Could Hemingway extend town water lines into a Williamsburg County service area without county approval in 1998?

Plain-English summary

Williamsburg County counsel asked about Hemingway's extension of town water lines into an unincorporated area covered by the county's water and sewer ordinance. The Attorney General read Section 5-7-60 to bar a municipality from providing service in another political subdivision's designated service area without that subdivision's governing body's approval. The statute's definition covered an area where service was being provided, budgeted, or funded through an application certified by the governing body.

The opinion did not decide whether Williamsburg County's particular ordinance and preparatory work met that definition. It said the answer depended on facts the AG could not find in a legal opinion. Its conclusion was conditional: if the area was designated under the statute, Hemingway needed county approval before entering it. The letter was informal.

Currency note

This opinion was issued in 1998. 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 AG find that Hemingway's line extension was unlawful?
A: No. It could not determine from the request whether the county's area met the statutory definition of a designated service area.

Q: What would make county approval necessary?
A: Under the AG's reading, approval was necessary if Hemingway sought to serve an area designated for another political subdivision under Section 5-7-60.

Q: Did a county ordinance alone settle the area's status?
A: The letter did not say so. It treated the area's statutory status as a factual question involving the county's service, budget, and funding activity.

Background and statutory framework

The letter described the county system as having been adopted under Article VIII, Section 16 of the state constitution and a Code provision governing county water and sewer systems. Its operative analysis quoted Section 5-7-60 on municipal service outside corporate limits and the limit for another subdivision's designated service area.

Citations and references

• Section 5-7-60, the municipal service and designated-area rule quoted by the AG.
• Article VIII, Section 16 of the South Carolina Constitution, cited as authority for the county system.

Official title

Informing that Williamsburg County has adopted a comprehensive water and sewer ordinance which authorizes the county to regulate water and sewer and do business as a water and sewer authority.

Requester

W.E. Jenkinson, III, Esquire

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-20-1998/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/98april20jenkinson.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

April 20, 1998

W.E. Jenkinson, III, Esquire
Williamsburg County Attorney
P.O. Drawer 669
Kingstree, South Carolina 29556

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RE:

Informal Opinion

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Dear Mr. Jenkinson:
You have informed this Office that Williamsburg County has adopted a comprehensive water and sewer ordinance which authorizes the county to regulate water and sewer and do business as a water and sewer authority. The water and sewer district encompasses all unincorporated areas in the county except municipalities in one area which is served by a rural water company. You state that the county has recently hired personnel, authorized various studies into areas that need to be served and has applied for loans for construction. The system is not based on taxation, but on user fees. You further state that the Town of Hemingway, without notice or first seeking county approval, extended their water lines and is currently constructing in the unincorporated areas outside the town limits. You have asked for this Office's opinion on the law in regards to the facts presented.

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It is my understanding that this system was adopted pursuant to Article VIII, Section 16 of the South Carolina Constitution and Section 44-55-141 O(A) of the South Carolina Code of Laws. These provisions authorize counties to construct and operate water and sewer systems upon approval of a majority of the electors voting on the question in the county.

In regards to the powers of a municipality, Section 5-7-60 of the Code provides in pertinent part as follows: Any municipality may perform any of its functions, furnish any of its services ... and make charges therefor and may participate in the financing thereof in areas outside the corporate limits of such municipality by contract REMBERT

c. DENNIS BUILDING

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POST OFFICE Box 11549

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COLUMBIA, S.C. 29211-1549

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TELEPHONE:

803-734-3970

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FACSIMILE: 803-253-6283

Mr. Jenkinson
Page 2
April 20, 1998

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with any individual, corporation, state or political subdivision or agency thereof ... subject always to the general law and Constitution of this State regarding such matters, except within a designated service area for all such services of another municipality or political subdivision, including water a sewer authorities .... For the purposes of this section designated service area shall mean an area in which the particular service is being provided or is budgeted or funds have been applied for as certified by the governing body thereof. Provided, however, the limitation as to service areas of other municipalities or political subdivisions shall not apply when permission for such municipal operations is approved by the governing body of the other municipality or political subdivision concerned. Based on the foregoing, a municipality may not provide water and sewer services within the "designated service area" of another municipality or political subdivision without the approval of the governing body of the municipality or political subdivision concerned. This would, of course, include a county. Section 5-7-60 defines "designated service area" as an area in which the particular service is being provided or is budgeted or funds have been applied for as certified by the governing body thereof. In this case, questions have arisen as to whether the area set forth in the County Ordinance would constitute a "designated service area" for purposes of the statute. Such a determination would have to be based on the facts of this particular situation. Since this Office does not have the authority to make factual determinations in a legal opinion, I am precluded from making a determination in this regard. Op. Atty. Gen. dated December 12, 1983. However, I believe that it is fair to say that if the area set forth in the Ordinance is a "designated service area," the municipality may not enter into the area without first garnering county approval.

This letter is an informal opinion only. It has been written by a designated assistant attorney general and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kindest regards, I remain Very truly yours,

73. if. l(,J

Paul M. Koch
Assistant Attorney General