197904-1:n:03/15/2019:JET/tgw LSA2019-913




HB476
By Representatives Rafferty, McCampbell, Lawrence and England
RFD State Government
Rd 1 18-APR-19


SYNOPSIS:Under existing law, the Office of Water Resources is the state agency responsible for coordinating the water resources of the state.
 This bill would empower the state to preserve water flows and availability and establish additional conservation powers in times of drought and water emergency.
 This bill would facilitate coordination between water quality and water allocation management, requiring the state to protect the appropriate biological, chemical, and physical integrity of waters by rule.
 This bill would require the Water Resources Commission to declare a water shortage or emergency under certain conditions.
 This bill would establish a burden of proof for withdrawals of surface or underground water.
 This bill would authorize the Office of Water Resources to: (1) restrict any term or condition in a certificate of use for the duration of a water shortage or emergency; (2) provide conservation credits to water users that take certain conservation measures during shortages or emergencies; (3) restrict withdrawals for which no certificate is required during a shortage or emergency; and (4) allocate water to and among uses in order to alleviate a shortage or emergency.
 This bill would also require the state to preserve environmental flows and levels in all water sources the allow the Office of Water Resources to establish by rule an environmental flow or level in any water source after consultation with the Alabama Water Resources Council.

A BILL
TO BE ENTITLED
AN ACT

Relating to water management; to create the Alabama Water Conservation and Security Act; to amend Sections 9-10B-2, 9-10B-3, 9-10B-20, 9-10B-22, 9-10B-23, and 9-10B-24, Code of Alabama 1975; to add Sections 9-10B-31 and 9-10B-32, to the Code of Alabama 1975; to provide legislative findings; to empower state conservation agencies to preserve flows and water availability in all waters of the state; to require the state to protect the appropriate biological, chemical, and physical integrity of waters through water planning and management.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. This act shall be known and may be cited as the Alabama Water Conservation and Security Act.

Section 2. The Legislature finds and declares the following:

(1) In accordance with the Alabama Water Resources Act, all waters of the state, whether found on the surface of the ground or underneath the surface of the ground, are among the basic resources of the state held in trust for the public.

(2) All waters of the state are subject to the state's sovereign power to plan and manage the use of those waters, under law, in order to protect the public welfare, promote economic growth, mitigate the harmful effects of drought, resolve conflicts among competing water users, achieve balance between consumptive and nonconsumptive water uses, and enhance productivity of water-related activities.

(3) The efficient use of waters of the state for human consumption is recognized as a priority use of the state.

(4) All citizens have a stewardship responsibility to conserve and protect the water resources of this state.

(5) Comprehensive water management is necessary to ensure fair, efficient, sustainable, and productive use of the total water supply of this state, satisfying economic, environmental, and other social goals, whether public or private, to prevent water unavailability from becoming a limiting factor in the general improvement of social welfare.

(6) The state, in the exercise of its sovereign police power to protect the public interest in the waters of this state, undertakes to efficiently and equitably allocate available water in times of water shortage or emergency through comprehensive water planning.

(7) The state shall preserve the flows and levels in all waters of the state as necessary to protect the appropriate biological, chemical, and physical integrity of waters by reserving these waters from use and by authorizing additional protections of the waters of this state.

Section 3. Sections 9-10B-2, 9-10B-3, 9-10B-20, 9-10B-22, 9-10B-23, and 9-10B-24, Code of Alabama 1975, are amended to read as follows:

§9-10B-2.

"The Legislature of the State of Alabama hereby finds and declares that:

"(1) All waters of the state, whether found on the surface of the ground or underneath the surface of the ground, are among the basic resources of the State of Alabama; held in trust for the public.

"(2) All waters of the state are subject to the state's sovereign power to plan and manage use, under law, in order to protect public welfare, preserve public health and safety, promote economic growth, mitigate the harmful effects of drought, resolve conflicts among competing water users, achieve balance between consumptive and nonconsumptive water uses, encourage conservation, prevent degradation of natural environments, and enhance productivity of water-related activities.

