Water is Life
Water Sustainability
and Security:
Legislative Options
Mitchell Reid, JD
Alabama Rivers Alliance
www.AlabamaRivers.org
“Alabama’s Water resources, contrary to
popular thought, are limited… There is a
great obligation to plan and
encourage the use of natural resources to
best serve the physical, social, economic,
and environmental needs of the people of
Alabama” - Alabama Water Resources Study
Commission, October 10, 1990
*Image: Good Magazine, 2010
Photo: IStrock
• “As Georgia Struggles, Our Most Vital Resource is at Stake”
– Mobile Press-Register, April 15, 2012
• “Plan B needed on water”
– Gadsden Times, Sept 20, 2011
• “Atlanta water needs still a threat to Alabama”
– Montgomery Advertiser, Sept. 1, 2011
• “Alabama must ensure that it doesn’t waste this natural resource”
– Anniston Star, July 28, 2011
• “Water management plan is vital”
– Dothan Eagle, July 17, 2011
• “Water management plan would give AL leverage in tri-state
water wars case”
– Huntsville Times, July 11, 2011
*Image: Good Magazine, 2010
Photo: IStrock
“The failures of Alabama’s state water law could
be corrected with one statute. The State Legislature
should act swiftly to adopt a comprehensive water
management statute based on the Regulated
Riparian Model Water Code; the resulting statute
should regulate the state’s surface and
groundwater as one unified resource and should
coordinate water quality regulation with water
quantity regulation. Adopting such a statute will
prepare the state for future water shortages, as
well as putting it on a better footing for future
negotiations with neighboring states.”
- Professor Heather Elliot, Alabama’s Water Crisis,
February 2, 2012
*Image: Good Magazine, 2010
Photo: IStrock
Existing
Law
AWAWG
Legislative Solutions
for The Way Forward
*Photo: Nelson Brooke
Existing Law
Alabama’s Water Resources
Law
• Traditional Riparian Law = Water Insecurity
– Surface water: “[E]very riparian proprietor has an equal right
to have the stream flow through his lands in its natural state,
without material diminution in quantity or alteration in quality.”
• This rule is qualified by the limitation that each of said proprietors
are entitled to a reasonable use of the water for domestic,
agricultural, and manufacturing purposes. Crommelin v. Fain, 403 So. 2d
177, 184 (Ala. 1981)
• Non-Riparian owners “may not consume water from such
watercourses.” Alabama AG Opinion 2000-226, p. 4, August 31, 2000
– Groundwater: “[U]se [of groundwater resources] must be
limited to purposes incident to the beneficial enjoyment of the
land from which they are obtained.”
• However, a property may not concentrate such waters and convey
them off his land if the springs or wells of another are impaired.
Martin v. City of Linden, 667 So. 2d 732, 739 (Ala. 1995)
*Photo: Charles Seifried
Alabama’s Water Resources
Law
• Alabama Water resources Act
– All waters of the State are among the basic resources
of the State of Alabama
• Priority – Human Consumption (Ala. Code § 9-10B-2(2))
• Declaration of Beneficial Use – All Public Water Systems and
users with a capacity of 100,000 g/d (Ala. Code § 9-10B-20)
• Capacity Stress Areas – An area where the commission
determines that the use of the waters of the state, whether
ground water, surface water, or both, requires coordination,
management, and regulation for the protection of the
interests and rights of the people of the state. (Ala. Code § 910B-3(3))
– Office of Water Resources
• “responsibility to develop plans and strategies for the
management of the waters of the state as well as the other
goals and policies of this chapter” (Ala. Code § 9-10B-5)
*Photo: Charles Seifried
Alabama’s Water Resources
Law
• Alabama Water resources Act
– Limitations
• Capacity Stress Areas – regulation can only occur “only after
“the Water Resources Commission has determined that such
action is necessary because the aggregate uses of the waters
of the state in such area exceeds or will exceed the availability
of such waters and is required to protect the availability of the
waters of the state… (Ala. Code § 9-10B-2(6)(a))
• “Nothing contained in this chapter shall change or modify
existing common or statutory law with respect to the rights of
existing or future riparian owners concerning the use of the
waters of the state. “(Ala. Code § 9-10B-27)
*Photo: Charles Seifried
Alabama’s Water Resources
Law
• Section 9-10B-24 - Alabama Water Resources Council
– Advisory capacity to the Office of Water Resources.
– Advise the Office of Water Resources on all matters
concerning the waters of the state.
– Comprised of one representative appointed by each of the
following entities:
• The Alabama Department of Conservation and Natural
Resources,
• the Alabama Department of Environmental Management,
• the Alabama Department of Public Health,
• the Soil and Water Conservation Committee,
• the Alabama State Port Authority,
• the Geological Survey of Alabama, and
• the Water Resource Research Institute.
