Jowers v. S.C. Dep't of Health & Envtl. Control

THE STATE OF SOUTH CAROLINA
In The Supreme Court
James Jefferson Jowers Sr., Andrew J. Anastos, Ben
Williamson, Melanie Ruhlman, and Anthony Ruhlman,
Appellants,
v.
South Carolina Department of Health and Environmental
Control, Respondent.
Appellate Case No. 2016-000428
Appeal from Barnwell County
R. Markley Dennis Jr., Circuit Court Judge
Opinion No. 27725
Heard January 11, 2018 – Refiled May 30, 2018
AFFIRMED
Amy E. Armstrong, Amelia A. Thompson, and Jessie A.
White, all of South Carolina Environmental Law Project,
of Pawleys Island, for Appellants.
Attorney General Alan McCrory Wilson, Solicitor
General Robert D. Cook, Deputy Solicitor General J.
Emory Smith Jr., Senior Assistant Attorney General T.
Parkin C. Hunter, Assistant General Counsel Michael S.
Traynham, all of Columbia and Lisa A. Reynolds, of
Anderson, Reynolds & Stephens, LLC, of Charleston, for
Respondent.
M. McMullen Taylor, of Mullen Taylor, LLC, of Columbia
and John D. Echeverria, of Vermont School of Law, South
Royalton, Vermont, for Amicus Curiae, Congaree Riverkeeper, Inc.
JUSTICE FEW: This is a challenge to the registration provisions in the Surface
Water Withdrawal Act. The plaintiffs claim those provisions are an unconstitutional
taking, a violation of due process, and a violation of the public trust doctrine. The
circuit court granted summary judgment against the plaintiffs on the grounds the
case does not present a justiciable controversy, both because the plaintiffs lack
standing and the dispute is not ripe for judicial determination. We affirm.
We originally decided this case in an opinion filed July 19, 2017. Jowers v. S.C.
Dep't of Health & Envtl. Control, Op. No. 27725 (S.C. Sup. Ct. filed July 19, 2017)
(Shearouse Adv. Sh. No. 27 at 28). The plaintiffs filed a petition for rehearing as to
our ruling that their claims for a violation of the public trust doctrine do not present
a justiciable controversy. Neither side challenged our rulings that the plaintiffs'
claims of an unconstitutional taking and a violation of due process are not justiciable,
which were unanimous rulings. Therefore, we have not reconsidered those rulings,
and we have repeated the explanation of them in section V of this opinion. We have
reconsidered our ruling concerning the public trust claim, and we address that claim
in section VI.
I. The Surface Water Withdrawal Act
The Surface Water Withdrawal, Permitting, Use, and Reporting Act regulates
surface water withdrawals in South Carolina. S.C. Code Ann. §§ 49-4-10 to -180
(Supp. 2017). Surface water is defined as "all water that is wholly or partially within
the State . . . or within its jurisdiction, which is open to the atmosphere and subject
to surface runoff, including, but not limited to, lakes, streams, ponds, rivers, creeks,
runs, springs, and reservoirs . . . ." § 49-4-20(27). The Department of Health and
Environmental Control is charged with the implementation and enforcement of the
Act. § 49-4-170. The Act establishes two mechanisms to regulate surface water
withdrawals—a permitting system and a registration system.
A. Permitting System
The Act requires most "surface water withdrawers" to obtain a permit before
withdrawing surface water. § 49-4-25. A "surface water withdrawer" is defined as
"a person withdrawing surface water in excess of three million gallons during any
one month . . . ." § 49-4-20(28). A permit applicant must provide detailed
information to DHEC about the proposed surface water withdrawal. § 49-4-80(A).
DHEC must provide the public with notice of a permit application within thirty days,
and if residents of the affected area request a hearing, DHEC must conduct one.
§ 49-4-80(K)(1). If DHEC determines the proposed use is reasonable, DHEC must
issue a permit to the applicant. §§ 49-4-25, -80(J). In making its determination of
reasonableness, DHEC is required to consider a number of criteria. § 49-4-80(B).1
Permits are issued for a term of no less than twenty years and no more than fifty
years. § 49-4-100(B). After a permit is issued, surface water withdrawals made
pursuant to the terms and conditions of the permit are presumed to be reasonable.
§ 49-4-110(B).
B. Registration System
Agricultural users are treated differently under the Act. "[A] person who makes
surface water withdrawals for agricultural uses[2] at an agricultural facility[3]" is
classified as a "Registered surface water withdrawer," § 49-4-20(23), and is not
required to obtain a permit, § 49-4-35(A).4 Instead, agricultural users simply register
their surface water use with DHEC and are permitted to withdraw surface water up
to the registered amount. § 49-4-35(A). Because agricultural users are exempt from
1
Subsection 49-4-80(B) sets forth the criteria for determining reasonableness: (1)
minimum instream flow or minimum water level and the safe yield; (2) anticipated
effect of the proposed use on existing users; (3) reasonably foreseeable future need
for surface water; (4) reasonably foreseeable detrimental impact on navigation, fish
and wildlife habitat, or recreation; (5) applicant's reasonably foreseeable future water
needs; (6) beneficial impact on the State; (7) impact of applicable industry standards
on the efficient use of water; (8) anticipated effect of the proposed use on: (a)
interstate and intrastate water use; (b) public health and welfare; (c) economic
development and the economy of the State; and (d) federal laws and interstate
agreements and compacts; and (9) any other reasonable criteria DHEC promulgates
by regulation. § 49-4-80.
2
"Agricultural use" is defined broadly to include the preparation, production, and
sale of crops, flowers, trees, turf, and animals. § 49-4-20(3).
3
"Agricultural facility" is also defined broadly. § 49-4-20(2).
4
As section 49-4-25 indicates, there are other exceptions to the permit requirement
"provided in Sections 49-4-30, 49-4-35, 49-4-40, and 49-4-45." The exception for
agricultural users is provided in section 49-4-35.
the permit requirement, their surface water use is not subject to the subsection 49-4-
80(B) reasonableness factors.
