Alabama Legislature

Water Water Everywhere … Unless It Hasn’t Rained Lately: Legislators Debate Bill to Govern Water Use During Droughts

This pier on Lake Martin was left high and dry during the drought of 2007. (Source: ADECA)

River advocacy groups are promoting passage of a bill that would provide clear standards in times of drought for the state to step in to allocate use of water for agriculture, recreation, drinking and other uses.

The bill, HB 476, also would set up a system of “conservation credits” for agricultural and other large water users who institute water-saving measures before periods of drought.

Under the bill, when water flow in a river or stream falls below predetermined, science-based levels, state agencies could more quickly impose limits on usage to protect the health of the waterway. That would impact the quality of water for drinking, recreation and aquatic life, advocates say.

Because drought usually affects regions of the state differently, flow-standards would also form the basis for transfers of water from a region with more water to one with critically low water flow. The bill divides the state into five regions.

The Alabama Rivers Alliance said current law allows owners of property that adjoins waterways to remove as much water as they want. The more water a property owner removes, the less is available for downstream users, which also could endanger the health of the state’s waterways.

University of Alabama professor Heather Elliott, an expert on water law, has called the state’s current statute a “stupid, antiquated, common-law approach.”

Disputes over water use may result in court battles that often cannot be resolved before a drought ends and damage to the waterway and downstream users already has occurred, said Curt Chaffin, policy director for the rivers alliance.

Water-flow standards set by the bill “would make disputes quicker and easier to resolve,” Chaffin said.

The Alabama Water Conservation and Security Act was introduced in the House of Representatives by Jefferson County Rep. Neil Rafferty, D-Birmingham.

“Currently, the state lacks the proper authority to step in when water overuse threatens the security of Alabama’s water resources,” Rafferty said. “I introduced this bill to make sure we are properly managing one of our most precious resources. Water is important to our economy, ecology and biodiversity.”

The first-term legislator said the bill is not designed to restrict water usage, “but to conserve and make every effort to reward those who are taking voluntary water conservation measures,” he said. “We want to make sure there is water available even in times of scarcity.”

The bill was assigned to the House Committee on State Government. The proposed legislation has been unsuccessful in two previous legislative sessions and has not received a hearing in committee this year.

It faces an uncertain future. Opposition comes from agriculture interests, among others.

Concern for Farmers

Mary Johns, director of news services for ALFA, the Alabama Farmers Federation, said, “We definitely have concerns with permitting of water usage. The wording would potentially limit farmers from irrigating their crops at the time of greatest crop stress.”

Chaffin, however, said the bill would “make sure farmers get what they need during stress periods such as the 2016 drought. It would allow allocation of available water as fairly and efficiently as possible and produce the least negative impact possible.”

The bill would not set up a new permitting process, he added. Current law requires users of 100,000 gallons of water a day to apply to the Office of Water Resources for a certificate of use for beneficial purposes. The office is part of the Alabama Department of Economic and Community Affairs.

If passed, the bill would allow the Alabama Water Resources Commission, which oversees the Office of Water Resources, to declare a water emergency and, without a prior hearing, order holders of a certificate of use to stop or reduce water use as long as the emergency lasts. The 19-member commission is appointed by the governor, lieutenant governor and speaker of the House.

HB 476 designates the Alabama Department of Environmental Management to enforce the restrictions and levy civil penalties. That’s because the water resources office is not a permitting agency and is not set up for enforcement, Chaffin said.

The Office of Water Resources does not evaluate “beneficial use” described in an application for a certificate. It is allowed to determine only whether the application is properly submitted.

The office can impose restrictions only if it undertakes a study of water needs and current availability in a region. It may then declare the region a “capacity stress area” and limit use – something it has never done despite the occurrence of several droughts.

Alfa communications director Jeff Helms told Business Alabama last year that farmers are more interested in tax incentives for such things as installing irrigation systems than in passing a new water use law.

An industry group, ManufacturerAlabama, did not answer email requests for comment but in the past has opposed the proposed changes to the water law. The group represents industrial interests that include the Pulp and Paper Council, the executive director of which is Roy McCauley.

McCauley was quoted in the same Business Alabama story as saying that no statutory changes that would create additional layers of bureaucracy are needed and pointing to the Alabama Water Resources Commission as the proper rule-making authority.

Chaffin responded that HB 476 “seeks to make things clearer, easier and quicker so when the state enters a drought, we won’t be bogged down in bureaucracy in that moment.” He added, “Then we can depend on science and clarity to allow us to react quickly and be proactive to stop the results (of a shortage) from being harmful. This bill would create less red tape that now has the potential to bog down the system.”

State Water Plan

Chaffin said HB 476 would provide legal language to allow the formulation of a statewide comprehensive water management plan.

A working group to develop such a plan was appointed by former Gov. Robert Bentley following severe droughts. Partly due to the lack of a plan, Alabama essentially was left out of negotiations with Florida and Georgia over Atlanta’s increased use of water from the Chattahoochee River.

The group, after delivering its report, was disbanded by Gov. Kay Ivey, who handed the task of completing a report to the Office of Water Resources and its governing commission. Late last year, it  proposed a Roadmap for Alabama Water Resources Management Plan to be completed by July 1, 2020, and noted that finishing the process may require some changes in state law.

Chaffin said the proposed legislation would fill gaps in the law to enable completion of the management plan. “HB 476 will make our eventual statewide water plan more protective and comprehensive,” he said. “We must be able to do things like prioritize farmers and drinking water users during water shortages and ensure we have a scientific standard to protect the amount of water flowing in our rivers and streams. The bill would make these changes and many others to safeguard our water resources and our way of life in Alabama.”

State Water Regions

A bill that would set rules for the state to step in and allocate use of water during droughts, HB 476, would divide the state’s counties into surface water regions for purposes of determining water availability and needs. They are:

Central Alabama: Etowah, Cherokee, St. Clair, Calhoun, Cleburne, Shelby, Talladega, Clay, Randolph, Bibb, Coosa, Tallapoosa, Chilton, Perry, Autauga, Elmore, Macon, Montgomery, Dallas, Lowndes, Wilcox, and Monroe.

Coastal Alabama: Mobile and Baldwin, and all bays, tidal estuaries and portions of the Gulf of Mexico over which the state has jurisdiction.

North Alabama: Lauderdale, Limestone, Madison, Jackson, Colbert, Franklin, Lawrence, Morgan, Marshall and DeKalb.

Southeast Alabama: Russell, Bullock, Pike, Barbour, Lee, Chambers, Butler, Crenshaw, Coffee, Dale, Henry, Conecuh, Covington, Geneva, Houston and Escambia.

West Alabama: Marion, Winston, Cullman, Blount, Lamar, Fayette, Walker, Jefferson, Pickens, Tuscaloosa, Greene, Hale, Sumter, Marengo, Choctaw, Clarke and Washington.