South Carolina General Assembly
113th Session, 1999-2000

Download This Bill in Microsoft Word format

Bill 3434


                    Current Status

Bill Number:                      3434
Ratification Number:              418
Act Number:                       366
Type of Legislation:              General Bill GB
Introducing Body:                 House
Introduced Date:                  19990203
Primary Sponsor:                  Campsen
All Sponsors:                     Campsen, Altman, Davenport, Inabinett and 
                                  Sharpe
Drafted Document Number:          l:\council\bills\psd\7188ac99.doc
Date Bill Passed both Bodies:     20000601
Date of Last Amendment:           20000531
Governor's Action:                S
Date of Governor's Action:        20000614
Subject:                          Groundwater Use and Reporting, Surface 
                                  Water Withdrawal and Reporting, Drought 
                                  Response Acts; Water and Sewer


                        History

Body    Date      Action Description                     Com     Leg Involved
______  ________  ______________________________________ _______ ____________
------  20000711  Act No. A366
------  20000614  Signed by Governor
------  20000608  Ratified R418
House   20000601  Concurred in Senate amendment, 
                  enrolled for ratification
Senate  20000531  Amended, read third time, 
                  returned to House with amendment
------  20000526  Scrivener's error corrected
Senate  20000525  Amended, read second time, 
                  notice of general amendments
Senate  20000504  Polled out of Committee:               01 SANR
                  Favorable with amendment
Senate  20000314  Introduced, read first time,           01 SANR
                  referred to Committee
------  20000309  Scrivener's error corrected
House   20000309  Read third time, sent to Senate
House   20000308  Amended, read second time
------  20000306  Scrivener's error corrected
House   20000301  Committee report: Favorable with       20 HANR
                  amendment
House   19990203  Introduced, read first time,           20 HANR
                  referred to Committee


              Versions of This Bill
Revised on March 1, 2000 - Word format
Revised on March 6, 2000 - Word format
Revised on March 8, 2000 - Word format
Revised on March 9, 2000 - Word format
Revised on May 4, 2000 - Word format
Revised on May 25, 2000 - Word format
Revised on May 26, 2000 - Word format
Revised on May 31, 2000 - Word format

View additional legislative information at the LPITS web site.


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

(A366, R418, H3434)

AN ACT TO AMEND CHAPTERS 4 AND 5 OF TITLE 49, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE WATER USE REPORTING AND COORDINATION ACT AND THE GROUNDWATER USE ACT, SO AS TO DENOMINATE THESE CHAPTERS AS THE "SOUTH CAROLINA SURFACE WATER WITHDRAWAL AND REPORTING ACT" AND THE "GROUNDWATER USE AND REPORTING ACT", RESPECTIVELY, AND, AMONG OTHER THINGS, TO CHANGE THE THRESHOLD AMOUNT OF WATER WITHDRAWAL REQUIRING REGISTRATION WITH THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL FROM A DAILY MEASUREMENT TO A MONTHLY MEASUREMENT; TO REVISE THE CATEGORIES OF WATER USERS REQUIRED TO REGISTER TO INCLUDE ONLY WATER WITHDRAWERS; TO REQUIRE WATER WITHDRAWERS TO REPORT TO THE DEPARTMENT ANNUALLY, RATHER THAN QUARTERLY; TO REVISE DROUGHT REPORTING PROCEDURES; TO REQUIRE NOTIFICATION TO THE DEPARTMENT FOR CERTAIN DEPTH WELL DRILLING IN A NONCAPACITY USE AREA BEFORE DRILLING BEGINS RATHER THAN AFTER THE WELL IS DRILLED AND TO REQUIRE PUBLIC NOTICE BE PROVIDED OF SUCH WELL DRILLING; TO AUTHORIZE THE DEPARTMENT TO INITIATE THE PROCESS FOR DESIGNATING AN AREA AS A CRITICAL USE AREA, RATHER THAN AUTHORIZING ONLY LOCAL GOVERNMENTS TO INITIATE THIS PROCESS; TO PROVIDE THAT THE ISSUANCE OF PERMITS IN CAPACITY USE AREAS MUST BE BASED UPON LOCALLY DEVELOPED PLANS RATHER THAN ON DEPARTMENT GUIDELINES AND TO PROVIDE AN EXCEPTION; AND TO PROVIDE PENALTIES; AND TO AMEND CHAPTER 23, TITLE 49, RELATING TO THE SOUTH CAROLINA DROUGHT RESPONSE ACT OF 1985, SO AS TO DELETE THE REFERENCE TO 1985, SO AS TO, AMONG OTHER THINGS, REVISE THE DEFINITION OF "DROUGHT" AND DEFINE "DROUGHT INDICES", AND TO REQUIRE THE DEPARTMENT OF NATURAL RESOURCES TO ESTABLISH SPECIFIC NUMERICAL VALUES FOR EACH LEVEL OF DROUGHT; TO FURTHER CLARIFY WATER USE RESTRICTION DURING DROUGHTS; TO REVISE DROUGHT NOTICE REQUIREMENTS AND DROUGHT RESPONSE COMMITTEE MEETING NOTICES; TO REVISE THE APPOINTMENT PROCESS AND MEMBERSHIP OF LOCAL DROUGHT COMMITTEES; TO REVISE WHAT CONSTITUTES ESSENTIAL WATER USE; TO PROVIDE FOR APPEALS TO THE ADMINISTRATIVE LAW JUDGE DIVISION BY A PARTY AFFECTED BY A DECLARATION OF THE DROUGHT RESPONSE COMMITTEE; AND TO DELETE OBSOLETE PROVISIONS.