The Act establishes two ways for agricultural users to register their water use with
DHEC—one for users who were already reporting their use to DHEC when the Act
was rewritten in 2010,5 and one for users who were not yet reporting their use. For
those already reporting, the Act allows the user to "maintain its withdrawals at its
highest reported level or at the design capacity of the intake structure" and the user
is deemed registered. § 49-4-35(B). For users who were not yet reporting their use,
the Act requires the user to report its anticipated withdrawal amount to DHEC for
DHEC to determine whether the use is within the "safe yield" of the water source.
§ 49-4-35(C). Safe yield is defined as,
[T]he amount of water available for withdrawal from a
particular surface water source in excess of the minimum
instream flow or minimum water level for that surface
water source. Safe yield is determined by comparing the
natural and artificial replenishment of the surface water to
the existing or planned consumptive and nonconsumptive
uses.
§ 49-4-20(25). After DHEC determines whether the anticipated withdrawal amount
is within the safe yield, it "must send a detailed description of its determination to
the proposed registered surface water withdrawer." § 49-4-35(C).
The Act grants DHEC oversight over registered withdrawals. Subsection 49-4-
35(E) provides,
The department may modify the amount an existing
registered surface water withdrawer may withdraw, or
suspend or revoke a registered surface water withdrawer's
authority to withdraw water, if the registered surface water
withdrawer withdraws substantially more surface water
5
The Water Use Reporting and Coordination Act was originally enacted in 1982,
Act No. 282, 1982 S.C. Acts 1980. It was completely rewritten in 2010 and renamed
the Surface Water Withdrawal, Permitting, Use, and Reporting Act, Act No. 247,
2010 S.C. Acts 1824-49. The 1982 Act provided for a regulatory "reporting system
for agricultural users." 1982 S.C. Acts at 1982.
than he is registered for or anticipates withdrawing, as the
case may be, and the withdrawals result in detrimental
effects to the environment or human health.
§ 49-4-35(E).
Registration has three effects important to the plaintiffs' claims in this case. First,
unlike permits, which are issued for a term of years, registrations have no time limits.
Compare § 49-4-35(C) (allowing registered users to continue making withdrawals
"during subsequent years" with no reference to time limits),  with § 49-4-100(B)
(establishing time limits for permits). Second, the Act presumes all registered
amounts are reasonable. § 49-4-110(B). Third, the Act changes the elements for a
private cause of action for damages by requiring plaintiffs to show a registered user
is violating its registration. Id.
II. Procedural History
The plaintiffs own property along rivers or streams in Bamberg, Darlington, and
Greenville counties. In September 2014, they jointly filed this action against DHEC
in Barnwell County, challenging the Act's registration system for agricultural users
in three ways. First, they claim the registration system is an unconstitutional taking
of private property for private use. See S.C. CONST. art. I, § 13(A) ("private property
shall not be taken for private use"). Second, they claim the Act violates their due
process rights by depriving them of their property without notice or an opportunity
to be heard. See U.S. CONST. amend. XIV, § 1 ("No state shall . . . deprive any
person of . . . property, without due process of law . . . ."); S.C. CONST. art. I, § 3
("nor shall any person be deprived of . . . property without due process of law").
Finally, they claim the Act violates the public trust doctrine by disposing of assets
the State holds in trust. See S.C. CONST. art. XIV, § 4 ("All navigable waters shall
forever remain public highways free to the citizens of the State . . . ."); Sierra Club
v. Kiawah Resort Assocs., 318 S.C. 119, 128, 456 S.E.2d 397, 402 (1995) (stating
"the state owns the property below . . . a navigable stream . . . [as] part of the Public
Trust").
The plaintiffs and DHEC filed motions for summary judgment. The circuit court
granted summary judgment in favor of DHEC after finding the plaintiffs did not
have standing and the case was not ripe. The circuit court also addressed the merits
of the plaintiffs' claims. The court ruled the Act's registration process was not an
unconstitutional taking because the plaintiffs were not deprived of any rights.
Likewise, the circuit court held that without a deprivation of rights, there could be
no violation of due process. The circuit court held the public trust doctrine was not
violated because the plaintiffs had not lost their right to use the waterways or been
injured by any withdrawals. The circuit court did not rule on DHEC's contention the
claims were barred by the statute of limitations or that venue was improper.
The plaintiffs appealed to the court of appeals and moved to certify the case to this
Court pursuant to Rule 204(b) of the South Carolina Appellate Court Rules. We
granted the motion to certify.
III. Justiciability
Our courts will not address the merits of any case unless it presents a justiciable
controversy. Byrd v. Irmo High Sch., 321 S.C. 426, 430-31, 468 S.E.2d 861, 864
(1996). In Byrd, we stated, "Before any action can be maintained, there must exist
a justiciable controversy," and, "This Court will not . . . make an adjudication where
there remains no actual controversy." Id.; see also Peoples Fed. Sav. & Loan Ass'n
v. Res. Planning Corp., 358 S.C. 460, 477, 596 S.E.2d 51, 60 (2004) ("A threshold
inquiry for any court is a determination of justiciability, i.e., whether the litigation
presents an active case or controversy."). "Justiciability encompasses . . . ripeness
. . . and standing." James v. Anne's Inc., 390 S.C. 188, 193, 701 S.E.2d 730, 732
(2010). Standing is "a personal stake in the subject matter of the lawsuit." Sea Pines
Ass'n for Prot. of Wildlife, Inc. v. S.C. Dep't of Nat. Res., 345 S.C. 594, 600, 550
S.E.2d 287, 291 (2001). A plaintiff has standing to challenge legislation when he
sustained, or is in immediate danger of sustaining, actual prejudice or injury from
the legislative action. 345 S.C. at 600-01, 550 S.E.2d at 291. To meet the "stringent"
test for standing, "the plaintiff must have suffered an 'injury in fact'—an invasion of
a legally protected interest which is (a) concrete and particularized and (b) actual or
imminent, not 'conjectural' or 'hypothetical.'" 345 S.C. at 601, 550 S.E.2d at 291
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136,
119 L. Ed. 2d 351, 364 (1992)).6 We have explained ripeness by defining what is
not ripe, stating "an issue that is contingent, hypothetical, or abstract is not ripe for
judicial review." Colleton Cty. Taxpayers Ass'n v. Sch. Dist. of Colleton Cty., 371
S.C. 224, 242, 638 S.E.2d 685, 694 (2006).
