An overhead shot, in which a brown river flows through the left side of the image, crossed diagonally by a road bridge. At the top center is the drinking-water intake plant, a series of pumps and buildings. The rest of the frame is trees.

Easement unease

Protection of land around Cahaba River critical to Birmingham drinking water

by Sydney Cromwell

The trees along the Cahaba River are one of the best water-filtration services that customers don’t have to pay for, according to Cahaba Riverkeeper David Butler.

The Cahaba River is a major source of drinking water for the Birmingham area, and 6,000 acres of forested land surrounding the river and its tributaries are currently protected from development. But the Birmingham Water Works Board, which owns that land, wants to change its protections in a way that conservationists believe could permanently harm the river — and create more expenses for BWWB customers.

DEVELOPMENT AND LITIGATION

To serve its 650,000-plus customers, the BWWB operates four water-intake stations in Jefferson and surrounding counties. This includes a station on the Cahaba River, located south of Birmingham. Up to 80 million gallons of water per day flow into that intake, partially fed by Lake Purdy and the Little Cahaba River.

The parcels of protected land that border the Cahaba, Lake Purdy and Little Cahaba are considered a “conservation easement” due to a 2001 order by the state attorney general. The easement wasn’t actually established until 2017, and it was given an expiration date of 2051, rather than permanent protections.

An overhead map of the Lake Purdy area and its tributaries to the Cahaba. Several parcels of protected land are outlined around the lake and rivers, while most of the unprotected land is developed by homes or commercial buildings.
The Birmingham Water Works Board’s conservation easements around Lake Purdy, the Little Cahaba and the Cahaba River. Courtesy of savethecahaba.org.

Within the 6,000 acres of the conservation easement, Butler said, activities like construction and tree removal should be restricted. 

However, the problem is that this land isn’t truly considered a conservation easement, he said. While the BWWB owns the land, a “third-party holder,” such as the Freshwater Land Trust, is supposed to enforce the rules of the easement, according to state law.

“The third party would have oversight on what they could do with the land. So it’s a check on what the Water Works Board could do with the property,” Butler said.

Instead, the BWWB both owns the land and oversees the easement’s protections. If the board decided to sell or develop the land, according to Butler, “they can just elect to do it and there’s no mechanism to stop them.”

Indeed, this has already happened twice, with one parcel sold in 2016 to develop a gas station and another cleared in 2020 for road work.

According to reporting from BirminghamWatch, the BWWB can change the terms of the conservation easement agreement at any time, with the state attorney general’s approval.

In spring 2021, the Cahaba Riverkeeper and Cahaba River Society filed suit against the BWWB, claiming that the board was not meeting the terms of the 2001 agreement and needed to create a permanent, third-party-managed easement that complied with state laws.

“We attempted for years to resolve this without litigation, and unfortunately we were not able to reach any type of agreement,” Butler said.

The BWWB did not respond to multiple requests for comment. However, in other public statements the board has maintained that it is fulfilling its conservation requirements.

The attorney general’s office declined to comment on the ongoing litigation but did provide its counter-claims, denying the Cahaba River Society and Cahaba Riverkeeper’s allegations that the property is unlawfully managed.

A VICTORY, A SETBACK

The environmental groups’ initial lawsuit, represented by the Southern Environmental Law Center, was dismissed by the Jefferson County Circuit Court in June 2021, at the request of the BWWB and the attorney general’s office. So, they appealed to the Alabama Supreme Court.

In March of this year, the Supreme Court came down on the side of the conservation groups, saying that the suit made a “viable claim” that the BWWB hadn’t created a conservation easement that fulfilled state laws. With that decision, the Supreme Court reversed the lower court’s decision and sent the case back to the county circuit court.

The Supreme Court’s decision was a win for the Cahaba Riverkeeper and Cahaba River Society. In response, however, the board is now trying to change the conservation easement into something different: a “watershed protection agreement.”

“What the Supreme Court decision has done is it has encouraged the Water Works Board to pursue the change of the contract,” Butler said.

The BWWB and the state attorney general’s office filed with the Jefferson County Circuit Court in April to revise the 2001 agreement that had created the conservation easement. The attorney general’s office argues in its counter-claims filing that in the original settlement, the “parties intended that the watershed protections on the property would remain under the administration, operation and control of the board,” and this revision would better reflect that intent.

“We attempted for years to resolve this without litigation, and unfortunately we were not able to reach any type of agreement.”

David Butler, Cahaba Riverkeeper

The watershed protection agreement, according to the revisions requested by the attorney general’s office, would “ensure that the assets of the systems are permanently protected from any and all land development
activities which could by harmful to the systems.” The exact terms of the agreement would be decided by the BWWB and the attorney general’s office, which would also be responsible for enforcing those restrictions.

According to Butler, this agreement would be a “less binding attempt to protect the land.”

“It would still allow them to develop the land, there would just be conditions,” he said.

