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Water is Life Water Sustainability and Security: Legislative Options Mitchell Reid, JD Alabama Rivers Alliance

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Water is LifeWater Sustainability and Security: Legislative Options

Mitchell Reid, JDAlabama Rivers Alliancewww.AlabamaRivers.org

1

Alabamas 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, 2010Photo: IStrock

As Georgia Struggles, Our Most Vital Resource is at StakeMobile Press-Register, April 15, 2012

Plan B needed on water Gadsden Times, Sept 20, 2011

Atlanta water needs still a threat to AlabamaMontgomery Advertiser, Sept. 1, 2011

Alabama must ensure that it doesnt waste this natural resourceAnniston Star, July 28, 2011

Water management plan is vitalDothan Eagle, July 17, 2011

Water management plan would give AL leverage in tri-state water wars caseHuntsville Times, July 11, 2011

*Image: Good Magazine, 2010Photo: IStrock

The failures of Alabamas 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 states 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, Alabamas Water Crisis, February 2, 2012

*Image: Good Magazine, 2010Photo: IStrock

*Photo: Nelson BrookeExisting Law

Alabamas Water Resources LawTraditional 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 SeifriedAlabamas Water Resources LawAlabama Water resources ActAll waters of the State are among the basic resources of the State of AlabamaPriority 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 9-10B-3(3))Office of Water Resourcesresponsibility 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 SeifriedAlabamas Water Resources LawAlabama Water resources ActLimitations

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 SeifriedAlabamas Water Resources LawSection 9-10B-24 - Alabama Water Resources CouncilAdvisory 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 SeifriedAlabamas Water Resources LawAlabama 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 SeifriedAlabamas Water Resources LawOther 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 AgenciesUS Fish and WildlifeFederal Energy Regulatory CommissionU.S. Army Corps of EngineersU.S. Environmental Protection Agency

*Photo: Charles SeifriedAlabamas Water Resources LawSJR 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 SeifriedThe Alabama Water Agencies Working Group

Comprehensive Water Management Plan: December 1, 2013?

*Photo: Paul FreemanOn 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 AOWRs 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.A Way Forward

The Alabama Water Sustainability and Security ActWhy do we need Legislation?Provide authority and direction to the AWAWGDefine the Legal Authority for water managementProvide 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

*Photo: Charles Seifried

A House of Cards(in a good way)A House of Cards(in a good way)

*Photo: Charles Seifried

Solutions

*Photo: Charles SeifriedThe Regulated Riparian Model Water CodeAmerican 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

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 S

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