"(2)(3) The efficient use of waters of the state for human consumption is recognized as a priority use of the state and it is the intent of this chapter that no limitation upon the use of water for human consumption shall be imposed except in emergency situations after the Office of Water Resources has considered all feasible alternatives to such limitations.;

"(3)(4) The Recognizing that the use of such waters should be conserved and managed to enable the people of this state to realize the full beneficial use thereof and to maintain such water resources for use in the future;, the state shall conserve the waters of the state through suitable policies and by encouraging private efforts to conserve water and avoid waste.

"(4)(5) The general welfare of the people of this state is dependent upon the dedication of the available water resources of the State of Alabama to beneficial use to the fullest extent to which they are capable through the development and implementation of plans and programs to manage such quantitative water resources:;

"a. In order to promote efficiency, equity, order, conjunctive management, and stability in utilization of the water resources of this state over time, this chapter and all orders, certificate terms or conditions, and rules issued or adopted pursuant to this chapter are to be interpreted to achieve the policies embodied in the law and to conform to the physical laws that govern the natural occurrence, movement, and storage of water.

"b. Recognizing the importance of proper planning and management, it is critical that the state devise appropriate conservation and drought management strategies to serve public health, safety, and welfare.

"c. The state, in the exercise of its sovereign police power to protect the public interest in the waters of the state, undertakes to efficiently and equitably allocate available water in times of water shortage or emergency through comprehensive water planning.

"(5)(6) It is the purpose of this chapter to establish the Office of Water Resources and the Water Resources Commission and to vest said the office and commission with the power and responsibility to develop and carry out the Alabama Comprehensive Water Plan and drought management strategies, and to develop other plans and strategies as may be necessary for the management of the waters of the state as well as the other goals and policies of this chapter;.

"(6)(7) No person's beneficial use of the quantitative waters of the state person possessing a certificate of use shall be restricted from use by the Office of Water Resources or the Water Resources Commission except where such beneficial use is within an area of the state designated as a capacity stress area pursuant to restrictions are authorized under Section 9-10B-22 this chapter. It is the intent of the Legislature that any action taken which limits, restricts, or conditions any person's beneficial use of water resources of this state be implemented only after:

"a. the The Water Resources Commission has determined that such action is necessary because the aggregate uses of the waters of the state in such area exceeds or will exceed the availability of such waters and is required to protect the availability of the waters of the state; and

"b. such Such person has been afforded due process of law including, but not limited to, a public hearing. The implementation and enforcement of any action limiting, restricting, or conditioning any person's beneficial use of water resources shall be under the direction of the Alabama Department of Environmental Management; and

"(7)(8) Notwithstanding any provision of this chapter to the contrary, the provisions of this chapter shall not apply to:

"a. Impoundments or other similar containments confined and retained completely upon the property of a person which store water where the initial diversion, withdrawal, or consumption of such water is acknowledged in a certificate of use;

"b. Waste water treatment ponds and waste water treatment impoundments subject to regulation under the Clean Water Act, 33 U.S.C. Sections 1251 et seq., and ponds and impoundments subject to regulation under the Mine Safety and Health Act, 30 U.S.C. Sections 801 et seq., or the Surface Mining Control Act, 30 U.S.C. Sections 1201 et seq.; and

"c. Surface impoundments constituting solid waste management units under the Resource Conservation and Recovery Act, 42 U.S.C. Sections 6901 et seq.

"(9) It is critical that the state coordinate the plans, laws, rules, and decisions pertaining to water allocation with those pertaining to water quality.

"(10) The state's diverse hydrogeographic, economic, and institutional conditions require the state to continue to support the activities of local governments that address local and regional water conditions and problems.

"(11) The state should take all reasonable measures to protect the reasonable needs of water basins of origin through the regulation of interbasin transfers.

§9-10B-3.

"For the purposes of this chapter, the following words and phrases, unless a different meaning is plainly required by the context, shall have the following meanings:

"(1) ALABAMA COMPREHENSIVE WATER PLAN. A plan developed by the Office of Water Resources, or any watershed management authority pursuant to this chapter, for the intermediate and long-term protection, conservation, and management of all the waters of the state and designed to promote and secure the sustainable development and reasonable use of the waters of the state taking into account economic, environmental, and other social values.

