South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

SC Supreme Court sides with mega-farms in dispute over siphoning water from rivers
July 19th, 2017

By Sammy Fretwell

The S.C. Supreme Court sided with big agricultural interests Wednesday in turning back a challenge to a law that lets farms siphon billions of gallons of water from rivers with limited state oversight.

In a 3-2 decision, the Supreme Court said people living downstream from farms had not proven that South Carolina law is too weak to protect rivers from agricultural withdrawals. The case challenging South Carolina’s surface water law sought to throw out exemptions that critics said favor farmers over others.

Residents of Bamberg, Greenville and Darlington counties said the law deprived them of downstream water rights along the Little Salkehatchie and Saluda rivers, as well as Black Creek. They claimed in a lawsuit that exemptions for agriculture allow farms to draw down rivers forever, which essentially gives away a public trust.

But in Wednesday’s opinion, the Supreme Court said downstream users had not shown that the law limits their rights to challenge upstream withdrawals. State law provides protections for the public, the court said.

The ruling said people could still sue upstream farmers if they think withdrawals are hurting them. “We find the act does not support the plaintiffs’ allegations of injury,’’ the decision said.

The decision upholds a lower court ruling that sided with farm interests.

Attorneys for the S.C. Environmental Law Project, which challenged the law, said they may ask the Supreme Court to reconsider its decision since the vote was so close. If they are unsuccessful, law project attorneys Amy Armstrong and Amelia Thompson said rivers could be in danger of drying up from excessive farm withdrawals.

“We could have a situation where a river is nothing but a trickle, and an ag user can withdraw every last drop in that water body,’’ Armstrong said.

Some members of the court were sympathetic to Armstrong’s case. Justice Kaye Hearn called the law “flawed’’ and inflexible. She noted that the law allows farms to withdraw water, “even if it is harmful to the health of the waterway and DHEC has no authority to curtail those withdrawals so long as the user’’ doesn’t try to increase the amount being withdrawn.

Water withdrawals by mega-farms are a big issue in South Carolina.

The state’s surface water law, which took effect less than a decade ago, allows farms to pump large amounts of river water for irrigation without telling the public and while undergoing only a limited review by the S.C. Department of Health and Environmental Control. Industries and others that want to siphon large amounts of water must get DHEC permits, provide public notice and undergo a more rigorous review. The law center’s case sought to require permits for farms.

Since a mega potato farm opened about three years ago in eastern Aiken County, many rural residents have complained that big crop farms are taking so much water that rivers could one day be depleted. Farmers dispute that and say that exemptions in the law make it easier for crop farms to grow food for the public.

Criticism of the law resurfaced this year after a series of articles on mega-farms by thestate.com and The State newspaper highlighted weaknesses in South Carolina’s surface water law. Out-of-state farm corporations have acquired some 10,000 acres near the South Fork of the Edisto River between Columbia and Aiken during the past four years. Records reviewed by the newspaper show that the farms have withdrawn billions of gallons of river water, as well as groundwater, to irrigate thirsty crops.

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