The state Supreme Court on Wednesday rejected a challenge to a law which allows farms and other agricultural users to siphon billions of gallons of water from rivers each year with limited oversight.
In a 3-2 decision Wednesday, the court ruled a group of landowners represented by the SC Environmental Law Project (SCELP) had not shown evidence they were actually harmed by the law. The 2010 Surface Water Withdrawal Act created stricter standards for permits to pull water out of navigable rivers in South Carolina, but legislators exempted agricultural businesses from the tougher restrictions.
SCELP Executive Director Amy Armstrong argued the exemption itself created harm to South Carolina residents because it grants large farms the ability to withdraw the same massive amount of water each year, even if a severe drought is occurring. She notes the “public trust doctrine” considers the water to be a resource which should only be impacted if it benefits the public, such as for drinking water or power utilities.
“That registrant could take every single drop of it and leave absolutely no water at all in the water body,” she told South Carolina Radio Network. “And there is nothing that anybody can do about it — not the state, not the public — because that registered user is within his registered limit.”
But Associate Justice John Few wrote in the majority opinion that downstream users had not demonstrated actual harm beyond theoretical impact. He also said the 2010 law offers legal means for affected landowners should that harm ever occur.
“The ‘alleged injustice’ the plaintiffs seek to address in this case is that at some point in the future the State may fail to protect against currently nonexistent unreasonable uses of surface water, which in turn could become so severe that the State’s inaction amounts to a violation of its responsibilities to protect the public trust,” Few wrote. “However, neither the plaintiffs nor this Court can predict whether the State will attempt the necessary future action to protect against these hypothetical future unreasonable uses.”
Few was joined by former Chief Justice Costa Pleicones and Associate Justice James Moore. Wednesday’s ruling agreed with a lower court state judge, whose decision the landowners appealed.
In her dissent, Associate Justice Kay Hearn argued the law does not give affected downstream users the ability to challenge a permit after the fact. “While withdrawing four million gallons per month may have no harmful effects at the present, changing conditions in ten years may render that amount detrimental to a waterway,” she wrote. “Under this new regulatory scheme, a user may continue to withdraw the registered amount 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 remains within his registered amount.” Chief Justice Donald Beatty joined Hearn in her dissent.
State Attorney General Alan Wilson’s office defended the law on behalf of state regulators. “The General Assembly worked hard to preserve the State’s water resources under the Surface Water Withdrawal Act,” Solicitor General Robert Cook said in an emailed statement. “The Supreme Court properly ruled that those who would challenge the Act must be injured by its operation. In other words, not just anyone can bring a lawsuit to strike down a law.”