H*2244 Session 106 (1985-1986)
H*2244(Rat #0134, Act #0090 of 1985) General Bill, By P. Freeman, R.L. Altman,
J.F. Anderson, L.E. Bennett, L. Blanding, J.D. Bradley, C.D. Chamblee,
M.J. Cooper, W.N. Cork, F.L. Day, J. Faber, L.E. Gentry, J.V. Gregory,
M.S. Gulledge, P.B. Harris, Harvin, R.L. Helmly, B.L. Hendricks, T.E. Huff,
T.L. Hughston, H.H. Keyserling, Kirsh, R.A. Kohn, J.G. McAbee, F.E. McBride,
McKay, H.L. Mitchell, H.E. Pearce, A.V. Rawl, J.I. Rogers, T.F. Rogers,
R. Schwartz, S.V. Shelton, J.J. Snow, J.H. Toal, Townsend, J.W. Tucker,
J.M. White and D.E. Winstead
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Chapter 21
to Title 49, so as to provide for the regulation of interbasin transfers of
water.
01/24/85 House Introduced and read first time HJ-405
01/24/85 House Referred to Committee on Agriculture and Natural
Resources HJ-405
03/06/85 House Committee report: Favorable with amendment
Agriculture and Natural Resources HJ-1127
03/07/85 House Objection by Rep. Holt
03/07/85 House Debate adjourned until Wednesday, March 13, 1985
HJ-1178
03/14/85 House Amended HJ-1303
03/14/85 House Read second time HJ-1311
03/15/85 House Read third time and sent to Senate HJ-1369
03/19/85 Senate Introduced and read first time SJ-907
03/19/85 Senate Referred to Committee on Agriculture and Natural
Resources SJ-907
04/09/85 Senate Committee report: Favorable with amendment
Agriculture and Natural Resources SJ-1395
04/10/85 Senate Read second time SJ-1451
04/10/85 Senate Ordered to third reading with notice of
amendments SJ-1451
04/11/85 Senate Amended SJ-1466
04/11/85 Senate Read third time SJ-1468
04/11/85 Senate Returned SJ-1468
04/16/85 House Debate adjourned on amendments HJ-3517
04/25/85 House Debate interrupted HJ-2721
05/01/85 House Senate amendment amended HJ-2851
05/01/85 House Returned HJ-2852
05/02/85 Senate Concurred in House amendment and enrolled SJ-1897
05/07/85 Ratified R 134
05/13/85 Signed By Governor
05/13/85 Effective date 05/13/85
05/13/85 Act No. 90
05/21/85 Copies available
(A90, R134, H2244)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 21
TO TITLE 49, SO AS TO PROVIDE FOR THE REGULATION OF INTERBASIN TRANSFERS OF
WATER.
Be it enacted by the General Assembly of the State of South Carolina:
Interbasin Transfers of Water
SECTION 1. Title 49 of the 1976 Code is amended by adding:
"CHAPTER 21
INTERBASIN TRANSFER OF WATER
Section 49-21-10. For purposes of this chapter:
(1) 'Commission' means the Water Resources Commission;
(2) 'River basin' means the area drained by a river and its tributaries or
through a specified point on a river, as determined in subsection (7) of Section
49-21-60;
(3) 'Receiving river basin' means a river basin which is the recipient of an
increase in water, over and above that occurring naturally, as the result of a
diversion or transfer of water from a different river basin;
(4) 'Losing river basin' means a river basin which sustains a decrease in
water as the result of a diversion or transfer of water to a different river
basin and there is no significant return of the water to the river basin of
origin;
(5) 'Person' means any and all persons, including individuals, firms,
partnerships, associations, public or private institutions, municipalities or
political subdivisions, federal or state governmental agencies, or private or
public corporations organized under the laws of this State or any other state or
country.
Section 49-21-20. Following the effective date of this chapter, no person shall
withdraw, divert, pump, or cause directly the transfer of either five percent of
the seven day, ten-year low flow, or one million gallons or more of water a day
on any day, whichever is less, from one river basin and use or discharge all or
any part of the water in a different river basin unless the person shall first
obtain a permit from the Commission.
Section 49-21-30. A. The Commission may grant, deny, or issue with conditions
as to quantity or qualities of water, a permit to any person for any interbasin
transfer of water upon application for a permit, opportunity for public comment,
and a hearing before the Commission, if the Commission finds the criteria in
subsections B, C, D, and E are met.
B. The applicant shall specify the location of all collection, withdrawal, and
transportation facilities and additional information as the Commission may
require. The Commission 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 Commission shall publish the
notice in the State Register; and the Commission 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.
C. In making its determination whether transfer may be permitted, the
Commission shall:
(1) Protect present, and consider projected stream uses of the losing river
basin generally and of the losing river specifically, including but not limited
to, present agricultural, municipal, industrial and instream uses, and
assimilative needs.
(2) Protect water quality of the losing river basin.
(3) Consider reasonably foreseeable future water needs of the losing river
basin.
(4) Consider the reasonably foreseeable future water needs of the applicant
for the water to be transferred, including methods of water use, conservation,
and efficiency of use.
