Could Pioneer Rural Water District build a new freshwater treatment facility?

Plain-English summary

In 2017, a South Carolina House member asked whether Pioneer Rural Water District had authority to build or contract for a new freshwater treatment facility. The Attorney General reaffirmed its 2012 opinion despite legislation enacted later that year. The district's express purpose was to acquire, build, and operate a water distribution system. A treatment plant was not expressly listed, but the AG said it might fall within powers necessary or incidental to that distribution role.

That answer was conditional. Whether a new plant was actually necessary required factual findings beyond the AG's opinion. The 2012 amendments did not change the underlying power analysis, but they imposed conditions on major district investments, including an independent financial audit before a commitment of at least one million dollars.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the statute expressly list a treatment plant among the district's facilities?
A: The AG said no; possible authority was implied from the district's water distribution mission.

Q: Did the opinion approve a particular proposed plant?
A: No. It left the necessity of a plant to a factual determination.

Q: Did the 2012 amendment remove investment conditions?
A: No. The AG noted an independent audit requirement for major financial commitments.

Background and statutory framework

The opinion revisited the district's powers under Title 6, Chapter 13, Article 3 after a 2012 amendment. It found that the amendment did not change the language supporting its earlier conditional conclusion about a treatment facility, while adding oversight requirements for large investments.

Citations and references

• The opinion reaffirmed the district's implied power, “contingent upon a finding of necessity,” to construct or contract for a treatment facility.
• It said the amended statute required “an independent financial audit” for qualifying commitments.

Official title

On whether the Pioneer Rural Water District has the power to contract for or undertake construction of a new freshwater treatment facility (Article 3 of Chapter 13, Title 6).

Requester

The Honorable Bill Sandifer, Member, South Carolina House of Representatives.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-13-2017/
• Original PDF: https://www.scag.gov/wp-content/uploads/2017/04/Sandifer-B.-OS-10135-FINAL-Opinion-4-13-2017-01318697xD2C78.pdf

Original opinion text

April 13,2017

The Honorable Bill Sandifer, Member

South Carolina House of Representatives
407 Blatt Building
Columbia, SC 29211

Dear Representative Sandifer:

Attorney General Alan Wilson has referred your letter dated March 13, 2017 to the Opinions section for a response. The following is this Office's understanding of your question and our opinion based on that understanding. Issue (as quoted from your letter):

"[WJhether Article S ofChapter IS, Title 6 confers upon the Pioneer Rural Water District ofOconee and Anderson Counties the power to contractfor or undertake the construction of new freshwater treatment facilities? Your Office issued an opinion on the same question at my request on April 30, 2012. ... / would like to request an updated opinion to verify that opinion remains the opinion ofyour office today." Law/Analysis:

As you mention in your letter, this Office previously opined regarding this same question on April 30, 2012.^Op. S.C. Att'v Gen.. 2012 WL 1649764 (S.C.A.G. April 30, 2012). Traditionally, this Office does not overrule a prior opinion unless there has been a change in the law or where there is clear error. Ops. S.C. Atfv Gen.. 2017 WL 1290050 (S.C.A.G. March 24, 2017); 2013 WL 6516330 (S.C.A.G. November 25. 2013); 2013 WL 3762706 (S.C.A.G. July 1, 2013); 2009 WL 959641 (S.C.A.G. March 4, 2009); 2006 WL 2849807 (S.C.A.G. September 29, 2006); 2005 WL 2250210 (S.C.A.G. September 8, 2005); 1986 WL 289899 (S.C.A.G. October 3, 1986); 1984 WL 249796 (S.C.A.G. April 9, 1984). However, on June 26, 2012 South Carolina House Bill No. 4801 became law and amended Sections 6-13-230, 6-13-240 and 6-13-250. Act No. 276, 1996 S.C. Acts (H.B. 4801). Thus, there has been a change in the applicable law since the April 30, 2012 opinion by this Office. The 2012 amendment stated its purpose as follows: AN ACT TO AMEND SECTION 6-13-230. CODE OF LAWS OF SOUTH

CAROLINA, 1976, RELATING TO THE PIONEER RURAL WATER
DISTRICT OF OCONEE AND ANDERSON COUNTIES,SO AS TO FURTHER
PROVIDE FOR THE QUALIFICATIONS, TERMS, AND MANNER OF
SELECTION

OF

MEMBERS OF THE GOVERNING

BOARD

OF THE

DISTRICT; TO AMEND SECTION 6-13-240, AS AMENDED, RELATING TO
THE POWERS AND DUTIES OF THE DISTRICT ACTING THROUGH ITS

GOVERNING BOARD. SO AS TO PROVIDE THAT BEFORE THE DISTRICT
MAKES AN INVESTMENT IN A FACILITY OR TAKES ANY OTHER

ACTION THAT WOULD OBLIGATE THE DISTRICT FOR ONE MILLION

lUEWBERT C. Dennis Building • Post Office Box 11549 . Columbia.SC2921I-1549 • Telephone 803-734-3970 • Facsimile 803-253-6283

