In this phase 2, Florida asked the court to require that we send more water across the state line into Florida to protect endangered mussels and sturgeon. LLA and Georgia lawyers argued against this, telling the court that any harm to the protected species was the result of low basin inflow (caused by the unprecedented drought in 2007-2008), not the Corps’ operations of the ACF system. Because a new Water Control Plan (WCP) is being written by the Corps for implementation in 2012, we stated that no changes (ex. more water into Florida) should be made at this time. Judge Magnuson saw things the same way, and ruled accordingly.

The clear loser is Florida, which failed to convince the court that more water must be sent across the state line to protect the species. In fact, the Judge did not even suggest that the minimum required flow of 5,000 cfs is required. Further the Judge did not invalidate the Action Zones established by the Corps to support recreation in Lanier. In sum, the court gave no practical relief to Florida on issues that would have negatively affected the people and businesses that use and rely on LakeLanier.

While Governor Riley of Alabama claimed that this Phase 2 decision was a victory for Alabama, the facts indicate otherwise. Alabama asked the court to set aside the Revised Interim Operating Plan (RIOP) and to prevent the Corps from considering water supply in the new WCP. Judge Magnuson ruled against all of Alabama’s requests.

Although our legal team under Clyde Morris has accomplished a great deal, this is not the end of our efforts in the Water Wars. Phase 1 is under federal appeal and Florida could appeal this Phase 2 decision. The new Water Control Plan is under development, and the issue of water supply for north Georgia has not been concluded. We will continue to represent our stakeholders’ interests in this litigation and to protect Georgia’s Great Lake. The Judge’s decision and more details are available on our web site.

The Lake Lanier Association is the only Lanier “watch dog” for recreation, and the only non-municipality or power company participating in this litigation. LLA has incurred a very large debt (almost $100,000 net after payments) for legal expenses. While we have managed to maintain a prudently low level of legal costs, this major debt must be retired. Our normal dues and fund raising activities cannot reduce the debt, so we are reestablishing our “legal defense retirement fund.” We are asking for contributions from our stake holders. Contributions can be made through a check to our office or on our Web site via PayPal.

Thank you very much in advance for your support,
The Lake Lanier Association Board of Directors
Please note Legal Defense Fund on your checks and mail to our office at

Lake Lanier Association
615F Oak Street, Suite 100
Gainesville, GA 30501

This report is brought to you by Shane Watson Guide Service www.lakelanierstripers.com, Hammond’s Fishing Center, and Carolina Skiff Boats. Good Fishing

Read the 376 MEMORANDUM AND ORDER July 21, 2010

In this phase, Florida asked the court to require that we send more water across the state line into Florida in order to protect endangered mussels and sturgeon. We argued against this, and told the court that any harm to the protected species was the result of low basin inflow (caused by the unprecedented drought in 2007-2008), not the Corps’ operations. We asked the court not to invalidate the RIOP and BiOp, not because they were correct in all their particulars, but because no better ACF management plan could be substituted before the new Water Control Plan (WCP) is implemented in 2012. Judge Magnuson essentially saw things the same way, and ruled accordingly.

The clear loser is Florida, which failed to convince the court that more water must be sent across the state line to protect the species. In fact, the court did not even suggest that the minimum required flow of 5,000 cfs established by the RIOP is required by the ESA. Nor did it invalidate the Action Zones established by the Corps to support recreation in Lanier, the Corps’ retention of water in Lanier to support recreation, or spring operations to facilitate sport fish spawning. In sum, the court gave no practical relief to Florida whatsoever on issues of particular importance to the people and businesses who use and rely on Lake Lanier.

Interestingly, the Governor of Alabama claimed that this was a huge victory for Alabama. I beg to differ. Alabama asked the court to set aside the RIOP, the BiOp, and the 1989 draft Water Control Plan, and to prevent the Corps from considering water supply in the new WCP. Judge Magnuson ruled against every one of these requests, meaning Alabama got none of what it was seeking. Apparently there is a very low threshold for what constitutes victory in Alabama.

News reports on the ruling have varied wildly in their characterizations of the court’s order. One reported that Georgia “los(t) another ruling.” While it is true that the court ruled the Georgia parties did not have standing to challenge the ESA, the practical outcome of the court’s order was very positive and the headline unnecessarily negative. Other reports have correctly pointed out that Florida’s ESA claims were rejected and that the Corps clearly violated NEPA by not performing an Environmental Impact Study – as we, along with virtually every other party except the Corps, argued.

In his ruling on standing, the judge apparently concluded that we were not harmed by the ITS (Incidental Take Statement) for the mussels issued by Fish and Wildlife. We had taken issue with several technical aspects of the BiOp, pointing out that Fish and Wildlife made some serious errors in its review, even though it ultimately found that Corps operations would not harm the species. In particular, we argued that Fish and Wildlife used an incorrect environmental baseline, which it relied on as the basis for issuing the ITS. It is certainly unfortunate that the court ruled that the baseline was correct, but in light of the fact that the court also found no harm to the species, it is unlikely that we would ask for a review of the ruling on the standing issue alone.

