South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Judge denies landowners’ motion to stop withdrawals in Edisto River ‘water war’
January 15th, 2015

BY BO PETERSON

The Edisto River “water war” isn’t any closer to a truce.

A Circuit Court judge Thursday denied a group of river landowners an injunction that would have prevented further surface-water withdrawals. The decision keeps landowners from pressuring state regulators while pursuing legal action arguing that the regulations governing withdrawals are unconstitutional.

“It’s a little blip, but this case is far from over,” said the landowners’ attorney Amy Armstrong, of South Carolina Environmental Law Project.

Cassandra Harris, spokeswoman for the state Department of Health and Environmental Control, the regulating agency, said, “DHEC’s function with respect to the Surface Water Withdrawal Act is to enforce the law as written.”

The court case was spurred by conservationist and landowner concerns over loss of surface water in the Edisto to other uses, including industrial agriculture. The Edisto, largely conserved in the Lowcountry, has become a battleground for how water is shared among those interests upstream.

The current regulations give agricultural users absolute rights to withdraw water, Armstrong said afterward.

The case stemmed from a dispute last year over plans to pull upstream water for an industrial-scale Walther potato farm. The dispute was settled, but both sides indicated the legal wrangling showed that the landowner, recreational and industrial water users involved weren’t satisfied with the current regulations.

On Thursday, 9th Circuit Court Judge Markley Dennis made short work of the hearing on the injunction and the state’s motion to dismiss the entire lawsuit, denying both in 10 or 15 minutes. Dennis said the landowners failed to show they had no other remedy, or means to get their complaints resolved.

Remedy is one of the burdens a plaintiff must meet to win an injunction. Moments earlier, Dennis denied a motion filed by the state Attorney General’s Office on behalf of DHEC, the regulating agency, to dismiss the injunction request.

Water wars, or disputes over water use, long have been considered arid Western state battles. But with booming populations and demands, riparian Southeastern states now find themselves in legal battles over basins they share. Recent drought years have exacerbated the disputes.

A water war raged recently between South and North Carolina over the Catawba River. A water utility in North Carolina proposed pulling water from the Catawba and using it in a place that would drain to another river, denying downstream Catawba users some of the river flow. Those users include most people who drink water in the Charleston area. That case was settled with some concessions to South Carolina.

The Edisto feeds two-thirds of the water flowing into the vast Ashepoo, Combahee Edisto (ACE) Basin delta south of Charleston. The unprecedented, private-public conservation begun by landowners in that delta has blossomed into a “greenbelt” of three-quarters of a million acres around the metro area, helping preserve the riverine landscape that is the Lowcountry.

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