South Carolina Surface Water Withdrawal Act: State Supreme Court Addresses Constitutional Challenge

by Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.

Download PDF

[co-author: Jalen Toms]

The Supreme Court of South Carolina considered the constitutionality of the registration provisions of its Surface Water Withdrawal Act (“Act”). See Jowers v. South Carolina Dept. of Health and Environmental Control, 2017 WL 3045982 (S.C. July 19, 2017).

The Court addressed whether certain provisions of the state statute are an unconstitutional taking, a violation of due process, and a violation of the public trust doctrine.

South Carolina’s Surface Water Withdrawal Act establishes two mechanisms to regulate surface water withdrawals.

The Act’s Permitting System provides that the withdrawal of over 3 million gallons of water during any month requires acquisition of a permit. South Carolina Department of Health and Environmental Control (“DHEC”) determines the reasonableness of the water use. There is a presumption that the use is reasonable. Permits are issued for a term of 20 to 50 years.

The Registration System applies to agricultural users. Unlike the Permitting System, agricultural users are not required to obtain a permit. Agricultural users register with the DHEC and are allowed to withdraw surface water up to that registered amount. Agricultural users are not subject to the reasonableness determination. Further, unlike the Permitting System, the registration system is not subject to time limits. Finally, the burden is on the plaintiff suing an agricultural user to show a registered user is violating its registration.

Plaintiff-Appellants are property owners along rivers or streams in several South Carolina Counties. They argued that:

  1. The Act violates the Due Process Clause and the Taking Clause by depriving them of their riparian rights, and
  2. The Act violates the Public Trust Doctrine by disposing of assets the states hold in trust.

The Court notes common law riparian rights are special rights granted to owners of property situated on the bank of a river or stream. Riparian property owners are allowed to make “reasonable use” of the water adjacent to their property. This right is limited so that the use may not interfere with the same rights granted to other riparian property owners.

The Plaintiff-Appellants argue that because of the statute’s presumption of reasonableness and lack of time limit for registered users their rights were “fundamentally altered.”

The Court disagrees for several reasons:

  1. Nothing in the Act prevents the Plaintiff-Appellants from seeking an injunction against a riparian owner,
  2. Nothing in the Act prevents the Plaintiff-Appellants from filing a declaratory action against registered agricultural users and including the DHEC as a defendant causing the state agency to modify the amount of water a registered user may withdraw,
  3. The shift of standard of proof to plaintiffs to show a registered user has violated the Act does not prohibit private causes of actions for damages against registered agricultural users, and
  4. The presumption of reasonableness is a rebuttable one, and Plaintiff-Appellants could meet this burden by showing the use is unreasonable.

The Public Trust Doctrine means that a state cannot permit activity that substantially impairs the public interest in marine life, water quality, or public access.

Plaintiff-Appellants argue that the Act violates this doctrine by disposing of the state’s water to registered agricultural users.

The Court disagrees finding that the Act promotes the interest of the people, while also protecting against any use of surface water that is contrary to those interests. It states the Act provides several ways for the DHEC to protect against a violation of the Public Trust Doctrine which include:

  1. Under § 49-4-25, the Act allows DHEC to grant a permit only if it “determines that the applicant’s proposed use is reasonable”,
  2. Under § 49-4-120(A), the DHEC may “modify, suspend, or revoke a permit under [listed] conditions”, and
  3. Under § 49-4-35(E), the DHEC may “modify the amount of an existing registered surface water withdrawer may withdraw, or suspend or revoke a registered surface water withdrawer’s authority to withdraw water.

In conclusion, the Court found that the Plaintiff-Appellants lacked standing and their claim was not ripe for judicial review. The Court affirmed the circuit court’s decision in favor of the DHEC.

A copy of the opinion can be downloaded here.

Written by:

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.