WATER LAWS STILL MURKY // TUSCALOOSANS MAKE THEIR VOICES HEARD

“Before I put on my penny loafers to become a lawyer, I believed water flowed downhill on the path of least resistance,” said Bennett Bearden, the director of the University of Alabama Water Policy and Law Institute. “Don’t believe that. Water flows uphill toward who has the most money.”

Alabama’s wealth of rivers has been central to the state’s economy since the beginning, when marine trade was king. Yet the laws that govern our water resources are a mess of contradictions. For example, the method of pumping drinking water to Tuscaloosa homes is technically unlawful because of codes dating back to Old English common law.
“That doesn’t pass a smell test,” said Mitch Reid, the program director of the Alabama Rivers Alliance. He pointed out that water ownership is currently granted to whoever owns the land touching the water, a rule of thumb that has proved inefficient.
There is also little consideration for sustaining river flow to keep the water supply plentiful, and the consequences for illegal dumping are unclear. An initial movement from 1990—even then overdue —has brought only slow progress toward a new set of laws for Alabama. The stakeholders in Tuscaloosa’s Black Warrior River, from business owners to conservationists, came together for a symposium Sept. 26 to discuss the gaping hole in our legal codes: how do we manage our water?
“This has been simmering on the backburner for decades,” Reid said. “We really need to have everyone at the table talking about what will work and what won’t. How can you be sure this system doesn’t drain the rivers dry?”

A Flood of Data
Governor Robert Bentley created a team to assess the problems with water management in 2012, forming the Alabama Water Agencies Working Group and mandating a report that was just published this year. Pat O’Neil summed up AWAWG’s main findings at the Tuscaloosa symposium.
“It’s a real snoozer,” O’Neil said of the 200-plus page report. “But having data is the most critical thing we can do as a state right now to move water policy forward. You cannot manage what you do not know.”
The common law that dictates water ownership was one of the three most pressing issues O’Neil said we must address. The second was inter-basin transfer, which is the movement of water between river basins, particularly those of our neighbors, Georgia and Florida. The third was instream flow, the amount of water moving through a river channel.
“Water management used to be how much water is in the river and how much do we use,” Reid said. “There’s politics where you say ‘I need this much and you need this much, so we need to cut the baby,’ but it’s still pretty simple. When you ask how this affects the system, it becomes a whole lot more complicated.”
The trouble with making one big law to protect the flow of rivers is that nature can be unpredictable and resist simple explanations. Prudent water use may differ from season to season and year to year, making guidelines hard to follow.
“The thing about politicians, most of them today are not scientists,” Bearden said. “Our priority with any plan must be putting the science first.”
The Black Warrior River may not be in any danger of drying up in the near future, but O’Neil said he has observed enough failure in neighboring states to be cautious with Alabama’s resources. Flint River in Georgia has suffered major overuse due to nearsighted planning and reckless activity in the Mississippi Delta has left the region’s ecosystem struggling to recover.
“Don’t think this drought will not come visit us again,” O’Neil said. “Right now California is suffering. It will be us again.”

Tuscaloosa Makes Waves
Once all the information had been laid out, the floor was opened to the stakeholders. Anyone who had some investment in Alabama’s rivers, whether for business, recreation or the environment, had a chance to express their ideas and concerns.
Representatives from Parker Towing Company, Inc. of Northport, Ala., said they count on a reasonably high water level on the Black Warrior River to keep their freight ships from scraping across the floor.
“We see the river as belonging to everyone, so we watch out for anyone who needs to use it,” said George Anderson, Parker Towing’s vice president of sales. The company makes room for the University of Alabama rowing team to practice and holiday fireworks and parades to celebrate, even though business technically have the legal right of way. “We expect everyone else to watch out for each other the same way.”
One topic that ruffled some feathers was regarding permits that could be required for withdrawing water. Some called the permits an example government overreach, but others like the Alabama Rivers Alliance said permits are important for measuring total use of water.
“You’ve got to be able to account for how much water is being taken out,” Reid said. “Yes that require a lot of monitoring.”
The executive director of the ARA, Cindy Lowry, stood by the main tenet that watersheds stay strongest when they are tampered with as little as possible. This means manmade dams should be kept to a minimum.
“The most dangerous thing we can do to out rivers is move further and further from their natural state,” said Cindy Lowry, the Alabama Rivers Alliance executive director. “We just need to maintain the natural state while taking enough for business and health.”
Stakeholders also made suggestions for how to get the community involved in discussing water policy. Ideas for a survey to gauge awareness and public opinion were bounced around, along with the idea of a state school to educate government staff on water and the relevant laws.
One concerned Alabamian at the symposium, Alina Coryell, said that science teachers could be incorporated into the movement for sustainability to get Alabama students involved in the discussion.
“I think of children as stakeholders,” Coryell said. “Even If they don’t have a lot of influence, because they don’t have any information or they don’t vote or have money, they might be able to reach creative solutions.”
Stakeholders were enthusiastic about the prospect of having a say in state policy; Reid asked for a show of hands of who would participate in the interest groups and almost everyone agreed. Reid turned the question around, though, and asked who would be willing to attend a meeting every week. Only the symposium speakers raised their hands.
While public opinion is key to producing a comprehensive plan, lack of funds makes it hard to continuously rely on volunteers.

Trickling Toward Solutions
The Southern Environmental Law Center sent attorney Sarah Stokes to propose a list of 17 interest groups, covering everything from industry, hydroelectricity and thermo power to water quality, seafood and conservation. Each group will send a representative to debate each part of the proposed plan, making sure no one is left out of the conversation.
Stokes pushed to give the plan a deadline to avoid an endless loop of tinkering and red tape. She pointed out that without presentable data on how much water the state has and needs, the Supreme Court has the power to redistribute our resources to Georgia or Florida if those states show a need for more water.
“Having a concrete date with set deliverables is not a rush to judgment,” Stokes said. “It’s just a date with goals.”
On the other hand, Black Warrior Riverkeeper Nelson Brooke spoke wearily of attempts to streamline the process.
“I think it’s important to have advocates, not just a bunch of people nodding their heads,” Brooke said. “We need to not just put a rubber stamp on what the power structure wants.”
Mayor Walt Maddox made an appearance at the symposium to voice his support for comprehensive water management. He said that while such laws are hard to pass because of the expense, preserving Alabama’s resources is necessary to the state’s success.
“I know what it means to come back year after year proposing the same policy you see as logical,” Maddox said. “You’re on the right side of history, and you’re on the right side of good policy.”
Maddox recalled the most tense moment of the chaos following the 2011 tornado, when Jimmy Junkin of the town’s Water and Sewer Department came to his office with news that the town’s water mains may have been compromised. When homes were leveled and bodies were being recovered, there was a very real possibility that Tuscaloosa’s water was unsafe to drink.
“Those 24 to 48 hours were some of the most troubling of my career,” Maddox said. “If you want to shut down a community, take away its ability to provide clean water.”
Maddox said two of the most important laws he has passed were banning development on 2,000 acres of land surrounding Lakes Nickel and Harris, and requiring septic tank inspections to ensure water quality. Neither bills were particularly well-received by the public, but Maddox sees them as major parts of his legacy.
The saga will continue on Oct 9 at Birmingham Southern College, where the Alabama Rivers Alliance will assemble a blue-ribbon panel of experts to describe the best and worst decisions made by other states’ water management plans. Anyone is invited to learn or speak out about the future of Alabama’s resources.

Photo by Nelson Brooke Black Warrior Riverkeeper

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