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A brief analysis of the recently implemented SC Surface Water Withdrawal...Act

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The South Carolina Department of Health and Environmental Control's (SCDHEC's) Water Division held a meeting to discuss the state's "Registration Process for Agricultural Surface Water Withdrawals" from state waterways with members of the public Tuesday, January 7, almost a week ago, at Aiken Electric Coop's Offices on highway 302 near Aiken. It was well planned and, with the possible exception of, perhaps, the size of the room (240 chairs were available for up to 500, by some estimates, attendees) it was well executed. The reason for the meeting was the recent controversy over the issuance of a "withdrawal registration" to the owners of a new megafarm that is being created in the state to grow potatoes to supply the needs of the nation's largest producer of potato chips, Frito-lay.

A handout was given to each attendee (at least that was the case when your examiner entered early in the evening.) The handout described the registration process. In attempting to understand the law over the last few days, your examiner began by doing a calculation of the "Safe Yield" as described in the handout.

The fourth bullet of the handout reads as follows: "SCDHEC must determine if the requested withdrawal amount is within the safe yield at the withdrawal location. The safe yield is calculated as described in the regulation R.61-119, the difference between the mean annual daily flow and twenty percent of the mean annual flow, taking into consideration natural and artificial replenishment of the surface water and affected downstream withdrawals." Now, if we consider the statements in this bullet, we may perform the following calculation:

SY = Safe Yield
a = mean annual daily flow (the average daily flow at the drawoff point)
b = mean annual flow (the average yearly flow at the drawoff point)

or, SY= 0.2(b)-a

If the "mean annual flow" is 365 times the "mean daily flow", then b=365a

substituting this "b" into the equation gives SY= 0.2(365a) -a
or, SY=73a - a = 72a

or, back to a worded statement, Safe Yield = 72 times the mean annual daily flow, which is obviously incorrect.

Examining the regulation, we find the following:

The regulation defines safe yield (in the "definitions" section) as : "29. ‘Safe yield’ means the amount of water available for withdrawal from a particular surface water source in excess of the minimum instream flow or minimum water level for that surface water source. Safe yield is determined by comparing the natural and artificial replenishment of the surface water to the existing or planned consumptive and nonconsumptive uses."

Calculation of said "safe yield" at Walther Farms was apparently made in accordance with instructions found at the top of page 14 of the regulation (it seems the definition on the meeting handout had one key word missing--your examiner is glad to see he is not the only one who occasionally makes mistakes) :

"(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."

Which yields the equation,

Safe Yield = SY, with a = mean annual daily flow (the average daily flow at the drawoff point)

or, SY = a - 0.2a
SY = 0.8a

Which is, (back to words) Safe Yield = eight tenths, i.e., eighty percent, of the mean annual daily flow.

Or, given the present registration for 28 million gallons per day (MGD), the minimum mean annual daily flow at the Walther withdrawal point would have to be 35 MGD, and if it were 35 MGD, Walther would remove 28 of those 35, leaving a mere 7 MGD to roll on towards the Atlantic coast.

And how much flow is this? One cubic foot of water contains 7.48 gallons. If the flow in the ditch were 1 cubic foot per second, and a day is 24hr x 60 min/hr x 60 sec/min, then that flow would equal the time calculation, in seconds per day times the 7.48 gallons per cubic foot figure, or roughly 646,000 gallons per day. To get 7 MGD, we would need 7,000,000 / 646,000 = 10.3 seconds. Alternatively, if 10.3 cubic feet per second were flowing for a day, we would get our 7 MGD that way, and we would have a river that was a little over 2 feet deep and 5 feet wide, moving towards our coast at a rate of one foot per second. The 35 MGD flow could support a one foot per second flow rate in a river that could be about 4.5 feet deep and 11 feet wide, enough to float most boats you might see being towed down the road by happy pickup drivers having just returned from the South Edisto with a stringer full of fish, and just about what you might see if you leaned over the bridge railing at Aiken State Park and looked at the river rolling by there (or is that now the "Aiken State Wilderness Area?")
.
The question that we might ask is what is the minimum flow, not the annual daily average flow, that we would expect to find measured at the withdrawal point, and does the 28 MGD number make sense in light of this minimum flow?

To answer this question, we can examine data from the USGS' (United States Geological Survey's) measurement device found near Cope, SC. The following is the average mean monthly discharge flow data, MMD, in cubic feet per second (cfs,) per day for January to December, taken from July 1991 to Jun 2010. This data indicates, in general, there is more than enough flow for the required withdrawal (43 cfs) at Walther Farms.

Jan Feb Mar Apr May Jun
MMD 910 952 988 758 523 481

Jul Aug Sep Oct Nov Dec
MMD 474 509 452 476 567 728

Minimum monthly (daily) discharges (MinMD) during that period (again, as eyeballed from this USGS SITE,) help us to better understand the maximum impact of the withdrawal at the Walther Farms site.

