By: Adam Shaw, Associate

Planktonic or “blue-green” algae are single-celled bacteria that are normally “a beneficial component of the food chain.”[i] In warm, nutrient-rich environments, however, they can produce dense blooms that result in toxic substances known to cause sickness in livestock, wildlife and humans.[ii] In the summer of 2014, Lake Hartwell, located between Georgia and South Carolina at the northern segment of the Savannah River, experienced just such a dense algal bloom. What caused it? The “dramatic end of long-term drought.”[iii]

 

Most of the South Carolina Upstate, consisting of the ten northwesternmost counties in the state’s Appalachian Piedmont region, had been under moderate or severe drought conditions since late 2011.[iv] Then, in spring and summer of 2013, the sky opened during one of the wettest seasons on record taking the lake from a drought to flood stage in a matter of weeks.[v] As the lake’s shores expanded to cover areas that had grown over during the drought, decaying vegetation and algae “brewed” in the summer heat, resulting in a “tea” of dissolved organics and lake water.[vi] This resulted in adverse changes to the water’s “organoleptic effects”—that is, its taste and smell[vii]—ranging from “earthy” to “foul”.[viii] Because organoleptic effects can dramatically impact water quality and, in turn, the economy and everyday living, the South Carolina legislature should mandate faster responses to the problems caused by algal blooms.

 

In September 2014, several months after the adverse taste and smell were first noted in Lake Hartwell, the Anderson [County] Regional Joint Water System (“ARJWS”) finally announced that it would partner with Clemson University and Upstate-based science and engineering firm SynTerra to treat up to 160 acres of the lake to improve the water’s taste and smell.[ix] The partnership determined that a “well-planned and precise application of algaecides” would be the best near-term solution.[x] The treatments occurred in early September, and an Interim Progress Report was released soon thereafter. The Report reflected optimism that improvement in taste would happen “soon.”[xi]

 

Lake Hartwell provides drinking water to about 200,000 South Carolina residents, and the ARJWS treats about 48 millions gallons per day.[xii] I got a personal taste of how an algal bloom can affect day-to-day living when I visited my hometown of Anderson on the Fourth of July, and I could not help wondering—is there a potential legal solution to this environmental problem? Although the ARJWS treats organoleptic effects as “secondary water quality standards,”[xiii] do folks really need to endure months of foul-smelling, dirty-tasting water?

 

The South Carolina Department of Health & Environmental Control (“DHEC”) is required by law to adopt water quality standards,[xiv] but DHEC gives wide latitude for “natural conditions” granted that existing water quality is maintained.[xv] (Focus here on safety, not taste and smell.) Assuming that the water is safe for consumption this latitude may be seen as a simple prioritization of resources, but from the perspective of the daily consumer, taste and smell issues are far from secondary, having unavoidable implications for local businesses that depend on quality drinking water.[xvi] (Algal bloom sweet tea, anyone?)

 

Under South Carolina law, a duly formed Joint Water System (“JWS”) “is authorized to purchase, construct, acquire, own, operate, maintain, repair, and improve any and all works, improvements, facilities, plants, equipment, transportation lines, pump stations, sewage treatment plants, apparatus, and appliances incidental, helpful, or necessary to its members upon request and approval of its members in accordance with the bylaws of the joint system.”[xvii] But despite this broad authority, accompanied by a seemingly exhaustive list of powers,[xviii] what appears to be lacking is a legal mandate for JWSs to respond quickly to “secondary” water quality issues.

 

In short, South Carolina law overlooks taste and odor issues once DHEC says the water is safe for human consumption. The recent Lake Hartwell treatments show, however, that these issues can be resolved quickly and effectively. In 2014, the impetus came in the form of a sustained public outcry. Before the next drought, the South Carolina legislature should revisit this problem and provide the legal impetus to respond immediately using presently available treatment methods. This improved focus would prevent a replay of the 2014 Lake Harwell problem and show the state’s willingness to address and respond to far-reaching environmental phenomena like the algal bloom.

