State Water Plan Stalled

ABOVE Roy McCauley, of the Alabama Pulp and Paper Council, worries that a state water plan might put an unnecessary layer of bureaucracy between industries and the water they need.
 

A new wave of attention is rolling toward the state’s most valuable resource — water.

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Alabama boasts more than 132, 000 miles of rivers and streams, 3.6 million acres of wetlands and 563, 000 acres of ponds, lakes and reservoirs. What’s more, the state rests atop an estimated 553 trillion gallons of groundwater — more than 16 times the amount of surface water.

But just look at California to see that what seems like plenty today may not be enough next year.

And there’s nothing like too little water to start feuds. You don’t have to look to the Old West. Alabama and Florida have been in a legal battle with Georgia for a decade over Chattahoochee River water that’s slaking Atlanta’s thirst, with little regard for water needs downstream.

In fact, that court battle — plus a couple of drought years — prompted calls for a new state water plan. Former Gov. Robert Bentley created the Alabama Water Agencies Working Group (AWAWG) to develop recommendations for such a plan. It included representatives from the Office of Water Resources, the Alabama Department of Environmental Management, Alabama Department of Agriculture and Industries, Alabama Department of Conservation and Natural Resources and the Geological Survey of Alabama.

AWAWG submitted an initial report to Bentley in 2013 and was in the midst of surface water and ground water assessments when Gov. Kay Ivey disbanded the group last fall — making the Office of Water Resources the go-to group for water.

The office has until Jan. 1 to present the governor with a roadmap of “next steps, proposed timelines and estimated funding to produce a new water management plan, ” according to OWR Division Chief Brian Atkins.

Given the progress that AWAWG had made, Ivey’s move left some groups wondering — but hopeful — about what’s next.

“We thought AWAWG was a good thing, so we were disappointed to see it end, ” says Cindy Lowry, executive director of the Alabama Rivers Alliance. “But the Office of Water Resources said they will continue to build on what AWAWG did and come up with a plan. We don’t feel that all of this is going to go into some dark hole and not come back out again for 20 years. It’s just too important of an issue.”

Although Lowry and other environmental advocacy groups were encouraged by the direction AWAWG had taken, other important players were not.

“An exercise in futility, ” were the words Roy McCauley, executive director of the Alabama Pulp and Paper Council, chose for AWAWG. “A major problem was that … AWAWG did not include stakeholders such as manufacturers, utilities and environmental groups.”

AWAWG did solicit input from various groups. That input, expressed in letters to AWAWG posted online, covered water-related issues from one end of the spectrum to the other.

In addition to comprehensive water assessments, AWAWG also generated a second general report late in Bentley’s tenure and submitted the yet-to-be-made-public document to Ivey. That report, along with tomes of other information accumulated by AWAWG, will be evaluated by OWR in the coming months, according to Atkins, who also serves as chairman of the Alabama Drought Assessment and Planning Team.

Industrial interests say there’s no need for a new plan — that current law and management is plenty. That was established by the 1993 Alabama Water Resources Act and strengthened by drought legislation in 2014.

It’s based on riparian law, which provides water rights to users occupying land adjacent to surface water, and the reasonable use doctrine, which favors landowners with ground water sources below them.

But University of Alabama law professor Heather Elliott, in a paper titled “The Failings of Alabama Water Law, ” writes that the current law makes it illegal or overly restrictive to use water for what could be productive municipal, agricultural, commercial and industrial purposes.

In fact, she says that most municipalities and many private users of water in Alabama are in violation of the state’s water laws, which Elliott calls a “stupid, antiquated, common-law approach to this.”

“If an environmental group decides to sue Jefferson County or Huntsville or whomever, I think it’s 99 percent certain the municipality would lose under the law, and that’s a bad thing, ” Elliott says.

In the event of such a lawsuit, municipalities might claim what’s known as prescriptive rights for water use, but the litigation could still cause major problems.

“I don’t get it when people say there’s nothing to fix, ” Elliott says. “It’s just one lawsuit away from all falling apart. People don’t like to hear me say that, but it’s pretty clear from a legal standpoint what the Alabama Supreme Court would do, unless it does something extremely unusual, away from what it normally has done.”

Elliott says the state should adopt a statute that eliminates water use restrictions associated with riparian and reasonable use doctrines, permits inter-basin transfers of water, protects in-stream flows needed by ecosystems and empowers a single agency to coordinate that statute.

Others have a markedly different opinion. McCauley says the current law and water management arrangement is more than adequate and any changes should result from actions of the Alabama Water Resources Commission, which oversees the OWR.