"(1)(2) AREA OF THE STATE. Any municipality or county, including portions thereof, or other geographical area of the state as may be designated by the commission pursuant to this chapter.

"(2)(3) BENEFICIAL USE. The diversion, withdrawal, or consumption use of the waters of the state whether in place or through withdrawal, diversion, or consumption in such the quantity and manner as is necessary for economic and efficient utilization without waste of water, without unreasonable injury to other certificate of use holders or the environment, and consistent with the public interests of this state and sustainable development.

"(4) BIOLOGICAL, CHEMICAL, AND PHYSICAL INTEGRITY. The maintenance of water in the source, in the volume, and at the times necessary to support all of the following:

"a. The preservation of riverine systems, wetlands, and native wildlife, including fish, flora, and fauna.

"b. The water quality standards prescribed by federal or state laws, rules, or regulations relating to effluent discharges and other expected impacts.

"c. Instream uses of water as required by federal or state laws, rules, or regulations.

"d. Adequate recreational opportunities to the people of the state.

"e. The preservation of cultural or historic resources as determined by or as required by federal or state laws, rules, or regulations.

"f. The prevention of serious hydrological alteration of the body of water.

"(3)(5) CAPACITY STRESS AREA. An area of the state designated by the commission pursuant to this chapter where the commission determines that the use of the waters of the state, whether ground water, surface water, or both, requires additional coordination, management, and regulation for the protection of the interests and rights of the people of the state.

"(4)(6) CERTIFICATE OF USE. A certificate which shall be written authorization issued by the Office of Water Resources, upon receipt of a declaration of beneficial use, in accordance with this chapter, to a person entitled to hold and exercise a water use involving acknowledging the diversion, withdrawal, or consumption of the waters of the state at a specific time and place for a specific reasonable use as described in the written authorization.

"(5)(7) COMMISSION. The Alabama Water Resources Commission or its successor.

"(8) CONSERVATION MEASURE. A measure adopted by a certificate of use holder, or several certificate holders acting in concert pursuant to an approved conservation agreement under Section 9-10B-22, to reduce the withdrawals or consumptive uses, or both, associated with the exercise of a water use, including, but not limited to the following:

"a. Improvements in water transmission and water use efficiency.

"b. Reduction in water use.

"c. Enhancement of return flows.

"d. Reuse of return flows.

"(9) CONSUMPTIVE USE. A withdrawal that is not returned to its water near or at its source of origin, resulting in substantial diminution in quality or quantity or causing low flow conditions, including, but not limited to, evaporation or incorporation into a product or crop.

"(7)(10) CRITICAL USE STUDY. An analysis of the available supply of water resources within an area of the state a watershed and an assessment of the existing and reasonably foreseeable future demand for such resources to determine if a water shortage exists, or is likely to exist, in such area of the state should be designated as a capacity stress area watershed.

"(8)(11) DECLARATION OF BENEFICIAL USE. A writing signed and certified by, or on behalf of, a person to receive a certificate of use and shall include the following: the name of the person to receive a certificate; the source or sources of the waters of the state subject to such person's beneficial use; the estimated quantity, in gallons, of the waters of the state used on an annual average daily basis by such person and the estimated capacity in gallons, of waters of the state potentially diverted, withdrawn, or consumed on any given day by such person; and a statement of facts establishing that the use of such waters constitutes a beneficial use.

"(9)(12) DEPARTMENT. The Department of Economic and Community Affairs or its successor.

"(10)(13) DIRECTOR. The Director of the Department of Economic and Community Affairs.

"(11)(14) DIVISION CHIEF. The Chief of the Office of Water Resources or its successor.

"(15) DROUGHT MANAGEMENT STRATEGIES. Plans devised by the Office of Water Resources pursuant to this chapter for the allocation of water during periods of drought and otherwise to cope with water shortages or water emergencies and, insofar as is reasonably possible, to restore the waters of the state to their condition prior to the drought.

