The Failings of Alabama Water Law

35 Pages Posted: 11 Apr 2017

See all articles by Heather Elliott

Heather Elliott

University of Alabama - School of Law

Date Written: 2017

Abstract

Alabama policymakers have for decades discussed how to improve Alabama’s water law but have made no progress in finding solutions. A persistent theme in the hesitation to adopt water-policy legislation is that we must better understand our water resources before we can take action. Our water-policy problems, however, have very little to do with the nature of our water resources and everything to do with our legal regime: Alabama uses nineteenth-century common law to govern its water resources, and that common law is inadequate to deal with twenty-first-century water uses. The current common law renders unlawful many existing diversions of water that serve vital municipal, agricultural, commercial, and industrial purposes and inhibits Alabama’s efforts to create economic growth, deal with increasing population, protect the state’s world-class environmental resources, and address the consequences of drought in a changing climate. Why, then, have we not yet acted? Paradoxically, part of the answer may be the abundance of Alabama’s water resources: we have so much water that few have been motivated to challenge current unlawful uses of water. Without such challenges, the need to fix the common law does not appear pressing. But the best time to develop a comprehensive solution to the failings of Alabama’s water law is when there is no emergency. At a minimum, the legislature must adopt a statute that (1) eliminates the outdated restrictions of the common law, (2) permits interbasin transfers of water, (3) protects the instream flows needed by our ecosystems, and (4) empowers an agency to coordinate these uses. Optimally, Alabama would adopt the Regulated Riparian Model Water Code.

Keywords: water law, water resources, state law, Alabama, riparian rights, surface water, groundwater

Suggested Citation

Elliott, Heather, The Failings of Alabama Water Law (2017). Alabama Law Review, Vol. 68, 2017; U of Alabama Legal Studies Research Paper No. 2951219. Available at SSRN: https://ssrn.com/abstract=2951219

Heather Elliott (Contact Author)

University of Alabama - School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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