Could a South Carolina regional council ban private sewer providers or deny their permits?

Plain-English summary

A regional council of governments had adopted a motion saying only public entities could operate water and sewer systems. A senator asked whether the council could bar private providers or deny permits for private sewer systems. The Attorney General concluded in 2008 that it could do neither under the state authority he reviewed.

The opinion read the council's role as studying regional issues, coordinating plans and making recommendations to local governments. It found no power to decide which entities served the area and no grant of sewer-system permitting authority. The council could express recommendations about water and sewer service, but the motion could not function as a binding ban under the opinion's analysis.

Currency note

This opinion was issued in 2008. 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: Could the regional council outlaw privately owned sewer systems? A: The AG said the council lacked authority to decide which entities could provide water or sewer service in its area.

Q: Could the council issue or deny sewer-system permits? A: The opinion found no authority for it to do either.

Q: Could the council still take positions on regional water and sewer service? A: Yes. Its statutory role included studies, plans and recommendations to participating governments.

Background and statutory framework

The request followed a motion by the Berkeley, Charleston and Dorchester council opposing private water and sewer providers. The AG examined the constitutional provisions for regional councils and the statute listing their powers. It separated advisory planning authority from a general local-government power to regulate or permit providers.

Citations and references

Statute: S.C. Code Ann. § 6-7-140.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-8-2008-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/05/knotts-j-m-jr-os-8601-5-8-08-privately-owned-sewer-systems.pdf

Original opinion text

May 8, 2008

The Honorable John M. Knotts, Jr.
Member, South Carolina Senate
Post Office Box 142
Columbia, South Carolina 29202
Dear Senator Knotts:
We received your letter requesting an opinion of this Office on the authority of the Berkeley, Charleston, and Dorchester Council of Governments (the “COG”). Attached to your letter, you provided us with a letter from Timothy S. Mallard, a member of the Charleston City Council. In this letter, Mr. Mallard explained that the COG’s executive committee passed a motion stating “‘only public entities can operate water and sewer systems.’” In addition, he states that the full COG ultimately passed the same motion. Thus, Mr. Mallard inquires as to “whether the COG can say, ‘We are against privatization and we are going to outlaw them. ’” Furthermore, he asks “does the COG have the authority to deny permits for privately owned sewer systems.” Law/Analysis Article VII, section 15 of the South Carolina Constitution (1976) authorizes the Legislature to create regional councils of governments. According to this provision, such organizations exist to “to study and make recommendations on matters affecting the public health, safety, general welfare, education, recreation, pollution control, utilities, planning, development and such other matters as the common interest of the participating governments may dictate.” S.C. Const. Art. VII
§ 15. Furthermore, article VIII, section 13(A) of the South Carolina Constitution (Supp. 2007) states: “Any county, incorporated municipality, or other political subdivision may agree with the State or with any other political subdivision for the joint administration of any function and exercise of powers and the sharing of the costs thereof.” Pursuant to these constitutional provisions, the Legislature authorized the creation of regional councils of governments as provided in sections 6-7-110 et seq. of the South Carolina Code (2004). Section 6-7-140 of the South Carolina Code provides the powers and duties of regional councils. These powers include the power to:

The Honorable John M. Knotts, Jr.
Page 2
May 8, 2008
(1) Prepare studies and make recommendations on such matters as it deems appropriate; (2) Coordinate and promote cooperative programs and action with and among its members and other governmental and nongovernmental entities, including those of other states; (3) Study and make recommendations on matters affecting the public health, safety, general welfare, education, recreation, pollution control, utilities, planning, development and such other matters as the common interest of the participating governments may dictate; (4) Provide continuing technical assistance, and information to the member local governments and other agencies and individuals; (5) In general, the regional council of government shall have the power to carry on such planning activities and the development of such studies and programs as it deems to be in the interest of the area; (6) Acquire and dispose of real and personal property necessary to the conduct of its business; (7) After coordination with the appropriate State, local and Federal agencies, the regional council of government may adopt such plans and programs as it may from time to time prepare. Such plans and programs as are adopted shall constitute the recommendations of the regional council of government. S.C. Code Ann. § 6-7-140. We stated in a 1996 opinion of this Office: “As to powers and responsibilities of regional councils of government, this Office has advised previously that no council of government has been granted powers of a general purpose local government such as those found in § 5-7-30 as to incorporated municipalities or §4-9-30 as to counties.” Op. S.C. Atty. Gen., May 2, 1996. Furthermore, based on our review of the pertinent constitutional and statutory provisions, we did not find that a regional council of government has the authority to determine who may provide water and sewer service in the area represented by the council. Rather, it appears that a council of governments’ authority is limited to studying issues pertaining to local governments and to working with local governments on plans to resolve such issues by making recommendations. Although the COG has the ability to make recommendations to the governments it serves concerning water and

The Honorable John M. Knotts, Jr.
Page 3
May 8, 2008
sewer service, we do not believe the COG has authority to determine who may provide water and sewer service in the area served by the COG. Moreover, we find no authority indicating that the COG has authority to issue or deny permits for sewer systems. Very truly yours, Henry McMaster Attorney General

By:

REVIEWED AND APPROVED BY:

______
Robert D. Cook
Deputy Attorney General

Cydney M. Milling
Assistant Attorney General