Alabama Water Policy Update: The Alabama Water Policy Update: The Alabama Water Agencies Working Alabama Water Agencies Working

GroupGroup

Manufacture AlabamaManufacture Alabama

Environmental CommitteeEnvironmental Committee

February 13, 2013February 13, 2013

Montgomery, AlabamaMontgomery, AlabamaBennett L. Bearden, J.D., LL.M., J.S.D.Bennett L. Bearden, J.D., LL.M., J.S.D.Chair, Alabama Water Agencies Working Chair, Alabama Water Agencies Working

GroupGroupGeneral CounselGeneral Counsel

Office of the State Geologist Office of the State Geologist Geological Survey of AlabamaGeological Survey of Alabama

The Origin of the Paradigm The Origin of the Paradigm

The 1990 Water The 1990 Water Resources Study Resources Study Commission Report Commission Report resulted in the 1993 resulted in the 1993 Alabama Water Alabama Water Resources Act, a passive Resources Act, a passive statutory template that statutory template that effectively does not effectively does not modify common law modify common law riparian rights. riparian rights. Ironically, the report Ironically, the report recommended, recommended, inter inter aliaalia, permitting, , permitting, instream flows and instream flows and interbasin transfer (IBT) interbasin transfer (IBT) regulations.regulations.

Question: What is the State’s Question: What is the State’s Authority? Authority? Answer: Water Resources Act of Answer: Water Resources Act of 19931993

““The Office of Water Resources (OWR) The Office of Water Resources (OWR) and the Alabama Water Resources and the Alabama Water Resources Commission have the authority and Commission have the authority and responsibility for developing plans and responsibility for developing plans and strategies for managing the state’s strategies for managing the state’s waters….” Warren Viessman, Jr. and waters….” Warren Viessman, Jr. and Timothy D. Feather, 2005, Timothy D. Feather, 2005, State Water State Water Resources Planning in the United Resources Planning in the United States, States, ASCE, p. 28. (original citations ASCE, p. 28. (original citations omitted).omitted).

• Criticisms of Alabama water policy and recommendations Criticisms of Alabama water policy and recommendations for change have been remarkably consistent for over two for change have been remarkably consistent for over two decades namely, that there is no water policy.decades namely, that there is no water policy.

• The paradigm is beginning to shift and conditions and The paradigm is beginning to shift and conditions and attitudes seem to be changing. There is now greater attitudes seem to be changing. There is now greater change in perceptions about water policy than at any change in perceptions about water policy than at any time since the 1990 Water Resources Study Commission time since the 1990 Water Resources Study Commission Report.Report.

• Environmentalism is now engaging economic Environmentalism is now engaging economic development on a figurative battlefield. Will that development on a figurative battlefield. Will that battlefield become literal, i.e., a courtroom?battlefield become literal, i.e., a courtroom?

• There is a new perception in the role of state There is a new perception in the role of state government in water resources management that has government in water resources management that has broadened the concept of a public interest in water and broadened the concept of a public interest in water and quickened political responses to water issues. There is a quickened political responses to water issues. There is a trend toward opening up decisions about water to wider trend toward opening up decisions about water to wider interests.interests.

New Momentum in Water New Momentum in Water Policy in the 21Policy in the 21stst Century Century

• 2008-Permanent Joint Legislative Committee 2008-Permanent Joint Legislative Committee on Water Policy and Management (SJR 28)on Water Policy and Management (SJR 28)

• 2012-Governor Bentley’s initiative-Alabama 2012-Governor Bentley’s initiative-Alabama Water Agencies Working Group-ADEM, AGI, Water Agencies Working Group-ADEM, AGI, DCNR, GSA and OWRDCNR, GSA and OWR

Moving Forward: April 18, 2012, Moving Forward: April 18, 2012, Alabama Water Agencies Working Alabama Water Agencies Working

Group (AWAWG)-ADEM, DCNR, GSA and Group (AWAWG)-ADEM, DCNR, GSA and OWROWR

Governor Bentley Governor Bentley directed four state directed four state agencies, agencies, responsible for responsible for water water management and management and investigations, to investigations, to form the advisory form the advisory AWAWG and AWAWG and outlined AWAWG’s outlined AWAWG’s mission.mission.

