enforcement of rights, duties, penalties, forfeitures, and 34 liabilities as they stood under the repealed or amended laws. Any 35 state agency, board, commission, or council to which are 36 transferred the powers, duties, and functions of any state agency, 37 board, commission, or council relating to the pending proceeding 38 must be substituted as a party in interest. 39 (B) Any statute enacted and any rule or regulation made in 40 respect to any state agency, board, commission, or council or 41 function transferred to, or consolidated, coordinated, or combined 42 with any other state agency, board, commission, or council or 43 function under the provisions of this act before the effective date

[4285] 22 1 of the transfer, consolidation, coordination, or combination, except 2 to the extent repealed, modified, superseded, or made inapplicable 3 by or under the authority of law, shall have the same effect as if 4 the transfer, consolidation, coordination, or combination had not 5 been made. But when any such statute, rule, or regulation has 6 vested functions in the state agency, board, commission, or council 7 from which the transfer is made under the act, the functions, 8 insofar as they are to be exercised after the transfer, must be 9 considered as vested in the state agency, board, commission, or 10 council to which the transfer is made under the act. 11 12 SECTION 6. If any section, subsection, item, subitem, 13 paragraph, subparagraph, sentence, clause, phrase, or word of this 14 act is for any reason held to be unconstitutional or invalid, such 15 holding shall not affect the constitutionality or validity of the 16 remaining portions of this act, the General Assembly hereby 17 declaring that it would have passed this act, and each and every 18 section, subsection, item, subitem, paragraph, subparagraph, 19 sentence, clause, phrase, and word thereof, irrespective of the fact 20 that any one or more other sections, subsections, paragraphs, 21 subparagraphs, sentences, clauses, phrases, or words hereof may 22 be declared to be unconstitutional, invalid, or otherwise 23 ineffective. 24 25 SECTION 7. This act takes effect January 1, 2011. 26 XX 27

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