Ridenbaugh Press/Water Rights

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.

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.”

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

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.”

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.”

George legislators are continuing to look at the idea of drawing more water from the Tennessee River on the state’s northern edge. On March 31, the George House unanimously passed a measure moving the state toward doing just that.

The House Committee on Natural Resources and Environment in March proposed new language for House Resolution 424, suggesting a look at feasibility of withdrawing more water from that sources.

Its text:

Urging the performance of a feasibility study of the withdrawal, storage, and distribution of waters from a certain portion of the basin of the Tennessee River; and for other purposes.
WHEREAS, the need to develop alternative sources of water supply and storage for much of Georgia is an issue of considerable urgency, particularly in light of a decision by the United States District Court entered in 2009 which found that communities in Georgia now dependent on the waters of Lake Lanier for water supply may no longer depend on that supply after 2012, absent a settlement among the States of Georgia, Alabama, and Florida; and
WHEREAS, Lookout Creek in Dade County, Chattanooga Creek in Walker County, and West Chickamauga and South Chickamauga Creeks in Catoosa County have, by some estimates based on the last ten years of available data from the United States Geological Survey and other sources, combined average flows of at least 725 million gallons per day, all of which flow northward into the Tennessee River; and
WHEREAS, there also exist abandoned rock quarries in north Georgia that can and do fill with very large volumes of water, including one in Walker County that is reported to have a water storage capacity of at least 3 billion gallons (9,207 acre-feet) of water; and
WHEREAS, the right of way of a railroad, owned by the State of Georgia, passes through the property on which the Walker County quarry described above is located and runs southward to the vicinity of Rome; and
WHEREAS, it may be possible to withdraw water from such north-flowing tributaries which might otherwise go unused in this state, pump the water into such an abandoned quarry for storage, and distribute water from such storage by means of a pipeline to be laid on the railroad right of way and thence to areas of this state in need of additional water supplies;
NOW, THEREFORE, BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES that the members of this body urge the Department of Natural Resources, the Water Supply Division of the Georgia Environmental Finance Authority, and private enterprises to study the feasibility of surface water withdrawal, storage, and distribution as described in this resolution.

Georgia State Representatives Tom McCall (R-Elberton), Alan Powell (D-Hartwell) and Michael Harden (R-Toccoa), along with other Northeast Georgia State Representatives, announced on March 18 the filing of House Bill 1301, the River Basin Protection Act. This legislation requires a permit for interbasin water transfers.

“Interbasin transfers that are used to supplement systems that haven’t taken care of the water resources within their own basins are not in the best interest of any part of Georgia, especially the donor basin,” said Representative Tom McCall, sponsor of HB 1301 and chairman of the Agriculture and Consumer Affairs Committee. “This bill simply puts into place requirements more stringent than a simple ad in the paper and a public hearing. The most important aspect of HB 1301 is the requirement to consider the effects on the donor basin and its economy and ecology.”

HB 1301 requires any person or entity seeking an interbasin transfer of more than 100,000 gallons of water per day to request a permit from the director of the Department of Natural Resources’ Environmental Protection Division (EPD). In order to obtain a permit, water users must implement water conservation practices and demonstrate that there are no cost effective alternatives available other than an interbasin transfer. If these standards are met, interbasin transfer permits can only be issued for a term less than ten years and must be evaluated at the end of the fifth year. The EPD director must also indicate various terms and conditions in each permit to ensure the protection of both the donor and the receiving river basins.
HB 1301 also requires the EPD director to notify city and county governments, including public utilities in each county that is entirely or partially located within the donor and receiving river basins, which could be affected by a requested permit. The EPD director must also provide public notification in the newspaper of general circulation in each affected community.

“As Georgians work together to secure a sufficient and sustainable water supply, it is important that we carefully monitor our river basins,” said Representative Powell. “HB 1301 ensures the security of Georgia’s existing river basins and requires that any potential interbasin transfers are done in the most efficient manner possible. This legislation will also provide citizens with the knowledge they deserve concerning their local water supply.”

Currently, about 25 Georgia communities have interbasin transfers, and approximately 10 of those transfer more than a million gallons a day. Governor Perdue’s Water Contingency Task Force considers interbasin transfers a possible, yet expensive, alternative source for Atlanta’s water supply. However, under current state law, the Metro North Georgia Water Planning District, which includes Atlanta and its surrounding counties, is prohibited from importing water from outside its boundaries.

“This legislation will protect Georgia river basins from the harmful effects of interbasin transfers, such as irreversible alterations to natural water flow, threats to a stream’s ability to assimilate pollutants, and flooding in receiving basins,” said Representative Harden.

House Bill 1301 has been assigned to the House Committee on Natural Resources and Environment.

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.

Along with many other aspects of its water system, in-stream flows are coming under some scrutiny in Georgia – a state where a federal court decision could in years to come cost a large piece of the existing water supply.

An in-stream flows ad-hoc meeting on December 7 covered the full range of rules in that area on Georgia water, along with a review of rules in nearby states.

That part of the summary:

Gail Cowie distributed a handout summarizing instream flow policies in neighboring states.

• Florida – complex system mainly related to their 5 District structure. The goal is to prevent harm to water resources. Establishes the functions of the water resource and the instream flows are designed to protect that functionality. They use a pattern of flows over a year
(hydrograph). The instream flows are used for planning and permitting.
• Alabama – regulate wastewater discharges based on annual 7Q10. No water withdrawal permitting or other instream flow provisions.
• Tennessee – recently added instream flow considerations to state water quality standards to meet the fish & wildlife habitat criteria and support recreational uses.
• South Carolina – new water withdrawal permitting requirements that requires looking at minimum instream flows and also accounts for downstream users needs. Requirements look at seasonal instream flow needs.
• North Carolina – address through state water policy acts that requires site specific studies for
withdrawals of a certain size. Minimum releases from dams also varies based on physiographic province, stream size, and condition of aquatic habitat. A 2008 Act requires hydrologic modeling to evaluate ecological flows for all river basins across the state that will be used of regional water planning.

In summary, each State considers instream flows differently. The differences between States are related to how they manage resources and when their instream flow policies were adopted. Seasonal variation
is a trend as well as approaches that respond to the different uses or characteristics of water resources versus one set standard.

Data from the meeting was expected to be posted on a state web site.

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.