Be it enacted by the General Assembly of the State of South Carolina:

South Carolina Surface Water Withdrawal and Reporting Act revised

SECTION 1. Chapter 4 of Title 49 of the 1976 Code is amended to read:

"CHAPTER 4

South Carolina Surface Water Withdrawal and Reporting Act

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."

Groundwater Use and Reporting Act revised

SECTION 2. Chapter 5, Title 49 of the 1976 Code is amended to read:

"CHAPTER 5

Groundwater Use and Reporting Act

Section 49-5-10. This chapter may be cited as the Groundwater Use and Reporting Act.

Section 49-5-20. The General Assembly declares that the general welfare and public interest require that the groundwater resources of the State be put to 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, and to provide and maintain conditions which are conducive to the development and use of water resources.

Section 49-5-30. Unless the context otherwise requires, as used in this chapter:

(1) 'Aquifer' means a geologic formation, group of these formations, or part of a formation that is water bearing.

(2) 'Aquifer storage and recovery' or 'ASR' means a process by which water is injected into an aquifer for storage and then subsequently withdrawn from the same aquifer from the same well or other nearby wells.

(3) 'Board' means the Board of the Department of Health and Environmental Control.

(4) 'Coastal Plain' means:

(a) all of Aiken, Allendale, Bamberg, Barnwell, Beaufort, Berkeley, Calhoun, Charleston, Clarendon, Colleton, Darlington, Dillon, Dorchester, Florence, Georgetown, Hampton, Horry, Jasper, Lee, Marion, Marlboro, Orangeburg, Sumter, and Williamsburg counties; and

(b) those portions of Chesterfield, Edgefield, Kershaw, Lexington, Richland, and Saluda counties east or southeast of the fall line as identified on the best available geologic map.

(5) 'Department' means the Department of Health and Environmental Control.

(6) 'Dewatering operation' means an operation that is withdrawing groundwater from an aquifer for the purpose of draining an excavation or preventing or retarding groundwater flow into an excavation. This operation includes, but is not limited to, mining, water and sewer line construction, and excavating for a building foundation.

(7) 'Emergency withdrawal' means the withdrawal of groundwater, for a period not exceeding thirty calendar days, for the purpose of fire fighting, hazardous substance or waste spill response, or both, or other emergency withdrawal of groundwater as determined by the department.