Before we may determine whether the plaintiffs have presented a justiciable
controversy, we must first understand their theory of how the Act has caused them
6
A plaintiff must show two additional elements not at issue in this case: causation
and likelihood the injury can be redressed by the court's decision. Id.
injury. Because their theory depends on their interpretation of the Act, we must then
interpret the Act to determine whether they have properly alleged an "injury in fact"
under it, Sea Pines, 345 S.C. at 601, 550 S.E.2d at 291, such that this case presents
an "actual controversy" as opposed to one that is "contingent, hypothetical, or
abstract," Byrd, 321 S.C. at 431, 468 S.E.2d at 864; Colleton Cty., 371 S.C. at 242,
638 S.E.2d at 694.
We review de novo the circuit court's ruling that there is no justiciable controversy.
See Ex parte State ex rel. Wilson, 391 S.C. 565, 570, 707 S.E.2d 402, 405 (2011)
(affirming the circuit court's order granting summary judgment on the basis of
justiciability where the ruling depended on statutory interpretation, and stating, "The
construction of a statute is a question of law, which this Court may resolve without
deference to the circuit court.").
IV. The Plaintiffs' Theory of Injury
The plaintiffs' claims of unconstitutional taking and violation of due process are
based on their allegation the Act has deprived them of "riparian" rights. The public
trust claim, on the other hand, is based on the allegation the Act disposes of assets
the State holds in trust for our citizens.
A. Riparian Rights
The property rights the plaintiffs allege have been taken from them under the
registration provisions of the Act are known under the common law as riparian
rights. The word riparian means "pertaining to or situated on the bank of a river, or
a stream." 78 Am. Jur. 2d Waters § 33 (2013). See also Riparian, BLACK'S LAW
DICTIONARY (10th ed. 2014) ("Of, relating to, or located on the bank of a river or
stream").7 Under the common law, riparian property owners—those owning land
7
The current editions of American Jurisprudence and Black's Law Dictionary
recognize that some states include lakes and tidal waters within the definition of
riparian. That is not true in South Carolina. In Lowcountry Open Land Trust v.
State, 347 S.C. 96, 552 S.E.2d 778 (Ct. App. 2001), our court of appeals held
"interests attached to property abutting an ocean, sea or lake are termed 'littoral.'"
347 S.C. at 108, 552 S.E.2d at 785 (citing Littoral, BLACK'S LAW DICTIONARY (6th
ed. 1990)); see also White's Mill Colony, Inc. v. Williams, 363 S.C. 117, 129, 609
S.E.2d 811, 817-18 (Ct. App. 2005) (stating "there is a distinction in classification
that our courts have indicated a desire to strictly observe: owners of land along rivers
adjacent to rivers or streams—hold special rights allowing them to make "reasonable
use" of the water adjacent to their property. White's Mill Colony, Inc. v. Williams,
363 S.C. 117, 129, 609 S.E.2d 811, 817 (Ct. App. 2005) (citing Lowe v. Ottaray
Mills, 93 S.C. 420, 423, 77 S.E. 135, 136 (1913)). We have described "reasonable
use" as follows,
All that the law requires of the party, by or over whose
land a stream passes, is, that he should use the water in a
reasonable manner, and so as not to destroy, or render
useless, or materially diminish, or affect, the application
of the water by the proprietor below on the stream . . . .
White v. Whitney Mfg. Co., 60 S.C. 254, 266, 38 S.E. 456, 460 (1901); see also
Mason v. Apalache Mills, 81 S.C. 554, 559, 62 S.E. 399, 401 (1908) ("The different
owners of land through which a stream flows are each entitled to the reasonable use
of the water, and for an injury to one owner, incidental to the reasonable use of the
stream by another, there is no right of redress.").
Thus, the right of reasonable use is "subject to the limitation that the use may not
interfere with the like rights of those above, below, or on the opposite shore."
White's Mill Colony, Inc., 363 S.C. at 129, 609 S.E.2d at 817 (citing Mason, 81 S.C.
at 559, 62 S.E. at 401). Under the common law, if a riparian owner unreasonably
interferes with another riparian owner's right of reasonable use, the injured owner's
remedy is to bring an action for damages, or for an injunction, or both. See
McMahan v. Walhalla Light & Power Co., 102 S.C. 57, 59-61, 86 S.E. 194, 194-95
(1915) (approving a jury charge on the right of reasonable use in a case where a
downstream riparian owner sued an upstream riparian owner for damages); Mason,
81 S.C. at 557, 62 S.E. at 400 (describing the downstream riparian owner's claim for
an injunction against the upstream operator of a dam based on "the unreasonable use
of the stream"); see also 78 Am. Jur. 2d Waters § 53 (2013) ("Interference with
riparian rights is an actionable tort. Any interference with a vested right to the use
of water . . . would entitle the party injured to damages, and an injunction would
issue perpetually restraining any such interference.").
B. Public Trust Assets
and streams are said to hold 'riparian' rights, while owners of land abutting oceans,
seas, or lakes, are said to hold 'littoral' rights").
The Constitution of South Carolina provides, "All navigable waters shall forever
remain public highways free to the citizens of the State and the United States." S.C.
CONST. art. XIV, § 4. Consistent with this provision, the State owns all property
below the high water mark of any navigable stream. Sierra Club, 318 S.C. at 128,
456 S.E.2d at 402; see also McCullough v. Wall, 38 S.C.L. (4 Rich.) 68, 87 (1850)
(stating "in this State all rivers navigable for boats are juris publici[8]"). Courts have
long recognized this ownership as a trust. In 1884, this Court held:
The state had in the beds of these tidal channels not only
title as property, . . . but something more, the jus
publicum,[9] consisting of the rights, powers, and
privileges . . . which she held in a fiduciary capacity for
general and public use; in trust for the benefit of all the
citizens of the state, and in respect to which she had trust
duties to perform.
