Archive for the 'Apalachicola-Chattahoochee-Flint River Basin' Category

Jun 27 2012

AL/GA/FL: Supreme Court won’t intervene

The U.S. Supreme Court on June 25 said that it will not get involved in the long-running squabble between Georgia, Alabama and Florida over water flows originating from Georgia.

Where that leaves the long-running case, which has been considered and reversed through various courts, isn’t immediately clear. But on an immediate level, it refused to consider an appeal from Florida and Alabama on a circuit court decision that generally appeared to favor Georgia – and its use of the water.

That decision was followed on June 26 by a statement by the Army Corps of Engineers contending that has legal authority to allow a Georgia request dating from 2000 for water, amounting to 705 million gallons of water per day, sourced from Lake Lanier on the Chattahoochee River, by 2030.

The Corps did say it would have to conduct studies to make sure the water amounts are workable, and that George met its environnmental obligations.

Georgia Governor Nathan Deal on June 26 said he was pleased with the Army Corps statement, that “the state of Georgia agrees with the U.S. Army Corps of Engineers legal opinion that the Corps has the ability to grant Georgia’s water supply request for Lake Lanier. Ultimately, deciding how much of Lake Lanier can be allocated for drinking water supply is the most important determination facing Georgia, the metro Atlanta region and our neighboring ACF basin states. That decision will help us not only plan for Georgia’s future growth, but it will also give us greater certainty regarding existing resources. This will help set the parameters for discussions regarding a resolution with our neighboring states.

“Today’s legal opinion and technical analysis by the Corps that it has the authority to grant Georgia’s previous water supply request is welcome news and an important step toward the Corps final reallocation decision.”

The other states did not offer an immediate response.

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Feb 28 2012

GA/AL/FL: Alabama, Florida appeal circuit ruling

The tri-state water war over the Lake Lanier/Apalachicola-Chattahoochee-Flint River System was goes on: Alabama and Florida have filed a request to appeal to the U.S. Supreme Court an adverse decision at the 11th Circuit Court of Appeals, a decision that itself reversed a decision adverse to Georgia by a Minnesota federal judge.

District Judge Paul Magnuson said that George had no specific right (for metropolitan Atlanta use at least) to water from Lake Lanier. The 11th Circuit thought otherwise, and now Alabama and Florida are seeking a second reversal in the case.

Florida Department of Environmental Protection spokeswoman Dee Ann Miller was quoted as saying, “Florida is concerned that [the] 11th Circuit Court of Appeals’ decision could deprive Florida of its fair share of water,” “DEP understands that the Apalachicola-Chattahoochee-Flint River System is important to Florida, Georgia and Alabama, and we believe all three states can share the waters and meet their states’ unique needs.”

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Sep 21 2011

GA/AL/FL: Seeking a negotiated water water war settlement

This summer’s appeals court decision largely siding with Georgia over use of the Apalachicola-Chattahoochee-Flint River Basin, which the state shares with Alabama and Florida, tilted the legal landscape a little more in George’s direction, but fell far short of settling the debate.

So some other parties are looking into ways to reach a resolution short of many more years – a couple of decades’ worth so far – of court battles.

One of them is ACF Stakeholders, which in September launched an effort to try to find a jointly-acceptable way of managing water in the basin.

From its September report:

Over 50 Governing Board members and their proxies met for a day and a half meeting to hear reports from committees and to approve far reaching motions related to the Apalachicola-Chattahoochee-Flint watershed.

The motions approved were:

Authorization to proceed with Phase 1 tasks of a Sustainable Water Management Plan project. Contract negotiations will begin with Black & Veatch for modeling and consensus building for alternative water management plans and with Atkins for an instream flow assessment. This is subject to final approval by the Governing Board when contract details have been developed.

Authorized the Executive Committee to consider a proposal from a consortium of universities consisting of the University of Georgia, University of Florida, Florida State University and Auburn University related to institutional structures to manage the ACF Basin.
Approved the formation of a work group to further evaluate the role the ACF Stakeholders should take in recommending a study of the federal reservoir’s full pool action zones.

