## Facts

- Riparian landowners on the South Fork of the Edisto River and tributaries challenged portions of South Carolina’s Surface Water Withdrawal, Permitting, Use, and Reporting Act governing “surface water withdrawals.”
- The Act regulates most large withdrawals through a permit process requiring application details, public notice, and an agency determination that the use is “reasonable” under statutory criteria.
- The Act also allows certain agricultural users to proceed by “registration” rather than permitting; registrations are subject to reporting requirements but are treated as continuing authorizations without the same time-limited re-evaluation as permits.
- The landowners alleged the agricultural registration regime effectively allowed large upstream withdrawals with insufficient oversight, threatening reduced flows and impaired recreational and aesthetic use near their properties.
- The landowners sought declaratory and injunctive relief on three theories: (1) unconstitutional taking of riparian rights, (2) denial of substantive and procedural due process, and (3) violation of the public trust doctrine by allowing indefinite withdrawals of surface waters.

## Issues

1. Whether the riparian landowners had standing and a ripe controversy to bring facial, pre-enforcement takings and due process challenges to the Act’s agricultural registration provisions absent a specific withdrawal causing concrete injury.
2. Whether the public trust doctrine allowed the landowners to maintain a facial, pre-enforcement challenge to the registration provisions, and whether that claim was justiciable without a concrete, ripe injury.

## Decision

- The Supreme Court of South Carolina affirmed summary judgment for the agency.
- The court held the takings and due process claims presented no justiciable controversy because the plaintiffs alleged only speculative future harm and no present or imminent deprivation tied to a specific withdrawal.
- On rehearing limited to the public trust issue, the court revised its analysis but again concluded the public trust claim was nonjusticiable on the same threshold grounds.
- The court emphasized that standing and ripeness are threshold requirements and that it would not reach the merits of constitutional or public trust theories without a concrete dispute.

## Legal Principles

- Courts will not adjudicate constitutional challenges absent a justiciable controversy; standing and ripeness require a concrete, present or imminent injury, not conjectural future harm.
- A facial, pre-enforcement takings claim generally fails on justiciability when no governmental action has actually or imminently interfered with a cognizable property interest through a specific application of the statute.
- Due process claims premised on asserted deprivation of property require an actual or imminent deprivation attributable to the challenged governmental action.
- Public trust doctrine claims still require a justiciable controversy; generalized allegations that a regulatory scheme could permit harmful future withdrawals are insufficient without a concrete dispute showing current or imminent impairment.

## Conclusion

The court left the statutory scheme in place and dismissed the riparian landowners’ takings, due process, and public trust challenges because their allegations of harm from agricultural registrations were speculative and not tied to a concrete, ripe injury, making the dispute nonjusticiable.


Jowers v. S.C. Dep’t of Health & Env’t Control, 423 S.C. 343, 815 S.E.2d 446 (2018)