South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Will SC rivers run dry? Weak state law helps mega-farms but hurts public, court told
January 11th, 2018

By Sammy Fretwell, The State Newspaper

Industrial-scale farms are sucking hundreds of millions of gallons from the stream system that Ben Williamson relies on to water his cattle in Darlington County.

Williamson fears the drain on Black Creek will deplete the small river that his family has used for generations. But the creek would be safe from industrial agriculture if South Carolina had tighter controls on how mega-farms affect rivers, Williamson and his lawyers say.

Williamson was in Columbia on Thursday to hear arguments in a state Supreme Court case that potentially could affect every South Carolinian who uses river water — from farmers to fishermen to kayakers to residents of downstream cities.

Along with property owners from Greenville and Bamberg counties, Williamson sued the state four years ago, seeking to invalidate a 2010 law that lets mega-farms withdraw massive amounts of water with little state oversight.

That, critics of the 2010 law say, would protect everything from drinking water supplies in downstream cities to small farms that need water for their own crops.

“What I’m opposed to is the state giving away our water,’’ Williamson, 80, said after the Supreme Court hearing. “It’s a public resource.’’

‘That’s the big problem’ During Thursday’s hearing, the Supreme Court peppered Williamson’s attorney with questions about why she thinks exemptions for mega-farms should be stricken from the state’s 2010 surface water law.

It is impossible to know how the court might rule — a decision isn’t expected for months — but Armstrong said the court’s willingness to hear the case was significant, nonetheless.

In July, the Supreme Court ruled against Williamson and the property owners. In September, however, it agreed to reconsider the case, prompting Thursday’s hearing. The court does not routinely rehear a case, but it is allowed if the court didn’t fully understand something during an earlier hearing.

A key question Thursday was whether the 2010 surface water law contains measures that protect rivers, even as it gives some breaks to mega-farms.

Armstrong, a lawyer for the nonprofit S.C. Environmental Law Project, argued the law does not adequately protect rivers for the public.

Unlike with industries, the law says farms can siphon large amounts of river water forever. Farms don’t need permits that require a more thorough review by regulators to determine if their withdrawals will hurt neighbors, fish, wildlife or other states.

“That’s the big problem here,’’ Armstrong said. “The state needs to be able to have the control to reallocate water if and when it is needed by the public — and to really ensure that there is availability of water for the public.’’

Armstrong said, unlike industries, farms can draw river water levels down lower than industries that must get water-use permits. An industry seeking to draw at least 3 million gallons of water per month must file a public notice and get a state permit from the Department of Health and Environmental Control. But not a farm.

‘There is no existing injury’ Associate Justice John Cannon Few provided the most skeptical view of Armstrong’s arguments Thursday, questioning whether the law is as weak as she contends.

Emory Smith, a lawyer with the S.C. Attorney General’s office who represented DHEC, said the 2010 water law is legal, adding the state has other laws to protect rivers. For example, one law that deals with drought can be used during times of extreme water shortages, he said.

But Armstrong said that law also goes easy on mega-farms.

Smith also argued Williamson and his fellow property owners don’t have “standing,’’ the legal right to bring their case. He said freshwater rivers, like those in the lawsuit, are not protected through “public trust’’ laws the same way that tidal rivers and estuaries are protected. He also emphasized that Armstrong hasn’t shown that anyone downstream is suffering from upstream withdrawals of water by mega-farms.

“We don’t have, for example, a kayaker who comes before this court saying .... ‘I went out to kayak on the river and I couldn’t because the upstream agricultural withdrawers had drawn it down so low that I couldn’t use it,’ ” Smith said.

“This is a theoretical challenge despite what they say,’’ Smith said. “It’s about injuries that may never happen.’’

Few agreed, saying Armstrong concedes “there is no existing injury.’’

‘The state ... is giving away water’ The next step in the case is for the Supreme Court to rule on whether it will reverse its July decision.

Williamson said he hopes the court carefully will weigh Armstrong’s arguments. Without a stronger water law, South Carolina could become the home to more large-scale farms, like those that have transformed parts of eastern Aiken County in the past five years, he said.

“The more precious water becomes in other parts of the country, we’re going to have a flood of people who want it for free,’’ Williamson said. “What the state is doing is giving away water — free of trouble and free of restrictions.’’

Source (external link)