Nation’s top environmental agency calls SC water law weak, endangering streams and wildlife
The U.S. Environmental Protection Agency is taking aim at a landmark South Carolina law that was touted as a way to protect rivers, but in reality has allowed massive water withdrawals from rivers by industrial-scale “mega-farms.’’
In a May 20 letter and report to South Carolina officials, the EPA’s regional administrator, Daniel Blackman, said the state law is not scientifically sound, doesn’t protect fish and wildlife, and allows rivers to be sucked dry during certain times of the year.
His letter said key sections of the state law are inconsistent with the federal Clean Water Act, the nation’s over-arching law protecting rivers, creeks and estuaries.
Blackman urged state officials to take “prompt action’’ to fix loopholes in the 2010 surface water withdrawal act that state wildlife officials have raised concerns about for years.
The EPA says that while the federal agency doesn’t have the authority to nullify the water withdrawal law altogether, it is disapproving use of the law by state officials to weigh in on federal environmental permits, such as whether to re-license major dams.
The practical effect of the agency’s decision on federal permits is still being sorted out, but environmentalists said it could delay some permits needed by businesses.
The EPA’s stance is the strongest validation to date for arguments that the South Carolina law isn’t getting the job done. Environmentalists, outdoors people, neighbors and small farmers have for years complained the law allows industrial-scale farms to dry up rivers at the expense of others. But court battles challenging the law have supported agribusiness.
South Carolina’s 2010 surface water law was adopted in an effort to control excessive withdrawals from lakes, rivers, and streams. It was the first Palmetto State law regulating withdrawals from rivers and was hailed as an important milestone toward protecting waterways from being depleted. But problems soon became evident and the EPA now says key sections of the law are too weak to provide necessary protection.
“The EPA concludes that these provisions are not consistent’’ with the Clean Water Act, Blackman wrote. “Specifically, they are not based on a sound scientific rationale, do not protect the state’s designated uses, and do not provide for the attainment and maintenance’’ of water quality.
Allowing big users to draw rivers down too far can worsen pollution in the rivers because less water is available to dilute contaminants.. Failing to maintain enough water in rivers and streams can deplete oxygen levels needed by fish and other aquatic animals.
If river levels are lowered from excessive withdrawals, that “will almost certainly result in significant ecological degradation,’’ the EPA correspondence said. Blackman’s letter went to the S.C. Department of Health and Environmental Control and state Attorney General Alan Wilson.
DHEC is evaluating the EPA’s position and will work with “stakeholders to decide the appropriate actions to take in response,’’ spokeswoman Laura Renwick said in an email.
Stakeholders include farms, businesses, utilities and drinking water systems that withdraw at least 3 million gallons of water per month from rivers or streams. Statewide, DHEC oversees more than 300 entities under the surface water withdrawal law.
Water and big ag
While the law applies to an array of businesses, it is more lenient on agriculture. South Carolina’s 12-year-old surface water withdrawal act has been widely criticized for giving huge farms the ability to siphon away virtually all the water in a river to irrigate crops during the summer.
Unlike industries, big farms aren’t required to obtain permits and don’t have to tell the public they are withdrawing large amounts of water from rivers. Nor do they have to go through a detailed review of how the withdrawals will affect fish, wildlife and downstream users, including small farmers.
The state is required to evaluate how much water can be safely taken from rivers by farms, but that has done little to restrict agricultural withdrawals, critics say. Of the more than 300 entities overseen by DHEC under the 2010 law, about one-third are farms that don’t need permits or get the same level of review as industries, agency statistics show.
Despite initial optimism about the law in 2010, politicians and lobbyists backing the legislation made compromises with agribusinesses that gave farms breaks from the rules.
Doug Busbee, an Aiken County businessman and one of the law’s chief critics, said he’s glad the EPA has recognized problems with the surface water withdrawal law.
He and others who live near a huge potato farm along the South Fork of the Edisto River have complained for years that the law is riddled with loopholes.
South Carolina has an array of large farms that grow crops, such as corn, hay and grass. But the arrival of the potato farm sparked a wave of concerns nearly 10 years ago. Owned by a Midwest agribusiness, the farm opened without public notice and was authorized to take some 3 billion gallons of water from the South Fork of the Edisto each year.
