South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Potato farm water fight heading back to South Carolina Supreme Court
October 2nd, 2017

By Bo Petersen

The mega potato farm water fight is headed back to court.

The S.C. Supreme Court has agreed to rehear a case brought against the state by Edisto River property owners who say environmental regulations designed to govern how much water can be taken from a stream or lake aren't working as intended.

The petition to rehear the case was filed by the S.C. Environmental Law Project against the S.C. Department of Health and Environmental Control, which allowed 800 million gallons per month to be withdrawn from the upper Edisto by a Michigan-based company for its potato farm in Windsor, near Columbia.

The court in July ruled in a 3-2 decision that farmers are free to take as much water from the river as they can.

The law project filed on behalf of river property owners downstream.

A reversal would have repercussions across the state where water needs continue remain in demand by the competing interests of residents, industries and farms.

The supply was strained in recent drought years, and long-term research indicates water resources are shrinking as the region warms.

The law project's petition to rehear was built from a dissenting court minority opinion of the earlier ruling. Their filing says DHEC regulations are not constitutional because they don't allow the agency to revise them when public health is in danger.

"Mega-farms are given unbridled access to use state waters, which are a public trust resource," said attorney Amelia Thompson, with the law project.

DHEC did not immediately comment on the decision to rehear the case.

The state uses different standards to regulate farm water withdrawals than for utilities or manufacturing. The difference comes 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 than that volume.

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