Butler said the third-party management of a true conservation easement is important because he doesn’t believe either the BWWB or the attorney general’s office is equipped to make sure those restrictions are properly enforced.

“We don’t feel like the Water Works Board always values the property the way it was intended in the settlement agreement,” he said.

Butler said there hasn’t been any movement on the case since April, and they are waiting on the next opportunity to file discovery motions and set a court date.

“The best solution here is for the Water Works Board to adopt true conservation easements and appoint a third party to manage the easement,” he said.

NATURAL BUFFER ZONE

The rainwater that falls on a parking lot is going to look very different, by the time it reaches the river, than rainwater that flows through undeveloped woodlands.

Trees and undergrowth plants slow down the flow of rainwater runoff, and the underground network of roots and soil create a filtration system that helps clean that water of pollutants before it reaches underground aquifers or nearby streams. Those roots also hold the soil in place, preventing the rain from washing it away.

Development not only strips the land of that protection, but it can also introduce new pollutants, like cement, oil, heavy metals and everyday litter, that will wash into the river.

A healthy, untouched forest within the Cahaba River’s conservation easement means cleaner water entering the river, Butler said.

That’s beneficial for the river’s ecosystems and the species it supports, of course. But every home that relies on water piped from the Cahaba River would also notice if the condition of those 6,000 acres diminished.

“The more buffer we have, the smaller the financial burden of treating the water is,” Butler said.

The Cahaba Riverkeeper does regular testing of water quality at sites along the river. So far, Butler said, the two parcels that have been developed or cleared have not made a noticeable impact on water quality. However, opening up that land to more development through a watershed protection agreement could eventually tip that balance.

“What, obviously, our fear is, is once you start developing the land, where does it stop?” he said.

If development did harm the quality of water flowing into the intake on the Cahaba River, Butler said, the BWWB would have to implement new filtration methods — and that comes with a price tag.

“A conservation easement is a win-win for everybody. So the rate payers have already paid for this land, there is already the investment for clean water,” Butler said. 

FLAWED OVERSIGHT

Why shouldn’t the Birmingham Water Works Board manage its own land? If you ask Butler, it’s because they’ve fallen short too many times in the past.

“In our experience, the Water Works Board has not been effective in enforcing the restrictions of those watersheds,” he said.

In 2019 and 2020, for instance, muddy brown water flowed from the construction site of Helen Ridge, a subdivision in Vestavia Hills, into a small tributary that fed into the Cahaba. The subdivision was right around the corner from the BWWB pumping station on Sicard Hollow Road. Butler says the pollution should have easily been spotted.

Photo shot from someone standing in the middle of a stream, with the bank visible on the upper edge of the image. In the center, a stream of brown runoff flows from the bank into the waterway, where it is clearly much browner due to sediments.
In 2019, the Cahaba Riverkeeper documented sediment-filled runoff from the Helen Ridge site entering the nearby waterways. Photo courtesy of David Butler.

“For months, there was just mud pouring down into the river, almost directly into the drinking water intake. And it should not have fallen on us to file complaints and get that stopped,” he said.

After complaints from the Cahaba Riverkeeper, ADEM ultimately gave the construction company, T.E. Stevens Construction, a reduced fine of $13,500 in March 2020 for improper management of sediment and pollution runoff on the site. 

The years-long discussion by the Alabama Department of Transportation of reconnecting Cahaba Beach Road over the Little Cahaba River was another chance, Butler said, for the BWWB to stand up for drinking-water quality — but they didn’t.

Starting in 2015, ALDOT began considering a new road and bridge to join Cahaba Beach Road to Sicard Hollow Road. It was touted as a way to relieve the pressure of traffic on U.S. 280. 

The proposed roadway would not have crossed the conservation easement, but it would have traveled through almost entirely undeveloped forests and across the Little Cahaba, upstream of the drinking-water intake.

“That land has been protected, so in a lot of ways the protection was really a penalty,” Butler said. “… Now we can build a road through here because there’s no houses or development.”

The Cahaba River Society and other environmental groups, as well as some residents, opposed the project because it “would have brought traffic through this area and brought more development,” Butler said.

An unused and decaying trestle bridge, surrounded by trees.
The existing bridge connecting Cahaba Beach Road over the Little Cahaba has been closed to traffic since 1992. Photo by Sydney Cromwell, courtesy of 280 Living.

The Birmingham and Vestavia Hills city councils voted in 2018 to oppose the construction of the road. The Birmingham Water Works Board never took a position on the project.

ALDOT has not moved forward on the Cahaba Beach Road project since 2018.

As for a watershed protection agreement and its impact on the health of the Cahaba, Butler sees the future written in past experience.

“[The BWWB will] not be sufficient to protect our drinking water, because we have seen in the past when there have been sources of pollution, it has fallen on us to stop it,” he said.

Main article image of the Cahaba River drinking-water intake courtesy of David Butler.

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