"(16) ENVIRONMENTAL FLOW. The amount of flow needed, as determined by the Office of Water Resources after consultation with the Water Resources Council, to uphold the natural biological, physical, and chemical integrity of a waterway established using scientifically valid methodologies considering hydrology, geomorphology, biology, connectivity, and water quality. In determining environmental flow rates, the Office of Water Resources shall give consideration to consumptive and nonconsumptive water uses, such as agricultural, industrial, municipal, and domestic uses; energy production; assimilative waste capacity; recreation; navigation; fish and wildlife resources and other ecologic values; estuarine resources; aquifer recharge; and aesthetics.

"(12)(17) GROUND WATER. Water in a saturated zone or stratum beneath the surface of land or water, whether or not flowing through known and definite channels, and regardless of whether it is the result of natural or artificial recharge.

"(18) INTERBASIN TRANSFER. Any transfer of water, for any purpose and regardless of the quantity involved, from one river basin to another.

"(13) (19) OFFICE OF WATER RESOURCES. The Alabama Office of Water Resources or its successor, which shall serve as the central unit of the state's government for protecting, maintaining, improving, allocating, and planning regarding the waters of the state pursuant to this chapter.

"(14)(20) PERSON. Any and all persons, natural or artificial, including any individual, firm, association, organization, partnership, business, trust, corporation, company, any federal agency, authority, or corporation created by the United States of America, and the state and all political subdivisions, regions, districts, municipalities, and public agencies thereof.

"(15)(21) PUBLIC WATER SYSTEM. A system for the provision to the public of piped water for human consumption or other uses, if such system has at least 15 service connections or regularly serves an average of at least 25 individuals at least 60 days out of the year. A public water system includes:

"a. any collection, treatment, storage, and distribution facilities under the control of the operator of such system and used primarily in connection with such system; and

"b. any collection or pretreatment storage facilities not under such control which are used primarily in connection with such system.

"(16)(22) STATE. The State of Alabama.

"(17)(23) SURFACE WATER. Water upon the surface of the earth, whether contained in bounds created naturally or artificially or diffused. Water from natural springs shall be considered "surface water" when it exits from the spring onto the surface of the earth.

"(6)(24) SURFACE WATER REGIONS. Those certain areas of the state designated by this chapter and to be referred to individually as:

"a. Central Alabama Surface Water Region. That area of the state formed by the Counties of Etowah, Cherokee, St. Clair, Calhoun, Cleburne, Shelby, Talladega, Clay, Randolph, Bibb, Coosa, Tallapoosa, Chilton, Perry, Autauga, Elmore, Macon, Montgomery, Dallas, Lowndes, Wilcox, and Monroe.

"b. Coastal Alabama Surface Water Region. That area of the state formed by the Counties of Mobile and Baldwin, and all bays, tidal estuaries, and portions of the Gulf of Mexico over which this state has jurisdiction.

"c. North Alabama Surface Water Region. That area of the state formed by the Counties of Lauderdale, Limestone, Madison, Jackson, Colbert, Franklin, Lawrence, Morgan, Marshall, and DeKalb.

"d. Southeast Alabama Surface Water Region. That area of the state formed by the Counties of Russell, Bullock, Pike, Barbour, Lee, Chambers, Butler, Crenshaw, Coffee, Dale, Henry, Conecuh, Covington, Geneva, Houston, and Escambia.

"e. West Alabama Surface Water Region. That area of the state formed by the Counties of Marion, Winston, Cullman, Blount, Lamar, Fayette, Walker, Jefferson, Pickens, Tuscaloosa, Greene, Hale, Sumter, Marengo, Choctaw, Clarke, and Washington.

"(25) SUSTAINABLE DEVELOPMENT. The integrated management of resources taking into consideration the needs of future generations as well as the current generation, assuring equitable access to resources, optimizing the use of nonrenewable resources, and averting the exhaustion of renewable resources.

"(18)(26) WATER RESOURCES COUNCIL. The Alabama Water Resources Council or its successor.

"(19)(27) WATERS or WATERS OF THE STATE. A quantity, regardless of the size or duration, of any spring, brook, creek, stream, river, pond, swamp, lake, reservoir, impoundment, sound, tidal estuary, bay, waterway, aquifer, or any other body or accumulation of water, surface water, or ground water, or water found within the atmosphere, public or private, natural or artificial, that:

"a. is Is contained within the borders of this state;

"b. flows Flows through or to this state or any portion thereof; or

"c. borders Borders upon this state or any portion thereof, including those portions of the Gulf of Mexico over which this state has jurisdiction.

