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

Water is LifeWater Sustainability and Security: Legislative Options

Mitchell Reid, JDAlabama Rivers

Alliancewww.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, 2010Photo: 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


“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


*Photo: Nelson Brooke

Legislative Solutions for The

Way Forward

Existing

Law

AWAWG

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 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 § 9-10B-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)



• 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


• 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 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)



• 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



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.


The Alabama Water Agencies Working Group

Comprehensive Water Management Plan: December 1, 2013?

*Photo: Paul Freeman

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.”

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)

A House of Cards(in a good way)


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

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.”

Mitchell Reid, JDAlabama Rivers Alliance2027 2nd Ave N.Birmingham, Al [email protected]

*KominoskiPhoto: Phil Campbell

Winston Churchill