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Jowers v. South Carolina Department of Health and Environmental Control

Supreme Court of South Carolina

July 19, 2017

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

          Heard December 1, 2016.

         Appeal from Barnwell County R. Markley Dennis Jr., Circuit Court Judge.

          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 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.

          FEW JUSTICE.

         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.

         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. 2016). 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 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 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 standard of proof for private causes 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 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 ...


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