How important is the protection of the Edisto and the other amazing rivers across our state to its citizens?
While our legislative body diddles, the S.C. Supreme Court may soon fill the void in a case to restrict the destructive effects of excessive agricultural withdrawals. Conservationists and landowners fighting to protect this and other rivers lost the case last year in a 3-2 decision, but the court has agreed to rehear the case on this morning.
Our rivers are considered a natural resource held in trust for public use. When assets are held in trust for public use, the state is not allowed to convey them to private owners, and the public resources must be used in the public interest. But the S.C. Surface Water Withdrawal Act grants unregulated rights to river water to huge farm operations, many from out of state, which drain the rivers and degrade public use.
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This law gives away a public-trust resource by saying it is legal to allow large agricultural operations to take all of the water out of our rivers without public notice, with no requirements to maintain minimum in-stream flows, and with no requirements for drought contingency planning or implementation.
It became apparent that the law is flawed when one out-of-state owner applied to withdraw nearly 10 billion gallons of water per year from the South Fork of the Edisto River in Aiken County, one of the longest free-flowing black-water rivers in North America. These withdrawals would at times eliminate most of the river’s normal flow.
The withdrawal amount was reduced through a settlement agreement, but since then out-of-state farm corporations have acquired thousands of acres near the South Fork and withdrawn billions of gallons of river water and groundwater to irrigate thirsty crops. Unfortunately, the lax water law still allows such users to take all of a river’s flow during low-flow periods, underscoring the immediate need to close the loophole for industrial agricultural exemptions.
The Department of Natural Resources, which is responsible for the stewardship of our state’s natural resources, says the water law overestimates water availability and will result in the over-allocation of water and more frequent and severe water shortages for all users. They believe it provides inadequate protection of our rivers for fish and wildlife, navigation and recreation.
Legislation was introduced to fix this problem, but lobbying by powerful agricultural interests has kept the bill stuck in committee, even though it exempts small farms and other users that withdraw less than three million gallons per month.
That means the our only hope for preserving the life of our rivers is for the Supreme Court to find the Water Withdrawal Law inconsistent with the state’s public-use doctrines and DHEC’s anti-degradation water-use policies.
Mr. Sansbury is former assistance chief of DHEC’s Bureau of Water; contact him at firstname.lastname@example.org.