The Honorable Bill Sandifer, Member
Page 2
April 13,2017

DOLLARS OR MORE, IT MUST PROVIDE FOR AN INDEPENDENT AUDIT,
TO PROVIDE FOR HOW THE AUDIT MUST BE CONDUCTED AND FOR A
MEETING

OF

THE

DISTRICT'S

CUSTOMERS

ABOUT

THE

AUDIT'S

FINDINGS, AND FOR SUBMISSION OF THE AUDIT TO THE OFFICE OF
REGULATORY STAFF FOR COMMENT; AND TO AMEND SECTION 6-13
250, RELATING TO THE NON REGULATION OF RATES OF THE DISTRICT,
SO AS TO PROVIDE THAT THE BOARD MUST PROVIDE TO THE OFFICE
OF REGULATORY STAFF BY JULY FIRST EACH YEAR SCHEDULES

SHOWING ALL RATES, SERVICE RULES AND REGULATIONS, AND
FORMS OF SERVICE CONTRACT ESTABLISHED BY THE BOARD.
PIONEER RURAL WATER DISTRICT OF OCONEE AND ANDERSON COUNTIES—BOARDS AND COMMISSIONS—AUDITS AND AUDITORS, Act No. 276, 2012 S.C. Acts (H.B. 4801).

The

20 12 opinion by this Office concluded that:

The primary purpose of the Pioneer Rural Water District of Oconee and Anderson Counties is to "acquire, construct, and operate a waterworks system " for its service area. This system is to include "water mains, distribution facilities, tanks, their several component parts, and all apparatus, equipment and property incident

thereto or used or useful in the operation thereof and all additions, improvements, extension and enlargements to any of them. " Such a system does not, by its plain language, include a water treatment facility. However, South Carolina Code section 6-13-240 empowers the District to exercise "all such powers as may be necessary or incidental to carry out its purposes, functions and responsibilities. " Thus, if a court found that the construction of a new freshwater treatment facility

was necessary to the District's water distribution function, it might find the District had authority to take such action. In light of the fact that the District currently obtains water from other available sources, a determination whether a new treatmentfacility is necessaiy likely would involve questions offact, which are beyond the scope ofthis opinion.

Op. S.C. Att'v Gen.. 2012 WL 1649764 (S.C.A.G. April 30, 2012). We believe a court will determine that because the 2012 legislation did not change South Carolina Code § 6-13-240's language ("(8) to build, construct, maintain, and operate distribution systems... (10) to contract for or otherwise acquire a supply of water and sell water for industrial or domestic use," etc.) or other such language expressed in the 2012 opinion's conclusion, the 2012 opinion's conclusions are consistent with the General

Assembly's intent. Moreover, the General Assembly's 2012 amendment to South Carolina Code § 6-13 240 requiring in Section (B) an independent financial audit before the water district obligates itself for one million or more dollars and in Section (C) submission of the audit to the Office of Regulatory Staff do not change the conclusion of the 2012 opinion, nor do the other changes in the 2012 amendment It is also this Office's understanding there have been no changes to South Carolina Code § 6-13-210 et seq. since 2012 other than one bill that is currently pending. The pending legislation we saw was S.C. House Bill No. 4091 of the 201 7-201 8 session, of which you are the sponsor. Conclusion: Therefore, it is for all of the above reasons, while we acknowledge there has been a change in the

law since our April 30, 2012 opinion, we still affirm the conclusions therein and believe a court will likely

The Honorable Bill Sandifer, Member
Page 3

April 13,2017

find that, consistent with our April 30, 2012 opinion, South Carolina Title 6, Chapter 13, Article 3 bestows the power on the Pioneer Rural Water District of Oconee and Anderson Counties to "acquire,

construct and operate a waterworks system"1 for the distribution of water including "to build, construct, maintain, and operate distribution systems'"2 and by implication, contingent upon a finding of necessity; to construct or contract for a water treatment facility, subject to the statutory limitations (including an

independent audit,4 etc.). However, this Office is only issuing a legal opinion based on the current law at this time and the information as provided to us.

Until a court or the General Assembly specifically

addresses the issues presented in your letter, this is only an opinion on how this Office believes a court would interpret the law in the matter.

Additionally, you may also petition the court for a declaratory

judgment, as only a court of law can interpret statutes and make such determinations. See S.C. Code § 1 5 53-20.

If it is later determined otherwise, or if you have any additional questions or issues, please let us

know.

Sincerely,

Anita (Mardi) S. Fair
Assistant Attorney General
REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General

1 S.C. Code §6-13-210.

2 S.C. Code § 6-1 3-240(A)(8).
1 As discussed in the April 30. 2012 opinion. See Op. S.C. Atfv Gen.. 2012 WL 1649764 (S.C.A.G. April 30, 2012).

4 See, e^, S.C. Code § 6- 1 3-240( B).