(8) 'Existing groundwater withdrawer' means a groundwater withdrawer withdrawing groundwater or a proposed groundwater user with its wells under construction before January 1, 2000.

(9) 'Flowing well' means a well releasing groundwater under such pressure that pumping is not necessary to bring it above the ground surface.

(10) 'Groundwater' means water in the void spaces of geologic materials within the zone of saturation.

(11) 'Groundwater withdrawal permit' means a permit issued by the department to groundwater withdrawers in a designated capacity use area for the withdrawal of groundwater.

(12) 'Groundwater withdrawer' means a person withdrawing groundwater in excess of three million gallons during any one month from a single well or from multiple wells under common ownership within a one-mile radius from any one existing or proposed well.

(13) 'New groundwater withdrawer' means a person who becomes a groundwater withdrawer after December 31, 1999, except for a proposed groundwater withdrawer with its wells under construction before January 1, 2000.

(14) 'Nonconsumptive use' means the use of water from an aquifer that is returned to the aquifer from which it was withdrawn, at or near the point from which it was withdrawn, without diminishing the quantity any more than three million gallons in any one month or without substantial impairment in quality.

(15) 'Permit to construct' means a permit issued by the department after consideration of proposed well location, depth, rated capacity, and withdrawal rate.

(16) 'Permittee' means a person having obtained a permit to construct or a groundwater withdrawal permit issued in accordance with Sections 49-5-60 and 49-5-110.

(17) '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.

(18) 'Public water system' means a water system as defined in Section 44-55-20 of the State Safe Drinking Water Act.

(19) 'Rated capacity' means the amount, in gallons per minute (gpm), of groundwater that is capable of being withdrawn from the completed well with the pump installed.

(20) 'Surface water' means all water which is open to the atmosphere and subject to surface runoff which includes lakes, streams, ponds, and reservoirs.

(21) 'Type I well' means a well constructed with an open hole in a bedrock aquifer.

(22) 'Well' means an excavation that is cored, bored, drilled, jetted, dug, or otherwise constructed for the purpose of locating, testing, or withdrawing groundwater or for evaluating, testing, developing, draining, or recharging a groundwater reservoir or aquifer or that may control, divert, or otherwise cause the movement of groundwater from or into an aquifer.

Section 49-5-40. In order to carry out the policy as stated in Section 49-5-20, the General Assembly finds that the department must establish and implement an effective statewide groundwater management program. To implement this program, all groundwater withdrawers shall register their groundwater sources with and report their groundwater use to the department.

Section 49-5-50. (A) The department shall assess, notice, and monitor groundwater withdrawals in this State pursuant to this chapter.

(B) A groundwater withdrawer or proposed groundwater withdrawer outside of a designated capacity use area in the Coastal Plain shall notify the department of its intent to construct a new well, or increase the rated capacity of an existing well, at least thirty days before initiating the action. This notification must be made on forms provided by the department.

(C) The department shall develop a process for notifying potentially affected existing withdrawers and the public of all notices received pursuant to subsection (B).

Section 49-5-60. (A) In the State where excessive groundwater withdrawal presents potential adverse effects to the natural resources or poses a threat to public health, safety, or economic welfare or where conditions pose a significant threat to the long-term integrity of a groundwater source, including salt water intrusion, the board, after notice and public hearing, in accordance with the Administrative Procedures Act, shall designate a capacity use area. The department, local government authorities, other government agencies, or groundwater withdrawers may initiate the capacity use area designation process. The notice and public hearing must be conducted such that local government authorities, groundwater withdrawers, or the general public may provide comments concerning the capacity use area designation process. A capacity use area must be designated by the board based on scientific studies and evaluation of groundwater resources and may or may not conform to political boundaries.

(B) After notice and public hearing, the department shall coordinate the affected governing bodies and groundwater withdrawers to develop a groundwater management plan to achieve goals and objectives stated in Section 49-5-20. In those areas where the affected governing bodies and withdrawers are unable to develop a plan, the department shall take action to develop the plan. The plan must be approved by the board before the department may issue groundwater withdrawal permits for the area.

