S.C. Code Regs. § § 61-119.E.3

Current through Register Vol. 48, No. 11, November 22, 2024

Section 61-119.E.3 - Evaluation Criteria

a. The Department will evaluate each proposed activity requiring a new or modified surface water withdrawal permit to evaluate the reasonableness of the proposed activity, excepting those projects permitted under Section 49-4-40 or Section 49-4-45(A)(1) which will be subject to only the requirements contained in those sections. This evaluation shall address the impacts of the withdrawal on the surface water body and will make determinations in compliance with the requirements of Section 49-4-10 et seq. and this regulation. If a proposed new or expanding project is determined to be reasonable based on these criteria, a permit must be issued. Surface water withdrawals made by permitted or registered withdrawers shall be presumed to be reasonable. In assessing the reasonableness of the proposed withdrawal, the Department will address and consider the following factors.

i. The minimum instream flow or minimum water level for the surface water source at the location of the proposed surface water withdrawal will be evaluated as follows.

(A) The minimum instream flow for stream segments that are not downstream of a licensed or otherwise flow controlled impoundment or that are no longer materially influenced by a licensed or otherwise flow controlled impoundment is forty (40) percent of the mean annual daily flow for the months of January, February, March, and April; thirty (30) percent of the mean annual daily flow for the months of May, June, and December; and twenty (20) percent of the mean annual daily flow for the months of July through November. The minimum instream flow for stream segments that are not downstream of and influenced by a licensed or otherwise flow controlled impoundment or that are no longer materially influenced by a licensed or otherwise flow controlled impoundment will be calculated as follows:

(1) an appropriate USGS or Department approved gaging station (or stations as appropriate), known as an index station, for determining the flow at the withdrawal point will be determined, considering factors such as but not limited to drainage area, flow characteristics, physiographic province, period of record, and land use;

(2) the mean annual daily flow coefficient (CFS/square mile) at the index station will be determined with adjustments as needed to address the impact of any withdrawals or discharges upstream of the gaging station;

(3) the mean annual daily flow at the proposed withdrawal site will be determined based on the appropriate gage information and the drainage area at the proposed withdrawal site; and

(4) the three seasonal minimum instream flows will be developed based on twenty (20) percent, thirty (30) percent and forty (40) percent of the calculated mean annual daily flow.

(B) The minimum instream flow for surface water withdrawal points located on a surface water segment downstream of and materially influenced by a licensed or otherwise flow controlled impoundment shall be the flow specified in the license, by the appropriate governmental agency with regulatory authority for the flow controlled impoundment, as protective of downstream uses. A withdrawal point is considered to be materially influenced by a licensed or otherwise flow controlled impoundment to the point in the stream where the Department demonstrates through flow modeling or analysis of flow data that the stream segment is no longer materially influenced by the licensed or otherwise flow controlled impoundments. The minimum instream flow below this point will be as determined in item E.3.a.i(A) above.

(C) Minimum water level for impoundments will be determined as follows.

(1) For licensed or otherwise flow controlled impoundments, the minimum water level will be the level established by an existing federal regulatory process. When a surface water withdrawal point is located on a licensed or otherwise flow controlled impoundment, a withdrawal permit may not authorize the withdrawal of surface water in an amount that would cause a reservoir:

(a) water level to drop below its minimum water level; or

(b) to be unable to release the lowest minimum flow specified in the license for that impoundment as issued by the appropriate government agency.

(2) For impoundments for which a minimum water level has not been established by an existing federal regulatory process, an appropriate minimum water level will be established through consultation between the Department and the operator of the impoundment.

(3) The requirements of E.3.a.i(A) and (B) do not apply to withdrawals from a licensed or otherwise flow controlled impoundment.

ii. The safe yield at the point of withdrawal will be evaluated as follows.

(A) For withdrawals in a stream segment not influenced by a licensed or otherwise flow controlled impoundment, the safe yield is calculated as the difference between the mean annual daily flow and twenty (20) percent of mean annual daily flow at the withdrawal point, taking into consideration natural and artificial replenishment of the surface water and affected downstream withdrawals.

(B) For withdrawals located on a stream segment materially influenced by a licensed or otherwise flow controlled impoundment, the safe yield is calculated as the difference between mean annual daily flow and the lowest designated flow in the license specified for normal conditions (non-drought), taking into consideration natural and artificial replenishment of the surface water and affected downstream withdrawals and natural attenuation of the stream flow between the licensed or otherwise flow controlled impoundment and the surface water withdrawal point.

(C) For withdrawals from a licensed or otherwise flow controlled impoundment, safe yield is calculated as the maximum amount that would not cause a reservoir water level to drop below its minimum water level or to be able to release the lowest minimum flow specified in the license for that impoundment as issued by the appropriate governmental agency.

