Document Type

Working Paper

Publication Date

4-11-2017

SSRN Discipline

Legal Scholarship Network; EarthSciRN Subject Matter Journals; Law School Research Papers - Legal Studies; Geography Research Network; LSN Subject Matter eJournals; SRPN Subject Matter eJournals; GeographyRN Subject Matter eJournals; Sustainability Research & Policy Network; Environmental & Natural Resources Law eJournals; Earth Science Research Network; Management Research Network

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 waterpolicy legislation is that we must better understand our water resources before we can take action Our waterpolicy problems however have very little to do with the nature of our water resources and everything to do with our legal regime Alabama uses nineteenthcentury common law to govern its water resources and that common law is inadequate to deal with twentyfirstcentury 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 worldclass 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water law is when there is no emergency At a minimum the legislature must adopt a statute that 1 eliminates the outdated restrictions of the common law 2 permits interbasin transfers of water 3 protects the instream flows needed by our ecosystems and 4 empowers an agency to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

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