(C) Once the board approves the groundwater management plan for a designated capacity use area, each groundwater withdrawer shall make application for a groundwater withdrawal permit. The department shall issue groundwater withdrawal permits in accordance with the approved plan.

(D) A person or entity affected may appeal a decision of the board on a capacity use area designation within thirty days after the filing of the decision to the court of common pleas of any county which is included in whole or in part within the disputed capacity use area. The department shall certify to the court the record in the hearing. The court shall review the record and the regularity and the justification for the decision. The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) in violation of constitutional or statutory provisions;

(2) in excess of the statutory authority of the agency;

(3) made upon unlawful procedure;

(4) affected by other error of law;

(5) clearly erroneous in view of the reliable, probative, and substantial evidence on the record; or

(6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Section 49-5-70. (A) The following are exempt from this chapter:

(1) emergency withdrawals of groundwater;

(2) any person withdrawing groundwater for nonconsumptive uses;

(3) a person withdrawing groundwater for the purpose of wildlife habitat management;

(4) A person withdrawing groundwater at a single family residence or household for noncommercial use.

(B) The following are exempt from the permitting requirements of Section 49-5-100 and the public notification requirements of Section 49-5-50:

(1) dewatering operations at mines;

(2) all other dewatering operations;

(3) Type I wells installed into crystalline bedrock in the Coastal Plain Groundwater Management Area;

(4) groundwater withdrawer constructing a new well to replace an existing well.

(C) Aquifer storage and recovery wells are exempt from the requirements of this chapter if:

(1) a permit in accordance with the Underground Injection Control Regulations, Regulation 61-87, S. C. Code of Regulations, is obtained from the department; and

(2) the amount of water withdrawn does not exceed the amount of water injected.

(D) The department may exempt wells of diminutive yield from the requirements of this chapter if these wells are used for purposes other than the wells which result in a person being considered a groundwater user.

Section 49-5-80. (A) An existing groundwater withdrawer in the State shall register its groundwater withdrawal and subsequent use with the department on forms provided by the department no later than January 1, 2000.

(B) A new groundwater withdrawer in the State shall register its groundwater withdrawal and subsequent use with the department on forms provided by the department before becoming a groundwater withdrawer.

(C) A groundwater withdrawer shall register any additional wells within thirty days after initiating use of the wells.

Section 49-5-90. (A) Every permitted and registered groundwater withdrawer in the State shall annually before January thirty file with the department a report on forms furnished by the department of the quantities of groundwater withdrawn.

(B) The quantity of groundwater 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 a cooling system;

(4) any standard or method employed by the United States Geological Survey in determining such quantities; or

(5) any other method approved by the department which will provide reliable groundwater withdrawal data.

(C) The groundwater withdrawer is not required to submit the groundwater withdrawal report required by subsection (A) if the monthly quantity withdrawn from each well is being reported to the department as a result of another environmental program reporting requirement, permit condition, or consent agreement.

Section 49-5-100. (A) Before a groundwater withdrawer or proposed groundwater withdrawer in a designated capacity use area can construct a new well or increase the rated capacity of an existing well, an application for a permit to construct must be made to, and a permit to construct obtained from, the department unless exempt pursuant to Section 49-5-70.

(B) Before a person may become a groundwater withdrawer in a designated capacity use area, an application for a groundwater withdrawal permit must be made to, and a groundwater withdrawal permit obtained from, the department.

(C) The department may grant a temporary groundwater withdrawal permit for up to one hundred eighty days or until a final decision is made on the application if an imminent hazard to public health exists or if an applicant demonstrates that physical or financial damage has occurred, or will occur, if a temporary permit is not granted. The issuance of a temporary permit does not guarantee the issuance of a groundwater withdrawal permit.

(D) The department may revoke a permit to construct or a groundwater withdrawal permit if it determines information in the permit application is false or the permittee fails to comply with the conditions of the permit.

