THE STATE OF SOUTH CAROLINA
In The Supreme Court
State of South Carolina,
ex rel. Charles M.
Condon, in his official
capacity as South
The City of Charleston
and Charleston County,
Appeal From Charleston County
Alexander S. Macaulay, Circuit Court Judge
Opinion No. 24900
Heard December 3, 1998 - Filed February 16, 1999
Attorney General Charles M. Condon, Assistant
Attorneys General Reginald I. Lloyd and Christie
Newman Barrett, all of Columbia, for appellant.
William B. Regan; and Carl W. Stent, both of
Charleston, for respondents.
TOAL, A.C.J.: This declaratory judgment action asks whether
the City of Charleston (Charleston) is authorized to impose a stormwater
utility fee on state owned or managed property under the Stormwater
Management Act, S.C. Code Ann. H 48-14-10 et seq. (Supp. 1998)(The Act).
The circuit court held the fee was proper, and the State appeals. We affirm.
The Act is primarily concerned with regulating "land-disturbing
activities," and in that regard requires prior approval of any action which will
result "in a change in the natural cover or topography that may cause erosion
and contribute to sediment and alter the quality and quantity of stormwater
runoff." S.C. Code Ann. § 48-14-20(8); see S.C. Code Ann. §§ 48-14-30 thru -
110. The State argues that it is exempt from all provisions of the Act
pursuant to S.C. Code Ann. § 48-14-40(H) (Supp. 1998), which provides that
the Act does not apply to land disturbing activities "undertaken on state-
owned or managed lands that are otherwise regulated by the provisions of
Chapter 18 of this title, the Erosion and Sediment Reduction Act."
As the circuit court judge correctly noted, the Act is not solely
concerned with the regulation of "land-disturbing activities." In addition to
the sections related to that function, the Act also authorizes local
governments to establish a "Stormwater Utility," and to fund it either
through a fee or a tax assessment. S.C. Code Ann. º 48-14-120(C) (Supp.
1998). As permitted by the Act, and in accordance with the regulations
promulgated pursuant to it,1 Charleston has created a Stormwater Utility by
ordinance, and opted to fund it through a fee. It is the propriety of the
assessment of this fee against State owned or operated property that is
We agree with the circuit court that the plain, ordinary, and
unambiguous language of the Act permits the assessment of this fee upon
State property, and that the exemption in § 48-14-40(H) is irrelevant to the
Stormwater Utility provisions of the Act. Fraternal Order of Police v. South
Carolina Dep't of Rev., 332 S.C. 496, 506 S.E.2d 495 (1998). State owned or
managed property is subject to the fee.
The State also contends that although denominated a fee, the
charge here is really a tax and therefore cannot properly be assessed against
its property. The plain, ordinary, and unambiguous language of the statute
allows local governments to fund the utility through either a fee or an
assessment. S.C. Code Ann. º 48-14-120 (C). We agree with the circuit court
that the statute permits the governmental unit the choice of funding options,
and that Charleston may choose to fund its utility through a fee. Fraternal
Order of Police, supra. Accordingly, the order of the circuit court is
MOORE, WALLER, BURNETT, JJ., and Acting Associate Justice
Jasper M. Cureton, concur.