Alabama Supreme Court rules in favor of groups seeking protections for Birmingham Water Works Board land
PRESS RELEASE | FEBRUARY 28, 2022
BIRMINGHAM, Ala. – The Alabama Supreme Court has ruled unanimously in favor of Cahaba Riverkeeper, Cahaba River Society, and the Southern Environmental Law Center in their efforts to permanently protect land held by the Birmingham Water Works Board that safeguards a major source of Birmingham’s drinking water.
The groups’ lawsuit maintains that the Board agreed to permanently protect 6,000 acres of land, paid for by ratepayers, with a conservation easement under the terms of a 2001 settlement agreement, yet the Board has failed to record a valid conservation easement. In the past, previous Boards sold a parcel of the land for a gas station and discussed marketing additional parcels for sale. The Court agreed that the groups have stated valid claims, reversing a trial court ruling that the groups lacked authority to enforce the settlement.
While the Board recorded a “conservation easement agreement” in 2017 that put some restrictions on the land, the groups contend that the agreement violates the 2001 settlement and the Alabama conservation easement statute. The Board named itself the holder of the purported easement on land that it owns, which the easement statute prohibits, rather than naming a third-party to hold the easement and ensure land protections are enforced.
In the unanimous decision, the Court agreed with the groups’ central argument 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 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.
“The Alabama Supreme Court’s decision is a win for Birmingham’s drinking water and the hundreds of thousands of people who rely on the Cahaba River watershed,” said David Butler, Cahaba Riverkeeper and staff attorney. “The Board has a responsibility to protect this land in the public interest, and to ensure that Birmingham communities have access to clean, safe drinking water.”
“Previous generations paid to protect this land, and it should be permanently protected for future generations as well,” said Beth Stewart of Cahaba River Society. “We look forward to working together with the Board to find the best mechanism to protect these lands with conservation easements consistent with the Court’s holding and in the best interest of the ratepayers. This outcome would help keep costs low and ensure clean, affordable water for all water users.””
“The Supreme Court’s decision to uphold Alabama’s conservation easement statute protects not only this land, but land under conservation easements across the state,” said Sarah Stokes, Senior Attorney for the Southern Environmental Law Center. “We look forward to establishing in the circuit court that the Birmingham Water Works Board must fulfill its obligation under the signed settlement to create a permanent conservation easement for this critically important land.”
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 citizens 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 to developers.
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. With the higher court’s ruling, the case will now be remanded back to the circuit court.
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 40,000 youth with education in the river. We restore the riverby 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
About Cahaba Riverkeeper: Cahaba Riverkeeper was founded to defend the ecological integrity of the Cahaba River andits 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 and to 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. www.CahabaRiverkeeper.org