State v. Pac. Guano Co., 22 S.C. 50, 83-84 (1884); see also Illinois Cent. R. Co. v.
State of Illinois, 146 U.S. 387, 452-53, 13 S. Ct. 110, 118, 36 L. Ed. 1018, 1042
(1892) (recognizing this ownership as a "trust which requires the government of the
state to preserve such waters for the use of the public").
We now call this the "public trust doctrine." See Sierra Club, 318 S.C. at 127-28,
456 S.E.2d at 402 (discussing "the Public Trust Doctrine"). Under the public trust
doctrine, the State "cannot permit activity that substantially impairs the public
interest in marine life, water quality, or public access." McQueen v. S.C. Coastal
Council, 354 S.C. 142, 149, 580 S.E.2d 116, 119-20 (2003).10 The plaintiffs argue
8
See Juris Publici, BLACK'S LAW DICTIONARY (10th ed. 2014) ("Of public right;
relating to common or public use").
9
See Jus Publicum, BLACK'S LAW DICTIONARY (10th ed. 2014) ("The right, title, or
dominion of public ownership; esp., the government's right to own real property in
trust for the public benefit").
10
In Sierra Club, to explain the general nature of the public trust doctrine, we quoted
an expansive statement from an article in the Tulane Environmental Law Journal as
to the scope of the doctrine. 318 S.C. at 127-28, 456 S.E.2d at 402. However, the
permit applicant in Sierra Club never intended to consume the water itself, and we
therefore confined our actual ruling to the permit's impact on the waterway: "marine
life, water quality, or public access." 318 S.C. at 128, 456 S.E.2d at 402. While the
the Act violates the public trust doctrine by disposing of the State's water to
agricultural users. According to the plaintiffs, "the State has lost complete control
of registered amounts of water in perpetuity."
Having explained the plaintiffs' theory of injury, we turn now to the registration
provisions of the Act to determine whether the terms of the Act support the plaintiffs'
allegation of an injury in fact such that this case presents an actual controversy.
V. The Takings and Due Process Claims
The plaintiffs' takings and due process claims are based on their allegation that they
have lost their riparian right to bring a challenge to another riparian owner's future
unreasonable use. Significantly, the plaintiffs do not allege they have sustained any
injury resulting from any withdrawal of surface water that has already been made by
an agricultural user.11 The allegation the plaintiffs do make is based on two
provisions of the Act: (1) subsection 49-4-110(B), which states registered
withdrawals are presumed to be reasonable and changes the elements for a private
cause of action for damages, and (2) subsection 49-4-100(B), which requires permits
must be issued for a specific term, but is silent as to time limits for registered uses.
The plaintiffs argue these provisions allow registered users to withdraw a fixed
amount of water that will forever be deemed reasonable, which in turn prevents them
from ever successfully challenging a registered agricultural use, regardless of how
conditions may change in the future. Based on this argument, the plaintiffs allege
their "rights were fundamentally altered" the moment these provisions were signed
into law,12 and thus they have suffered an "injury in fact" sufficient to establish
standing, and have presented an actual controversy that is ripe for judicial
determination.
expansive statement we quoted was useful in conveying the general nature of the
public trust doctrine, any portion of the statement that goes beyond the doctrine's
applicability to "marine life, water quality, or public access" was not necessary to
our decision, and is therefore dictum.
11
In response to a discovery request, the plaintiffs admitted "[their] property and
[their] use thereof have not been injured due to any withdrawal of water for
agricultural purposes occurring on a river or stream flowing past property that [they]
own."
12
The rewritten Act became effective on January 1, 2011. 2010 S.C. Acts at 1848.
We find the Act does not support the plaintiffs' allegations of injury. First, we find
nothing in the Act preventing the plaintiffs from seeking an injunction against a
riparian owner for unreasonable use. Prior to the Act, a riparian owner could bring
an action challenging another riparian owner's unreasonable use and seeking an
injunction. See Mason, 81 S.C. at 563, 558, 62 S.E. at 402, 400 (affirming the circuit
court's order granting an injunction, as modified, against the upstream operator of a
dam based on "the unreasonable use of the stream"). After the Act, a riparian owner
may still challenge another riparian owner's use as unreasonable—including a
registered agricultural user. If such a plaintiff can prove a registered agricultural use
is unreasonably interfering with his right of reasonable use, and otherwise establish
the elements for an injunction, then the plaintiff may be entitled to injunctive relief.
Second, we find nothing in the Act preventing a riparian owner from filing a
declaratory judgment action to protect his right of reasonable use. Under section 15-
53-20 of the South Carolina Code (2005), courts have the "power to declare rights,
status, and other legal relations whether or not further relief is or could be claimed."
A riparian owner may file a declaratory judgment action against registered
agricultural users, and request the court declare their use unreasonable. While such
a declaration may be of little value without an injunction, there is nothing in the Act
preventing the plaintiff from including DHEC as a defendant. This, in turn, could
trigger DHEC's right to modify the registration under subsection 49-4-35(E).
Third, we find nothing in the Act prohibiting private causes of action for damages
against registered agricultural users. In fact, the Act specifically contemplates such
actions. Subsection 49-4-110(B) states, "No private cause of action for damages
arising directly from a surface water withdrawal by a permitted or registered surface
water withdrawer may be maintained unless the plaintiff can show a violation of a
valid permit or registration." § 49-4-110(B) (emphasis added). While this provision
changes the elements a plaintiff must prove in an action for damages, the right of
action clearly still exists. In other words, if a plaintiff proves "a violation of a valid
permit or registration," then the plaintiff may maintain a private right of action for
damages. We are aware of no authority—and the plaintiffs cite none—for a finding
that a change to the elements a plaintiff must prove in an action for damages deprives
a future plaintiff of property rights under the takings or due process clauses.
Finally, we find no support in the Act for the plaintiffs' argument that the
presumption of reasonableness will prevent future plaintiffs from proving a
registered use is unreasonable. Under the common law, the plaintiff has the burden
of proving—by a preponderance of the evidence—a defendant's use is unreasonable.
