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Modernizing Water Management—Alabama’s Long Haul

It’s a long haul for Alabama to modernize its water laws. Horse-and-buggy-era policies affect farm irrigation, city reservoirs and industrial recruitment — and leave us dry in interstate water wars.

Alabama’s water laws are a “horse-and-buggy” system, says Mitch Reid, program director for the Alabama Rivers Alliance. Reid is pictured on the Cahaba River south of Birmingham.

Alabama’s water laws are a “horse-and-buggy” system, says Mitch Reid, program director for the Alabama Rivers Alliance. Reid is pictured on the Cahaba River south of Birmingham.

Photo by Charlie Ingram

If there is any question about the value of water, consider that most people would die in three days without it. Necessary for industry, agriculture, power generation and life itself, there is no resource in the world more precious than water. And Alabama has plenty of it — most of the time.

The state’s water resources include 77,000 miles of rivers and streams, and one-sixth of the state is covered by surface water and wetlands. According to the Alabama Geological Survey, an average of 15 percent of all surface water in the contiguous United States ultimately flows through Alabama. What’s more, it’s estimated that the state sits atop a seemingly infinite 533 trillion gallons of groundwater reservoirs, according to the Alabama Department of Environmental Management (ADEM).

Despite such abundance, there are questions about Alabama’s water paradise. ADEM’s website notes, for example, that, “Groundwater, while plentiful, is not evenly distributed throughout the state. Even though a statewide shortage is unlikely, local shortages may occur in some areas where the demand is great, causing serious problems.”

In a 2012 report, Heather Elliott, an associate professor of law at the University of Alabama, says that Alabama faces “a major and expanding water crisis” and without changes that include a new water law, “Alabama the Beautiful may well become Alabama the Withered.”

According to Elliott and others, increasingly severe droughts, increased population, economic development and water disputes with other states — which Alabama, thus far, has lost — have combined to expose weaknesses in the state’s water resource landscape.

None of this is new on the radar. Legislative attempts to address Alabama’s water issues go back at least 25 years to the days of the Guy Hunt administration. Severe multistate droughts in the 1980s contributed to and dovetailed with the start of the so-called Tri-State Water Wars among Georgia, Alabama and Florida that have lasted the past generation. Realizing the need even then for better management of its water resources, Alabama passed the Water Resources Act in 1993, which created the Office of Water Resources and emphasized the need for better statewide water management.

But the Water Resources Act did not change Alabama’s water laws, nor has it led to a comprehensive management plan in which one entity has the authority to manage the state’s water resources. That, in turn, is preventing Alabama from maximizing the use of its plentiful water resources and properly protecting itself against future water shortages and environmental harm, plan proponents say.

The 1993 legislation clearly protected Alabama’s existing water law, which is based on a system of riparian rights. That essentially means that a landowner’s property must abut surface water or overlay underground water for the landowner to have a right to use that water.

Non-riparians, those landowners whose property doesn’t have water, are out of luck if they need water. Current Alabama law prohibits, for example, non-riparian use of water for irrigation. According to the Alabama University Irrigation Initiative (AUII), Alabama currently irrigates between 115,000 and 130,000 acres, when all types of crops are considered. Realistically, that number could be increased to an estimated 600,000 acres with a new water law.

Compared with its neighbors, Alabama ranks at the bottom of irrigated acres. Alabama, the AUII notes, is one of the few areas where both land and water are plentiful, and growing more crops in Alabama could add millions in state revenues while creating new jobs. Done properly and with effective planning, Alabama might be able to capitalize on water-supply problems in the crop-rich Midwest, perhaps by growing more corn here.

John McMillan, commissioner of the Alabama Department of Agriculture and Industries, says that existing laws are a limiting factor if irrigation is to hit its potential.

“Unless you own land next to the water, you don’t have the right to pull the water,” McMillan says. “Incomplete statewide water resource policies and Alabama’s location as a downstream state on most of its major rivers may have a significant bearing on Alabama’s future economic plans and activities. As such, the need for innovation and creativity in water law and policy within this state remains vital.”

“The riparian system is the Achilles heel of the Water Resources Act,” says Mitch Reid, program director for the Alabama Rivers Alliance. “The act protects the riparian system, which is based on English common law dating back to the 1700s. It’s a horse-and-buggy system that is not in step with the realities of today.”

Reid cites a case in which the city of Linden’s main source of water was tainted with salt, so the city bought land that overlaid groundwater with the intent to pump water from that land approximately 15 miles back to Linden for the public water system. A farmer whose land abutted Linden’s purchased property successfully sued Linden, saying the city did not have the right to transfer the water in question back to Linden.

“Frankly, we’re in an absurd position, because the 1993 law says the highest priority for use is human consumption, yet we have this system of riparian groundwater law that, in this case, says that human consumption is not allowed,” Reid says. “I guess Linden could have set up a water fountain on that property, but by supplying water to their customers back in Linden, it was not lawful.

