Posts tagged "Tri-State Water Wars"

Lake Lanier Association Urges Action in Response to Special Master’s Report

February 21st, 2017 Posted by Full Lake 0 comments on “Lake Lanier Association Urges Action in Response to Special Master’s Report”

Gainesville – the Lake Lanier Association released today their first public statement after the release of the U.S. Supreme Court Special Master’s report related to the Florida v. Georgia Water Wars litigation. The statement is as follows:

Through the efforts of Governor Deal and the state’s legal team, Georgia took a major step toward victory in Florida’s lawsuit against Georgia for equitable apportionment of the waters of the Apalachicola-Chattahoochee-Flint (ACF) Rivers watershed. (more…)

Georgia Groups Now Seek to Have Voice Heard in Georgia-Florida Water Case

September 21st, 2016 Posted by Full Lake 0 comments on “Georgia Groups Now Seek to Have Voice Heard in Georgia-Florida Water Case”

Jeff Gill
jgill@gainesvilletimes.com
September 20, 2016

Multiple groups from Georgia, including the Gainesville-based Lake Lanier Association, are following the lead of some Florida organizations in wanting to chime in on the latest water wars battle between Georgia and Florida. (more…)

WATER WARS II Lake Lanier’s Own Version of “WW II”

November 4th, 2014 Posted by Water Quantity 0 comments on “WATER WARS II Lake Lanier’s Own Version of “WW II””

By: Clyde Morris, Attorney for the Lake Lanier Association

About a year ago, Florida asked for permission to file suit against Georgia in the Supreme Court of the United States, asking the high court to equitably apportion the waters of the ACF in a way that would send more water to Florida.  Yesterday, the Court granted Florida leave to file its Complaint against Georgia and gave Georgia thirty days to file its Answer.

This case is about “equitable apportionment,” which at its most fundamental level is about how much of the ACF’s water each state is entitled to use by law.  To quote one excerpt from Florida’s Complaint:

50. The existing storage, evaporation, and consumption of water by Georgia’s municipal, industrial, recreational, and agricultural users have diminished the amount of water entering Florida in spring and summer of drought years by as much as 3,000-4,000 cubic feet per second (“cfs”). This has altered the flow regime of the Apalachicola River during the most vulnerable times for riverine and estuarine species. In recent drought years, Apalachicola River flows averaged less than 5,500 cfs throughout the entire late-spring-summer-fall period from May through December. Such long durations of extremely low flows were unprecedented before 2000.

So, the challenge is all about the amount of ACF flow to which Florida is entitled, which in turn is fundamental to the LLA’s mission of “Full Lake” (and spurred the LLA to dive into the Water Wars previously).  To quote a portion of Florida’s Prayer for Relief:

Florida further prays that the Court enter an order enjoining Georgia, its privies, assigns, lessees, and other persons claiming under it, from interfering with Florida’s rights, and capping Georgia’s overall depletive water uses at the level then existing on January 3, 1992.

In determining whether to cap “Georgia’s overall depletive water uses at the level then existing on January 3, 1992,” the Supreme Court will consider the uses to which the State of Georgia and the Corps of Engineers now put the waters of the ACF, as well as the uses for which Florida seeks to obtain more of that water.

The fact that there is an original jurisdiction, equitable apportionment case in the Supreme Court of the United States that could determine forever how much of the water in the ACF we may be able to keep and use is of august importance to everyone in Georgia, and especially to those who are concerned about Lake Lanier.  And while it is perhaps hard to imagine this beautiful lake, which supports millions of people, being drained to prop up a desirable but tenuous oyster farming operation in the Gulf of Mexico that has recently been the victim of Florida’s overharvesting as much as nature’s droughts, that is the proposition that has been laid before this nation’s highest court.

We will periodically update membership on the case via the LLA website and newsletter.  But for now, it is most important to recognize the critical importance of Florida’s legal action and the extensive repercussions that could result on Lake Lanier.

Legal Update: Florida Supreme Court Lawsuit

February 4th, 2014 Posted by Water Quantity 0 comments on “Legal Update: Florida Supreme Court Lawsuit”

By: Clyde Morris, LLA Attorney

On January 31, the State of Georgia filed its response to Florida’s motion for leave to file a complaint in the U. S. Supreme Court. LLA members may recall that Florida asked the Supreme Court to perform “equitable apportionment” of the ACF waters, giving more to Florida than it has gotten in the past. The Supreme Court must consent to the filing of a complaint, and Georgia filed its response in an attempt to persuade the Court not to give its consent.

Georgia’s filing makes several main points: (a) the Corps is working on its first revision in half a century to the ACF Control Manual, which determines how much water will be discharged from Woodruff Dam into the Apalachicola River; (b) the United States itself is not a party to Florida’s action and cannot be made a party unless the United States waives sovereign immunity (which it hasn’t); (c) Florida’s filing has failed to produce any convincing argument or evidence that Georgia is taking more than its fair share of water; and (d) any relief the Court could give would not take into account the Corps’ statutory authority to operate the ACF system according to federal law. On page 31, the State summarizes thusly:

In sum, Florida has not pleaded facts plausibly suggesting that it will be able to establish clear and convincing evidence that it suffers substantial injury as a result of Georgia’s consumption of water.

