AGO 11-628.

• Court: South Carolina

South Carolina Attorney General Opinion 2011. AGO 11-628. 11-628Alan Wilson Attorney GeneralApril 18, 2011The Honorable Danny Verdin Senator District No. 9 P. O. Box 142 Columbia, SC 29202-0142The Honorable Larry A. MartinSenator, District No. 2 P. O. Box 142 Columbia, SC 29202-0142The Honorable Ralph AndersonSenator, District No. 7 P. O. Box 142 Columbia, SC 29202-0142The Honorable Phillip W. ShoopmanSenator, District No. 5 P. O. Box 142 Columbia, SC 29202-0142The Honorable David L. ThomasSenator, District No. 8 P. O. Box 142 Columbia, SC 29202-0142The Honorable Michael A. FairSenator, District No. 6 P. O. Box 142 Columbia, SC 29202-0142The Honorable Shane R. MartinSenator, District No. 13 P. O. Box 142 Columbia, SC 29202-0142Dear Senators: Our Opinion has been requested regarding an interpretation of certain provisions of the South Carolina Surface Water Withdrawal, Permitting, Use and Reporting Act, enacted last year by the General Assembly. See Act No. 247 of 2010, codified at S.C. Code Ann. §§ 49-4-10 et seq. (hereinafter "Surface Water Act" or "Act"), effective on January 1, 2011. You state that the "Act is a significant environmental statute for the state with widespread ramifications for public health, economic development, and interstate relations" and that the consequences of "its implementation are important issues for our constituents and their quality of life." You pose four specific questions regarding the implementations of the Act, which are as follows:

(1) Is the holder of an interbasin transfer (IBT) permit or registration an "existing surface water withdrawer" under the South Carolina Surface Water Withdrawal Permitting, Use and Reporting Act?

(2) Under the Surface Water Act, may an existing surface water withdrawer, including the holder of an IBT permit or registration, file an application for a surface water withdrawal permit within 180 days of promulgation of the implementing regulations?

(3) Under the Surface Water Act, to what extent are new surface water withdrawers subject to the provisions of the South Carolina Drought Response Act or a drought response plan required by the owner of a licensed impoundment?

(4) Under the Surface Water Act, to what extent are "existing surface water withdrawers" subject to the provisions of the South Carolina Drought Response Act or a drought response plan required by the owner of a licensed impoundment?

You note that § 49-4-70(C) states in part that "[fjor the purposes of this chapter, existing interbasin transfer permit or interbasin registration holders are deemed to be existing surface water withdrawers." Further, you observe that § 49-4-70(B)(l) provides that "[a]n existing surface water withdrawer must apply for a permit pursuant to this chapter within one hundred eighty days of the effective date of regulations promulgated by the department pursuant to this chapter." In addition, you argue that

[t]he statute also provides that for the holder of an IBT permit or registration, the expiration date of the original permit or registration remains intact. Some would argue that this might cause confusion, but, again, this language was the simplest and most expedient way to retain the legal validity and viability of existing permits with the full expectation that these would be transitioned into surface water withdrawal permits at the IBT holder's earliest convenience-which we would encourage to be as early as possible. It also provided cover during the transition period, such as the gap that currently exists, between the effective date of the Act on January 1, 2011, and 180 days from the effective date of implementing regulations, which could be some time from now.

A contrary interpretation could require the holder of an IBT permit or registration to wait decades before being able to seek its initial surface water withdrawal permit as an existing user. That is not at all what the General Assembly intended. As we noted, the Act was never intended to create a lower class of existing surface water withdrawer, but rather to treat existing withdrawers equally. And the intent of the Act was to encourage all existing surface water withdrawers, including IBT permit or registration holders, to engage in the surface water withdraweral permitting process as soon as possible.

Indeed, the Act was not intended to punish the holders of an IBT permit or registration by withholding the benefits of statutory protections (such as the civil liability protection found in Section 49-4-110(B)) that are conferred upon all other existing withdrawers. The holders of an IBT permit or registration should be entitled to avail themselves of the same protections of other existing withdrawers on the same terms and on the same footing as those other existing withdrawers.

This Office previously interpreted the Act in an opinion issued on Januaryll, 2011. There, we addressed questions similar to those presented here regarding the implementation of the Act with respect to IBT Permit or registration holders. The previous opinion concluded that

... it is our opinion that the Surface Water Withdrawal Act does not authorize public water suppliers who are currently operating pursuant to an interbasin transfer (IBT) permit or registration, to bypass the terms and conditions of their current IBT permit in order to prematurely apply for an initial permit as an existing surface water withdrawer. Applying the rules of statutory construction, we believe the Surface Water Act requires that the IBT permit remains effective for the life of the permit. In short, the Act would likely not be interpreted by a court to permit the PWS [Public Water Supplier], as an IBT permittee, to prematurely seek the permit authorized by § 49-4-70(B)(l) for existing surface water withdrawers, a permit ultimately issued for at least thirty years. Instead, a court would employ the well recognized principles of statutory construction to reach the conclusion that both public and private IBT withdrawers remain subject to the existing IBT permit for the life of that permit.

For the same reasons, it is our opinion that the Act does not authorize a PWS currently operating pursuant to an IBT permit or registration to be exempt from the Drought Recovery Act and drought response plans required by the owner of a licensed impoundment.

Your questions necessarily require a review of that January 11, 2011 Opinion and whether such opinion remains in effect. Law / Analysis We have reviewed at length your first two questions. These inquiries are difficult and present a close legal question. Only a court can resolve the issues you raise with finality. Section 49-4-70 is indeed ambiguous and the legal interpretation expressed in your letter is a credible one. Based upon your inquiries, we are required to revisit our earlier opinion. This Office "recognizes a long-standing rule that we will not overrule a prior opinion unless it is clearly erroneous." Op. S.C. Atty. Gen., November 23, 2010. While the answers to your questions are not free from doubt, we apply the "clearly erroneous" standard and reaffirm the January 11, 2011 opinion in response to your first two inquiries. Section 49-4-70(C) of the Act provides as follows:

[t]he expiration date of an interbasin transfer permit or an interbasin registration, including any water withdrawal

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