*Photo: Charles Seifried
Alabama’s Water Resources
Law
• Alabama Department of Environmental
Management
– “the implementation and enforcement of such rules
and regulations shall be under the direction of the
Alabama Department of Environmental
Management”. (Ala. Code § 9-10B-23(a))
– “ADEM has no authority under existing regulations or
statutes to require minimum stream flows. This is an
extremely complex issue which will require legislative
action to address” (ADEM letter to EPA, Oct 14, 2010)
*Photo: Charles Seifried
Alabama’s Water Resources
Law
• Other Agencies
– Alabama Department of Conservation and Natural Resources
(Ala. Code § 9-2-1 et seq.)
– Alabama Geological Survey (Ala. Code § 9-4-1 et seq.)
– Alabama Water Conservancy Districts (Ala. Code § 9-8-50 et seq.)
– Watershed Management Authorities (Ala. Code § 9-10A-3)
– Federal Agencies
•
•
•
•
US Fish and Wildlife
Federal Energy Regulatory Commission
U.S. Army Corps of Engineers
U.S. Environmental Protection Agency
*Photo: Charles Seifried
Alabama’s Water Resources
Law
SJR 16: the waters of the state, as defined in the
Alabama Water Resources Act, are a natural resource
of the state and subject to the state's sovereign power
to plan and manage the withdrawal and use of those
waters, under law, in order to protect public health,
safety, and welfare by promoting economic growth,
mitigating the harmful effects of drought, resolving
conflicts among competing water users, achieving
balance between consumptive and non-consumptive
uses of water, encouraging conservation, preventing
significant degradation of natural environments, and
enhancing the productivity of water-related activities.
*Photo: Charles Seifried
The Alabama Water Agencies
Working Group
Comprehensive Water
Management Plan:
December 1, 2013?
On April 18, 2012, Governor Bentley directed that Alabama Water Agencies Working
Group (AWAWG) put together recommendations for a water management plan along
with recommendations for any legislation which will be necessary to implement the
plan.
- Deadline: December 1st, 2013.
- Preliminary issue paper: “Water Management Issues in Alabama”
- Available through both ADEM and AOWR’s websites.
- “current state water policies need to be reformed and a comprehensive statewide
water management plan created to guide the development, use, and protection of water
resources and to protect Alabama from future uncertainty with respect to water
availability
- “[w]hat is needed is a legislative charge and authority to begin the process and a
planning framework for creation of a comprehensive and adaptive plan that will serve
the state well into the future” AWAWG Report p. 7.
- Ensure that the AWAWG has the authority and resources necessary to complete
the task.
-“The State needs comprehensive water policies that provide legal clarity with respect
to water rights.”
*Photo: Paul Freeman
A Way Forward
The Alabama Water
Sustainability and
Security Act
Why do we need Legislation?
• Provide authority and direction to the AWAWG
• Define the Legal Authority for water management
• Provide the parameters of the Alabama Comprehensive Water
Management plan
– Identification of existing uses and estimates of future trends in uses
of waters of the state;
– A system to monitor and manage water withdrawals;
– A set of drought management strategies in anticipation of reasonably
foreseeable water shortages and emergencies;
– Identification of and mechanisms to protect minimum flows necessary
to preserve the chemical, physical, and biological integrity of the
Waters of the State;
– Coordination of water management with water quality regulation
under the Alabama Department of Environmental Management;
– Management of interbasin transfers;
– Conservation and efficiency programs,
– Proposals for a regional decision-making structure.
– Require recommendations for legislation including recommendations
for modifications to the current Certificate of Use system to make the
right to use water a matter of legal record, entitled to legal protection;
•
Require public input and participation
*Photo: Cahaba River Society
A House of Cards
(in a good way)
*Photo: Charles Seifried
A House of Cards
(in a good way)
*Photo: Charles Seifried
Solutions
• The Regulated Riparian Model Water
Code
– American Society of Civil Engineers
– “[O]verall the end products are carefully
balanced to represent a coherent body of law
that would markedly improve the law of water
allocation as presently found in many States.”
( RRMWC at ii, see also Beck, The Regulated Riparian Model Water Code: Blueprint for Twenty First
Century Water Management, 2000)
• Environmental Flows
*Photo: Charles Seifried
Next Steps
Next Steps
• 2012-13 – AWAWG receives stakeholder input and, in
concert with the Water Committee, develops
recommendations for the plan for final approval by the
state legislature
• Spring 2013 - Water Committee and State Legislature
pass Alabama Water Sustainability and Security Act
(HB674) modifying the Alabama Water Resources Act
Authority and parameters for the AWAWG to develop the
Alabama Comprehensive Water Management Plan
• Spring 2014- Alabama State Legislature adopts the
recommendations of the AWAWG
• Summer 2015 - OWR implements the Alabama
Comprehensive Water Management Plan
*Photo: Nelson Brooke
“Let our advance worrying become
advance thinking and planning.”
Winston Churchill
Mitchell Reid, JD
Alabama Rivers Alliance
2027 2nd Ave N.
Birmingham, Al 35203
205-322-6395
mreid@alabamarivers.org
*Kominoski
Photo: Phil Campbell