Supreme Court Upholds 11th Circuit Water Wars Ruling

By: Clyde Morris, Attorney for the Lake Lanier Association

 “The petitions for writs of certiorari are denied.”  With those eight words, the United States Supreme Court put its stamp of finality on the issue of whetherLakeLanieris authorized to be used for water supply.  Thus ends the legal issue that has been at the heart of the Tri-States controversy for over two decades.

 But lest we get ahead of ourselves, the appeal denial handed down this morning by the Supreme Court is not the end of the Water Wars.  Soon the Corps of Engineers will be issuing its own determination of how much storage it can allocate for water supply in Lanier.  And while that is an issue that could spawn another round of legal battles, it clearly does not carry the magnitude of the more fundamental issue of whether storage may legally be allocated to water supply at all.

 And there is still another phase in this bifurcated litigation that has not yet come before the Eleventh Circuit: the portion dealing with the Endangered Species Act and the volume of flows required to be sent to Floridafor their protection.  The U. S.Fish and Wildlife Service only a month ago issued its final Biological Opinion regarding some changes in the Corps’ Revised Interim Operations Plan – the operating rules the Corps will follow until it issues a new ACF Water Supply Manual in the next few years.  Florida appealed Judge Magnuson’s Phase 2 ruling – that the RIOP does not violate the ESA – to the 11th Circuit nearly two years ago, but the appeal has been held in abeyance pending issuance of FWS’s new Biological Opinion.  The new opinion essentially reinforces FWS’s previous conclusion that the endangered and threatened species will not be harmed by the RIOP, even with the new changes.

 So where does this leave us now?  According to the RIOP, flows at the Floridastate line must be a minimum of 5,000 cfs unless drought contingency operations are triggered, in which case the minimum required flow is reduced to 4,500 cfs.  The Corps is under orders from the 11th Circuit to issue its determination by June 28 on how much storage it is authorized to allocate to water supply.  So by the end of this week, the LLA and the rest of the litigants will know the Corps’ position and will be forming decisions about how best to move forward.  But one thing we know already: the LLA will continue to represent its members in protectingLakeLanier’s water level and water quality, as it has for over 45 years.

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