New Surface Water Permitting Regulation Go Into Effect in South Carolina

by Nexsen Pruet, PLLC
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[author: James W. Potter]

In 2010, the General Assembly passed the South Carolina Surface Water Withdrawal, Permitting, Use and Reporting Act.(S.C. Code Ann. Section 49-4-10 et seq.)  Subsequently, the South Carolina Department of Health and Environmental Control (“DHEC”) promulgated Regulation 61-119 to implement this Act.  Two existing regulations which were superseded by the new regulation have been repealed. (Regulation 121-10 Water Use Reporting and Regulation 121-12 Interbasin Transfer of Water)  The effective date for Regulation 61-119 is June 22, 2012, after which any regulated withdrawal must be permitted.

The purpose of the permitting program is to preserve minimum water flows in surface bodies of the state and to regulate the interbasin transfer of water between river basins.  With increasing demands on water and serious episodic drought conditions in the State, this program will present challenges to those affected.

The program applies to any person or business withdrawing three million gallons or more of surface water per month.  There are certain exemptions from permitting.  The exemptions include activities such as dredging, emergency withdrawals or withdrawals by special purpose districts from impoundments situated on its own property. Hydropower operations are exempt from permitting, but not reporting requirements.

Existing surface water withdrawals (as of January 1, 2011) are required to submit a permit application within one hundred and eighty days of the effective date of Regulation 61-119 (June 22, 2012).  Permits for existing withdrawals can be issued for a period of between thirty and fifty years and are not subject to the review criteria for obtaining the initial permit.

An operational and contingency plan must be developed for situations in which the actual flow of surface water is less than a minimum instream flow for that particular stream segment.  These plans will typically discuss conservation efforts in times of drought.

New or expanding surface water withdrawals must also be permitted.  These permits will have stricter conditions and may involve an increased scrutiny by the permitting authorities and interested public representatives. Maintaining minimum instream flows becomes a primary concern to regulators.  An operational and contingency plan will be stricter for new and expanded surface water withdrawals.

The challenge to the regulated community will be to optimize water withdrawals under DHEC’s permitting programs in balance with protecting existing instream water usage.  New or expanding industries which use significant amounts of water will have to carefully review this regulation and their site location in order to be successful in permitting.

DHEC is preparing a website for this program at ww.scdhec.gov/surfacewater.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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