OCR Text |
Show SOUTH CAROLINA 665 the act or within 3 years prior thereto. These were defined as vested rights. Diffused surface waters were impliedly exempted from the appropriation system. Subject to these exceptions, permits were to be granted for the use of water in surface watercourses, were to be confined to a designated amount of water, and were to specify the place and rate of diversion. A State board of water Commissioners would have been established for the purpose of passing upon and granting applications deemed to be in the public interest. Beneficial use would have been the limit of all appropriations, which apparently were to be granted in perpetuity and were to be transferable. Other proposed provisions included for- feiture through court action for 3 consecutive years of nonuse; ap- propriated water could be used on nonriparian land; water use pref- erences were, in order, domestic, municipal, irrigation, industrial, recreational, and water power. It is not clear whether these prefer- ences would have applied in times of water shortage or whether they were simply to be taken into consideration in passing upon compet- ing applications for permits. In the 1955 amended version of the bill, the preferences, except for domestic uses, were dropped, and a further provision was inserted to allow appropriations for water only in excess of the average mini- mum streamflow. Some consideration had been given to limiting permits to a maximum term, although this apparently was never put into the bill. The bill as revised in 1955 was very similar to the statutes adopted in Mississippi in 1956. In any event, the 1955 ver- sion was defeated, suffering the same fate as the 1954 bill. The common law riparian system which developed over the years in South Carolina will be described shortly. For the present, it should be emphasized that interest in some form of appropriation law continues to exist in the State.18 There is a lingering fear, how- ever, that the South Carolina Supreme Court might declare any such legislation unconstitutional, even if riparian rights in actual use are protected. One reason for this is that the court has taken a very narrow view of what constitutes a "public use" in order that eminent domain powers may be constitutionally invoked. The State constitution pro- vides: "Private property shall not be taken for private use without the consent of the owner, nor for public use without just compensa- tion being first made therefor.19 In 1956, the court struck down an urban redevelopment program which involved the exercise of the power of eminent domain.20 Since the property condemned could have been made available either to public or private interests, the court held that a "private" rather than a "public" use was involved, and that the taking was invalid. Any new appropriation law would in- evitably either extinguish or restrict prior riparian uses in some way and would also probably enable private interests to appropriate water for use outside the watershed of the stream.21 The court's view "See C. Randall, "Water Resources Research Project," 23 S.C. L. Rev. 25 (1971). Introducing a symposium on water legislation. 19 S.C. Const., art. I, section 17. »"Bdens v. City oi Columbia," 228 S.C. 563. 91 S.H. 2d 280 (1956) discussed In J. Toal, "Edens: The Prime Obstacle to a Redevelopment of South Carolina Water Law," 23 S.C. L. Rev. 63 (1971). See nolte 16, p. 664, and accompanying text. a C. Hill, "Limitation on Diversion from the Watershed; Riparian Roadblock to Bene- ficial Use," 23 S.C. L. Rev. 43 (1971). See section 3.2. Infra. |