Could a South Carolina town charge residents a stormwater utility fee?

Official title

Asking whether a municipality may “legally impose a storm water fee on its’ citizens under federal and/or state law?”

Requester

The Honorable B.R. Skelton, Representative, District No. 3

Plain-English summary

A legislator asked whether a South Carolina municipality could charge residents a stormwater fee. The Attorney General answered yes, subject to the statute's requirement that the fee system be reasonable and equitable. The opinion pointed to the law permitting local governments to establish stormwater utilities and fund them through either a fee or a tax assessment.

The office also relied on a state high-court decision that had read the statutory language as expressly allowing either funding method. It did not decide whether any particular town's fee amount or design met the reasonable-and-equitable standard.

Currency note

This opinion was issued in 2014. 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 opinion allow towns to impose stormwater fees? A: Yes. It concluded the statute authorized a municipality to fund a stormwater utility through a fee.

Q: Could a town choose a tax assessment instead?
A: The opinion said the statute permitted either a fee or an assessment as a utility funding method.

Q: Did the opinion approve every stormwater fee amount?
A: No. It said a fee must be reasonable and equitable and did not evaluate a particular charge.

Background and statutory framework

The office read the stormwater statute's utility-funding provision and a South Carolina court decision interpreting it. Both supported municipal authority to charge a fee, conditioned on the statute's fairness language.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-28-2014-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2014/03/skelton-b-r-os-9706-2-28-14-municipality-impose-storm-water-fee-00217684xD2C78.pdf

Original opinion text

ALAN WILSON

A TIORNEY GENERAL

February 28, 2014
The Honorable B.R. Skelton
Representative, District No. 3
2962 Walhalla Highway
Six Mile, SC 29682
Dear Representative Skelton:
By your letter dated November 22, 2013, you have forwarded a constituent request asking whether a municipality may "legally impose a storm water fee on its' citizens under federal and/or state law?" As explained below, we believe that it can. Analysis The Stormwater Management 1 and Sediment Reduction Act was passed in 1991 and now occupies Sections 48-14-10 through 48-14-170 of the South Carolina Code. S.C. Code Ann. § 48-14-10 (2008) et. seq. The purpose of the Act is "to reduce the adverse effects of stormwater runoff and sediment and to safeguard property and the public welfare by strengthening and making uniform the existing stormwater management and sediment control program." Act No. 51, 1991Acts167. · Section 48-14-120(C) of the Code authorizes local governments to establish a stormwater utility 2 and further permits local governments to fund such utilities "through the establishment of a fee system or tax assessment that must be reasonable and equitable." S.C. Code Ann. § 48-14 .. 120(C) (2008). In State ex rel. Condon v. City of Charleston, 334 S.C. 246, 513 S.E.2d 97 (1999) our Supreme Court, interpreting Section 48-14-120(C), explained "[t]he plain, ordinary, and unambiguous language of the statute allows local governments to fund the utility through either a fee or an assessment." 334 S.C. at 248, 513 S.E.2d at 98 (1999) (citing S.C. Code Ann. 1

Stonnwater management is defined as a system which reduces "pollutants that might otherwise be carried by stonnwater runoff." S.C. Code Ann.§ 48-14-20(11) (2008). 2 A stonnwater utility is defined as "an administrative organization that has been created for the purposes of planning, designing, constructing, and maintaining stonnwater management, sediment control, and flood control programs and projects." S.C. Code Ann.§ 48-14-20(14) (2008).

REMBERT

c. DENNIS BUILDING • POST OFACE Box 11549 • COLUMBIA, SC 29211-1549 • TELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

The Honorable B.R. Skelton
Page2
February 28, 2014

§ 48-14-120(C) (1998 Supp.)). As with any statute or legislative act, the Stormwater and Sediment Reduction Act is presumed to be constitutional and will be construed in a manner such that, if at all possible, the Act will be considered valid. See Burriss v. Anderson County Bd. of Educ., 369 S.C. 443, 451, 633 S.E.2d 482, 486 (2006) ("All statutes are presumed constitutional and will, if possible, be construed so as to render them valid."). Understanding this, we believe a municipality may legally impose a stormwater fee on its' citizens so long as such a fee is reasonable and equitable as required by the terms of Section 48-14-120(C). As detailed above, our Supreme Court, in City of Charleston, has already interpreted Section 48-14-120(C) as expressly authorizing a municipality to impose such a fee. 334 S.C. at 248, 513 S.E.2d at 98. Accordingly, it is the opinion of this Office that a municipality may legally impose a stormwater fee on its' citizens so long as such a fee complies with Section 48-14-120(C)'s requirement that the fee be "reasonable and equitable." Sincerely,

~~
Brendan McDonald
Assistant Attorney General
REVIEWED AND APPROVED BY:

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/R()b;rt D. Cook
Solicitor General