(5) Consider beneficial impact on the State and its local subdivisions of
any proposed transfer, and the capability of the applicant to implement
effectively its responsibilities under the requested permit.
(6) Consider the nature of the permittee's use of the water, to determine
whether the use is reasonable and beneficial.
(7) Consider whether the proposed project shall promote and increase the
storage and conservation of water.
(8) Consider the feasibility of alternative sources of supply and their
comparative costs.
(9) Consider impact on interstate water use.
(10) Consider requirements of other state or federal agencies with authority
relating to water resources.
(11) Consider availability of water in the losing river basin to respond to
emergencies, including drought.
(12) Consider whether the project shall have any beneficial or detrimental
impact on navigation, hydropower generation, fish and wildlife habitat,
aesthetics, or recreation.
(13) Consider such other facts and circumstances as are reasonably necessary
to carry out the purposes of this chapter.
D. (a) In addition to the requirements in subsection C of this section, the
Commission shall not issue a transfer permit except upon a certification by the
South Carolina Department of Health and Environmental Control (DHEC) that the
proposed interbasin transfer of water shall neither:
(1) Violate the water classification standard system regulation or the
stream classification regulation, nor
(2) Adversely affect the public health and welfare.
Through its certification DHEC shall insure the protection of the water quality
and health of the losing river basin and shall insure the protection of the
present and permitted assimilative needs of the losing river basin. DHEC shall
use data from stream modeling and instream sampling in making its certification.
DHEC may issue a certification with conditions which must be made part of any
permit issued pursuant to this chapter.
(b) The Commission must coordinate with DHEC on water quality aspects of the
permit. The Commission may not deny an interbasin transfer permit on the basis
of water quality when DHEC has certified that the water quality of the losing
basin or the receiving basin is not adversely affected.
E. In order to protect the water uses of the losing river basin, the
Commission, in determining the amount of water to be approved, may conduct or
have conducted instream sampling and stream modeling to predict the volumes of
water which may be transferred. Transferable amounts may vary to accommodate
seasonal water conditions in the losing river basin. No transfer of water may
be permitted at any time which shall cause the remaining flow in the losing river
basin to be less than the statistical low flow that occurs for seven consecutive
days, once every ten years as established prior to the interbasin transfer.
F. The permit shall specify the location of all collection, withdrawal,
transmission, and discharge facilities to be used or constructed to effect the
interbasin transfer and shall specify the amount or amounts which can be
withdrawn. The permit shall require that the interbasin transfer shall cease or
decrease when the actual flow of the losing basin is less than a specified
minimum required to protect against adverse effects to the basin. The permit
shall further require that the permittee comply with other requirements as may
be advisable to promote an adequate water supply for the State and to mitigate
any adverse conditions or effects which the Commission finds exist, but are not
sufficient to require denial of the permit.
G. Any riparian landowner or person legally exercising rights to use water,
suffering material injury for the loss of water rights as a consequence of an
interbasin transfer shall have a cause of action against the water transferor in
the court of common pleas of the county in which the water transfer originates
to recover all provable damages for loss of riparian rights including increases
in operating costs, lost production, or other damages directly caused him by the
interbasin transfer; provided, however, this subsection G does not apply to
transfers authorized under item (2) of subsection A of Section 49-21-50;
provided, further, the immediately preceding proviso may not be construed to
abridge or alter causes of actions in the civil courts under the common law or
statutory laws existing prior to the effective date of this act and any such
cause of action against the water transferor must be brought in the court of
common pleas of the county in which the transfer originates. The burden of proof
is on the person alleging damages.
Section 49-21-40. A. No permit under Section 49-21-20 may be issued for a
longer period than the longest of the following, unless the applicant requests
a shorter period:
(1) Twenty years, or
(2) A period found by the Commission to be reasonable based upon review of
all relevant facts and circumstances pertaining to the proposed water transfer
but for a period no longer than forty years.
B. The Commission may modify, suspend, or revoke any water transfer permit,
including authority to transfer water pursuant to Section 49-21-50, for good
cause consistent with the following procedures:
(1) Before any permit may be modified, suspended, or revoked the Commission
shall give the permittee notice of the proposed action and afford the permittee
an opportunity for a hearing before the Commission. Any hearing must be
conducted pursuant to the South Carolina Administrative Procedures Act (Act 176
of 1977).
(2) All hearings under this section must be before the Commission, before
one or more of its own members, before one or more of its own qualified
employees, or before a special hearing officer retained by the Commission. All
hearings must be open to the public. Any member or employee of the Commission
or special hearing officer to whom a delegation of power is made to conduct a
hearing shall report the hearing with its evidence and record, along with
proposed findings of fact and conclusions of law, to the Commission for decision.
(3) A full and complete record of all proceedings at any hearing under this
chapter must be taken by a reporter appointed by the Commission or by other
method approved by the Attorney General. Any party to a proceeding is entitled
to a copy of the record upon the payment of the reasonable cost as determined by
the Commission.
