James Jefferson Jowers Sr., Andrew J. Anastos, Ben Williamson, Melanie Ruhlman, and Anthony Ruhlman, Appellants,
South Carolina Department of Health and Environmental Control, Respondent. Appellate Case No. 2016-000428
December 1, 2016.
from Barnwell County R. Markley Dennis Jr., Circuit Court
Armstrong, Amelia A. Thompson, and Jessie A. White, all of
South Carolina Environmental Law Project, of Pawleys Island,
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.
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.
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.
The Surface Water Withdrawal Act
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.
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). 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.
users are treated differently under the Act. "[A] person
who makes surface water withdrawals for agricultural
at an agricultural facility" is classified as a
"Registered surface water withdrawer, " §
49-4-20(23), and is not required to obtain a permit, §
49-4-35(A). 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.
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,
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."
grants DHEC oversight over registered withdrawals. Subsection
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.
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
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").
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
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
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)). 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).
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
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
The Plaintiffs' Theory of Injury
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 ...