Water resource protection in Alabama: the need for a paradigm change.

AuthorPutt, Larry O'Neil


Few resources are more important to Alabama citizens than the state's abundant rivers, streams, lakes, wetlands, and seashores. Alabama has 14 major river basins containing 47,072 miles of perennial rivers and streams and 30,170 miles of intermittent streams. (1) Alabama has ponds, lakes, and reservoirs in excess of 490,472 acres. (2) Freshwater wetlands occupy an estimated 3,600,000 acres while coastal wetlands are estimated at 27,600 acres. (3) Coastal Alabama contains an estimated 610 square miles of estuaries and a coastal shoreline that is 337 miles long. (4) Statistically, Alabama is a leader in stream and lake resources. Nationally, the state ranks 7th in stream miles, 14th in lake area, and 24th in estimated wetland area. (5) Alabama's ground water reserves are estimated at about 533 trillion gallons, or enough to last 3,300 years at the present rate of consumption. (6) Ground water is a renewable resource that is constantly replenished by rainfall, and Alabama is a relatively wet state, receiving more than 55 inches of rainfall each year. (7)

The primary importance of Alabama's vast water resources is their benefit to the state's economy. It is a source of power, either directly in hydroelectric plants or indirectly as steam; it is a raw material for chemicals and pharmaceuticals produced in the state; and it is a means of washing impurities from the pulp in paper mills and from the coal at strip mines. (8) The increased demand for water has produced a variety of conflicts among various individuals, municipalities, industries, and other users of the state's water resources. (9) Economic development, more than any other single factor, has increased water use, because water is Alabama's industry's most essential material. (10)

Currently, water in Alabama is not in critically short supply. (11) Alabama is one of the few remaining regions of the nation with a surplus of water resources. However, continued economic development through the expansion of industry and growth in population is expected to increase the demand on Alabama's water supplies.(12) Total water withdrawal in the year 2020 is projected to average 33,600 million gallons per day (mgd), with a total consumptive use of 3320 mgd. (13)

Unfortunately, under present water law and administrative structures, no means exists for coping with the problems of present and future water use in Alabama. (14) The riparian rights doctrine and English common law influenced the development of the legal philosophy that has adequately served the needs of water-rich Alabama in the past century. (15) This philosophy, however, may not be adequate to serve a state faced with changing social values and beset by increased competition for water resources. (16)

It is axiomatic that the law has never pumped a single gallon of water into use. (17) However, an ordered, rational system of legal rights seems necessary to encourage the efficient allocation and use of the available supply of water. (18) As demand for water comes closer to the supply level in Alabama, the role of the law will become more apparent in the decision-making processes that are inherent in any system of water allocation and use. (19) Given the present supply of water in Alabama, a primary issue is the effectiveness of the existing legal and administrative structures in obtaining the maximum efficiency of allocation and use of that water supply. (20) Additionally, assuming that there will be an increase in demand for surface and ground water and that serious droughts will probably occur periodically, a companion issue is the future efficiency of existing legal and administrative structures in allocating and resolving conflicts among surface and ground water users faced with a water-shortage crisis. (21) Ideally, solutions to these issues should be reached and any proposals for change should be made before a serious breakdown of water law and administrative structures occurs. (22)


To "evaluate" a particular legal system, one must address two obvious questions: (1) Since evaluation indicates an intention to place a value upon the functioning of the system within its normative framework, what criteria or standards are to be used to accomplish this evaluation? and (2) Since evaluation indicates an intention to summarize results into some conclusive statement, what expectations or objectives are to be sought in the process of evaluation? (23)

Any analysis of water law and policy in Alabama should evaluate the normative framework for the conduct of consumptive and non-consumptive economic activities of individuals and groups with regard to the usable water supplies in the state. In that analysis, there is an important distinction between "available water supplies" and "usable water supplies." (24) Some water supplies, while "available" for use, may not be "usable" for certain purposes because of total or substantial depletion of its quality. (25) For example, if water is so polluted that it cannot be used for human consumption or is so corrosive it cannot be used for cooling purposes, then, at least for those uses, it is not available. (26) An obvious relationship exists between quantity availability and quality. (27) This has become a problem in Alabama and is a crucial point, because although Alabama is blessed with an abundance of both surface water and ground water, some of the state's surface streams are unusable for most purposes, and in some areas the state's ground water quality is also threatened. (28)

Additionally, evaluation or appraisal of Alabama water law and policy in terms of the allocation process should not be limited to a particular point in time. What needs to be appraised is the direction and speed of reallocation. (29)

The issue is, therefore, what economic interpretations are to be applied to the water law criteria and water law objectives so frequently seen expressed in case law and statutory law in various states. (30) Courts are usually faced with determining the "most beneficial use" or the. "highest (31) and best use" of water in a conflict that demands resolution. Administrators may be faced with the same problem in applying permit systems where there are few legislative guidelines. The decision is one of both economics and law. (32)

Economists often define beneficial use of water as "one in which the value of the benefits received from usage is greater than the cost of utilization." (33) Judges, administrators, and legislators have applied this economic interpretation to conflicts and legislation for years. (34) For example, Alabama follows the common-law rule allowing a landowner to capture and store diffused surface water. (35) This practice could threaten riparian rights in watercourses within the watershed. (36) Since there is no legal precedent in Alabama that recognizes a correlation between diffused surface water and watercourses, no real prediction can be made as to how a court would decide a conflict between a riparian use and the capture and storage of diffused surface water by a landowner. (37) Assuming, however, a balancing of interests or cost-benefit test is used when attempting to satisfy some ephemeral maximization objective, the result would only be applicable as between those uses at that given time. (38) This legal interpretation of what is "reasonable," "beneficial," or of "maximum benefit" in economic terms seems too restrictive. (39) This restrictive approach should be replaced with policies of broader scope that tend to employ criteria that take into account all salient conditions that either encourage or discourage an increase of the state economy rather than a singular focus on the increase or decrease itself. (40)

The success of a policy or set of established economic objectives can best be evaluated through the application of criteria or standards. (41) It is necessary to define these criteria or standards so a comparison can be made of the results of one policy versus another policy if either policy is ultimately implemented through water law systems. (42) An ideal system of water allocation should serve the total community of interests and must have four essential features: mobility, versatility, flexibility, and security. (43) These features may be used as economic criteria for the interpretation of such water law standards as "reasonable," "beneficial," and "surplus." (44)

Mobility requires a capacity to transfer water from its source to the point of use and the ability of the user to transfer the right of use to a subsequent user. (45) Versatility requires the ability of a system to meet the demands of a number of different users over an extended period of time in such a manner as to effect the economic gain for the community. (46) Flexibility accommodates changing patterns of water use as well as land and other mineral uses and should include the ability to compel pollution abatement. (47) Security requires protection from both "physical uncertainty" (variability over time of the quantity of usable water under a right to use) and "tenure uncertainty" (variability over time of the quantity of usable water under a right to use, subject to lawful rights of other users). (48) Obviously, at times security and flexibility will appear as a dichotomy of criteria. (49) This should not mean that an emphasis on one criterion should always be to the detriment of the other. (50)

As evidenced by the physical dimensions of the total water supply available in Alabama, there is an abundance of surface water and ground water. (51) The water sources of Alabama are capable of accepting and discharging billions of gallons of water daily. (52) Because of land use patterns, these water sources are not always located in the areas of heaviest demand for water. (53) For example, in areas of great population density such as Mobile and Birmingham, there is substantial dependency on limited surface water sources for...

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