(4) The burden of proof at any hearing under this subsection B is upon the
moving party.
(5) Following any hearing, the Commission shall afford the parties a
reasonable opportunity to submit within thirty days or within additional time as
prescribed by the Commission, proposed findings of fact and conclusions of law
and any brief in connection therewith.
(6) All orders and decisions of the Commission shall set forth separately
the Commission's findings of fact and conclusions of law and shall, wherever
necessary, cite the appropriate provision of law or other source of authority on
which any action or decision of the Commission is based.
(7) Judicial review and stays of enforcement of the decision of the
Commission must be pursuant to the South Carolina Administrative Procedures Act,
but any petition for judicial review or stay of the decision of the Commission
must be filed in the circuit court in the county in which the subject permitted
water transfer originates.
C. Permits may be renewed following their expiration upon a full review of all
factors considered issuing a permit for the first time.
D. Permits may not be transferred except with the approval of the Commission.
Section 49-21-50. A. Any person diverting or transferring or having
substantially under construction facilities to divert or transfer five percent
of the seven day, ten-year low flow or one million gallons or more of water a day
from one river basin and using or discharging all or any part of the water in a
different river basin on the effective date of this chapter may continue the
transfer subject to the following conditions:
(1) The transfer must be registered with the Commission within six months
of the effective date of this chapter.
(2) The total amount of the transfer daily shall not exceed the larger of
(i) the capacity of the facilities used to transfer water on December 1, 1984,
or (ii) of facilities to transfer water substantially under construction on
December 1, 1984, or (iii) any water withdrawal project under contract approved
by the Federal Energy Regulatory Commission prior to December 1, 1984.
(3) Any increase in water transferred over the amount authorized in item (2)
of this section must be reviewed and permitted in accordance with Section
49-21-20.
(4) In any event, a transfer authorized under this section must be reviewed
under the criteria of Section 49-21-30 upon the occurrence of any of the
following conditions: (i) the cessation of the transfer for any reason for a
continuous period of three years; (ii) following a period from the effective date
of this chapter no longer than the longest of the following: (a) twenty years,
or (b) a period found by the Commission to be reasonable based upon review of
all relevant facts and circumstances pertaining to the existing water transfer,
but the period may be not longer than forty years, or (c) for existing transfers
pursuant to item (2) of subsection A of Section 49-21-50, upon conclusion of the
maximum useful life of the transfer facilities or water withdrawal project under
contract not to exceed forty years from December 1, 1984.
B. The provisions of this chapter shall take precedence over any other state
regulatory provision pertaining to the subject of this chapter.
Section 49-21-60. A. The Commission may promulgate regulations to carry out the
intent of this chapter, including, but not limited to the following:
(1) Development of applications.
(2) The conduct of public hearings to be conducted at the discretion of the
Commission.
(3) Provisions to ensure public notice of applications and submission of
comments from the public.
(4) Coordination of comments from interested state agencies.
(5) Provisions to identify persons who may be adversely affected by a water
transfer and allowing any of the persons to be heard by the Commission prior to
final action on a permit application.
(6) Provisions requiring special conditions on any permit necessary to
protect the health, safety, or welfare of losing or receiving river basins.
(7) The Commission shall by regulation delineate and designate river basins.
In undertaking this task, the Commission shall initially establish fifteen river
basins, including the watershed of each of the following fifteen rivers or river
systems:
(a) Upper Savannah
(b) Lower Savannah
(c) Saluda
(d) Broad
(e) Congaree
(f) Catawba-Wateree
(g) Lynches
(h) Pee Dee
(i) Little Pee Dee
(j) Black
(k) Waccamaw
(l) Lower Santee
(m) Edisto
(n) Ashley-Cooper
(o) Combahee-Coosawhatchie
Prior to any designation or delineation of any additional river basins, they
must first be approved by act of the General Assembly.
Section 49-21-70. A. Any person violating any provision of this chapter is
guilty of a misdemeanor and, upon conviction, must be fined not less than one
thousand dollars nor more than ten thousand dollars for each violation. In
addition, if any person is adjudged to have committed a violation of this chapter
wilfully, the court may determine that each day during which the violation
continued constitutes a separate offense.
B. Upon violation of any of the provisions of this chapter, or the regulations
of the Commission, the executive director may, either before or after the
institution of criminal proceedings, institute a civil action in the circuit
court in the name of the State for injunctive relief. Neither the institution
of the actions nor any of the proceedings relating to them shall relieve any
party to the proceedings from the penalty prescribed by this chapter for any
violation of the provisions of this chapter.
Section 49-21-80. The Commission is empowered to 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 those waters. Any interstate compacts made by the
Commission by authority of this chapter are subject to approval by concurrent
resolution of the General Assembly. The Commission is further empowered to
represent this State in connection with water withdrawals, diversions, or
transfers occurring in other states which may affect this State."
Local acts repealed
SECTION 2. All local acts purporting to create a right to transfer water from
one river basin to a different river basin as designated in Section 49-21-60 are
repealed.
Time effective
SECTION 3. This act shall take effect upon approval by the Governor. |