Other mega-farms also have opened in recent years in the peaceful region east of Aiken, stirring community concerns about the impact they are having on the environment. Some of these farms are so large they stretch to the horizon, The State reported in 2017.
“This was a weak law,’’ Busbee said. “I don’t know whether lawmakers realized the ramifications of making it legal to take the last drop of water from a river. It was sold to them under the pretense of being safe.’’
So far, no rivers are known to have been completely depleted from excessive withdrawals, but critics say the weak state law could allow that to happen when South Carolina faces a dry year. In at least one case seven years ago, river levels in the South Fork of the Edisto dropped by an average of 7% after a mega-farm began withdrawing huge volumes of water, The State reported in 2017, citing calculations from the Department of Natural Resources.
Officials with the S.C. Farm Bureau, which maintains that agricultural operations are good stewards of the state’s natural resources, said they had not seen the EPA correspondence and would reserve comment until they had studied the material. Edisto Riverkeeper Hugo Krispyn also had not seen the letter but he said it sounds encouraging.
“It sounds like confirmation of a lot of what we’ve been saying, and another strong indicator that South Carolina needs to do something about its surface water laws,’’ he said. “We need to do it while we have ample surface water.’’
Whether the state will do anything to address the EPA concerns is unknown. The 2010 water law was crafted after years of discussions with big power companies, agribusinesses and industries, and passing new legislation to toughen the law could mean a major political fight. DHEC could make some changes itself, but they would be more limited than crafting a new law in the Legislature.
One of the biggest concerns the EPA highlighted about the 2010 law is a provision called “safe yield,’’ which is supposed to measure how much water industrial scale farms can take from a river safely.
But safe yield is based on a flawed mathematical formula that lets farms take more water than many rivers and streams can safely withstand, critics have said. In some cases, farms can acquire the entire volume of a river for their own use.
Blackman’s correspondence said the safe yield provision doesn’t provide enough protection.
“Withdrawing the entire safe yield could allow removal of all the water in a water body during some times of the year, which would not maintain and support aquatic life,’’ a 17-page analysis accompanying Blackman’s letter said.
Wildlife agency concerns
The analysis noted that the S.C. Department of Natural Resources has previously expressed concerns that all water potentially could be removed from rivers under the safe yield formula. It’s possible many streams could be depleted at least half the time from withdrawals, the EPA said, citing a DNR review of the law.
Safe yield allows withdrawals based on the average annual daily flow of a river. Critics say the law should take into account seasonal changes because parts of the year are drier than others, meaning rivers are flowing at below the average. During the driest times of the year, withdrawals can take far more water than should be siphoned, critics argue.
Like Busbee, attorneys with the Southern Environmental Law Center applauded the EPA’s assessment of South Carolina’s water law. But they said the federal agency needed to do more. The non-profit legal service represents the environmental groups American Rivers and Upstate Forever, which had threatened the EPA with a lawsuit if it did not examine the South Carolina water law.
“The withdrawal act allows industrial-scale water users to drain our rivers completely dry,’’ SELC attorney Carl Brzorad said in an email. “We are pleased to see EPA acknowledge that this damaging law violates the Clean Water Act. We are continuing to evaluate EPA’s decision, but what’s clear is this: South Carolina must swiftly fix the illegal withdrawal laws to protect our rivers from being depleted.”
In a letter to the EPA last October, the environmental organizations said some of South Carolina’s most visible river systems are threatened by excessive withdrawals because state law isn’t strong enough.
One river system, the Edisto, is of particular concern because it is heavily used by major farms between Columbia and Aiken. The South Fork of the Edisto could be siphoned dry 62 percent of the time under the state’s safe yield withdrawal formula, the environmental groups said in their October letter to the EPA.
Another river, the Reedy River in the Upstate, could be sucked dry half the time under the safe yield formula, the environmentalists said in their letter to the EPA.
While the law remains in place for use as a state ordinance, the EPA’s action could be an issue for some companies seeking federal environmental permits, such as dam relicensing approvals. Under federal law, major dams must be re-licensed periodically to make sure they are not hurting the environment.
In South Carolina, the state still is weighing a water quality certification for dams in the Santee Cooper lake system, said Gerrit Jobsis, an official with American Rivers.
“South Carolina needs to have a better standard for determining how much water remains in our rivers, so that fish, wildlife and recreational uses are protected,’’ Jobsis said.
This story was originally published May 26, 2022 at 11:25 AM.