"(28) WATERSHED. An area of land from which all waters drain, on the surface or beneath the ground to a common point; provided, however, that in any administrative or judicial proceeding pursuant to this chapter, the watershed shall be measured at the lowest point relevant to the issue to be determined.

"(29) WITHDRAWAL. The removal or exercise of physical control of surface or underground water from its natural course or location by any means, regardless of whether the water is returned to its waters or origin, consumed, or discharged elsewhere.

§9-10B-20.

"(a) A declaration of beneficial use shall be submitted within 90 days of the promulgation of rules and regulations governing such declarations by each public water system that regularly serves, individually or in combination with other such systems, more than 10,000 households and by each person who diverts, withdraws, or consumes more than 100,000 gallons of water on any day from the waters of the state.

"(b) A declaration of beneficial use shall be submitted within 180 days of the promulgation of rules and regulations governing such declarations by each public water system that regularly serves, individually or in combination with other such systems, less than 10,000 households.

"(c) No declaration of beneficial use shall be required to be submitted by any person, other than public water systems, who diverts, withdraws, or consumes less than 100,000 gallons of water each day from the waters of the state unless the commission determines by regulation that the submission of declaration of beneficial use by such person is necessary to accomplish the purposes of this chapter. In addition, no declaration of beneficial use shall be required and no certificate of use shall be issued for:

"(1) In-stream uses of water, including, but not limited to, recreation, navigation, water oxygenation system, and hydropower generation; or

"(2) Impoundments covering not more than 100 acres in surface area:

"a. Confined and retained completely upon the property of a person; and

"b. Used solely for recreational purposes, including sport fishing.

"(d) Notwithstanding any other provision of this chapter to the contrary, each person who has the capacity proposes to use 100,000 gallons or more of water on any day in total for purposes of irrigation shall submit a declaration of beneficial use to the Office of Water Resources on or before January 1, 1995. Persons who use waters for purposes of irrigation, but who do not have the capacity to use 100,000 gallons or more of water on any day in total for purposes of irrigation, are not required to submit a declaration of beneficial use unless the commission determines by regulation that such action is necessary to accomplish the purposes of this chapter.

"(e) The Office of Water Resources shall issue a certificate of use to any person required to submit a declaration of beneficial use upon the submission of a declaration of beneficial use. The declaration of beneficial use shall contain all information required to be submitted under regulations promulgated by the commission and shall establish that the proposed diversion, withdrawal, or consumption of such water shall not interfere with any presently known existing legal use of such water and is consistent with the objectives of this chapter. Each certificate of use shall contain the following statement: "THE ISSUANCE OF THIS CERTIFICATE OF USE SHALL NOT CONFER OR MODIFY ANY PERMANENT INTERESTS OR RIGHTS IN THE HOLDER THEREOF TO THE CONTINUED USE OF THE WATERS OF THE STATE OF ALABAMA."

"(f) It shall be a condition of each certificate of use issued by the Office of Water Resources that reports be submitted annually to the Office of Water Resources, indicating the amount of water, in gallons, diverted, withdrawn, or consumed on a monthly basis by such person and such other information required under regulations promulgated by the commission. Such reports shall be signed and certified that to the best of the person's knowledge and belief, the information contained therein is true, accurate, and complete.

"(g) The Office of Water Resources shall issue certificates of use or approve transfers of the waters of the state in such a manner as to protect and preserve the quality of those waters.

"(h) The Office of Water Resources shall not issue a certificate of use for any use that appears likely to result in a violation of the water quality standards designated by the state without consulting with the Alabama Department of Environmental Management.

"(i) The Office of Water Resources shall not issue a certificate of use for any use that appears likely to violate any rule, regulation, or legal order that protects, conserves, or increases the wildlife of the state without consulting with the Alabama Department of Conservation and Natural Resources.