Other actions:

Received comments from the USACE regarding the status of the Water Control Manual and their actions regarding the recent 11th Circuit decision.

Received a report from the University of Georgia Carl Vinson Institute on water usage Best Management Practices survey. Work is ongoing with a final report to be available for the December Governing Board meeting.
The next meeting is scheduled for December 8 and 9 in the Flint sub-basin. Location and agenda will be posted on the organization’s website, www.acfstakeholders.org

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Aug 13 2011

AL/GA/FL: Alabama, Florida file appeals

Alabama, Florida, Alabama Power Company and the City of Apalachicola, Florida on August 12 asked the 11th Circuit Court of Appeals to reconsider a ruling made by a three-judge panel in June that focuses on how much water the city of Atlanta can withdraw from Lake Lanier and the Chattahoochee River.

An earlier ruling by a federal judge had cut sharply against Georgia, requiring that it give up a great deal of water that it long has sent to the Atlanta metro area. An appellate court decision this year, however, changed that course, ruling largely in Georgia’s favor.

Following the filing, Alabama Attorney General Luther Strange said that “Because of the importance of the waters of the Apalachicola-Chattahoochee-Flint River Basin to the State of Alabama and its citizens, and for the reasons set forth in the petition for rehearing, I believe that the full Eleventh Circuit Court of Appeals should vacate the opinion issued by the three judge panel earlier this year and rehear the case.”

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Jun 29 2011

GA/AL/FL: A court win for Georgia in 3-state case?

The major Georgia-Alabama-Florida lawsuit over control and use of the states’ joint river system, which has run sharply against Georgia up to now, may have taken a major turn with a June 28 decision in the 11th U.S. Circuit Court of Appeals.

The district judge deciding the case up to now, the appeals court said, erred on several grounds. He was wrong to say that the federal work around Lake Lanier could not be used – as it has been, crucially – to supply water for the Atlanta metropolitan area. And he did not have authority to act generally, because administrative actions were not exhausted within the appeals process of the U.S. Army Corps of Engineers.

The court concluded: “For the reasons explained below, we hold: First, the district court erred in finding that it had jurisdiction to hear Alabama, SeFPC, and Apalachicola because the Corps has not taken final agency action. The three cases therefore must be remanded to the Corps in order to take a final agency action. Second, the district
court and the Corps erred in concluding that water supply was not an authorized purpose of the Buford Project under the RHA. The Corps’ denial of Georgia’s 2000 water-supply request is therefore not entitled to Chevron deference, and the request must be remanded to the Corps for reconsideration. Third, the district court erred in finding that the 1956 Act, which authorized the Corps to contract with Gwinnett County to withdraw 10 million gallons of water per day, expired after 50 years. Gwinnett County’s contractual and just-compensation claims are without merit. Fourth, we also provide certain instructions to the Corps on remand. And finally, the Corps shall have one year to make a final determination of its authority to operate the Buford Project under the RHA and WSA.”

It described the case generally: “All of the underlying
cases relate to the Corps’ authority to operate the Buford Dam and Lake Lanier, the reservoir it created, for local water supply. In its order, the district court found that the Corps’ current operation of the Buford Project — Buford Dam and Lake Lanier collectively — had allocated more than 21% of Lake Lanier’s storage space to water supply. The court determined that such an allocation exceeded the Corps’ statutory authority and ordered the Corps to drastically reduce the quantity of water that it made available for water supply. The court’s summary judgment order also affirmed the Corps’ rejection of Georgia’s 2000 request for additional water supply allocations to meet the needs of the localities through 2030. The court stayed its order for three years to give the parties time to reach a settlement or to approach Congress for additional water supply authority.”

