Alabama Continues to Evaluate Water Use and Availability Issues

by Burr & Forman
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A combination of factors in Alabama has raised concerns about the reliability of adequate water in various parts of the State in the event of prolonged droughts or significant withdrawals. Industrial users and public water systems would be well advised to become familiar with, and participate in, current efforts by State government and the Legislature to address these problems.

Alabama has an abundance of surface stream mileage, and historically has had the water to fill those stream beds. In fact, Alabama is said to have more navigable channels than any other state. (A Treasure Taken For Granted). However, the availability and volume issues that have driven the long-running dispute between Alabama, Georgia, and Florida (the “Water Wars”) have gradually, but increasingly, manifested themselves in Alabama, including areas not directly affected by the river basins that have been the focus of the interstate disputes.

Unlike most states in the region, including specifically Georgia and Florida, Alabama does not have a system of permitting for water withdrawals. Instead, it only monitors water withdrawals above certain volumes through a system of registration and certification managed by Alabama’s Office of Water Resources. (OWR). The lack of a statutory system regulating water withdrawal and use leaves water users and prospective users to rely on the common law riparian rights system adopted by the State’s Courts in the Nineteenth Century. While the historic abundance of surface and ground water has spared the State from many serious fights over water access and rights, increasing use associated with both public and private growth signals a possible change and the consequent need for a more formal system of water allocations.

While many see a need for some type of action, the effort has been slow to build in the State. Recently, however, there is a renewed focus increasing the prospect for some type of change. In 2008, the Alabama Legislature created the Permanent Joint Legislative Committee on Water Policy and Management (the “Joint Legislative Committee”). (Act 2008-164 SJR28). In 2011, Governor Bentley created the Alabama Water Agencies Working Group (“AWAWG” – Homepage)to assess water resource programs and policies in the State and provide policy options and recommendations. AWAWG submitted its initial report on December 1, 2013. (First Report) And the Joint Legislative Committee has periodically conducted hearings around the State to assess the need for legislative solutions. In a recent interview (here), Senator Arthur Orr, the current chair of the Joint Legislative Committee discussed the future work of AWAWG and potential activity by the Legislature. While his prediction that the Legislature will take water management issues up in a piecemeal, rather than comprehensive, manner has drawn attention, perhaps the more significant point is that Alabama might take any action at all. The fact that the Legislature has appropriated $2 million for AWAWG to conduct detailed assessments of water resources and potential shortfalls indicates that this is a serious effort.

It appears likely that these ongoing actions by AWAWG and the Legislature will result in significant changes to Alabama law governing the withdrawal and use of water and including such issues as interbasin transfers and return discharges. It would be wise for users of water resources, particularly those who make significant withdrawals, to pay careful attention and participate in this process as it moves forward over the next few months in Alabama.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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