South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Mega-farms suffer blow in state Supreme Court
September 29th, 2017

By Sammy Fretwell

Mega-farms that siphon billions of gallons of water from S.C. rivers have suffered a setback in the state’s Supreme Court.

The state’s highest court agreed this week to reconsider its July 19 decision that upheld a section of the state’s surface water law, allowing the huge corporate farms to take large amounts of water from rivers without state permits and with limited state oversight.

Critics argued the special water allowances for agriculture — not given to industries — are unlawful and need to be changed to protect rivers from being drained.

The high court’s 3-1 decision to rehear the case opens the door for the court to reverse its July decision. If the court does that, it eventually could result in tighter controls on big farms by requiring them to get state permits to irrigate their crops with large amounts of river water.

The Supreme Court doesn’t routinely rehear cases, which indicates it is having second thoughts about the decision. Georgetown County lawyer Amy Armstrong said arguments against South Carolina’s surface water withdrawal law apparently had an effect on the Supreme Court.

“This means we presented something that gave the court pause to decide if they need to rethink things,” said Armstrong of the non-profit S.C. Environmental Law Project, who is representing a handful of S.C. residents who challenged the water law. “Our goal is to have them change the ultimate result.”

In its request for a rehearing, Armstrong asked the court strike down parts of the water law that allow farms to withdraw water without permits for as long as they want. That section of the water law is unconstitutional, she contends.

Mega-farms have been a major source of concern in the Edisto River basin, between Aiken and Columbia. In recent years, large out-of-state agribusinesses have bought about 10,000 acres in the area, cleared forests and established expansive vegetable farms.

These farms have sparked conflicts with neighbors over traffic, crop-dusting and water use.

The farms are pulling water from the the south fork of the Edisto River, as well as from the ground. Farmers say they are using the water responsibly and have not depleted rivers. However, more than half of the 10 billion gallons a year of water withdrawn statewide from S.C. lakes, ponds and rivers comes from the Edisto basin.

Concerns about mega-farms in Aiken and Barnwell counties have raised larger questions about whether the state’s surface water law adequately protects rivers from large agricultural withdrawals.

In the lawsuit, residents of Bamberg, Greenville and Darlington counties said the state’s water law deprived them of downstream water rights along the Little Salkehatchie and Saluda rivers as well as Black Creek.

“Our basic claim is that the state has a special obligation to protect the rivers, lakes and streams for the use and benefit of all South Carolinians — a rule of law that the majority of the Supreme Court failed to implement in July,’ the law project said in a news release. “This is clearly a vital issue for both our environment and our democracy.’’

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