Birmingham Water Works Board and Alabama Attorney General Propose to Void Land Agreement Protecting City’s Drinking Water

BIRMINGHAM, Ala. — In a response filed late last week, the Birmingham Water Works Board and the Alabama Attorney General asked to revise or void a 20-year-old settlement agreement designed to permanently protect land surrounding Lake Purdy and the Cahaba River that provides a major source of the city’s drinking water. 

The Attorney General and the Board have asked the Jefferson County Circuit Court to allow them to rewrite and/or void the part of a January 2001 settlement agreement which requires the Board to put its land in a conservation easement—a legal agreement that limits development in order to protect drinking water. The Board and the Attorney General’s request to change the terms would expose 6,000 acres around the drinking water source to development.

The Board’s filing follows last month’s Alabama Supreme Court’s ruling, which unanimously agreed with the Cahaba Riverkeeper, Cahaba River Society, and Southern Environmental Law Center’s central argument that no conservation easement had been created, despite the Board and Attorney General’s assertions that they had already done so. In previous litigation, the Board stated that they had been complying with the settlement agreement; the action last week is in direct contradiction to these claims, as the Board and Attorney General are now requesting to alter the terms of the 2001 agreement retroactively. 

While the Board and the Attorney General negotiated and signed the 2001 settlement agreement, the ratepayers are specified third-party beneficiaries with the stated right to enforce it.

“It is vital that the Board fulfills its commitment made to the City of Birmingham, the State, and ratepayers 20 years ago to permanently protect the land that provides our drinking water,” said Beth Stewart of Cahaba River Society. “To do so, the Board must maintain a conservation easement that acts in the best interest of the ratepayers, who have already paid for the permanent protection of this land.”

“As long as the Cahaba River is a source of Birmingham’s drinking water, this land should be protected, as the Board agreed to long ago,” said David Butler, Cahaba Riverkeeper and staff attorney.  “We are disappointed the Board is once again using ratepayer funds in an attempt to abandon their promise to ensure Birmingham communities have access to clean, safe drinking water.”

“It’s too late for the parties to renege on their promises to the ratepayers.” said Sarah Stokes, Senior Attorney for the Southern Environmental Law Center. “The Board must fulfill its obligation to the ratepayers—who are specified third-party beneficiaries under the signed settlement—to create a permanent conservation easement.”

Background:

In March 2021, Cahaba Riverkeeper and Cahaba River Society, represented by the Southern Environmental Law Center, filed an action in Jefferson County Circuit Court against the Birmingham Water Works Board to enforce a settlement agreement to permanently protect 6,000 acres surrounding Lake Purdy, a portion of the Little Cahaba River that brings Lake Purdy water to the main Cahaba River, and the River itself around the drinking water intakes.

The land is a natural buffer filtering stormwater runoff, providing clean drinking water for more than half a million Birmingham metro area residents, and recharges the water supply while keeping treatment costs low for all water users.

The Board and Attorney General entered into a settlement agreement in 2001 requiring that a conservation easement be established to ensure that this land would be “permanently” protected from harmful development. The agreement also allowed ratepayers to enforce it. The Board has not yet created an easement that is in accordance with state law and has, in fact, already sold a parcel of this land for development.

Along with local communities and elected officials, before pursuing legal action, the three organizations urged the Board for years to formally record a valid conservation easement and to refrain from selling additional parcels of the land to development interests.

In June 2021, a Jefferson County Circuit Court granted motions to dismiss filed by the Birmingham Water Works Board and the Attorney General’s office in response to the groups’ challenge, which the groups appealed later that month to the Alabama Supreme Court. 

In February 2022, the Alabama Supreme Court unanimously ruled that no conservation easement has been created as the Board cannot simultaneously be the owner of the property and the party that enforces the conservation easement on the property. Additionally, the Court ruled that the groups stated further viable claims that the Board violated the settlement by failing to create a permanent easement, for the restrictions would only be valid through 2051, and can be amended at any time for any purpose by agreement of the Board and the Attorney General. The case will now return to the trial court for further proceedings consistent with the opinion.

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About Cahaba Riverkeeper: Cahaba Riverkeeper was founded to defend the ecological integrity of the Cahaba River and its watershed, to ensure clean water and a healthy aquatic environment, and to preserve the recreational and aesthetic values of the river basin. Cahaba Riverkeeper is dedicated to the scientific study of the Cahaba, ensuring that evidence-based data are readily available to the public, and to educating all citizens about the importance of clean water and how they can participate.  Studies being conducted on the Cahaba and its tributaries include annual investigations of water quality, bacteria, environmental DNA, and microplastics contamination.  Cahaba Riverkeeper is committed to helping educate future generations through a clean water STEM program, which is being presented in area schools. Find our story at www.cahabariverkeeper.org

About Cahaba River Society: Cahaba River Society unites our community to restore and protect the Cahaba River watershed and its rich diversity of life. The Cahaba is a major source of our region’s drinking water. The diverse lives depending on the Cahaba include the people of the Birmingham metro area and Alabama’s Black Belt as well as the River’s globally significant biodiversity of freshwater life. CRS is an educator, expert resource, and collaborative partner for science-based, practical solutions. We inspire river stewardship by connecting people with the Cahaba for education, recreation, arts and volunteerism, and have served over 39,000 youth with education in the river. We restore the river by promoting green Infrastructure and advocating for better policies and practices for clean water, natural flows, and diverse, healthy wildlife and people. Learn more at www.cahabariversociety.org