(E) The department may revoke a temporary groundwater withdrawal permit if the permittee fails to adhere to the conditions of the temporary permit or provide timely response to requests for actions for information made pursuant to the application review.

(F) The department shall develop a public participation process for the permitting of new wells or for an increase in the rated capacity of a well and for groundwater withdrawal.

(G) The department is authorized to develop a 'General Permit' for groundwater withdrawal activities.

(H) A person or entity aggrieved by the department's decision on any permit application or revocation pursuant to this section may request a contested case hearing. The contested case must proceed in accordance with Articles 3 and 5, Chapter 23 of Title 1.

Section 49-5-110. The department may:

(1) adopt and modify regulations to implement the provisions of this chapter;

(2) issue, modify, revoke, or deny construction and groundwater withdrawal permits;

(3) perform acts and issue orders as necessary to carry out the purposes and requirements of this chapter;

(4) administer and enforce this chapter and regulations promulgated and orders issued or effective under this chapter;

(5) 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;

(6) subpoena and require the attendance of witnesses and the production of books and papers by witnesses pertinent to investigations and inquiries the department is authorized to conduct under this chapter, and examine witnesses and those public records as necessary;

(7) enter into agreements, contracts, memoranda of understanding, or cooperative arrangements under terms and conditions as the department considers appropriate with any person necessary to carry out the intent of this chapter;

(8) distribute to and receive financial and technical assistance from public or private agencies, institutions of higher education, and the federal government;

(9) participate in programs of the federal government, other states, interstate agencies, or other public or private agencies or organizations;

(10) evaluate and conduct, or have conducted, investigations regarding aquifer sampling, aquifer characteristics, hydrogenologic modeling, and other engineering, scientific, and economic analysis, including the establishment of minimum aquifer levels to carry out the provisions of this chapter. In conducting such investigations, the department will consider and utilize, as appropriate, reports, research, and studies of federal, state, or local agencies and departments of government. The results of these investigations shall serve as the basis for the evaluation of applications and the determination of applicable permit conditions.

The department shall negotiate agreements, accords, or compacts on behalf of and in the name of the State and with other states or the United States, or both, with an agency, department, or of either, or both, relating to withdrawal or diversion of groundwater that impacts the groundwater of this State, or are connected to those waters. In negotiating such agreements, the department will consider, as appropriate, information provided by potentially affected federal, state, or local agencies and departments of government and will advise such entities of the final department action. An interstate compact made by the department 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 groundwater withdrawals, diversions, or transfers occurring in other states which may affect this State.

Section 49-5-120. (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, standard, permit, or permit condition 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 a 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 49-5-130. Wells that are flowing by releasing groundwater under such pressure that pumping is not necessary to bring it above the ground surface at a rate of greater than five thousand gallons a day at any time are an unreasonable use of groundwater constituting waste and are prohibited, except that the water from these wells may be utilized to the extent actually necessary for a specific use. These wells must be fitted with a mechanism to restrict the flow of water if the flow is in excess of that necessary for the specific use. The department may promulgate regulations to govern use of these wells in this State.

Section 49-5-140. Nothing contained in this chapter changes or modifies existing common or statutory law with respect to the rights of the use of surface water in this State.

Section 49-5-150. Existing capacity use areas and requirements as specified in Regulations 121-1 and 121-2, S. C. Code of Regulations, remain in effect until the department promulgates regulations under the authority of this chapter."

South Carolina Drought Response Act revised

SECTION 3. Chapter 23, Title 49 of the 1976 Code is amended to read:

"CHAPTER 23

South Carolina Drought Response Act

Section 49-23-10. This chapter may be cited as the South Carolina Drought Response Act.

Section 49-23-20. As used in this chapter:

(a) 'Department' means the Department of Natural Resources.

(b) 'Conservation' means to minimize or prevent depletion or waste of the water resource.

(c) 'Drought Response Committee' means the committee created under Section 49-23-60 to be convened to address drought related problems and responses.

(d) 'Office of primary responsibility' means the Department of Natural Resources.