The Act, however, provides, "Surface water withdrawals made by permitted or
registered surface water withdrawers shall be presumed to be reasonable." § 49-4-
110(B). The Act is unclear whether the presumption is rebuttable or conclusive.13
Employing the rules of statutory construction, we find the presumption is
rebuttable.14 Therefore, under the Act, a plaintiff may still meet his burden by
proving—by a preponderance of the evidence—the defendant's use is unreasonable.
In summary, the plaintiffs' allegations that the Act has deprived them of their
common law riparian rights are not supported by the terms of the Act. The plaintiffs
may still challenge an agricultural use as unreasonable, they are still entitled to
injunctive relief when they prove the required elements, and they may still recover
damages when they prove the required elements. Because the Act has not deprived
the plaintiffs of their riparian rights, they have no standing, and their claim for future
injury is not ripe for our determination.
13
A rebuttable presumption is defined as an "inference drawn from certain facts that
establish a prima facie case, which may be overcome by the introduction of contrary
evidence." Rebuttable Presumption, BLACK'S LAW DICTIONARY (10th ed. 2014). A
conclusive presumption is defined as a "presumption that cannot be overcome by
any additional evidence or argument because it is accepted as irrefutable proof that
establishes a fact beyond dispute." Conclusive Presumption, BLACK'S LAW
DICTIONARY (10th ed. 2014).
14
The presumption of reasonableness is found in the first sentence of subsection 49-
4-110(B). The next sentence specifically contemplates a right of action for damages,
"No private cause of action for damages . . . from a surface water withdrawal . . .
may be maintained unless the plaintiff can show a violation of a valid permit or
registration." § 49-4-110(B) (emphasis added). If we interpreted the presumption
in the first sentence as conclusive, it would prevent any right of action for damages,
and thus the first sentence would be in conflict with the second sentence. "[S]tatutes
must be read as a whole and sections which are part of the same general statutory
scheme must be construed together and each given effect, if it can be done by any
reasonable construction." Hudson ex rel. Hudson v. Lancaster Convalescent Ctr.,
407 S.C. 112, 124-25, 754 S.E.2d 486, 492-93 (2014). "It is the duty of this Court
to give all parts and provisions of a legislative enactment effect and reconcile
conflicts if reasonably and logically possible." Adams v. Clarendon Cty. Sch. Dist.
No. 2, 270 S.C. 266, 272, 241 S.E.2d 897, 900 (1978). Reading the presumption as
rebuttable leaves no conflict.
The plaintiffs also argue they have standing under the public importance exception.
"[S]tanding is not inflexible and standing may be conferred upon a party when an
issue is of such public importance as to require its resolution for future guidance."
ATC S., Inc. v. Charleston Cty., 380 S.C. 191, 198, 669 S.E.2d 337, 341 (2008).
However, we "must be cautious with this exception, lest it swallow the rule." S.C.
Pub. Interest Found. v. S.C. Transp. Infrastructure Bank, 403 S.C. 640, 646, 744
S.E.2d 521, 524 (2013). We find the public importance exception does not apply to
the plaintiffs' takings and due process claims in this case because there is no need
for "future guidance."
VI. The Public Trust Claim
As we did with the plaintiffs' takings and due process claims, we begin our
discussion of the public trust claim with the fact the plaintiffs do not allege that any
public trust asset has been lost as a result of any withdrawal of surface water that has
already been made by any agricultural user. See supra note 11. This fact alone ends
the justiciability analysis for the public trust claim. See Sea Pines, 345 S.C. at 601,
550 S.E.2d at 291 (holding there must be an "injury in fact" for standing to exist);
Waters v. S.C. Land Res. Conservation Comm'n, 321 S.C. 219, 228, 467 S.E.2d 913,
918 (1996) (holding a claim involving "'a threat of possible injury'" or "'the mere
threat of potential injury'" is not ripe for judicial determination because it is "'too
contingent or remote to support present adjudication'" (quoting Thrifty Rent-A-Car
Sys., Inc. v. Thrifty Auto Sales of Charleston, Inc., 849 F. Supp. 1083, 1086 (D.S.C.
1991))); see also Thrifty Rent-A-Car, 849 F. Supp. at 1085-86 (stating "a . . . court
should not decide a controversy grounded in uncertain and contingent events that
may not occur as anticipated or may not occur at all").
However, the plaintiffs advance a novel theory of justiciability based on their
argument the Act "effectively dispose[s] of substantial, permanent rights in South
Carolina's navigable waterways to agricultural users." They allege the State has "lost
complete control of registered amounts of water in perpetuity" and the "registered
owner has complete control over whether or not the State can ever alter the registered
amount." According to the plaintiffs, the registration provisions create a "vested
right" to use the registered amount in perpetuity, "without regard to reasonableness,
future conditions, or future uses." Because the State "permanently transferred public
trust property" to private registered users, the plaintiffs argue, they suffered an injury
the moment the Act became law, despite the fact no public trust asset has yet been
lost. In sum, the plaintiffs' theory of the justiciability of their public trust doctrine
claim is based on the possibility that future surface water withdrawals might—
depending on unknown future circumstances—endanger assets held in trust by the
State, and their argument that the Surface Water Withdrawal Act prohibits the State
from protecting trust assets from that potential future loss.
Even under this theory, the plaintiffs have failed to present a justiciable controversy.
First, as we have already explained, the theory depends on the possible occurrence
of unknown future circumstances that might—or might not—cause the loss of trust
assets. Claims that depend on contingent, future harm are not justiciable. See Sea
Pines, 345 S.C. at 601, 550 S.E.2d at 291; Waters, 321 S.C. at 228, 467 S.E.2d at
918.
Second, this theory depends on the argument that the State has no ability to act to
protect trust assets if circumstances arise in the future that make action necessary.
This argument is wrong, most importantly because the State contends it does have
the ability to act to protect trust assets. Therefore, the State—whom even the
plaintiffs contend is the party responsible for protecting these assets—has given
clear indication it stands ready and able to act to protect trust assets if and when the
need to do so ever arises.
