South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

S.C. Supreme Court strikes down Edisto River potato farm water challenge
May 30th, 2018

By Bo Petersen, Post & Courier

In a ruling that affects Edisto River waters being diverted for farming, the S.C. Supreme Court has ruled the public has no vested right to claim water that hasn't flowed to it yet.

In a split opinion Wednesday, the court denied an appeal by several riprarian, or riverside, property owners who said state environmental regulations aren't working as intended because they are failing to control how much water can be taken from a stream or lake.

As a result, farmers upstream remain free to to take as much water from a river as they want, leaving down-stream residents little say so.

The decision carries repercussions across South Carolina, which has been plagued by recurrent droughts for nearly two decades while demand increases for both surface water and groundwater by residents, industries and farms.

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.

DHEC had allowed 800 million gallons per month to be withdrawn from the upper Edisto by a Michigan-based "mega-farm" company for its potato fields in Windsor, near Columbia.

The court in July had ruled 3-2 that DHEC regulations allowed farmers to draw as much water as they can, so long as they register with the state to do it.

The Wednesday ruling came down to whether a potential future loss of water downstream could be considered a violation of the state's public trust doctrine, which protects an "inalienable right to breathe clean air; to drink safe water; to fish and sail, and recreate" on navigable waters and land on the shores.

Because it was a future possibility and not an actual loss, the plaintiffs' claim was not "ripe," or something that could be argued, the court said.

Justice Kaye Hearn dissented.

"I find it difficult to imagine a claim better suited to the public importance exception than an alleged public trust violation," she said.

Attorney Amy Armstrong of the S.C. Environmental Law Project argued for the plaintiffs. The court's ruling didn't address the core of the issue, she said. It wasn't about the water, it was about the regulations.

"The public trust doctrine prohibits the state from losing control of a public trust asset" such as water, she said, and DHEC's lack of regulation over agricultural withdrawals does.

The project and the property owners are assessing their next step, she said. When asked if they could continue to argue the case, she said, "not in state court."

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 it to stop drawing that much. The state only can prevent the farm from withdrawing more than that volume.

Any change in the regulation would have to be approved by the state Legislature. Reviews are underway of how the state regulates water resources, in the wake of the potato farm controversy, to make recommendations to legislators. The court ruling means that won't be interrupted, a DHEC spokesman said.

"Based on today's court decision, we will continue to work with the Department of Natural Resources and other stakeholders engaged in the water resource planning process to ensure sustainability of both surface and groundwater resources in South Carolina," said spokesman Tommy Crosby.

No county in South Carolina is considered to be in drought after a state assessment this week — the first time that's happened in two years. The supply from the state's rivers has been strained off and on by drought, and as recently as April many of the major rivers had dropped to as little as 10 percent of their full flow.

Meanwhile, long-term research indicates water resources are shrinking as the region warms.

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