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Worsening Drought in Deep South Seen as Spurring Legal Friction

Nov. 1, 2022, 9:30 AM

The West’s drought is expected to expand through the Deep South all the way to Georgia over the winter, and legal experts are watching for new and longstanding water wars to flare up in a region known for swamps, hurricanes, and wet weather.

Drought conditions are forecast to persist or develop through the end of the year between the already-dry Mississippi River to the Savannah River, according to the National Integrated Drought Information System.

Severe or extreme drought conditions have stricken Louisiana, Arkansas, Oklahoma, and Texas intermittently for most of 2022. The Mississippi River—running about 14 feet below its low stage at Memphis—is running so low that dredge work and cargo-barges running aground have caused shipping bottlenecks on the river. The low river threatens drinking water supplies downstream as Gulf of Mexico salt water intrudes upriver.

“All of our water sources are becoming less reliable” as major Southern cities grow, saltwater intrudes on freshwater sources as seas rise, and drought expands, said Erin Ryan, an environmental law professor at Florida State University.

Ryan and other water law experts are watching for drought conditions to inflame decades-old water fights among Southern states; expose Alabama’s lack of a statewide water plan; and undermine the security of groundwater as a drinking water source.

‘Really Drastic Impacts’

Environmental groups warn that it doesn’t take much of a dry spell to strain the region’s rivers and groundwater.

In the South, industries and other water users are “set up to use more water and need more water,” said Cindy Lowry, executive director of the Alabama Rivers Alliance, a conservation group. “When anything gets low, it has really drastic impacts. A flash drought can happen in 13 days.”

Southerners don’t tend to plan for drought and how to resolve disputes between groundwater users—especially in Alabama, which has few water use regulations, she said.

“The only thing you can do is sue your upstream neighbor if you think it’s their fault,” Lowry said.

Alabama Water Fight

Robin Craig, a water lawyer at the University of Southern California Gould School of Law, said she’s watching whether Alabama sues to ensure it can obtain sufficient water from the Apalachicola-Chattahoochee-Flint River basin.

The basin—which is mainly in Georgia, tapped by the growing Atlanta area for drinking water, and flows into Apalachicola Bay on Florida’s Gulf Coast—was the subject of a decades-long water fight that the Supreme Court settled last year in Florida v. Georgia.

Florida said Georgia farmers used too much water from the river basin, leaving insufficient freshwater for oysters in Apalachicola Bay. Georgia argued that Florida was to blame for the oyster industry’s recent collapse. The court ruled that Florida hadn’t demonstrated sufficient injury for the justices to rule in its favor.

Though expanding drought conditions are unlikely to inflame those states’ water fight again anytime soon, “Alabama has been a party to Florida v. Georgia all along,” Craig said. “Alabama had filed some lower court litigation about shared water with Georgia. That’s another one that could flare up on its own.”

As Atlanta grows and the drought worsens, less water could be available for Alabama water users, inflaming a water fight between Alabama and Georgia.

At least one lawsuit, Alabama v. US Army Corps of Engineers, is being fought in the US Circuit Court of Appeals for the Eleventh Circuit over the federal government’s management of reservoirs on the Chattahoochee River.

Known as the “Tri-State Conflict,” the water war’s underlying tension is between growing urban and agricultural use of increasingly scarce water across state lines, Ryan said.

No Water Plan

Alabama’s role in the water fight highlights that the state is one of the only in the South without a statewide water plan, said William Andreen, an emeritus professor focusing on water law at the University of Alabama.

Alabama has a drought management plan that provides for the “coordination of information and activities” among federal, state, and local agencies, said Josh Carples, spokesman for the Alabama Department of Economic and Community Affairs, which oversees water supply issues in the state.

But the state doesn’t actually regulate water use because the state only mandates that large users report the water they consume, Andreen said.

“Drought has propelled the state to begin to move toward having some sort of water management policy in the past, but when we don’t have a drought, the momentum seems to go away,” Andreen said.

If the current drought lasts for a while, the state may take another look at a comprehensive water plan, he said.

Gov. Kay Ivey (R) told the Alabama Water Resources Commission in December 2019 that she didn’t see enough evidence of urgent water problems to develop one.

Nuclear Challenges and River Woes

Craig said she’s watching whether equitable apportionment on the Mississippi River may be necessary if the region’s drought continues. Equitable apportionment is a legal doctrine that governs how interstate waters are allocated fairly among states.

In 2021, the US Supreme Court ruled in Mississippi v. Tennessee that equitable apportionment, which previously was thought to apply only to surface water, also applies to groundwater.

An equitable apportionment of the Mississippi River “has never been asked for,” she said.

But that may change if dry conditions persist to ensure enough water flows down the Mississippi, she said.

Another looming water battle in the South is over nuclear power, which requires large amounts of water to cool nuclear reactors, Craig said.

“If states and municipalities are having to make choices to ramp down nuclear power or to shut down nuclear power plants because either there’s not enough cooling water in the river, or the water available is too hot to operate as cooling water, that is going to make those conflicts not just about water, but about electricity,” she said.

To contact the reporter on this story: Bobby Magill at bmagill@bloombergindustry.com

To contact the editor responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com