At the Headwaters of Sustainable Water Management in Alabama

1. At the Headwaters of Sustainable Water Management in Alabama Gil Rogers Southern Environmental Law Center Tallapoosa State of Our Watershed Conference May 25, 2010

2. Overview • Regional look at water conflicts, with particular focus on the Tri-State Water Wars • State of Georgia’s water management • State of water management in Alabama

3. South Carolina v. North Carolina in U.S. Supreme Court Transfer proposed between Catawba and Yadkin Basins

5. Tri-State Water Wars

6. “Too often, state, local, and even national government actors do not consider the long-term consequences of their decisions. Local governments allow unchecked growth because it increases tax revenue, but these same governments do not sufficiently plan for the resources such unchecked growth will require. Nor do individual citizens consider frequently enough their consumption of our scarce resources, absent a crisis situation such as that experienced in the ACF basin in the last few years. The problems faced in the ACF basin will continue to be repeated throughout this country, as the population grows and more undeveloped land is developed. Only by cooperating, planning, and conserving can we avoid the situations that gave rise to this litigation.” July 17, 2009 – Judge Magnuson’s Opinion

7. Magnuson opinion currently on appeal before 11th Circuit Briefing through summer 2010 Phase II of Magnuson litigation has been briefed Concerns NEPA and Endangered Species Act Oral argument scheduled for June 8, 2010 Tri-State Litigation

8. Legal Option for Future Interstate Litigation:  Supreme Court Litigation • Supreme Court has original jurisdiction in controversies between states • Alabama and Florida will have to show direct interest and negative impacts for Supreme Court to accept case • If the Supreme Court agrees and accepts case, Georgia has to show benefits of its water use outweigh harm to FL and AL • Standard that GA will have to meet is clear and convincing evidence 

9. Legal Option for Future Interstate Litigation:  Supreme Court Litigation • Question the Court must answer is: How well is each state managing its water resources? Who has their house in order? • Where do interbasin transfers fit into the Tri-State litigation?

10. Created in 2001 pursuant to the Metropolitan North Georgia Water Planning District Act. • 15 county area • No interbasin transfers into the District.

12. Source: Metropolitan North Georgia Water Planning District Water Supply and Water Conservation Management Plan, September 2003

13. Georgia Statewide Water Plan • Passed in 2008 Legislature • Prohibits raw water interbasin transfers pending resource assessments • Prohibits intrabasin transfers over more than four counties. • Legal effect and enforceability a question

14. Interbasin Transfers in Georgia • Proposed legislation and rulemaking for interbasin transfer water withdrawal permits • List of 22 factors to be considered when evaluating proposals • Factors include economic costs, water quality impacts, interstate impacts, and cumulative impacts

15. Interbasin Transfers in Alabama • Local legislation • Piecemeal regulation • Points to the need for more comprehensive water planning

16. Interbasin Transfers in Alabama “…no water may be withdrawn from the Tennessee River Basin for transfer to any other river basin outside of the Tennessee River Basin in an amount greater than the amount being withdrawn on the effective date of this act.” House Bill 709, 2005 Reg. Sess.

18. Tennessee Inter-basin Water Transfer Act • Enacted in 2000 • Sets up permit system for interbasin • transfers and criteria to be evaluated • similar to Georgia proposal • Civil penalties up to $10,000/day for • violations

19. The Case for Water Transfer Regulation: Quantity and Quality • Transfers inherently disrupt riparian rights systems of water • management – prevent downstream communities from chance for economic growth • Can exacerbate low-flow conditions in donor basins in times of • drought, which can affect pollution assimilation • Higher flows in receiving basin can cause bank scouring, which can add to pollutant loading. Transfers can also add new pollution to receiving waters, increasing treatment and cleanup costs. • Leads to unsustainable growth patterns by separating people • from nearby water sources

21. Evaluate all alternatives, including conservation and efficiency measures Examine direct, indirect and cumulative impacts If absolutely necessary, choose offstream over instream Reservoirs

22. Georgia Water Quality Control Act and Georgia Ground-water Use Act Alabama Water Resources Act Both states’ Acts build on a legal foundation of riparian rights and the view that water is a public resource. Georgia beat back markets in 2003 Water Allocation Law: Comparison of Neighbors

23. Water Conservation • Georgia: Water Stewardship Act of 2010 • Great leap forward in water conservation, but value lessened by passage of other bills • Alabama: Historically voluntary water conservation

24. Water management decisions and policies will have bearing on the ultimate outcome of the Tri-State litigation Georgia has taken positive steps forward but must continue advancing water conservation and regulations of interbasin transfers and reservoirs Alabama must start catching up with water management and planning Conclusions

25. Questions? grogers@selcga.org or (404)521-9900