South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Surface Water Withdrawal Act

SCELP served a case on September 9, 2014, that requests that DHEC overturn the parts of the Surface Water Withdrawal Act that allow industrial farms to withdraw large amounts of water entirely unfettered by a regulating permitting process. This means that while other landowners are losing their long standing water rights, industrial agriculture operations are being granted far superior rights with fewer restrictions, despite their use of extreme amounts of water.

DHEC filed a motion to dismiss and we filed a motion for a preliminary injunction in November, 2014. Both motions were denied by Judge Markely Dennis on January 15, 2015. On January 28, 2015, the Department answered the complaint, defending the constitutionality of the Act and asserting several affirmative defenses, including lack of standing and ripeness. On February 13, 2015, DHEC filed a petition for extraordinary relief including removal and original jurisdiction in the South Carolina Supreme Court. That petition was denied on April 9, 2015, and discovery proceeded thereafter.

On September 14, 2015, the parties filed cross-motions for summary judgment, which were heard on November 17, 2015. On January 4, 2016, Judge Dennis issued an Order denying our motion for summary judgment and granting DHEC’s motion for summary judgment. Our clients did not relent and we appealed the decision. On February 23, 2016, the Appellants served a Notice of Appeal in the Court of Appeals. On March 26, 2016, Appellants filed a Motion to Transfer the case to this Court, which was granted on April 19, 2016.

Case Update:

We are currently preparing for oral arguments before the state’s highest court on December 1st in our challenge to the constitutionality of the Surface Water Withdrawal Act. Upon completion of our appellate briefing on September 27th, the Supreme Court scheduled arguments quickly. We are pleased that this case is receiving the swift and serious consideration that it deserves.

Surface Water Withdrawal Act

In order for South Carolinians to continue to enjoy our lakes and rivers for recreation and livelihood, there has to be water left in them.