Some more specific excerpts include the following (with pages indicated but legal citations deleted):

25 There is no basis for applying federal common law to address alleged injuries that fall within the broad scope of the thicket of federal environmental and natural resource statutes, and certainly not before those statutes have been applied, Florida has determined that they fail to address its alleged injuries, and an APA action has been unsuccessful. Then, and only then—after the application of the relevant federal statutes and the subsequent determination whether Florida is injured—will it be possible to determine whether there remains any common law claim at all for whatever particular injury is left.

26 …metropolitan Atlanta’s net consumption stands at roughly 0.8% of the entire annual average daily flow of Florida’s Apalachicola River.

27 Florida notes that Georgia has requested that the Corps make available storage in Lake Lanier sufficient to support 705 mgd of gross withdrawals for the metropolitan Atlanta region by the year 2040. *** But … Georgia expects to return 78% of these withdrawals (or 550 mgd) back to the river if the Corps grants Georgia’s request. This total net withdrawal of 155 mgd will constitute a mere 1.1% of average daily flow at the Florida-Georgia border.
To be sure, severe droughts will reduce the flow of water available to Florida. But those natural droughts reduce Georgia’s access to water as well, and nothing in Florida’s complaint suggests that Georgia consumes more than its fair share of water during these droughts—particularly given that Florida comprises only 11% of the drainage area of the ACF Basin, while Georgia comprises approximately 74%. Moreover, the Corps presently augments flows to ensure that Florida receives a minimum flow of 5,000 cfs at the state line to minimize any adverse effects to federally listed species in the Apalachicola. *** When net basin inflows fall below 5,000 cfs, the Corps supplements them by releasing water stored in the Corps’ upstream reservoirs at Buford, West Point, and Walter F. George Dams. The Corps releases higher flows to benefit threatened and endangered species at other times, and the flow out of Woodruff Dam historically is well in excess of the 5,000 cfs minimum (flows below 5,050 cfs occurred on 0.9% of observed days from 1975-2008).

28 Florida also alleges that low flows have caused commercial harm to its oyster fishery in the Apalachicola (which does not involve threatened or endangered species). But Florida fails to allege any plausible connection between Georgia’s water consumption and the “collapse of the Apalachicola Bay oyster fishery.”

30 Governor Scott’s letter … drafted outside the context of litigation … candidly attributed reduced oyster harvests to two factors: (1) the “Apalachicola, Flint, and Chattahoochee Rivers, have experienced drought conditions for several years;” and (2) “overharvesting of illegal and sub-legal oysters” in response to the suspension of oyster harvesting in contiguous states (as a result of the Deepwater Horizon oil spill) have led to fewer oyster landings. *** Florida’s attempts to attribute the 2012-2013 low oyster harvest to Georgia’s upstream water usage do not even cross “‘the line between possibility and plausibility’” necessary for an ordinary complaint filed in district court, much less the far more demanding standard that this Court has established for commencement of an original case.

Last summer I characterized Florida’s Supreme Court filing as a “last-ditch effort” to get what it had failed to get through the last 20 years of federal court litigation. To me, the filing itself was legally unimpressive and factually unconvincing. Those remain my impressions and I think it is likely the Supreme Court Justices will have similar impressions after reading Georgia’s response. I would be surprised if the Justices grant Florida’s request and allow this lawsuit to go forward at this time.

The full response document is posted below:
142 Georgia Opp. to FL M. for Leave to File a Complaint – 1-31-14

ACF Stakeholders Group Press Release Regarding Florida Lawsuit

October 9th, 2013 Posted by Water Quantity 0 comments on “ACF Stakeholders Group Press Release Regarding Florida Lawsuit”

We thought the Lake Lanier Association members would be interested in seeing this press release issued by the ACF Stakeholders group last week in relation to the latest legal threat by Florida Governor Scott.

——————-

News Release   October 3, 2013
Contact:  Greg Euston, (404) 775-0285

greg@mcgraweuston.com

 

TRI-STATE WATER GROUP URGES GOV. RICK SCOTT TO SHELVE LITIGATION
ACF Stakeholders Say Water Dispute Can’t Be Solved In A Courtroom

HELEN, Ga. – October 3, 2013 – The Governing Board of ACF Stakeholders, Inc. (ACFS), an organization of local governments, power producers, farmers and oystermen, manufacturers and conservationists throughout the Apalachicola-Chattahoochee-Flint (ACF) river basin, called on Florida Gov. Rick Scott to “delay any further legal action or the pursuit of any current lawsuit.”   Earlier this week, Scott filed a lawsuit against the state of Georgia, asking the U.S. Supreme Court to force Georgia to reduce its water consumption in the ACF river basin, which runs from the mountains of north Georgia to the Apalachicola Bay in Florida.

