WATER WARS IN THE SOUTHEAST: THE CASE OF KELLY SPRING VS. THE HARVEST-MONROVIA WATER, SEWER, AND FIRE PROTECTION AUTHORITY, INC

In the past, the southeastern U.S. was rarely thought of as being subjected to drought. In the 21^st century, however, the region has experienced several years of drought that have taxed local water supply. In 2006 and 2007 severe droughts occurred in north Alabama and a privately owned spring, known as Kelly Spring, ceased to flow and dried up. The spring is developed in Mississippian age limestones with karst features and has documented flow as far back as 1929. The spring also supported a habitat for a variety of fish, turtles, waterfowl, aquatic vegetation, and other animals and plants which were severely impacted by the lack of flow. The spring’s owner, Mr. Morrison, suspected that a nearby water supply well operated by the Harvest-Monrovia Water, Sewer, and Fire Protection Authority, Inc. (the Authority) had impacted the spring to the point of negative discharge. Mr. Morrison requested intervention by the Authority and state regulators, but the pumping rate of the well had not exceeded the permitted rate, and no action was taken. Left without support from the regulatory authorities in Alabama, Mr. Morrison then retained an attorney and sued the Authority in state court for drying up Kelly Spring, and sought injunctive relief to prevent similar incidents in the future.

Alabama lacks specific laws to protect landowners from local well fields, so Mr. Morrison’s attorney relied upon Alabama case law that deemed the Authority's use of the groundwater unreasonable, impermissible, and unlawful under the American Rule of Reasonable Use. As the case progressed, sworn testimony was obtained that during times of future drought the Authority intended to increase pumping activity at the water supply well closest to Kelly Spring to meet increased demand in the service area, thereby posing a significant, ongoing risk to the flow of the spring. The Authority countered that it was immune from such lawsuits under Alabama law, taking the issue all the way to the Alabama Supreme Court, which ruled against the claim of immunity. After over four years of hard fought litigation, the parties were able to resolve the dispute voluntarily through a mediation proceeding, and crafted a detailed spring flow monitoring agreement designed to prevent similar damage to Kelly Spring during future drought events.