(e) 'Person' means all persons, including individuals, firms, partnerships, associations, public or private institutions, municipalities or political subdivisions, governmental agencies, or private or public corporations organized under the laws of this State or another state or country.

(f) 'Drought' means a period of diminished precipitation which results in negative impacts upon the hydrology, agriculture, biota, energy, and economy of the State.

(g) 'Water resources' means water on or beneath the surface of the ground, including natural and artificial water courses, lakes or ponds, and water percolating, standing, or flowing beneath the surface of the ground.

(h) 'Diffused surface water' means waters of a casual or vagrant character, lying or running on the surface of the earth but not in definite courses, streams, or waterbodies.

(i) 'Drought indices' means topical and quantitative indicators of drought including, but not limited to, sustained decline in water levels of natural flowing streams and other natural bodies of water, decline in water tables above and below ground, forest fire indices, sustained decline in potable drinking water supplies, agricultural stress, low soil moisture, and low precipitation. The department must, through regulation, establish specific numerical values for the indicies that define each level of drought.

(j) 'Incipient drought' means that there is a threat of a drought as demonstrated by drought indices. The incipient drought phase shall initiate inhouse mobilization by department personnel and the Drought Response Committee. The department shall routinely monitor the climatic variables, streamflow, and water levels in potable drinking water supplies and water levels in the above and below ground water tables and lakes, and shall notify the Drought Response Committee and relevant federal, state, and local agencies that a portion of the State is experiencing an incipient drought condition. The department must increase monitoring activities to identify a change in existing conditions.

(k) 'Moderate drought' means that there is an increasing threat of a drought as demonstrated by drought indices. Statements must be released to the news media by the department, and appropriate agencies must accelerate monitoring activities.

(l) 'Severe drought' means that the drought has increased to severe levels as demonstrated by drought indices. This phase must be verified utilizing data, forecasts, and outlooks from various agencies. A drought of this severity normally requires an official declaration by the department and water withdrawals and use restrictions.

(m) 'Extreme drought' means that the drought has increased to extreme levels as demonstrated by drought indices. The department shall continue to evaluate information from various sources. Upon confirmation of an Extreme Drought Alert Phase, the Drought Response Committee may recommend that the Governor issue a public statement that an extreme drought situation exists and that appropriate water-use and withdrawal restrictions be imposed.

(n) 'Board' means the governing authority of the Department of Natural Resources.

Section 49-23-30. The department shall formulate, coordinate, and execute a drought mitigation plan. The plan must be developed consistent with the South Carolina Water Resources Planning and Coordination Act, as provided in Chapter 3 of Title 49, to the extent that the plan is compatible with the comprehensive state water plan. In carrying out these responsibilities, the department shall seek and utilize to the extent possible the input, resources, and expertise of other agencies in assisting in drought mitigation planning and response.

Section 49-23-40. This chapter applies to all of the water resources in streams, lakes, and potable drinking water supplies and water levels in the above and below ground water tables of the State, but this chapter does not authorize any restriction in use of water during an incipient, moderate, and severe drought declaration injected into aquifer storage and recovery facilities, water stored in managed watershed impoundments or water from any pond completely situated on private property and fed only by diffused surface water. During a drought declaration, the use of water from a managed watershed impoundment shall not be restricted as long as minimum streamflow or flow equal to the 7Q10 is maintained, whichever is less. For the purposes of this chapter, the waters of the State shall include all groundwater and all surface water within the State as defined in Section 49-23-20. The drought response plan applies to every person using water in this State.

Section 49-23-50. Consistent with the South Carolina Water Resources Planning and Coordination Act, as provided in Chapter 3 of Title 49, the department, without limiting its general authority, shall:

(a) routinely monitor and record data necessary for the determination of drought conditions;

(b) make investigations it considers proper to determine whether action by the department in discharging its duties is necessary;

(c) determine levels of drought after consultation with the Drought Response Committee based upon data collected;

(d) establish drought management areas within the State in order to:

(1) enable drought mitigation to be accomplished within defined geographical areas;

(2) prevent overly broad response to drought. Statewide action usually should not be taken in instances in which action in a particular area experiencing drought is more appropriate. Establishment of drought management areas by the department in no way limits the department's or the Drought Response Committee's authority to act in an area smaller than a drought management area, such as a county or watershed.