"(j) The Office of Water Resources may adopt rules as reasonably necessary to perform the functions authorized pursuant to this section; provided, however, that no rule shall conflict or be inconsistent with the rules adopted by the commission in designating a capacity stress area.

§9-10B-22.

"(a) Declaration of a water shortage.

"(1) The commission shall declare a water shortage whenever it finds that in all or any part of the state, because of droughts or otherwise, the available water falls so far below normally occurring quantities that substantial conflict among water users or injury to water resources is expected to occur.

"(2) Before restricting the exercise of any right conferred by a certificate of use issued under this chapter because of a water shortage, the Office of Water Resources shall serve notice of the proposed action and provide an opportunity for a contested hearing to any person affected by the proposed restriction.

"(3) In any hearing or litigation relating to this subsection, the burden of proof shall be on the party requesting the hearing or initiating the litigation.

"(b) Declaration of a water emergency.

"(1) The commission shall declare a water emergency whenever it finds there exists a severe shortage of water relative to lawful demand such that restrictions taken under a declaration of water shortage are insufficient to protect public health, safety, and welfare in all or any watershed of the state.

"(2) In addition to its powers under a declaration of water shortage, the Office of Water Resources, upon a declaration of a water emergency by the commission and without prior hearing, may order a person who holds a certificate of use under this chapter immediately to cease or otherwise change the withdrawal or use of water as necessary to alleviate the emergency.

"(3) An emergency order issued under this section shall specify the precise date and time on which the restriction or change to the withdrawal or use of water is necessary to alleviate the emergency.

"(4) Any restriction under this section shall not take effect against any person affected by the restriction until the Office of Water Resources serves the emergency order on that person.

"(5) Any person affected by a restriction under this section may obtain a hearing to challenge the restriction, to begin not more than 10 days after the Office of Water Resources receives the request for a hearing, and to be concluded as soon as reasonably possible after the hearing begins.

"(6) In any hearing or litigation relating to this subsection, the burden of proof shall be on the party requesting the hearing or initiating the litigation.

"(7) An emergency order shall remain in effect pending the result of any hearing or litigation relating to this section.

"(c) The commission, in declaring a water shortage or a water emergency, shall determine and clearly delineate the area of the state and the water sources included within the shortage or emergency.

"(d) Authority to restrict a certificate of use.

"(1) The Office of Water Resources may restrict any term or condition of a certificate of use issued under this chapter for the duration of a water shortage or water emergency declared by the commission.

"(2) The Office of Water Resources shall impose restrictions according to previously developed drought management strategies unless the commission determines that the relevant drought management strategies are inappropriate to the actual situation.

"(e) Conservation credits.

"(1) If practical, the Office of Water Resources, in ordering restrictions on the withdrawal or use of water during a water shortage or water emergency, may not order a person to do more if that person has successfully implemented conservation measures, pursuant to the plan of conservation made a term or condition of the certificate of use under which the person exercises a water use, until other certificate of use holders have achieved comparable restrictions in the exercise of their water uses.

"(2) When a person holding a certificate of use voluntarily undertakes conservation measures during a period of water shortage or water emergency beyond those required by this chapter, including the terms and conditions of the person's certificate of use, that result in significant quantifiable reductions in the water that person had been using before the beginning of the water shortage or water emergency, that person is entitled to a credit for such reductions in any scheme of restrictions imposed by the Office of Water Resources as a response to the water shortage or water emergency.

"(3) When a written agreement between persons holding certificates of use under this chapter to undertake joint conservation measures in the event of an anticipated water shortfall is filed with the Office of Water Resources before the declaration of a water shortage or water emergency and the agreement does not unreasonably impair the rights of other persons who have a right to use the water, or the public interest, or sustainable development, the agency shall do both of the following:

"a. Register the agreement and include it in any relevant drought management strategies if the agreement is consistent with the policies of this chapter.

"b. Credit any water actually conserved under the agreement to the obligations of the parties to the agreement to restrict their water withdrawals or consumptive uses during any water shortage or water emergency.

