This blog post is the first in a series taking a historical view of the State of South Carolina’s law governing surface water use. In this first installment, I cover the law of surface water use from 1750 to 1956.
From 1750 to 1820, water disputes were addressed by water users directly petitioning the South Carolina legislature for a grant of rights to use water. Between 1783 and 1825, 550 petitions were submitted to the General Assembly to resolve water disputes. Growing weary of contentious water right disputes, the Generally Assembly identified riparian common law as the way out. By 1835, South Carolina courts adopted riparian common law in Omelvany v. Jaggers, 20 S.C.L. (2 Hill) 634 (1835) and further expounded on the doctrine in Garrett v. McKie, 30 S.C.L. (1 Rich.) 444 (1845), Jordan v. Lang, 22 S.C. 159 (S.C. 1885), and White v. Whitney Mfg. Co., 38 S.E. 456 (S.C. 1901).
Under riparian common law, a person who owns property contiguous to a natural watercourse is a riparian owner. Omelvany v. Jaggers, 20 S.C.L. (2 Hill) 634, 638-639 (1835). A natural water course is a stream or river flowing in a definite channel and discharges into some other stream or water body. Lawton v. South Bound R.R., 39 S.E. 752, 753-754 (S.C. 1901). A riparian owner has a property right to the access and use of the stream flow running through his/her property. White v. Whitney Mfg. Co., 38 S.E. 456, 460 (S.C. 1901). A riparian owner does not have a claim of ownership of the water itself. The nature of the right is a right of use only. Each riparian owner has an equal right of use, subject to the corresponding rights of others. McMahan v. Walhalla Light & Power Co., 86 S.E. 194, 195 (S.C. 1915). Riparian use of water must be reasonable. White v. Whitney Mfg. Co., 38 S.E. 456, 460 (S.C. 1901). What is deemed reasonable use depends upon the particular circumstances at hand. For a use to be unreasonable, the use must cause actual injury. Garrett v. McKie, 30 S.C.L. (1 Rich.) 444 (1845). In addition to the limitation of reasonable use, riparian use may be limited by the State’s exercise of police power. Lowcountry Open Land Trust v. State, 552 S.E.2d 778, 784 (S.C. Ct. App. 2001). And, a riparian owner cannot prevent public use of navigable waters. Id. Lastly, a riparian owner may use water only for the benefit of his or her riparian land. Omelvany v. Jaggers, 20 S.C.L. (2 Hill) 634, 638-639 (1835); Charles E. Hill, Limitation on Diversion from the Watershed: Riparian Roadblock to Beneficial Use, 23 S.C. L.REV. 43, 59 (1971). In South Carolina, however, this limitation went unheeded or unlitigated. Interbasin transfers from the late 1920s to the 1940s, primarily for domestic water supply, took place without challenge.
After World War II, South Carolina’s post war boom resulted in exponential increase in water usage. Industrial water use increased over 350% from 1945 to 1950, and during this same time period, municipal water use increased by 80%. From 1945 to 1950, agricultural water use increased twofold. At the same time, the State suffered from years of drought, which sparked disputes among water users, in particular between farmers and municipal water utilities. State agricultural leaders touted the novel technology of mechanized crop irrigation as a way for South Carolina farmers to better endure drought. But farmers grew concerned that riparian water law would not provide adequate protection for irrigation. In response, the State Soil Conservation Committee commissioned a report from the Soil Conservation Service of the United States Department of Agriculture to study the State’s water problems and recommend a solution. The report recommended that the legislature enact law replacing riparian common law with the doctrine of prior appropriation. A legislatively appointed committee was created to recommend new water law policy based upon this report. The committee was enthusiastically supportive of the doctrine of prior appropriation.
The legislation proposed by the committee established a water commission to “regulate and control the development, conservation, and allotment of the surface waters of the State according to the principles of beneficial use and priority of appropriation ….” Riparian owners actually putting water to beneficial use would be granted a vested right. All other water users would be required to obtain a permit that secured a first in time, first in right to the State’s unappropriated waters, so long as the water was put to beneficial use. In the event of conflicts between future appropriations, the legislation designated certain uses as taking precedence in the following order – domestic (defined as use of water for household purposes, watering of farm livestock, and irrigation of home farms and gardens), municipal, irrigation, industrial, recreational and water power uses. In spite of the backing of Clemson Agricultural College (now Clemson University) and the South Carolina Farm Bureau, the legislation was strongly opposed by farmers who objected to the idea of the government administering a permitting scheme controlling water use. Industrialists objected to their water use being ranked behind agriculture in the bill’s priority use hierarchy. By 1956, significant concessions were made in the bill in an effort to appease concerns of opponents; however, the rhetoric continued to escalate to the point where the legislation was denounced as “the essence of Socialism” and supporters were “paid agents of International Communism.” After 1957, the legislature abandoned the effort to move toward a prior appropriation system.
Holly Ulbrich, “Water Law and Water Rights: Recent Developments and Implications for South Carolina, The Situation and Outlook for Water Resource Use in South Carolina, 1985-2000: A Third Year Interim Report, (Strom Thurmond Institute, Clemson University Jan. 1988).
William F. Steirer, “The Evolution of South Carolina Water Law 1783-1985,” The Situation and Outlook for Water Resource Use in South Carolina, 1985-2000: A Third Year Interim Report, (Strom Thurmond Institute, Clemson University Jan. 1988).
C.E. Busby, The Beneficial Use of Water in South Carolina – A Preliminary Report on the Historical, Physical and Legal Aspects of Water Problems in the State (Soil Conservation Service of U.S. Dep’t of Agriculture 1952).
A New Water Policy for South Carolina: Report of the Water Policy Committee to the General Assembly of South Carolina (1954).