The Birmingham Water Works Board and Alabama Attorney General Steve Marshall are asking a Jefferson County court for permission to change parts of a 2001 settlement agreement requiring conservation easements to be placed on board-owned Cahaba watershed lands.

This request comes just more than a month after the Alabama Supreme Court sided with environmentalist groups in a lawsuit alleging that the board had violated the settlement agreement.

The argument centers on the Cahaba River and Lake Purdy, which is a major source of Birmingham’s drinking water. Not only does development on land close to the bodies of water risk contamination, it also drives up the cost of filtering and cleaning the water, which raises rates.

Last year, the Cahaba Riverkeeper and the Cahaba River Society sued the BWWB, claiming that in the 20 years since the settlement had been reached, the board had never placed any legal conservation easement on its properties surrounding the lake and the river, despite it being a condition of the board’s purchase of the land.

Environmentalists say the board’s request to change the agreement directly conflicts with its past claims of compliance. The board had for years maintained that it had always complied, though it didn’t officially instate an easement until 2017, roughly a year after it sold off one of the supposedly protected parcels to developers of a gas station.

When the environmentalist groups pointed out in court that even this belated document did not meet the requirements of Alabama law, the board and Marshall attempted to have the case thrown out, claiming that those groups had no legal standing to bring the suit at all. That argument was rejected in February by the Alabama Supreme Court, which overturned the Jefferson County Circuit Court’s dismissal of the case and declared that the conservationists had demonstrated a “viable justiciable controversy.”

2022 Water Board Easement Ruling by Virginia Martin on Scribd

The conservation groups suing the board have argued that state law’s specific definition of conservation easements requires them to be held and enforced by a third party — either a governmental body or a charitable organization — meaning the board can’t legally hold the easements to its own land, as it claims to do.

Now, with the case back in circuit court, the BWWB and Marshall have adopted a new strategy, attempting to replace parts of the settlement agreement referring to conservation easements — supposed to be a “permanent” protection of the land — with a flimsier “watershed protection agreement” between the BWWB and the attorney general, which both parties can agree to change at any time. This, the board says, was the original “intent” of the 2001 agreement.

“Permanent Protection”

The roots of that settlement agreement stretch back to a 1998 attempt by then-Mayor Richard Arrington to privatize the city’s water and sewer systems and establish an education trust fund with the proceeds. That plan got as far as the water board transferring its assets and debts to the city for $1 — though it would continue to manage the water system — but Arrington failed to convince voters, and a citywide referendum on the sale of the water system failed later that year.

The city held onto the water and sewer systems, including the watershed land in question, for two years. In 2000, the water board started publicly asking for its assets to be returned, promising a ban on development in the Lake Purdy area — a pledge that conservationists at the time called “a step in the right direction.”

The board proposed buying the assets back from the city for $471 million, which caught the attention of then-Attorney General Bill Pryor, who questioned the “wisdom and legality” of such a large purchase so soon after the board had practically given those assets to the city.

The City Council approved the sale, anyway, overriding a veto by Arrington’s successor Bernard Kincaid, who had repeatedly expressed fears that the watershed land would be developed. Kincaid sought to keep the water works under the city’s control, suing the council to prevent the sale.

Pryor, who said he got involved with the case to protect ratepayers, called for the assets to be transferred back to the board at no cost, drawing the ire of both Kincaid and the council. Pryor later offered to drop his objections to the deal if the board accepted a settlement agreement with certain conditions — including the board’s submission to Public Service Commission regulation, as well as a conservation easement to make sure “that the assets of the (BWWB) are permanently protected from any and all land development activities which could be harmful to the (water) systems.”

This settlement agreement — the subject of the ongoing court case 21 years later — does say that the easements shall be held by the water works board (which is not allowed under state law) but that they would be enforced by ratepayers and the state attorney general.

The acquisition agreement between the city and the BWWB also included these assurances, adding that the board would “enter into an agreement … with a land preservation trust such as the Alabama Forever Wild Land Trust or the Nature Conservancy of Alabama” to ensure permanent protection from development.

The sale was completed despite Kincaid’s appeals, but the protections as described by both the settlement agreement and the acquisition agreements were never put in place. The board’s 2017 “Conservation Easement Agreement” does prohibit development on watershed land, though it reserves the right to sell off all or portions of the land, as it did in 2016.

It’s also far from permanent, with a built-in 2051 expiration date and the caveat that it can be amended with mutual consent from the BWWB and the state attorney general. It also ignores the third-party enforcement powers of ratepayers outlined in the original settlement agreement. But the board maintains that it best reflects the original intentions of the settlement agreement and now hopes to change the wording of the agreement to reflect that.

“The parties to the Settlement recognized that the Board, as a water provider, already had existing duties to maintain and operate its water system for the benefit of its ratepayers and was uniquely experienced in maintaining, operating and controlling its water system, which included its watershed lands,” the BWWB said in an April 13 press release. “The Water Works Board and the Attorney General are now asking the court to reform the Settlement Agreement to reflect the intent that the watershed protections on the Lake Purdy property remain under the administration of the Water Works Board.”

“There Is No Excuse Now”

Southern Environmental Law Center attorney Sarah Stokes calls the BWWB’s shift in strategy “incredibly surprising.”

“The term ‘conservation easement,’ is in the settlement agreement dozens of times,” Stokes says. “It was signed by a lawyer. The terms in the settlement agreement have legal meaning. The (state’s) conservation easement statute had already been passed, so there is no excuse now to say that ‘conservation easement’ doesn’t mean a conservation easement. It’s like a kid on the playground who doesn’t want to play by the rules, and they’re trying to take their ball and go home.”

“We’re not entirely sure why they’re continuing to fight against something they agreed to do more than 20 years ago,” said Ben Wegleitner, the river sustainability director for the Cahaba River Society. “For a while, they were arguing that they have put legal conservation easements on the land, and now the argument seems, ‘Well, we didn’t think that we had to do that,’ or ‘That wasn’t the intent of the original settlement agreement.’ I’m not a lawyer, so I don’t quite follow exactly where their justification comes from.”

What Wegleitner does know, he said, is that the lands surrounding the Cahaba watershed is a riparian buffer — a “natural filter” that prevents pollutants from leaching into one of Birmingham’s largest drinking water sources. If that land were to be developed, the increased costs of filtering and cleaning the water would most likely be shouldered by ratepayers.

Stokes points to practices of other cities that view protection of watershed lands as a cost-saving measure. “The city of New York, they protect a lot of the land where the drinking water comes from, so they don’t have to build additional capacity for their treatment systems, and it saves them billions of dollars. It’s just very important for ratepayers to know the value of this land and what it does in cleaning the water. There’s just really no substitution for it.”

Conservationists say they’re not sure what plans the BWWB would have for the land in question if its requested revisions are granted — the development of a groundwater-polluting gas station is a troubling indicator — but they still plan to fight the proposed changes in court.

“Whether or not there’s imminent plans to sell land is important, but it’s not the only thing,” Wegleitner says. “It’s current and future protections for this land, whether or not they want to sell it right now. A new board, as the board turns over, in 10 years could decide, ‘Hey, there’s no restrictions because we haven’t written any conservation easements, and we want to sell a whole bunch of land. So it’s protections for now, but it’s also protections for as long as this is a drinking water source for Birmingham residents.”