It also said: “The Georgia Parties argue that the district court erred by concluding that the Corps lacked authority to allocate substantial quantities of storage in Lake Lanier to water supply on the basis of the legislation that authorized the creation of the Buford Project, the 1946
Rivers and Harbors Act (“RHA”), Pub. L. No. 79-525, 60 Stat. 634 (1946). Although not in agreement with the Georgia Parties that water supply for the Atlanta area is an authorized project purpose under the RHA, the Corps does argue that the district court underestimated its authority to accommodate the water supply needs of the Atlanta area. The Georgia Parties and the Corps both assert that the district court erred by misinterpreting the scope of the Corps’ authority under the
1958 Water Supply Act. The Georgia Parties and the Corps urge this Court to remand the case to the agency to make, in the first instance, a final determination of its water supply authority. Gwinnett County also individually asserts statutory, constitutional, and contractual claims relating to authority granted to it for its current withdrawals from Lake Lanier.”

Georgia Governor Nathan Deal released a statement: “The office of Gov. Nathan Deal is rapidly reviewing the decision of the 11th Circuit Court of Appeals on our water case, but at first glance it appears that the state of Georgia has won a great victory. The 11th Circuit panel has ruled unanimously that Lake Lanier was built for the purpose of water supply for the metro Atlanta area. This means that the Lake will continue to be available to meeet Georgia’s needs. The governor remains committted to working with Alabama and Florida towards a fair agreement regarding the sharing of water in the ACF and ACT Basins.”

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Feb 10 2011

GA/AL: Reservoirs helpful or not?

Would creating additional reservoirs in Georgia help that state with its impending water shortage – owing substantial stream flow to Alabama and Florida, or at least help in negotiations with those states?

New George Governor Nathan Deal argues that it would. Speaking February 8 to the Georgia Farm Bureau, Deal said that additional reservoirs may help provide more water that can be sent downstream without overly burdening Georgians.

He thinks it could be so helpful that his current state budget proposal contemplates eventually spending $300 million on their creation, with about $46 million to borrowing in the next fiscal year.

The requirement for Georgia to send more water downstream is included in a federal court decision from about three years ago. The fight over the water in the Apalachicola-Chattahoochee-Flint river system, which flow through all three states but originating in Georgia, has been ongoing for more than 20 years. The federal court decision, coming after many years of failed negotiations, may have marked a turning point.

Deal’s idea did not get kudos everywhere.

Alabama Governor Robert Bentley, leader of one of the parties prevailing so far in the federal suit, told the Atlanta Journal-Constitution on February 3 that such reservoirs would be bad idea. Water taken by Georgia for new reservoirs might be water not allowed for downstream communities – just what the court decision disapproved of.

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Jul 17 2010

GA/AL/FL: Environmental groups on 3-state war

Three environmental groups – the River Keepers of the Chattahoochee, Flint and Coosa rivers in Georgia, Alabama and Florida – are weighing in on the three-state legal war over rights to the water.

A federal judge ruled last year that Georgia doesn’t have the right to keep much of the water, sourced around Lake Lanier, that it has been using to help fuel the Metropolitan Atlanta area. More of the water, he said, needs to be sent downstream to Alabama and Florida.

That has set off a flurry of actions, notably on the Georgia side. The River Keepers take exception to a number of them.

Here is some of what the groups said:

One year has passed since the judge’s ruling, and by most accounts, negotiations in the tri-state water war are failing. Unless we change course soon, we will be left high and dry in 2012. This issue is one of the most pressing challenges facing our next governor, and voters must know where our candidates stand. With so much at stake, we cannot afford to fail.

Based on our many years of protecting the Chattahoochee, Coosa and Flint Rivers, accounting for the needs of people and wildlife throughout these river basins, Coosa River Basin Initiative, Flint Riverkeeper, and Upper Chattahoochee Riverkeeper believe that we can reach a mutually beneficial water-sharing agreement if our next leaders, most notably the new governor, practice these three R’s: RESPECT, REVEAL and REDUCE.

