South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Massive river withdrawals allowed in South Carolina, Supreme Court rules
July 19th, 2017

By Bo Petersen

Farmers are free to take as much water from the river as they can under permits, the S.C. Supreme Court ruled Wednesday, denying an environmentalists' legal challenge that arose from the 2013 Walther potato farm controversy. "A plain reading of this subsection (of water regulations) indicates that it grants the State authority to curtail only nonessential uses, carving out exceptions for essential uses, including agricultural operations for food production," Chief Justice Donald Beatty said in the ruling.

"In short, neither the Act nor the Drought Response Act creates any mechanism for the State to lower the registered amount if it becomes harmful to the waterway unless the user exceeds his registered amount."

The lawsuit was filed by the South Carolina Environmental Law Project against the S.C. Department of Health and Environmental Control, which permitted the withdrawal of 800 million gallons per month from the upper Edisto River by a Michigan-based company for its farm in Windsor, near Columbia.

The decision has repercussions across the state where the water continues to be demanded by the competing interests of growing numbers of residents, industries and farms. The supply has been strained in recent drought years. Meanwhile, long-term research indicates the supply is shrinking as the region warms.

The state uses different standards to regulate farm water withdrawals as opposed to utilities or manufacturing. The difference boils down to this: Once a farm is permitted to withdraw a volume of water, no one can tell them to stop drawing that much; just prevent them from withdrawing more.

Only when the state declares the worst level of drought can the farms be required to reduce withdrawal.

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