Alabama Continues to Evaluate Water Use and Availability Issues

A combination of factors in Alabama has raised concerns about the reliability of adequate water in various parts of the State in the event of prolonged droughts or significant withdrawals. Industrial users and public water systems would be well advised to become familiar with, and participate in, current efforts by State government and the Legislature to address these problems.

Alabama has an abundance of surface stream mileage, and historically has had the water to fill those stream beds. In fact, Alabama is said to have more navigable channels than any other state. (A Treasure Taken For Granted). However, the availability and volume issues that have driven the long-running dispute between Alabama, Georgia, and Florida (the “Water Wars”) have gradually, but increasingly, manifested themselves in Alabama, including areas not directly affected by the river basins that have been the focus of the interstate disputes.

Unlike most states in the region, including specifically Georgia and Florida, Alabama does not have a system of permitting for water withdrawals. Instead, it only monitors water withdrawals above certain volumes through a system of registration and certification managed by Alabama’s Office of Water Resources. (OWR). The lack of a statutory system regulating water withdrawal and use leaves water users and prospective users to rely on the common law riparian rights system adopted by the State’s Courts in the Nineteenth Century. While the historic abundance of surface and ground water has spared the State from many serious fights over water access and rights, increasing use associated with both public and private growth signals a possible change and the consequent need for a more formal system of water allocations.

While many see a need for some type of action, the effort has been slow to build in the State. Recently, however, there is a renewed focus increasing the prospect for some type of change. In 2008, the Alabama Legislature created the Permanent Joint Legislative Committee on Water Policy and Management (the “Joint Legislative Committee”). (Act 2008-164 SJR28). In 2011, Governor Bentley created the Alabama Water Agencies Working Group (“AWAWG” – Homepage)to assess water resource programs and policies in the State and provide policy options and recommendations. AWAWG submitted its initial report on December 1, 2013. (First Report) And the Joint Legislative Committee has periodically conducted hearings around the State to assess the need for legislative solutions. In a recent interview (here), Senator Arthur Orr, the current chair of the Joint Legislative Committee discussed the future work of AWAWG and potential activity by the Legislature. While his prediction that the Legislature will take water management issues up in a piecemeal, rather than comprehensive, manner has drawn attention, perhaps the more significant point is that Alabama might take any action at all. The fact that the Legislature has appropriated $2 million for AWAWG to conduct detailed assessments of water resources and potential shortfalls indicates that this is a serious effort.

It appears likely that these ongoing actions by AWAWG and the Legislature will result in significant changes to Alabama law governing the withdrawal and use of water and including such issues as interbasin transfers and return discharges. It would be wise for users of water resources, particularly those who make significant withdrawals, to pay careful attention and participate in this process as it moves forward over the next few months in Alabama.

FDEP Touts the Success of the State’s Brownfields Redevelopment Program

Florida Department of Environmental Protection (FDEP) touts the success of the State’s Brownfields Redevelopment Program.  Since its inception in 1997, Florida’s Brownfields Redevelopment Act ( Florida Statutes Sections 376.77 -376.85) has been viewed as successfully encouraging the redevelopment of abandoned or underutilized industrial and commercial property. The Brownfield’s program provides a mix of regulatory and financial incentives  to encourage the  voluntary cleanup and redevelopment of qualified sites. FDEP recently released its Annual Report on the Brownfields Program for its fiscal year 2013-2014. To date there have been 362 Brownfield sites designated, with 75 of those sites remediated. Reflecting the maturity of the program, only 18 new sites were designate this past fiscal year, with 15 site rehabilitation agreements executed . FDEP has projected the Brownfield Program as a whole has spurred 65,000 direct and indirect jobs and a total of $2.5 billion in capital investment, of which $194,593,470 occurred in calendar year 2013.

Florida Supreme Court Rules in Favor of Water Management District

On May 22, 2014 the Florida Supreme Court in South Florida Water Management District v RLI Live Oak, LLC, No. SC12-2336 ruled that in circumstances where a Florida Statute authorizes a state governmental agency like the Water Management District to recover a civil penalty in a judicial forum, then the agency must only prove the violation by a preponderance of the evidence. In this case the applicable statue did not specify the agencies burden to prove the violation.  The Supreme Court distinguished its previous ruling in Department of Banking & Finance V Osborne Stern & Co. 670 So. 2d 932 (Fla. 1996) and held that the “clear and convincing evidence” burden is not applicable to the statute enforced by the Water Management District.  At the trail court, the Water Management District successfully obtained civil penalties for  the unauthorized filling of wetlands. The Supreme Court’s ruling will make it less onerous on Water Management Districts in Florida to successfully win civil penalties for wetland violations.