"(4) When a written agreement between persons holding certificates of use under this chapter to undertake joint conservation measures is filed with the Office of Water Resources during the declaration of a water shortage or water emergency and the agreement does not unreasonably impair the rights of other persons who hold certificates of use, or the public interest, or sustainable development, the agency shall do both of the following:

"a. Register the agreement and authorize the parties to the agreement to implement those measures in lieu of restrictions imposed or to be imposed by the Office of Water Resources.

"b. Credit any water actually conserved under the agreement to the obligations of the parties to the agreement to restrict their water withdrawals or consumptive uses during any water shortage or water emergency.

"(5) Conservation credits and registered agreements on joint conservation measures shall be included in the statewide data system.

"(f) The commission shall amend or terminate a declaration of water shortage or water emergency upon a finding that conditions justifying the declaration have changed or no longer exist as to part or all of the area included in the prior declaration.

"(a)(g) Upon the designation of any area of the state as a capacity stress area where the commission specifically finds the implementation of a use restriction alternative is necessary because the aggregate existing or reasonably foreseeable uses of the waters of the state in such an area exceed or will exceed the availability of such waters and is required to protect the availability of public interests in the waters of the state within such area, the commission shall immediately initiate rule-making rulemaking procedures to consider appropriate conditions or limitations applicable to all certificates of use within such area; provided, however, that the commission shall not adopt or promulgate any rule or regulation with respect to any capacity stress area without the concurrence of 13 of the members of the commission. Any such conditions or limitations shall be confined to matters necessary for the protection of the beneficial use of public interests in the waters of the state. In addition to any other requirement of law, the notice of rule-making shall be sent by certified mail, return receipt requested, to each person within such area holding a certificate of use. The notice of rule-making rulemaking shall include a description of the actions proposed by the commission, including the duration thereof, in the capacity stress area.

"(b)(h) Any rules or regulations proposed under this section shall consider fully all relevant matters prior to the adoption of any conditions, limitations, or restrictions upon any certificate of use within a capacity stress area. Such matters shall include, but shall not be limited to: the uses of water under each certificate of use within such area; the environmental flows or levels of the waters within such area; the uses of water and environmental flows or levels of other areas likely to be impacted by the proposed rules; the quantity of any water returned by each holder of a certificate of use to the capacity stress area; the reasonably foreseeable impacts to the economic or other interests of the state as a result of the imposition of any conditions, limitations, or restrictions upon each certificate of use; and the effect of such conditions, limitations, or restrictions upon the status of such area as a capacity stress area.

"(c)(i) Every 12 months, or sooner if necessary or requested by the division chief, the commission shall confirm the conditions applicable to a water shortage, a water emergency, or a capacity stress area to determine what, if any, modifications to the designation of the capacity stress area are appropriate.

§9-10B-23.

"(a) In the event the commission adopts or promulgates any rules or regulations The enforcement and implementation of any rules limiting or reducing the quantity of water available to a person holding a certificate of use, the implementation and enforcement of such rules and regulations shall be under the direction of the Alabama Department of Environmental Management, and, for rules adopted pursuant to Section 9-10B-20, the Office of Water Resources.

"(b) The Alabama Department of Environmental Management and the Alabama Environmental Management Commission are hereby expressly authorized to perform the following duties and functions with respect to the implementation and enforcement of the rules and regulations adopted by the commission:

"(1) To receive copies of all reports or other documents submitted to the Office of Water Resources by holders of certificates of use within a capacity stress area;

"(2) Acting through the Alabama Department of Environmental Management, to issue an order assessing a civil penalty against any person in violation of any condition, limitation, or restriction of a certificate of use promulgated by the commission pursuant to Section 9-10B-20 or Section 9-10B-22; provided, however, that all such orders shall be consistent with, and subject to the limitations set forth in, subdivision (19) of Section 9-10B-5;

"(3) To recommend to the Office of Water Resources or the commission actions to be taken within a capacity stress area or modifications, amendments, or repeals of any rules or regulations adopted by the commission regarding a capacity stress area;

"(4) Acting through the Alabama Environmental Management Commission, to hear administrative appeals of any order issued by the Alabama Department of Environmental Management pursuant to this section; and

"(5) Acting through the Alabama Environmental Management Commission, to adopt such rules and regulations as reasonably necessary to perform the functions authorized pursuant to this section; provided, however, that no such rules or regulations shall conflict or be inconsistent with the rules or regulations adopted by the commission in designating a capacity stress area.