[i] South Carolina Department of Natural Resources, Common Aquatic Plant Management Problems, Planktonic Algae, http://www.dnr.sc.gov/water/aquaff/plankalgae.html (last visited Sept. 28, 2014).

[ii] Id. See also Illinois Environmental Protection Agency, BLUE-GREEN ALGAE and ALGAL TOXINS, available at http://www.epa.state.il.us/water/surface-water/blue-green-algae.pdf.

[iii] Scott Willett, Anderson Regional Joint Water System, WHAT’S HAPPENED TO OUR TAP WATER (Jan. 28, 2014), http://www.lakehartwellassociation.org/AboutLHA/LatestNews/tabid/68/articleType/ArticleView/articleId/209/WHATS-HAPPENED-TO-OUR-TAP-WATER-by-Scott-Willett-Executive-Director-Anderson-Regional-Joint-Water-System.aspx (last visited Aug. 24, 2014).

[iv] See South Carolina State Climatology Office, South Carolina Current Drought Status (Apr. 24, 2013), http://www.dnr.sc.gov/climate/sco/Drought/drought_current_info.php (last visited Sept. 28, 2014).

[v] John Erdman, Drought to Flood: Southeast Rain Shift Swamps Lakes, The Weather Channel (Jul. 12, 2013), http://www.weather.com/news/southeast-flood-drought-lake-hartwell-lanier-20130711.

[vi] Willett, supra note 4.

[vii] S.C. Code Ann. Regs. 61-68, Sec. B.47. (2014).

[viii] See, e.g., Garielle Komorowski, Neighbors Complain Water Smells, Tastes Bad, WYFF4 Greenville (June 16, 2014), http://www.wyff4.com/news/neighbors-complain-water-smells-tastes-bad/26515960. One anonymous commenter asks, “Who went pee in the water?”

[ix] Nikie Mayo, Water treatment plan targets 160 acres in Hartwell Lake, Anderson Independent Mail (Sept. 4, 2014), http://www.independentmail.com/news/new-water-treatment-plan-will-continue-for-several-days_79327415.

[x] ARJWS, Press Release (Sept. 2, 2014), available at http://www.arjwater.com/documents/PressReleaseTasteandOdormitigation9-2-2014.pdf.

[xi] ARJWS, Interim Progress Report, Reduction of Taste and Odor in Source Water of the [ARJWS] (Sept. 17, 2014), available at http://www.arjwater.com/documents/ARJWS_InterimReport_091714.pdf.

[xii] Nikie Mayo, Water system will work with Clemson University to combat algae, Anderson Independent Mail (Sept. 2, 2014, updated Sept. 3, 2014), available at http://www.independentmail.com/news/local-news/water-system-will-work-with-clemson-university-to-combat-algae_05282589.

[xiii] Willett, supra.

[xiv] S.C. Code Ann. § 48-1-60 (2014).

[xv] S.C. Code Ann. Regs. 61-68, Sec. C.9. (2014). “Natural conditions” means “water quality conditions unaffected by anthropogenic sources of pollution,” i.e., pollution caused by human activity. S.C. Code Ann. Regs. 61-68, Sec. B.43. (2014).

[xvi] See, e.g., Bill Poovey, Algae reeks havoc on Hartwell Lake, GSA Business (Sept. 23, 2014), http://www.gsabusiness.com/news/52537-algae-reeks-havoc-on-hartwell-lake (“For some restaurant owners, the economic impact includes buying expensive filters and pouring out iced tea that gets handed back.”); Dirt taste in Hartwell water costing some restaurants, GSA Business (Sept. 9, 2014), http://gsabusiness.com/news/52406-dirty-taste-in-hartwell-water-costing-some-businesses-money.

[xvii] S.C. Code Ann. § 6-25-25 (2014) (emphasis added).

[xviii] S.C. Code Ann. § 6-25-100 (2014).