(e) establish drought alert phases based upon drought levels and at each drought alert phase:

(1) notify public water suppliers, special purpose districts, and municipal and county governments in the affected drought management area, persons designated on notification lists, and other appropriate agencies and individuals;

(2) shall publish notice of each drought alert phase at least once in a newspaper of general circulation in the areas affected and provide notice to the media in each drought management area at each drought alert phase;

(3) take any other action appropriate to announce a drought alert;

(f) coordinate and implement responses to announced drought alert phases after required notification;

(g) execute the regulations promulgated by the department reasonably necessary to collect and distribute information, convene committees, promote water conservation, govern practice and procedure before the department, and fulfill its duties and the purposes of this chapter.

Section 49-23-60. (A) The department shall coordinate appropriate drought response upon consultation with the Drought Response Committee composed of two parts:

(1) a statewide committee composed of the following state agencies: South Carolina Emergency Preparedness Division of the Office of the Adjutant General, South Carolina Department of Health and Environmental Control, Department of Agriculture, South Carolina Forestry Commission, and South Carolina Department of Natural Resources;

(2) a local committee within each drought management area. The local committees shall consist of the following members to be appointed by the Governor with the advice and consent of the Senate to represent the following interests: counties, municipalities, public service districts, private water suppliers, agriculture, industry, domestic users, regional councils of government, commissions of public works, power generation facilities, special purpose districts and Soil and Water Conservation Districts; however, there may not be more than two members on a local committee from each county within the drought management area. The Governor may appoint additional members as necessary to ensure broadbased input on the committee and may make interim appointments when the General Assembly is not in session. The statewide committee shall coordinate planning and response only upon consultation with the appropriate local committee in the impacted drought management area during moderate, severe, and extreme drought declarations. The Governor shall appoint the chair of the Drought Response Committee. The department shall provide administrative support.

(B) The Drought Response Committee shall convene as necessary upon call by the chair. In carrying out its responsibilities, the Drought Response Committee shall consult with and invite participation by notifying representatives of municipalities, counties, public and private water suppliers, public service districts, power generation facilities, industries, special purpose districts, private citizens, and commissions of public works in affected drought management areas and by providing notice to the media in each drought management area of the date, time, and location of the Drought Response Committee meetings and subsequent notice of actions taken by the committee.

(C) The department may consult and cooperate with federal agencies and agencies of the states of Georgia and North Carolina in carrying out its responsibilities under this chapter.

Section 49-23-70. (A) Upon the inception of a drought alert phase, the department is responsible for disseminating public information concerning all aspects of the drought. The initial action in responding to drought must be public education, providing information as to existing and potential conditions and water conservation measures necessary to meet the demand presented at each drought alert phase.

(B) The department shall provide available information on water demands and use to any significant water user, public or private, in order to promote voluntary water conservation.

(C) The department may promulgate regulations to specify categories of nonessential water use. Water used strictly for firefighting purposes, health and medical purposes, minimum streamflow requirements, and minimum water levels in the potable drinking water supplies and the above and below ground water tables, and the use of water to satisfy federal, state, or local public health and safety requirements is considered essential water use. The department by regulation may provide for the mandatory curtailment of nonessential water uses during periods of severe or extreme drought in drought management areas. Mandatory curtailment of nonessential water use shall become effective only after the Drought Response Committee determines the action to be reasonably necessary to ensure supplies of water in drought management areas. Upon such a finding, the Drought Response Committee shall determine which categories of nonessential water must be curtailed after reviewing each category by the following standards:

(1) the purpose of the use;

(2) the suitability of the use to the watercourse, lake, or aquifer;

(3) the economic value of the use;

(4) the social value of the use;

(5) the extent and amount of the harm it causes;

(6) the practicality of avoiding the harm by adjusting the use or method of use of one proprietor or the other;

(7) the practicality of adjusting the quantity of water used by each proprietor;

(8) the protection of existing values of water uses, land, investments, and enterprises;

(9) the consumptive or nonconsumptive nature of the.