§9-10B-24.

"(a) There is hereby established the Alabama Water Resources Council. The Water Resources Council shall act in an advisory capacity to the Office of Water Resources and shall be comprised of one representative appointed by each of the following entities: The Alabama Department of Conservation and Natural Resources, the Alabama Department of Environmental Management, the Alabama Department of Public Health, the Soil and Water Conservation Committee, the Alabama State Port Authority, the Geological Survey of Alabama, and the Water Resource Research Institute. From time to time, the division chief may request any other state agency to appoint a representative to the Water Resources Council. The Water Resources Council shall advise the Office of Water Resources on all matters concerning the waters of the state.

"(b) The Office of Water Resources may establish and convene planning advisory committees as may be necessary to assist in the formulation of its plans, programs, and strategies. The planning advisory committees may include representatives from agencies or branches of the United States, agencies or branches of interstate or international organizations with responsibility for waters of the state, other agencies or branches of the state, other states sharing the watershed under study, the political subdivisions of the state, and all persons or groups interested in or directly affected by any proposed or existing plan or strategy."

Section 4. Sections 9-10B-31 and 9-10B-32 are added to the Code of Alabama 1975, to read as follows:

§9-10B-31.

(a)(1) The state shall preserve environmental flows and levels in all water sources as necessary to protect the appropriate biological, chemical, and physical integrity of waters by reserving such waters from allocation necessary to meet these flows and levels; by maintaining the natural hydrology of the watersheds and basins of the state to the greatest extent possible; and by authorizing additional protections of the waters of the state to restore and protect the biological, chemical, and physical integrity of the state's water resources.

(2) The Office of Water Resources, after consultation with the Alabama Water Resources Council, shall establish, by rule, the environmental flow or level in any body of water that is not subject to use under this chapter, except as provided in this section.

(3) The Office of Water Resources shall not issue a certificate of use for any use that appears likely to impair the protected environmental flows or levels as determined under this section.

(b) Every person exercising a water use pursuant to this chapter shall protect the prescribed environmental flow or levels when exercising such right.

(c) Standards for protected environmental flows or levels.

(1) The Office of Water Resources, after consultation with the Alabama Water Resources Council, shall establish an environmental flow or level as the amounts necessary for the biological, chemical, and physical integrity of the body of water, taking into account normal seasonal variations in flow and need.

(2) Effects of water shortages, water emergencies, or designation of capacity stress areas.

a. The commission shall declare a water shortage or water emergency or designate a capacity stress area when the environmental flows or levels established by this section are threatened or impaired.

b. During periods of water emergency, the Office of Water Resources may allocate waters normally within protected environmental flows or levels when necessary to prevent serious injuries to water uses established before the beginning of the water emergency and to prevent grave threats to human life or health under circumstances in which water is not available from other sources, but only to the extent such allocation does not permanently impair the biological, chemical, or physical integrity of the water source.

c. To facilitate planning for water emergencies, the Alabama Water Resources Council shall develop and recommend to the Office of Water Resources the environmental flows or levels that should not be subject to use, except to prevent grave threats to human life or health under circumstances in which water is not available from other sources for coping with these needs.

(3) Burden of proof.

a. In any proceeding under this chapter, the person proposing to withdraw water from a water source shall have the burden of showing by a preponderance of the evidence that the proposed withdrawal will not impair the protected environmental flows or levels as determined under this section.

b. Nothing in this chapter authorizes any person to withdraw water from a source that would impair its established protected environmental flow or level without first securing authorization to do so from the Office of Water Resources or a court reviewing a decision by the Office of Water Resources.

§9-10B-32.

This chapter does not alter or abridge any right of action existing in law or equity, whether civil or criminal, nor does it prevent any person from exercising rights to suppress nuisances or otherwise to abate pollution.

Section 5. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.


Water and Waterways
Office of Water Resources
Conservation and Natural Resources Department
Alabama Water Resources Company
Code Added
Code Amended