“And now we have water providers in the state — including Birmingham, Mobile and Montgomery — who can’t get a certificate of use because they can’t demonstrate they have a legal right to the water they’re using.”

Reid refers to certificates of use issued by the Office of Water Resources to those who plan to use large amounts of water. They are certificates, not authorizations. The Office of Water Resources acknowledges backlogs in issuing the certificates. The water systems for Mobile and Birmingham did not respond to questions regarding this; Montgomery acknowledged a backlog and said a certificate of use is expected in the near future.

Another shortcoming of Alabama’s water law is that surface water and groundwater are treated separately. “The idea that surface water and groundwater are separate is just blatantly wrong,” Reid says. “They are connected, and they should be treated as a single resource.”

According to Elliott, “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 (to) regulate the state’s surface and groundwater as one unified resource and 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.”

Elliott and Reid both advocate the adoption of the American Society of Civil Engineers’ Regulated Riparian Model Water Code. “The American Society of Civil Engineers is known as being conservative; they’re not an environmental group,” Reid says, adding, “The Regulated Riparian Model Water Code would go a long way in addressing the problems with our current law.”

Responding immediately to Alabama’s Water Wars setback in 2011, Gov. Robert Bentley issued an executive order to create the Alabama Drought Assessment Planning Team to advise the Office of Water Resources. After Florida and Alabama failed in their appeal asking the U.S. Supreme Court to intervene in part of the Water Wars decisions in early 2012, Bentley organized the Alabama Water Agencies Working Group (AWAWG). Among other things, the governor directed the group to “recommend a statewide water management action plan and timeline that takes into account and equitably manages the various demands on the State’s water.”

Leaving water disputes to the courts can leave consumers on the short end of the stick, says state Sen. Arthur Orr, R-Decatur, shown at Ingalls Harbor on the Tennessee River.

Photo by David Higginbotham

AWAWG issued its report to Bentley in December 2013, and it was released to the public in April. At more than 200 pages, the report is extensive but short on specific recommendations. “It was a path to a plan, but it was not a plan,” Reid says.

It did, however, present numerous water issues to be studied and considered. In conjunction with AWAWG’s report, the Alabama Legislature has approved funding for a statewide assessment of surface water, groundwater, in-stream flows and base flows. This is the first funded study of the state’s water resources targeted at water policy data acquisition in state history, and the study is still in process.

“(Alabama) is collecting data to determine all the water resources we have,” said state Sen. Arthur Orr of Decatur, chair of the Permanent Joint Legislative Committee on Water Policy and Management, referred to as “the water committee.”

“We’re funding it in the budgets to find out all those things that are important to consider before we establish some real policies, and that’s a good thing. We’re not going to be making decisions on information that might not be reliable or might not be hard facts.”

Orr sees shortcomings in Alabama’s existing water laws, and he believes a statewide water management plan could be beneficial. He also thinks water-related changes would help industrial recruiting.

“The problem is, without a plan, the decisions are left to the courts, and riparian rights under common law can leave some users on the short end of the stick,” Orr says. “Going forward, as the conflicts become more common among users, the outcry for some kind of encompassing resolution will certainly arise.

“It seems to me, at this point, if the stakeholders could agree on some form of state water policy, everyone, all the stakeholders, would be what I would define as winners,” Orr says. “It would certainly be a positive thing if it were to happen today, but if there’s a delay of a decade or so, I would say we’ll have winners and losers. We would be better suited to address it sooner than later. Now, to what degree that happens remains to be seen.”

Orr has seen enough to know that bringing meaningful changes to the way Alabama manages its water will be extremely complex. “It will be a massive undertaking to get a consensus,” he says. “It will be easier said than done, you can bet your bottom dollar.”

Says the Alabama Rivers Alliance’s Reid, “We know that water management planning in other states is an evolving and decades-long process that doesn’t get solved overnight. We realize the complexity of this. The governor, we think, is working in good faith with us, and we want to see what (the Legislature) comes up with during this period. At the same time, there are two things we think are critical — the law has to change and there has to be transparent stakeholder/water user involvement in developing whatever the new world of water management looks like in Alabama.”

As this issue of Business Alabama was coming off the press, Orr’s Permanent Joint Legislative Committee on Water Policy and Management was meeting at The Five Rivers Delta Resource Center, the state park in Baldwin County located at the confluence of much of Alabama’s watershed.

Orr is cautiously optimistic.

“I would like to see us have the will, not just the political will, but the will among the stakeholders to come to that consensus where we all benefit as opposed to letting a crisis dictate the realities of a management plan a decade from now or whatever the time frame might be,” he says.

“The powerful interests are very powerful in this state. So, it would be great if all the stakeholders could come to the table and there could be consensus so we aren’t playing hardball muscle politics in the legislative arena.”

Reid concurs. “It’s much better to make decisions when you’re not in a crisis. Making decisions in a crisis is not good for anyone. Things are pretty good right now, so we’re really looking forward to the upcoming period.”

Charlie Ingram is a freelance writer for Business Alabama. He lives in Birmingham.

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