OLD COURSE = FAILURE
NEW COURSE = SUCCESS

CONFLICT – Our current leaders have pitted the needs of metro Atlanta against the needs of everyone downstream –in Georgia and in other states–fostering conflict instead of cooperation.

RESPECT– Our next governor and other leaders must demonstrate respect for all downstream communities, including their right to enough clean water, a sustainable environment, and future prosperity.

CONCEAL – Our current leaders insist that secrecy is necessary to achieve a negotiated water sharing agreement, but this tactic has failed to produce any progress for two decades. Secrecy hinders political accountability and inhibits public confidence in a solution.

REVEAL – Our next governor and his or her administration must reject all secrecy and engage Georgia’s stakeholders openly and fully in the negotiation process, including the ACF Stakeholders Group and the Tri-State Conservation Coalition.

CAPTURE – Our current leaders are wasting time and money focusing on expensive and highly-engineered storage and piping projects that cannot guarantee water supply in time to help us meet the 2012 deadline. We do not have the money to pay for these schemes.

REDUCE – Our next governor and all of our leaders must commit to reducing metro Atlanta’s water demand through aggressive conservation and efficiency measures, beyond the modest steps taken by the 2010 legislature.

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Jun 10 2010

AL/GA/FL: Endangered species issues rise

Judge Paul Magnuson, the federal judge who has been managing the bitter water dispute between Georgia, Alabama and Florida over water flowing out of Lake Lanier to the gulf, decided on June 8 that certain environmental issues – specifically, impact on endangered species – have to be considered before the decision over allocation of water can proceed.

An Army Corps of Engineers plan for managing water along the Apalachicola-Chattahoochee-Flint River Basin, which arises mostly in Georgia but flows through Alabama and Florida, called for lowering some of the upstream water levels. The Corps said that it had worked with the U.S. Fish & Wildlife Service to ensure no adverse impacts on wildlife.

But some of the other parties involved, including the states, urged that the matter be reviewed. Magnuson agreed, and ordered reports be drafted before further progress is made in the case.

[see Miami Herald, June 8]

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May 27 2010

GA: Kagan quizzed on water

Water rights leaked into the upcoming Senate action on confirming a new member of the Supreme Court, when Geoegia Senator Johnny Isakson on May 25 interviewed high court nominee Elena Kagan.

The subject is of big concern in Georgia, where a court case has resulted in a federal court ruling that the Peach State has been using too much water, and much of the water used by the metro Atlanta area must instead be allowed to head downstream to Alabama and Florida. Negotiations over the matter, including many talks between the three states’ governors, have not borne fruit.

WXIA-TV in Atlanta reported on May 26 that after asking a question on the Second Amendment, Isakson said, “I wanted to make sure I had a good understanding of her approach, her feelings, about water rights and water issues. . . . I told her, I said we’re negotiating. We’re hoping our governors will come together and reach a compact. But if they don’t, it’s inevitable, at some time, because of the issue, that it’s going to get to the United States Supreme Court.”

He continued, “She said that, in the end, you have to think of each consumer along the way” downstream. She expressed support for riparian rights, Isakson said, where “you have the right to the quiet enjoyment of water that flows through your property, just as long as you don’t deny the right of the next property owner downstream.”

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Jan 22 2010

GA/AL/FL: Georgia allowed to appeal

One of the most difficult parts – for the state of Georgia – of the federal court ruling against Georgia in its water battle with Alabama and Florida was that the trial court judge, Paul Magnuson, said that his decision was not final, and therefore was not ripe for appeal to appellate court.

That part of the decision, however, was overturned on January 21, as the 11th Circuit Court of Appeals declared the decision final.

That doesn’t necessarily reflect on how it will view the substance of the case. But it does give Georgia the opportunity to challenge the decision, which would in effect take away much of the Atlanta metro area’s current water supply. Much of it comes from Lake Lanier and associated streams, which the judge said should be apportioned more generously to Alabama and Florida. [see the Miami Herald, January 21]

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