The State presents three specific mechanisms through which it may act to protect
trust assets if and when it becomes necessary. One, the State asserts, "State officials
could bring a common law action to challenge the Act as applied." Return to Petition
for Rehearing, filed Aug. 24, 2017, at 4 (citing Thompson v. S.C. Comm'n on Alcohol
& Drug Abuse, 267 S.C. 463, 229 S.E.2d 718 (1976)).15 Two, the State asserts it
could bring "a common law challenge to the reasonableness of the withdrawal."
Return to Petition for Rehearing, filed Aug. 24, 2017, at 4. As we explained in detail
above, nothing in the Act abolishes a riparian owner's common law right to bring an
action that challenges another riparian owner's use as unreasonable. Likewise,
nothing in the Act prevents the State from bringing a similar action to protect the
assets it holds in trust.
The third mechanism presented by the State is the Drought Response Act, which
allows the State to protect its interest in navigable streams during periods of drought.
S.C. Code Ann. §§ 49-23-10 to -100 (2008 & Supp. 2017). Under the Drought
Response Act, the Department of Natural Resources (DNR) has the duty to
15
In Thompson, we allowed public officials to bring a declaratory judgment action
to challenge legislation that prohibited counties and municipalities from adopting or
enforcing laws that criminalized drinking alcohol. 267 S.C. at 467-68, 229 S.E.2d
at 719-20.
"formulate, coordinate, and execute a drought mitigation plan," § 49-23-30, and has
broad powers to protect the water in navigable streams against excessive
consumption by surface water withdrawers, e.g., § 49-23-50. These powers include
the State's authority to prevent most registered agricultural users from withdrawing
unreasonable amounts of water during periods of drought. § 49-23-70(C). Also, the
Governor has the authority to declare a drought emergency and "issue emergency
proclamations and emergency regulations to require curtailment of water
withdrawals or to allocate water on an equitable basis." § 49-23-80. We agree with
the State that it has the power to act to protect trust assets under each of these three
mechanisms.
Not only does the State have the power to act, it also is under a duty to act. This
action was brought against DHEC because it administers the Surface Water
Withdrawal Act. However, DHEC's duties with regard to navigable streams are
broader than administering this Act, and include the "obligations" that formerly
belonged to the "Water Resources Commission regulatory division." S.C. Code
Ann. § 1-30-45(D) (2005); see also S.C. Code Ann. § 49-3-30 (2008) ("The
regulatory functions of the former Water Resources Commission are transferred to
the Department of Health and Environmental Control."). Regulation 61-68—one of
the regulations DHEC promulgated under that obligation—provides, "It is a goal of
the Department to maintain and improve all surface waters to a level to provide for
the survival and propagation of a balanced indigenous aquatic community of flora
and fauna and to provide for recreation in and on the water." 6 S.C. Code Ann. Regs.
61-68 (Supp. 2017).
In addition to DHEC, other State agencies are under a duty to protect navigable
streams. DNR is under a duty to enforce the Drought Response Act. See supra
discussion of the Drought Response Act. DNR is also under a duty to enforce the
Water Resources Planning and Coordination Act. S.C. Code Ann. §§ 49-3-10 to -
50 (2008 & Supp. 2017). The Water Resources Planning and Coordination Act does
not specifically enable DNR to bring a lawsuit, but the Drought Response Act does.
See § 49-23-100. The Water Resources Planning and Coordination Act does,
however, require DNR to coordinate with other agencies who do have the power to
bring legal action. See generally § 49-3-40 (2008) (providing DNR with broad
powers and duties to "advise and assist the Governor and the General Assembly" to
establish water resource policy in South Carolina).
These duties are important in understanding the power of the State to enforce—when
an actual dispute arises—article XIV, section 4 of the South Carolina Constitution,
which provides, "All navigable waters shall forever remain public highways free to
the citizens of the State . . . ." The State's duty to protect navigable streams is clear,
and it may take the necessary action at the necessary time to fulfil that duty. If some
future registered user defendant takes the position the State cannot act, the courts
can address it then. Alternatively, if the State fails to take action sometime in the
future if and when action is necessary, the plaintiffs could bring this same action and
it would present a justiciable controversy.
The third reason the plaintiffs have failed to present a justiciable controversy even
under their novel theory is that the theory depends on there being no changes to the
law regarding surface water withdrawals between now and the occurrence of these
unknown future circumstances. One of the State's duties—through DNR—under the
Water Resources Planning and Coordination Act is to "recommend[] to the General
Assembly any changes of law required to implement the policy declared in this
chapter." § 49-3-40(a)(6). Though the plaintiffs have not presented a justiciable
controversy in this lawsuit, they have brought to the State's attention—and into
public discussion—the dangers associated with the possibility of excessive surface
water withdrawals by agricultural users in the future. In the exercise of its duties in
this regard, if the State determines it is advisable to amend the provisions of the
Surface Water Withdrawal Act to protect against these dangers, it must make
appropriate recommendations to the General Assembly to protect public trust assets.
Because there is no way to determine whether the Act will be amended between now
and that point, this issue is not justiciable. Cf. Thompson v. State, 415 S.C. 560, 566-
67, 785 S.E.2d 189, 192 (2016) (declining to address the defendant's request for a
declaratory judgment "because there is no way to determine whether the General
Assembly will amend [the law in the future]," and therefore a declaration would be
"purely advisory").
The final reason the plaintiff's novel theory of justiciability must fail is that the
philosophical foundation of the plaintiff's public trust claim requires it. The public
trust doctrine provides that the State has the inherent authority to act to protect public
trust assets. See Sierra Club, 318 S.C. at 128, 456 S.E.2d at 402 (recognizing the
State owns all property below the high water mark of any navigable stream). This
inherent authority requires the State to act if and when the need arises. See Pac.
Guano Co., 22 S.C. at 83-84 (recognizing this ownership is "in trust for the benefit
of all the citizens of the state, and in respect to which she had trust duties to
perform"); see also § 1-30-45(D) (providing DHEC with "obligation" to perform
"regulatory functions"); § 49-23-30 (providing DNR with duty to protect the State's
water in drought conditions); § 49-3-40 (providing DNR with duty to recommend
changes to the law when necessary). If a situation ever arises in which public trust
assets are actually being lost due to excessive surface water withdrawals, the very
nature of the public trust doctrine requires the State to act, and provides that it must
prevail.