June 11, 2012, Governor added the June 11, 2012, Governor added the Alabama Department of Agriculture and Alabama Department of Agriculture and

Industries (AGI)Industries (AGI)

AGI added to AGI added to AWAWG to AWAWG to provide insight provide insight on farming, on farming, irrigation and irrigation and the agribusiness the agribusiness sectorsector

Governor’s Charge to AWAWGGovernor’s Charge to AWAWG• Continue meetings and report progress and Continue meetings and report progress and

developments to the Governor’s Office; developments to the Governor’s Office; • Create a comprehensive database of Alabama’s water Create a comprehensive database of Alabama’s water

resources by gathering all existing data and reviewing resources by gathering all existing data and reviewing surface water, groundwater and instream surface water, groundwater and instream flows/ecosystems assessments to provide a full flows/ecosystems assessments to provide a full understanding of the State’s water resources, the use of understanding of the State’s water resources, the use of those resources and need for those resources (including, those resources and need for those resources (including, but not limited to, industrial, economic, public health and but not limited to, industrial, economic, public health and safety and environmental needs);safety and environmental needs);

• Conduct stakeholder meetings with the Governor’s staff, Conduct stakeholder meetings with the Governor’s staff, key legislators and outside stakeholders from groups key legislators and outside stakeholders from groups that represent-at a minimum-economic, industrial, utility, that represent-at a minimum-economic, industrial, utility, public drinking water supply, public safety, recreational, public drinking water supply, public safety, recreational, environmental, ecological and agricultural interests; andenvironmental, ecological and agricultural interests; and

• Recommend a statewide water management plan and Recommend a statewide water management plan and timeline that takes into account and equitably manages timeline that takes into account and equitably manages the demands on the State’s water resources. Include in the demands on the State’s water resources. Include in the plan any proposed legislation necessary to the plan any proposed legislation necessary to implement such a plan.implement such a plan.

AWAWG Member AgenciesAWAWG Member Agencies

ADEM-AL Department of Environmental ADEM-AL Department of Environmental Management Management (water quality management (water quality management and biological monitoring)and biological monitoring)

AGI-AL Department of Agriculture and AGI-AL Department of Agriculture and IndustriesIndustries (agriculture, farming, (agriculture, farming, agribusiness, irrigation)agribusiness, irrigation)

DCNR-AL Department of Conservation and DCNR-AL Department of Conservation and

Natural ResourcesNatural Resources (state land (state land management, wildlife resources protection)management, wildlife resources protection)

GSA-Geological Survey of AlabamaGSA-Geological Survey of Alabama (water (water and natural resources investigations and and natural resources investigations and assessments)assessments)

OWR-AL Office of Water ResourcesOWR-AL Office of Water Resources (water (water quantity, water use reporting, water quantity, water use reporting, water planning, drought response)planning, drought response)

AWAWG Issue Paper-Approved for AWAWG Issue Paper-Approved for Release by the Governor’s Office on Release by the Governor’s Office on

August 1, 2012August 1, 2012IssuesIssues

• Water Resources ManagementWater Resources Management• Expanded Certificates of Use Expanded Certificates of Use

(Permitting)(Permitting)• Economic DevelopmentEconomic Development• Surface Water and Surface Water and

Groundwater AvailabilityGroundwater Availability• Drought PlanningDrought Planning• Water Conservation and Water Conservation and

Water ReuseWater Reuse• Interbasin TransfersInterbasin Transfers• Instream FlowsInstream Flows• Interstate CoordinationInterstate Coordination• Water Resources DataWater Resources Data• Key Stakeholder Education Key Stakeholder Education

and Outreachand Outreach• Public Education and Public Education and

OutreachOutreach

AWAWG Stakeholder Subcommittee-AWAWG Stakeholder Subcommittee-Stakeholder Comments Due November 1, Stakeholder Comments Due November 1,

2012-Responses from 70 of 248 Stakeholders2012-Responses from 70 of 248 Stakeholders

• 50.0 % - Water resources 50.0 % - Water resources managementmanagement

• 41 % - Surface and groundwater 41 % - Surface and groundwater assessmentsassessments

• 32.9 % - Water data collection32.9 % - Water data collection

• 40 % - Conservation and water 40 % - Conservation and water reusereuse

• 40 % - Instream flows40 % - Instream flows

• 28.6 % - Economic development28.6 % - Economic development

• 28.6 % - Key stakeholders 28.6 % - Key stakeholders education and outreacheducation and outreach

• 24.3 % - Interbasin transfers24.3 % - Interbasin transfers

• 24.3 % - Riparian law/legal regime24.3 % - Riparian law/legal regime

• 22.9% - Public education and 22.9% - Public education and outreachoutreach

• 17.1 % - Drought planning17.1 % - Drought planning

• 15.7 % - Enhanced COU/permitting15.7 % - Enhanced COU/permitting

• 14.3 % - Recreation14.3 % - Recreation

• 11.4 % - Interstate coordination11.4 % - Interstate coordination

Emerging Common Theme* Emerging Common Theme* and Key Issues** and Key Issues** • *Lack of a statewide water resources *Lack of a statewide water resources

assessment-surface water, assessment-surface water, groundwater and instream flows-we groundwater and instream flows-we cannot manage what we do not cannot manage what we do not measuremeasure

• **Permitting-water withdrawals**Permitting-water withdrawals

• **Instream flows**Instream flows

• **Interbasin transfers**Interbasin transfers

• **Non-riparian issues-access to water **Non-riparian issues-access to water for irrigation, water supply, etc.for irrigation, water supply, etc.