This is not the end of our efforts in the Water Wars. Phase 1 is under appeal and Florida may well appeal the Phase 2 decision. The new Water Control Plan is under development, and the issue of water supply for north Georgia has not gone away. We will continue to represent your interests in this and to protect Georgia’s Great Lake.

Lake Lanier Association Executive Director

It was with a very heavy heart that I have given my notice to the board and will no longer be working for the Lake Lanier Association after the end of July. I have already moved to California to work for the same company as my husband, who has been here since last August.  We are both working on Lake Nacimiento in Central California.

It has been my privilege to work for the association for the last nine years.  I’m constantly in awe of the talent and dedication of your board of directors and have enjoyed working with them to fulfill our mission of protecting Lake Lanier’s water quality and quantity.  The board is in the final process of selecting a replacement for my position.  In the meantime, I’ll be responding to your emails and voicemails until the new person is on board.

I wish you all well and have enjoyed meeting and talking with so many of you over the years.

Best regards,

Vicki Barnhorst

All parties (except the Corps, of course) agreed that the Corps violated the National Environmental Policy Act (NEPA) by failing to prepare a full Environmental Impact Statement before implementing the IOP in the spring of 2006.  NEPA requires an EIS whenever a federal agency proposes an action that will significantly affect the quality of the human environment – something the IOP unequivocally did.  The Corps is already preparing an EIS for the new Water Control Manual, with a draft expected in the spring of 2011 and a final version to be completed by the spring of 2012 (a few months before the judge’s Phase 1 ruling is scheduled to take effect).  Judge Magnuson agreed with our position that the Corps must include water supply as a consideration in preparing the EIS, and made his opinion clear to the U.S. Attorney, who stated that the Corps was not considering water supply, as a result of Judge Magnuson’s Phase 1 ruling.  I expect the judge to order the Corps to consider water supply.

Of particular importance to LLA members will be the judge’s ruling on the ESA.  The ESA is the legal basis underpinning Florida’s years-long attempt to force the Corps to send higher flows across the state line.  Florida argued that the Corps is obligated to do everything in its power to preserve several species of mussel and a fish called the gulf Sturgeon.  Florida complained that the Corps was holding back water in the ACF reservoirs for water supply and recreation rather than allowing it to flow to Florida, and that the species are being illegally harmed as a result.  The Association strenuously opposes this view, and our position at the hearing was that the ESA creates no obligation on the Corps to augment natural “run of the river” flows to protect the species.  The LLA and Georgia parties argued that Corps operations have been good, not bad, for the species, because they ensure that flows do not drop below 5,000 cfs.  We argued that the FWS correctly found in its 2008 Biological Opinion that Corps operations are not jeopardizing the species.  But we also argued that the FWS erred by restricting the conditions under which the Corps could lower flows below 5,000 cfs during severe droughts and reduce or “ramp down” flows after rains – both of which potentially impact how much water is kept in Lake Lanier.\

Considering the arguments of all parties, I believe we are correct on the facts and the law, and I am hopeful the judge will agree with our position.  He seemed attentive to our arguments, and I am optimistic that his decision in this phase will support our position.

The association is now planning a Political Forum in October for federal and gubernatorial candidates as well as candidates for state house and senate in the districts surrounding Lake Lanier. During the event, the candidates will answer questions on their policies related to the protection of LakeLanier including the Tri-States negotiations, water supply, and reservoirs.

The October event will also take place at Legacy Lodge, Lake Lanier Islands, Buford, and we will announce the date as soon as possible.

The topwater bite has pretty much non-existent on the stripers. You might catch a few on a Redfin or a jerk bait if you stick with it and keep moving. Bluebacks on a downline are out producing everything else, with u-rigs not far behind. I went up the lake over the Memorial weekend to get away from the fishing pressure and the fishing was great on 30-35 foot slick bottom points. You will find smaller stripers and spots around the points with brush, but our bigger fish have been on a slick 30-35 foot bottom. Overall, this striper fishing has been very good and will only get better over the next 120 days. This report is brought to you by Shane Watson Guide Service www.lakelanierstripers.com, Hammond’s Fishing Center, and Carolina Skiff Boats. Good Fishing.

Tomorrow our attorney will be presenting oral arguments in Phase 2 of the Tri-States litigation being heard by Judge Magnuson in federal court in Jacksonville.  If you have not had the chance to donate to our legal fund, please help us defray the costs of this expensive litigation and the expense of sending our attorney to Jacksonville to represent Lake Lanier in these important lawsuits.

Congressional District 9 Special Election

We would like to remind voters in Congressional District 9 that the runoff election to fill Congressman Deal’s seat is tomorrow.  You can read State Representative Tom Graves’s and State Senator Lee Hawkins’s positions here.

Candidates for U.S. Senate and Congressional Districts seven and nine will address their views on lake issues in response to a Lake Lanier Association questionnaire. Also invited are candidates for County Commission seats in the counties surrounding Lake Lanier.