The plaintiffs argue the public importance exception should apply to their public
trust claim because this issue is of such public importance as to require its resolution
for future guidance. In Sloan v. Sanford, 357 S.C. 431, 434, 593 S.E.2d 470, 472
(2004), we explained that the decision of whether to apply the public importance
exception to standing requires balancing two competing interests:
An appropriate balance between the competing policy
concerns underlying the issue of standing must be realized.
Citizens must be afforded access to the judicial process to
address alleged injustices. On the other hand, standing
cannot be granted to every individual who has a grievance
against a public official. Otherwise, public officials would
be subject to numerous lawsuits at the expense of both
judicial economy and the freedom from frivolous lawsuits.
357 S.C. at 434, 593 S.E.2d at 472.
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. As we have
explained, however, the State has a duty to attempt the necessary future action to
protect against these hypothetical future unreasonable uses. Thus, the "Citizens must
be afforded access to the judicial process" side of the Sloan balance carries very little
weight. After weighing that factor against the other competing interests we
described in Sloan, we find the public importance exception should not apply to the
plaintiffs' public trust claim. As we stated earlier, courts "must be cautious with this
exception, lest it swallow the rule." S.C. Pub. Interest Found., 403 S.C. at 646, 744
S.E.2d at 524.16
16
The dissent argues the plaintiffs' public trust claim should be remanded to the
circuit court to allow the plaintiffs to fully develop the record "to determine the
extent to which, if any, the Act has authorized activities that substantially impair the
public interest in marine life, water quality, and public access." Not only does this
position illustrate the plaintiffs' failure to prove any public trust asset has been lost
as a result of water withdrawals, see supra note 11, it is also directly opposite of the
position the plaintiffs have taken on the necessity of a remand. At oral argument
However, the plaintiffs' public importance exception argument must fail for an even
more fundamental reason—the exception applies to standing, not ripeness. This
point is illustrated by the plaintiffs' flawed reliance on a statement from our decision
in South Carolina Public Interest Foundation. Relying on that decision, the
plaintiffs argue the exception applies "to a party who has not suffered a
particularized injury . . . ." See 403 S.C. at 645, 744 S.E.2d at 524. Our point in
making the quoted statement, however, was that somebody had suffered an injury.
In that case, the South Carolina Transportation Infrastructure Bank had expended
nearly three billion dollars of taxpayer money on major transportation projects, 403
S.C. at 644, 744 S.E.2d at 523, with two legislators serving on the Board in violation
of the Constitution's prohibition against dual office holding and the Constitution's
provisions regarding the separation of powers, 403 S.C. at 646-48, 648-54, 744
S.E.2d at 524-25, 525-28. Thus, we stated, "The public importance exception grants
standing to a party who has not suffered a particularized injury . . . ." 403 S.C. at
645, 744 S.E.2d at 524.
The "has not suffered a particularized injury" language does not remove the injury
in fact requirement; instead, it simply allows someone who has not personally
suffered an injury to step into the shoes of someone who has. See ATC S., Inc., 380
S.C. at 198, 669 S.E.2d at 341 ("In cases which fall within the ambit of important
public interest, standing will be conferred 'without requiring the plaintiff to show he
has an interest greater than other potential plaintiffs.'") (quoting Davis v. Richland
Cnty. Council, 372 S.C. 497, 500, 642 S.E.2d 740, 741 (2007))). In other words, the
exception allows a substitution in place. Here, the plaintiffs seek not only a
substitution in place, but also a substitution in time. They attempt to fast-forward to
a point in time when there might be a loss of trust assets, if and when the State fails
to protect those assets. The public importance exception does not apply to a lack of
ripeness.17
before this Court, counsel for the plaintiffs stated, "This is a facial challenge; it is to
the validity of the Act itself, and we don't believe there is any further factual
information that needs to be developed because you are looking at what the Act
does. . . . The Court can do that just by looking at the language of the Act itself."
17
In addition to South Carolina Public Interest Foundation, the dissent references
two additional cases it claims represent the "wide range of cases" where we have
applied the public importance exception to standing. However, like South Carolina
Public Interest Foundation, these cases involved only standing, not ripeness. See
Davis, 372 S.C. at 500, 642 S.E.2d at 741-42 (granting public importance standing
The dissent argues, however, "the public trust violation itself is the alleged injury,"
and thus the claim is actually ripe. The argument does not accurately represent the
plaintiffs' theory. The "public trust violation"—under the plaintiffs' theory—would
be the future loss of water, not the 2010 Act. The injury—under the plaintiffs'
theory—is an existing inability to challenge a future loss of water, an inability
created by the 2010 Act. Thus, the plaintiffs' own theory does not support the
dissent's argument for ripeness, as the theory depends on the possibility of a future
loss of water. The claim is not ripe.
VII. Conclusion
We find the plaintiffs do not have standing and have not made any claim that is ripe
for judicial determination. Therefore, the circuit court correctly determined there is
no justiciable controversy. Accordingly, the circuit court's decision to grant
summary judgment in favor of DHEC is AFFIRMED.
KITTREDGE and JAMES, JJ., concur. HEARN, J., concurring in part and
dissenting in part in a separate opinion in which BEATTY, C.J., concurs.
to former members of the Richland County Recreation Commission to assert a claim
belonging only to existing members to challenge the constitutionality of legislation
that altered the way Commission members were appointed); Baird v. Charleston
Cty., 333 S.C. 519, 530-31, 511 S.E.2d 69, 75-76 (1999) (granting public importance
standing to a group of doctors who had no personal stake in the matter to challenge
tax-exempt bonds they claimed were issued illegally).
JUSTICE HEARN: I concur with the majority's analysis of Appellants' takings
and due process claims, but I respectfully dissent on the issue of the public trust
doctrine. Because of the Surface Water Withdrawal Act's inherent connection to the
public waterways of South Carolina, I would find that Appellants' public trust claim
comes squarely within the public importance exception to standing. Cognizant of
the fact that the public importance exception is used sparingly by this Court, I believe
if there is ever a time when the doctrine should be applied, this is it.