Following such determination, the department shall issue a declaration specifying the drought management areas affected and identifying the categories of nonessential water use to be curtailed. The declaration must be widely distributed to news media and must be published at least once a week in a newspaper of general circulation in each county affected. Any person adversely affected by mitigation or mandatory curtailment may, within ten days after such curtailment becomes effective, submit appropriate information to the department and obtain relief therefrom as is appropriate. Any declaration shall continue in effect only so long as conditions in any drought management area reasonably requires it, and the declaration must be terminated by action of either the Drought Response Committee or the department, and notice of termination of the declaration must be given as when originally issued. In the event that a declaration issued pursuant to this section conflicts with any ordinance or plan adopted pursuant to Section 49-23-80, the declaration shall supersede any ordinance or plan.

(D) During any drought alert phase, the department may offer its services to mediate any dispute arising from competing demands for water. The mediation may be undertaken only upon the request of the parties involved and may not be binding. A mediation shall not stop or preclude the department and the Drought Response Committee from taking any other action authorized by this chapter. A party affected by a declaration of the Drought Response Committee has the right to appeal that action to the Administrative Law Judge Division. The appeal must be filed within five days of the declaration. The filing of an appeal operates as an immediate stay of the declaration of the Drought Response Committee as it affects the appellant. A review of the immediate stay must be heard by the Administrative Law Judge Division within five days of the filing of the notice of appeal with the Administrative Law Judge Division. All issues under appeal must be heard as a contested case pursuant to the provisions of the Administrative Procedures Act and the rules of the Administrative Law Judge Division.

Section 49-23-80. If the Drought Response Committee determines that the severity of the conditions in a drought management area have progressed to the extent that the safety or health of the citizens of the area are threatened, the committee shall expeditiously report the conditions to the Governor. The committee shall also present the Governor with a priority list of recommended actions designed to alleviate the effects of drought conditions in affected drought management areas. Pursuant to the authority in Section 21 of Part II of Act 199 of 1979, the Governor may declare a drought emergency. In addition to exercising existing authority pursuant to Section 21 of Part II of Act 199 of 1979, the Governor may issue emergency proclamations and emergency regulations to require curtailment of water withdrawals or to allocate water on an equitable basis. Notwithstanding any provisions of Section 21 of Part II of Act 199 of 1979, emergency action ordered by the Governor in response to a drought emergency may continue so long as conditions giving rise to the declaration of the emergency continue to threaten safety or health.

Section 49-23-90. (A) Municipalities, counties, public service districts, special purpose districts, and commissions of public works engaged in the business or activity of supplying water for any purpose shall develop and implement drought response ordinances or plans where authority to enact ordinances does not exist. The ordinances or plans must be consistent with the State Drought Response Plan, implemented through the regulations adopted pursuant to this chapter. The department shall prepare and distribute a model drought response ordinance or plan.

(B) A proposed ordinance or plan or a change to an ordinance or plan first must be submitted to the department for review to determine consistency with the State Drought Response Plan.

Section 49-23-100. (A) A person violating a provision of this chapter is guilty of a misdemeanor and, upon conviction, must be fined not less than fifty dollars and not more than one thousand dollars for each violation. In addition, if a person is adjudged to have committed the violation wilfully, the court may determine that each day during which the violation continued constitutes a separate offense.

(B) In addition, upon violation of any of the provisions of this chapter, or the regulations of the department, the director, either before or after the institution of criminal proceedings, may 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 the chapter."

Time effective

SECTION 4. This act takes effect upon approval by the Governor.

Ratified the 8th day of June, 2000.

Approved the 14th day of June, 2000.

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