Asked why a comprehensive water  plan would not benefit manufacturers, McCauley replied: “The opposite would be true. A comprehensive plan would have the potential to include a permitting process, which would add a useless, expensive layer of bureaucracy for manufacturers and public water suppliers to deal with.”

Elliott, who clerked on the U.S. Supreme Court, says another reason Alabama needs a new water plan is in case the state is ever forced to litigate before the High Court. That is a distinct possibility at some point, given that Alabama has long contended that it is or could be harmed by Atlanta’s exploding use of water, and the Supreme Court hears disputes between states, Elliott and others say.

McCauley, on the other hand, notes that Alabama has long litigated with the U.S. Army Corps of Engineers in the running feud with Georgia, and that has produced “reams of court filings over more than 25 years now, (and) there is not a single reference to plans.”

On the agricultural side, having a new state water plan rates low on farmers’ lists of priorities. Access to water is less an issue than the economics of water — that is, the cost of installing irrigation systems or building holding ponds. That’s why Alfa is pushing for water-related tax incentives for farmers, not a new water law, according to Jeff Helms, communications director at the Alabama Farmers Federation, Alfa.

“I would venture to say most farmers don’t want more regulation when it comes to water, ” Helms says. “They don’t want somebody telling them how to water, when to water, or charging them with fines and all of that. Most farmers would have some concerns about the unintended consequences that might occur if you put too much regulation in place.”

But Helms acknowledges that there might be disagreement among farmers on the riparian issue. “If you have access to water, you probably want to keep the law the way it is, ” he says. “There may be other farmers who feel differently.”

The Alabama Rivers Alliance’s Lowry hopes that the conversation about water among different parties continues. “I think the most important thing about this issue is that we don’t need to wait until we have another crisis to have our ducks in a row, to have a plan in place to handle the shortage, ” she says.

“And it’s not just about water shortages. It’s about the long-term health of the streams. It may not happen in that acute drought moment. It may happen in other ways, where we overstress an important source of water and it’s no longer healthy for us to use. That’s the importance of doing this ahead of time when we can do it with cool heads.”

From McCauley’s perspective, any problems with water in Alabama are just a drop in the bucket. “In the grand scheme of things, water policy is a minor problem, ” he says. “We have often said that it was a solution looking for a problem. All of us could well use the time we are spending chasing this issue on more productive enterprises.”

Water War Awaits Court Ruling

Southeastern states, especially Alabama, are eagerly awaiting the outcome of a years-long, contentious water dispute between Georgia and Florida that remained before the U.S. Supreme Court as this issue of Business Alabama went to press.

The dispute revolves around Georgia’s use of upstream water to meet the demands of Atlanta’s explosive growth. Florida claims that increased usage inhibited water flows in the Apalachicola Chattahoochee Flint River Basin, essentially decimating the state’s world-renowned oyster industry in downstream Apalachicola.

Many observers thought Florida had a slam-dunk case, but the outcome is far from certain because of the seemingly ultra-stringent requirements Florida has had to meet to prove its case. A major part of Florida’s heavy burden of proof emanated from the U.S. Army Corps of Engineers, which controls numerous dams throughout the Southeast and has been a thorn in Florida’s side.

Alabama, concerned about Atlanta’s ravenous water consumption, has long litigated with the Corps of Engineers over issues in river basins that impact Alabama and Georgia. According to Roy McCauley, executive director of the Alabama Pulp and Paper Council, Alabama is claiming that the Corps’ operating manuals are inconsistent with the authorized purposes of the Georgia dams and consequently are biased toward holding water for Atlanta. The Corps’ operating plans lead to Alabama having less water during the times of drought, which is when Alabama needs it most, according to McCauley.

But University of Alabama law professor Heather Elliott says litigation with the Corps of Engineers is a tough nut to crack. It’s her experience that the courts tend to give deference to government agencies in such matters. She cites the Corps’ role in the Georgia-Florida case as an example.

“If the presence of the Corps of Engineers is going to be this kind of problem in all the litigation, then that’s sort of a separate reason why it’s going to be very difficult to use the litigation process to get any remedy” in water disputes, she says.

She and McCauley agree that a Florida victory in the Supreme Court case with Georgia would be good for Alabama. But if Florida loses, “It would set a very bad precedent for downstream states in situations like this, ” Elliott says.

Charlie Ingram and Robert Fouts are freelance contributors to Business Alabama. Ingram is based in Birmingham and Fouts in Montgomery.


text By CHARLIE INGRAM // Photo by ROBERT FOUTS

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