Points of Concern with SC Surface Water Withdrawal Law
In 2013, Friends of the Edisto (FRED) had to challenge the State's issuance of a water-withdrawal registration on the South Fork Edisto River which in times of drought would allow as much as two-thirds of available flow in the river to be removed by one farm for crop irrigation. The large withdrawal of water was granted to Walther Farms (potato farm) in Aiken County. Our experience with this challenge revealed significant weaknesses in the state's surface-water-withdrawal law and regulations, which are not adequate to serve the public's interest in protecting the ecological health and sustainable use of our rivers . In our Aiken potato farm challenge, we discovered the following:
(1) There is no public notice, and no satisfactory evaluation of water withdrawals from rivers when the withdrawal is for agriculture.
(2) The only factor limiting water withdrawals is a "safe yield" determination; and as defined in the regulations, this "safe yield" is not reasonable... it will lead to over allocation of water from our rivers.
(3) Agricultural and "grandfathered" pre-existing withdrawals are not subject to a minimum flow requirement, which is needed protect our rivers from being depleted.
An outline of the issues of concern and potential reforms is provided here, below. (Additional commentary and data are presented at FRED response, Surface Water Law)
S.C. Surface Water Withdrawal Act: Generally, this law requires new consumptive water users (but not agricultural users) to be subject to the following:
• A permit application and evaluation of the withdrawal is required:
– to determine if the water withdrawal is reasonable and
– to evaluate potential impacts to downstream uses of the river.
• Certain conditions and restraints are placed on water withdrawals:
– to have supplemental sources of water available during shortages, and
– to stop withdrawing water to conserve a "minimum required flow"
• Public notice is provided by DHEC to announce a proposed water withdrawal:
– to informs citizens of water withdrawal applications.
Weak Points in the Law, which need reform
Point 1: Agriculture is not subject to most requirements of the S.C. Surface Water Withdrawal Act.
Agricultural water withdrawals are: (1) not evaluated to determine reasonableness of use; (2) not required to have a supplemental source of water to reduce demands on the river during droughts; (3) not required to stop or curtail water withdrawal to protect a minimum instream flow needed for stream health and other users downstream; and (4) not required to notify the public of new withdrawals or expansions.
Solution? -- Require permits for large agricultural surface-water withdrawals subject to the same requirements as other consumptive water users. Allow exceptions for the small agricultural water users.
Point 2: "Safe Yield" is a term of the law defining how much water can be allocated to withdrawals, and as determined by the regulations, will lead to over-allocation of water. It is not "safe".
According to the regulations, the "Safe Yield" criterion for streams is 80% of mean annual daily flow (MADF). This "Safe Yield" is greater than median flow for most streams thus the defined flow will not be available more than half of the time. This "Safe Yield" will lead to over allocation of water and thus conflicts among users and degradation of streams. For more about "safe yield" see the following: (1) DNR comments of 2011; (2) Figure 1, below, for description of "Safe Yield" and streamflow at the Walther Farms site; and (3) a graph to explain how "safe yield" poses a threat to our rivers.
Solution? -- Revise the "Safe Yield" criteria for streams. Revise to calculate a Safe Yield that has a high probability of being available for water users, and will be protective of minimum instream flow needs.
Point 3: "Minimum Instream Flow" is a term of the law to trigger limits on withdrawals to protect stream health and downstream users, and as currently applied in the law is inadequate to protect streams or stream users.
The law "grandfathers" pre-existing water users and puts little or no constraints on agriculture, so only new water withdrawals, which are not agricultural, are subject to a minimum flow requirement.
The current definition sets a flow standard: A seasonally adjusted minimum set at 20%-30%-40% of mean annual daily flow; however, this standard is not suited to all streams, the Edisto is one example.
Solution? -- Revise, broaden the Minimum Flow Requirements of the law. Allow alternative standards where the 20-30-40 standard is not protective of the stream and its users. Apply minimum flow requirements to all users; that is, ultimately require all users to have supplemental sources of water and/or reduce consumptive use when a minimum instream flow level is reached.
More commentary and data are presented at - FRED response, Surface Water Law