Stormwater-Is Sustainable Stormwater-Is Sustainable Development a Concept at Odds with Development a Concept at Odds with Itself? See Itself? See Virginia DOT v. EPAVirginia DOT v. EPA

Notice: Stakeholder Comment Notice: Stakeholder Comment Period ExtendedPeriod Extended

The period for providing stakeholderThe period for providing stakeholder

comments is officially extended fromcomments is officially extended from

November 1, 2012 to the end of the November 1, 2012 to the end of the

AWAWG process on December 1, 2013. AWAWG process on December 1, 2013. The The

AWAWG intends to engage in a continuing AWAWG intends to engage in a continuing

dialogue with all stakeholders during this dialogue with all stakeholders during this

period. period.

AWAWG Database Subcommittee AWAWG Database Subcommittee Interim Report-December 31, 2012Interim Report-December 31, 2012

1.1. Where we’ve Where we’ve beenbeen

2.2. Where we areWhere we are

3.3. Where we are Where we are goinggoing

AWAWG Legislation Subcommittee and AWAWG Legislation Subcommittee and the Permanent Joint Legislative the Permanent Joint Legislative Committee on Water Policy and Committee on Water Policy and

Management-Drought BillManagement-Drought Bill

Update: Amended by Update: Amended by Representative Tuggle’s Representative Tuggle’s Water Management, Drought Water Management, Drought and Water Conservation and Water Conservation Subcommittee on December Subcommittee on December 11, 2012. Bill will be 11, 2012. Bill will be submitted to Permanent Joint submitted to Permanent Joint Legislative Subcommittee for Legislative Subcommittee for 2013 Session.2013 Session.

Alabama Drought Planning Alabama Drought Planning and Response Actand Response Act--This This proposed bill creates the proposed bill creates the Alabama Drought Assessment Alabama Drought Assessment and Planning Team (ADAPT) and Planning Team (ADAPT) and establishes its and establishes its membership, duties, membership, duties, responsibilities and powers; responsibilities and powers; and creates a Monitoring and and creates a Monitoring and Impacts Group Subcommittee Impacts Group Subcommittee and establishes its and establishes its membership, duties, membership, duties, responsibilities and powers. responsibilities and powers.

AWAWG Web Site:AWAWG Web Site: www.adeca.alabama.gov/AWAWG

““Reasons to Consider Regulating Reasons to Consider Regulating Water [Use] in Alabama” Water [Use] in Alabama” [Lance LeFleur, [Lance LeFleur,

Director, ADEM, July 13, 2012]Director, ADEM, July 13, 2012]

1.1. ““The demand for water in Alabama is increasing and the The demand for water in Alabama is increasing and the supply is finite.supply is finite.

2.2. The riparian system currently employed in Alabama has The riparian system currently employed in Alabama has significant disadvantages. significant disadvantages.

3.3. Alabama may be vulnerable to federal control over water Alabama may be vulnerable to federal control over water use through EPA if the State does not regulate water use through EPA if the State does not regulate water use.use.

4.4. Provide predictability [security and certainty] for Provide predictability [security and certainty] for existing water users.existing water users.

5.5. Avoid competitive disadvantage in attracting new Avoid competitive disadvantage in attracting new industry.”industry.”

The Way AheadThe Way Ahead

The AWAWG is working The AWAWG is working to develop a set of to develop a set of recommendations, recommendations, based on sound science, based on sound science, policy and law, for policy and law, for water resources water resources management that will management that will benefit all Alabamians benefit all Alabamians now and for now and for generations to come.  generations to come. 

We need We need youryour input input and want to hear from and want to hear from all all stakeholders. stakeholders.

Contact Us!Contact Us!

• Alabama Water Agencies Working Group (AWAWG), Dr. Bennett Bearden, Alabama Water Agencies Working Group (AWAWG), Dr. Bennett Bearden, Chair (Chair (bbearden@gsa.state.al.usbbearden@gsa.state.al.us))

• Alabama Department of Agriculture and Industry (AGI), Glenn Zorn (Alabama Department of Agriculture and Industry (AGI), Glenn Zorn (glen.zorn@agi.alabama.gov ) )

• Alabama Department of Conservation and Natural Resources (ADCNR), Stan Alabama Department of Conservation and Natural Resources (ADCNR), Stan Cook (Cook (stan.cook@dcnr.alabama.gov) )

• ADECA - Office of Water Resources (OWR), Brian Atkins (ADECA - Office of Water Resources (OWR), Brian Atkins (brian.atkins@adeca.alabama.gov) )

• Alabama Department of Environmental Management (ADEM), Lance LeFleur Alabama Department of Environmental Management (ADEM), Lance LeFleur ((director@adem.state.al.us ) )

• Geological Survey of Alabama (GSA), Dr. Nick Tew (Geological Survey of Alabama (GSA), Dr. Nick Tew (ntewntew@gsa.state.al.us ) )