Jan Feb Mar Apr May Jun
(2012) (2012) (2012) (2012) (2012) (2002)
MinMD 424 401 503 299 238 131

Jul Aug Sep Oct Nov Dec
(2002) (2002) (2011) (2001) (2001) (2011)
MinMD 167 131 229 250 289 344

The distance from the headwater creeks of the South Edisto near Johnston, SC, to the Walther drawoff point is about half the distance to the Cope monitoring station. Making the assumption (and yes, we know what assumptions sometime lead to) that the stream flow at the Walther drawoff will be about half the flow at Cope, we arrive at an absolute minimum flow estimate of 66 cfs that would have occurred in June and August 2002. At this point, Walther's drawoff of 28 MGD (28 MGD = ~ 43 cfs) would constitute removal of 65 percent of the stream's flow, leaving 23 cfs as the flow in the South Edisto at that point. This meets the definition of being under the "safe yield." which safe yield would be 80 percent of the flow, or about 53 cfs. Of course, if the entire "safe yield" were removed by Walther, the remaining flow would be 13 cfs, or 8.4 MGD. If that won't float your boat (it might, this amount is almost twice what we considered before we consulted the Cope flow meter,) you just wouldn't be able to navigate this portion of this navigable stream, at least not in a boat. It would make it easier to walk in waders, though. As for the swamp below this point, you can forget that--unless, that is, if the bulk of the water Walther is pumping finds its way back into the river as part of a steady state condition. Which is something that well might occur; we will just have to watch and find out. Interesting.

Now, if you think this water withdrawal should not be allowed, no matter what, one possible solution to this problem was suggested long ago.

From the "Merchant of Venice," (One of Shakespeare's plays), we find the following rendition of a portion of the play described in Wikipedia, a source that is chosen for its excellent explanation in this case, in addition to its presentation of the basic information :

"The climax of the play comes in the court of the Duke of Venice. Shylock refuses Bassanio's offer of 6,000 ducats, twice the amount of the loan. He demands his pound of flesh from Antonio. The Duke, wishing to save Antonio but unable to nullify a contract, refers the case to a visitor who introduces himself as Balthazar, a young male "doctor of the law", bearing a letter of recommendation to the Duke from the learned lawyer Bellario. The doctor is actually Portia in disguise, and the law clerk who accompanies her is actually Nerissa, also in disguise. As Balthazar, Portia repeatedly asks Shylock to show mercy in a famous speech, advising him that mercy "is twice blest: It blesseth him that gives and him that takes" (IV, i, 185). However, Shylock adamantly refuses any compensations and insists on the pound of flesh.

"As the court grants Shylock his bond and Antonio prepares for Shylock's knife, Portia deftly appropriates Shylock's argument for 'specific performance', and points out that the contract only allows Shylock to remove the flesh, not the "blood", of Antonio (see quibble). Thus, if Shylock were to shed any drop of Antonio's blood, his "lands and goods" would be forfeited under Venetian laws. Further damning Shylock's case, she tells him that he must cut precisely one pound of flesh, no more, no less; she advises him that 'if the scale do turn, But in the estimation of a hair, Thou diest and all thy goods are confiscate.' "

Now, do you suppose the lawyers for our "Friends of the Edisto" ("FOE") group could possibly use Portia's tact?

If our legislators were to insist the law remain as written, the "FOE" lawyers would be well advised to turn Shakespear's tale around a bit, allowing that "registered withdrawers" should reasonably have the ability to remove their registered amount of water so long as it be of a distilled nature.

Like Portia, though, those lawyers from the "FOE" should concurrently point out that should one grain of sand, or one milligram of the stain that maketh the stream a "blackwater" stream, or even just one of the tiniest living but dear creatures, one fish, one fertile fish egg, one fairy shrimp, one frog, one blood worm or dragon fly larva, e.g., that inhabitith this precious commodity, the water of the Sovereign State of South Carolina, should any of these items be removed along with the registered water removals, then all the resources of said State of South Carolina should be required to rise up against the "registered withdrawer" to require the return of that exact grain of sand, or that milligram of stain, or each and every creature that be illegally dispossessed from its birthright as a "critter' of South Carolina Streamdom, and "those critter returnees" must be totally viable, as they were when they were sucked up. And, to be reasonable (as our state always is,) it should be recognized that should such return not be made in, say, a fortnight, then all the resources of said State of South Carolina should, of necessity, indeed align themselves against said "registered withdrawer" to require all available resources, or at least a considerable amount of said resources, financial, property, or otherwise, of said "registered withdrawer" be turned over to the State of South Carolina as payment, just and meet, for said "registered withdrawer's" transgression against the State of South Carolina, against its citizens, and, most importantly, against its "critters."

There you have it, a way to get out from under what some would call a somewhat odorous law's somewhat less than totally well thought out provisions (in this particular situation, anyway) without waiting another ten years for the legislature to come up with a better law to get the job done for our state and our desirous water withdrawers. Instead of taking the water from our streams and swamplands, maybe our big farmers should do as the rest of us do whenever our lawns and fields are suffering from one of those ever-present summertime dry spells--i.e., pray for rain! (Or drill a well.) If where they're from is so far away that they don't know how to do it (pray for rain, that is,) tell 'em we the citizens of the Sovereign State of South Carolina will be glad to help 'em. (See you at Church, bro.)

And the next time you run into one of your own political representatives, you just might ask him or her how they voted when this law (the "Surface Water Withdrawal, Permitting, Use, and Reporting Act, effective Jan 1, 2011) was being passed. If they wonder why all the concern, tell them to check out the Augusta environmental news column at examiner.com. He or she just might appreciate the tip.

And thank you for visiting Examiner.com

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