Florida Adopts a Statewide Rule for Environmental Resource Permits

Following new state legislation granting the Florida Department of Environmental Protection (“FDEP”) the authority to establish one statewide rule for the environmental resource permitting (“ERP”) program, FDEP in early October finalized the new rule -Chapter 62-330. Previously, Florida’s five water management districts implemented different versions of rules addressing impacts to wetlands and surface waters. An ERP permit is required for certain activities that cause water pollution or affect wetlands and other surface waters.  The new rule is now applied statewide, with the interpretation of the rule implemented primarily by FDEP. The intent of the rule is to provide statewide consistency, while recognizing different natural systems that exist in the different regions/water management districts within the state. The new program provides for consistent application forms and filings through FDEP’s website.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

Florida to Sue Georgia over impact to Apalachicola Bay

Earlier this month, the State of Florida announced it will be filing a lawsuit in September in  the U.S. Supreme Court seeking to limit Georgia’s consumption of water from the Chattahoochee and Flint River Basins through an injunction. Florida claims that the unchecked consumption of the upstream water flows have negatively impacted Apalachicola Bay by increasing the salinity of the Bay, particularly in the summer and fall months. The reduction in the salinity is blamed for the reduction in the oyster population. Apalachicola Bay produces 90% of Florida’s oyster supply and 10% of the US domestic supply and is claimed to have the highest density of amphibians and reptiles north of Mexico. All the rivers discharging into the Bay draw from an approximate 20,000 sq. mile total watershed. The news release published by the Florida Department of Environmental Protection states that Georgia/Atlanta’s water consumption is expected to double to 705 million gallons per day by 2035. Previous negotiations between Georgia, Alabama and Florida have clearly failed to find a compromise acceptable to all three states.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

New Law For Florida Department Of Environmental Protection To Establish Surface Water Quality Standards For The State

The Florida Legislature recently adopted a new law that allows the Florida Department of Environmental Protection (“FDEP”) to establish  surface water quality standards in the state. The Governor is expected to support the new law. The new law essentially approved FDEP’s  nutrient standards for streams, springs, lakes, and estuaries in accordance with the document entitled “Implementation of Florida’s Numeric Nutrient Standards.”  The water quality standards primarily focus on Nitrogen(N) and Phosphorus (P) found in surface waters. The adoption of the law resolves years of conflict between the EPA and the State regarding  EPA’s efforts to  set numeric nutrient standards within the State of Florida. Generally, the business and agricultural community supported the new law, while the environmental community opposed the law.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

Welcome to Burr & Forman’s Environmental Law Matters Blog!

The complex system of environmental laws and regulations impact our clients’ businesses in a variety of contexts. Our attorneys regularly counsel clients on environmental legal issues arising in business strategy, regulatory compliance, permitting, transactions and resolution of disputes. Land conservation, historic preservation, brownfield redevelopment, environmental remediation, recycling, greenhouse gas, climate change, and regulation of air, water and wastes, all have the potential to pose challenges to corporate or real estate transactions. Our attorneys have a long history of handling such matters, and handling environmental cases in state and federal courts.  We have launched this blog to help our clients keep up with news, statutory changes, legal opinions and practical tips involving all areas of environmental law.

Because many of the laws relating to the regulation of environmental issues are state-specific, we will focus on developments in Burr & Forman’s Southeastern footprint of Alabama, Florida, Georgia, Mississippi, and Tennessee. However, we will also cover any particularly impactful or interesting events in other parts of the country and at the Federal level.

We hope that our clients, as well as other interested parties, will find this blog informative and entertaining and will make it a regular part of their reading. If you ever have a question about something on the blog or have an environmental legal issue, feel free to contact any of Burr & Forman’s Environmental team members, and we will be happy to assist you. If you need help in a state outside of Alabama, Florida, Georgia, Mississippi, or Tennessee, let us know. We have aligned our firm with trusted practices across the country and around the world, and we will get your questions answered at the right law firm.

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