The public trust doctrine imposes on a government one of its most time-
honored duties. The doctrine as we know it today traces its roots back to the time of
Justinian and was a long-standing legal principle in medieval England before it was
carried over to colonial America. See Richard J. Lazarus, Changing Conceptions of
Property and Sovereignty in Natural Resources: Questioning the Public Trust
Doctrine, 71 Iowa L. Rev. 631, 633–36 (1986). After the American Revolution, "the
people of each state bec[a]me themselves sovereign, and in that character hold the
absolute right to all their navigable waters, and the soils under them, for their own
common use, subject only to the rights since surrendered by the constitution to the
general government." Shively v. Bowlby, 152 U.S. 1, 16 (1894). While the English
limited the public trust doctrine to waterways influenced by the tide, the sprawling
geography of the United States and its major freshwater rivers led to the expansion
of the public trust doctrine by making navigability the touchstone of a public
waterway, even where there is no tidal influence. Phillips Petroleum Co. v.
Mississippi, 484 U.S. 469, 478–79 (1988).
In its current form, the public trust doctrine protects the public's "inalienable
right to breathe clean air; to drink safe water; to fish and sail, and recreate upon the
high seas, territorial seas and navigable waters; as well as to land on the seashores
and riverbanks." Sierra Club v. Kiawah Resort Assocs., 318 S.C. 119, 127–28, 456
S.E.2d 397, 402 (1995). As sovereigns, the "[s]tates possess an 'absolute right to all
their navigable waters and the soils under them for their own common use.'" Tarrant
Reg'l Water Dist. v. Herrmann, 569 U.S. 614, 631 (2013) (quoting Martin v. Lessee
of Waddell, 41 U.S. 367 (1842)). Concomitant with the public's right to enjoy the
public trust assets, the public trust imposes on a state three types of duties or
restrictions with regard to its management of public trust assets. To wit,
[F]irst, the property subject to the trust must not only be used for a
public purpose, but it must be held available for use by the general
public; second, the property may not be sold, even for a fair cash
equivalent; and third, the property must be maintained for particular
types of uses.
Juliana v. United States, 217 F. Supp. 3d 1224, 1254 (D. Ore. 2016) (quoting Joseph
L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial
Intervention, 68 Mich. L. Rev. 471, 477 (1970)). Inherent in its public trust duties,
the State "cannot permit activity that substantially impairs the public interest in
marine life, water quality, or public access." McQueen v. S.C. Coastal Council, 354
S.C. 142, 149, 580 S.E.2d 116, 120 (2003).
With that in mind, I turn to the public importance exception to standing. The
exception provides standing to a plaintiff where an issue is of such public importance
that its resolution is required for future guidance. Sloan v. Dep't of Transp., 365 S.C.
299, 304, 618 S.E.2d 876, 878 (2005). Thus, the doctrine affords citizens access to
the judicial process to address alleged injustices where standing otherwise would not
be available. See Sloan v. Sanford, 357 S.C. 431, 434, 593 S.E.2d 470, 472 (2004).
We have applied the doctrine in a wide range of cases where we determined an
underlying societal interest required resolution. See, e.g., S.C. Pub. Interest Found.
v. S.C. Transp. Infrastructure Bank, 403 S.C. 640, 645, 744 S.E.2d 521, 524 (2013)
(issue of whether statute governing composition of board of directors of state
infrastructure bank was unconstitutional fell within public interest exception); Davis
v. Richland County Council, 372 S.C. 497, 500, 642 S.E.2d 740, 742 (2007) (finding
public importance standing to bring action challenging constitutionality of act
altering method for electing members of county commission); Baird v. Charleston
County, 333 S.C. 519, 531, 511 S.E.2d 69, 75 (1999) (doctors had standing to seek
injunction against county issuing tax exempt bonds for purchase of medical facility).
Given the interests protected by the public trust, and the fact that public
waterways extend to every corner and every county in South Carolina, I find it
difficult to imagine a claim better suited to the public importance exception than an
alleged public trust violation. The majority states the public importance exception
is not appropriate in this case because Appellants' claim is not ripe.18 Respectfully,
18
Moreover, the circuit judge based his decision to deny public importance standing
in part on the lack of previous challenges to the Act. This was error. A history of
previous challenges to legislation is not a prerequisite to achieving standing under
the public importance exception; if indeed it were, no party could ever raise a novel
issue without meeting traditional standing requirements, and the public importance
exception would be rendered meaningless. Rather, the hallmark of the doctrine is
whether the matter is "inextricably connected to the public need for court resolution
for future guidance." ATC South, Inc. v. Charleston Cnty., 380 S.C. 191, 199, 669
S.E.2d 337, 341 (2008). In light of Appellants' allegations regarding violations of
I disagree. Appellants have alleged a current and ongoing injury––the State's
abrogation of its duties as trustee to administer and manage the trust corpus. Under
their theory, the public trust violation itself is the alleged injury, not a speculative
future harm to waterways caused by the Act. Therefore, because of the complex and
dynamic character of South Carolina's public waterways, I believe the merits of
Appellants' public trust claim require full development at trial to determine the extent
to which, if any, the Act has authorized activities that substantially impair the public
interest in marine life, water quality, and public access. For example, given the ever-
changing nature of rivers and streams, expert testimony would be most helpful to the
Court in determining what types of harm have resulted from the Act, and more
importantly, whether the State's remaining enforcement powers may be marshalled
quickly enough to prevent further harm. The majority points to a number of tools
the State retains to protect public waterways, and while I agree, I believe the analysis
is incomplete until the record fully demonstrates how quickly those methods may be
brought to bear to rectify any impairments to public waterways resulting from the
Act.
Accordingly, I would reverse the circuit judge's grant of summary judgment
as to the public trust claim. However, rather than rule on the merits of Appellants'
claim at this stage without the benefit of a fully developed record, I would simply
remand to the circuit court for further proceedings.
BEATTY, C.J., concurs.
the public trust, I believe the claim implicates significant societal interests deserving
of a definitive disposition.