(D) For withdrawals from an impoundment that is not considered a licensed or otherwise flow controlled impoundment under this regulation, the safe yield is calculated as the maximum amount that would not cause the impoundment water level to drop below its minimum water level as established by the Department with input from the applicant and the owner(s) and operator(s) of the impoundment consistent with E.3.i(C)(2) above.

(E) Safe yield shall be considered as one factor in issuing a withdrawal permit as outlined in Section 49-4-80(B). Should withdrawals in excess of the safe yield be permitted, additional contingency planning shall be required of the permittee.

iii. The anticipated effect of the applicant's proposed use on existing users of the same surface water source, including, but not limited to, present agricultural, municipal, industrial, electrical generation, and instream users, will be considered by accounting for existing withdrawals from, and natural and artificial replenishment of, the waterbody in determining the safe yield of the stream and when determining operations and contingency plan requirements of section E.4 of this regulation.

iv. The reasonable foreseeable future need for the surface water including, but not limited to, agricultural, municipal, industrial, electrical generation and instream uses will be considered. Prior to issuing a permit for a new or expanding withdrawal, the Department will consider any relevant comments made during the public comment period and any other complete applications for a withdrawal from the same waterbody when considering the reasonable future needs for the surface water.

v. Whether it is reasonably foreseeable that the applicant's proposed withdrawal(s) would result in a significant, detrimental impact on navigation, fish and wildlife habitat, or recreation will be considered. As part of the review of any proposed new or expanding surface water withdrawal, the Department will solicit input from and consider any comments provided by appropriate state and federal agencies responsible for recreation, navigation, and fish and wildlife habitat, as well as the general public.

vi. The applicant's reasonably foreseeable future water needs from the surface water will be considered. As part of the application for a new or expanding surface water permit, the applicant will be asked to provide information considering future water needs over and above the amount being requested in the permit application.

vii. The impact of applicable industry standards on the efficient use of water, if adhered to by the applicant, will be considered. As part of the application for a new or expanding surface water permit for an industrial withdrawal, the applicant will be required to provide information on how applicable industry standards for the efficient use of water have been used in determining the amount of water being requested and the Department can take this information into account when determining the withdrawal for the proposed project.

viii. The Department shall notify the public of the Department's determination when the safe yield in a river or stream has been fully allocated.

b. An applicant for a new or expanding surface water withdrawal from an existing, licensed or otherwise flow controlled impoundment shall obtain a surface water withdrawal permit pursuant to the criteria below. Nothing in this regulation precludes the requirement for the owner and operator of a proposed new or expanding water withdrawal facility that will be constructed within the boundaries of a reservoir operated by a different entity from obtaining the reservoir operator's approval before construction of the proposed new or expanded surface water withdrawal facility.

i. Where the applicant is the owner of a licensed or otherwise flow controlled impoundment that utilizes water from the impoundment and the withdrawal is subject to review and approval of applicable state and federal laws and regulations, including its impoundment licensing authority, the Department shall issue a permit for the withdrawal upon submittal of a proper permit application to provide information needed for the Department to issue a permit consistent with the Act.

ii. Where the applicant is not the owner of the licensed impoundment that will be the source of the withdrawal, a permit will be issued upon proper application in accordance with the criteria contained in E.3.a of this regulation. Where the owner or federally authorized agency managing the licensed impoundment or where the licensing agency requires review and approval subject to applicable state and federal laws and regulations, the Department will consider all information provided by the applicant as part of the process necessary to gain approval of the withdrawal. The Department reserves the right to require any additional information, over and above that required by the managing entity, deemed necessary to adequately review the proposed withdrawal, consistent with E.3.a above. Upon completion of the review process and determination of an acceptable withdrawal quantity that is within the safe yield and in compliance with the minimum water level of the impoundment, and submittal of a complete application, the Department will issue an appropriate permit for the withdrawal.

iii. Where the applicant is not the owner of the impoundment that is to be the source of the withdrawal and said impoundment is not licensed or the license does not include a flow prescription or minimum lake level, the Department will work with the impoundment owner and the applicant to determine the minimum water level and safe yield of the impoundment. The Department may require the applicant to supply information necessary to determine the safe yield of the impoundment. Upon completion of the review process and submittal of a complete application, the Department may issue an appropriate permit for the withdrawal, consistent with the provisions of this regulation.

iv. When a surface water withdrawal point is located on an impoundment that serves as a water supply for a federally licensed facility that is also an existing surface water withdrawer, a withdrawal permit may not authorize any new surface water withdrawer to withdraw surface water in an amount that would negatively impact the continued operation of the federally licensed facility. These requirements do not apply to an expansion or addition of units at a federally licensed facility.

S.C. Code Regs. § 61-119.E.3