Photo by Erin Nelson. Starnes Media
Rain falls over Lake Purdy at the Lake Purdy Boat Launch in Birmingham on Thursday, June 3, 2021. Photo by Erin Nelson.
A judge dismissed on June 2 a complaint filed by the Cahaba Riverkeeper in March against the Birmingham Water Works Board, which alleged the board has failed to protect land surrounding the Little Cahaba River, Cahaba River and Lake Purdy, as outlined in a 20-year old settlement agreement between the board and the state attorney general’s office.
Circuit Court Judge Javan Patton ruled that the Riverkeeper, based in Vestavia Hills, failed to state claim upon which relief could be granted.
The Riverkeeper alleged the board has failed to uphold a 2001 agreement between the board and the attorney general’s office, which allowed the board to become a separate, independent body from the city of Birmingham with control over its assets under certain demands, including creating a conservation easement for the surrounding land around the water intake system that impacts the Birmingham area’s drinking water, protecting it from future development.
In 2017, the board recorded a conservation easement agreement, but the Riverkeeper alleged in their complaint that the board cannot hold an easement on their own property, as is the case in the conservation easement agreement, and, per the terms of the 2001 agreement, either a charitable organization or governmental body must own the easement, and they argue the board is neither one of those. As such, that agreement has no legal merit, they argued.
The complaint also alleges the board has investigated the sale of the land, as it has maintained the right to do so, contrary to the settlement agreement. They cited conversations recorded in minutes from board meetings in 2016, where the board, according to minutes, surveyed and assessed the land, and hired a realty company for three years to try and sell the land, located on Sicard Hollow Road that the board deemed “excess.”
The board also discussed developing land around U.S. 280, according to minutes from the board’s Economic Development Committee cited by the Cahaba River Society. The Riverkeeper also took issue with the board’s conservation easement agreement sunsetting in 2051, along with it “carving out parts of the land” by stating it does not apply to any land where stormwater “naturally drains or is engineered to drain outside the watershed,” according to the conservation easement agreement.
The board, in their response to the lawsuit, stated the settlement agreement calls for the board to hold the easement, and gives the right to determine the form, terms and conditions of the conservation easement exclusively to the board and to the attorney general. While traditional easement case law holds that one cannot be both the grantor and holder of an easement, the board argued the state’s Conservation Easement Statute does allow for that to be the case in some situations, especially when those terms are laid out in a settlement agreement.
Regarding the issues with the agreement ending in 2051, the board argued that the ways in which the land would be “permanently” protected were left up to the AG and the board, and that permanent does not necessarily mean forever.
The board argued that the Riverkeeper’s complaint that the board has the right to amend the easement fails to hold up because, in addition to not having the right to challenge the conservation easement agreement, certain lands can be excluded from the easement if they have natural or engineered stormwater drainage outside of the watershed. The board also cited numerous cases which affirmed that water works boards are governmental entities.
The board accused the Riverkeeper of trying to change the terms of the conservation easement agreement, but in their reply to the court, the Riverkeeper said they do not believe the agreement is a true conservation easement, and thus, they want a new easement and do not care about the existing agreement. They also argued the case should not have been dismissed, as the board argued issues of merit in their motion to dismiss, issues they said should have come up in court proceedings. The Riverkeeper also argued that while the board may act as an agent of a municipality, there are several cases showing they are not a true government body.
“We are disappointed in the decision and are currently evaluating next steps,” said Sarah Stokes, senior attorney for the Southern Environmental Law Center, which represented the group in the lawsuit. “Cahaba Riverkeeper and Cahaba River Society, represented by the Southern Environmental Law Center, remain committed to holding the Board to its obligation under the signed settlement to create a permanent conservation easement for land that ratepayers have already paid for to protect drinking water and keep treatment costs affordable, now and for future generations.”