Rather than another courtroom battle, ACFS believes its recommendations for a sustainable water management plan can form the foundation of a tri-state consensus.  This work is expected to be completed before June 2014.

“More than two decades of legal fighting has not led to any reasonable solution of this situation,” ACFS Governing Board Chairman Billy Turner said. “We firmly believe that any solution to this dispute will happen in a conference room, not a court room, and will rely on scientific data rather than legal debates.”

Since 2010, ACFS has been working on a sustainable water management plan based on science, good data and consensus. Over the last four years, the group has raised over $1.3 million to accumulate and model the data necessary to develop a consensus-driven plan.

The Governing Board crafted and passed this resolution during its regular quarterly meeting at Unicoi State Park in Georgia.  Past meetings have been held in Alabama and Florida.    The Governing Board is comprised of 56 individuals representing all aspects of the river basin’s economic, agricultural, aquacultural, recreational and environmental concerns.  Membership on the board is divided equally among the four ACF sub-basins and includes membership from Alabama, Florida and Georgia.

ACF Stakeholders, Inc. is a group of water users in the Apalachicola-Chattahoochee-Flint (ACF) river basin of Alabama, Florida and Georgia who are working together for sustainable water management.

###

Water Control Manual Update Comments

March 6th, 2013 Posted by Water Quantity 0 comments on “Water Control Manual Update Comments”

Next time you wonder why you should financially support the LLA, read the Florida Water Control Manual Update comments letter and realize that they are urging the Corps to bring Lanier down to 1035′ during times of drought. You thought 1050′ was difficult, image 1035′! A significant part of our advocacy role is monitoring what other stakeholder groups are advocating for, determining what sort of impact that would have on Lanier, and then affecting change where we can. We are actively working on three different areas that impact lake levels:  more water, less consumption, better operating rules. It takes time, effort, and money to do that. If you are already a member, thank you for supporting our mission. If you are not currently a member, please consider joining. Please share this information with your friends and neighbors so that they too can support advocating for Lanier and we can increase our membership size, voice, and influence.

In case you would like to read some of the Water Control Manual Update comments, they are posted on our website in the Library section.

Supreme Court Upholds 11th Circuit Water Wars Ruling

June 25th, 2012 Posted by Water Quantity 0 comments on “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.

11TH Circuit Rejects Request for Hearing

September 20th, 2011 Posted by Water Quantity 0 comments on “11TH Circuit Rejects Request for Hearing”

By: ClydeMorris, Attorney for the Association

On September 16, the 11th Circuit denied the petition by FL and AL for an en banc rehearing of the decision in Phase 1 of the Water Wars.  FL and AL have reportedly decided to appeal the 11th Circuit’s decision to the U. S. Supreme Court.  The mechanism for doing this is called a petition for a writ of certiorari.  The important thing to know about such petitions is that the Supreme Court receives about 9,000 petitions a year, and grants only about 90 of them, or about 1%.  If your case is one of the lucky 90, you still have to convince the Supreme Court that the Court of Appeals was wrong, which is an uphill battle in itself.

If you do the math, you can readily see that FL and AL’s chances of overturning the 11th Circuit decision are not enviable.  The 11th Circuit’s decision was unanimous, with no dissenting opinions, and the petition for en banc rehearing did not get a single request from any judge in the Circuit even to poll the others regarding their interest in rehearing the case.  There is no other Circuit Court opinion at odds with this decision, so the Supreme Court has no need of resolving a conflict among Circuit courts, which is typically the type of situation that compels the Supreme Court to take a case.  So, the challenge is great for FL and AL to succeed in getting this case heard by the Supreme Court.  But if they do, the Association will be there to defend its position on behalf of all our members.

11th Circuit Opinion: Victory for Lake Lanier

June 30th, 2011 Posted by Water Quantity 0 comments on “11th Circuit Opinion: Victory for Lake Lanier”

The 11th Circuit Opinion leaves the LLA gratified that the court agreed with our position on the monumental issue of water supply in Phase 1 of the litigation. We think it is equally clear that recreation was also authorized by Congress as a benefit of Lake Lanier, and we look forward to working in Phase 2 to ensure that the benefit of recreation is preserved for our members and everyone who depends on the lake.

Clyde Morris, the attorney representing the Lake Lanier Association in the Tri-State Water Wars litigation, has written an opinion piece for our membership about what the recent federal court ruling for Phase I of the litigation means to LLA members. See below for Clyde’s comments on the 11th Circuit opinion:

11th Circuit Opinion “Dam” Good, by Clyde Morris,  Attorney for the Lake Lanier Association

The opinion rendered this week by the 11th Circuit is the most positive news Georgia has ever gotten in the Water Wars.  Some are calling it a complete victory regarding water supply, and I would concur.  But yes, an appeal is possible and already promised.

I expect Alabama to petition for a rehearing en banc (before the full 11th Circuit bench).  The opinion the court just issued was rendered by a 3-judge panel, and a party has the right to request that the full court rehear the case.  But by rule, such a rehearing is granted only to secure or maintain uniformity of the court’s decisions or if the proceeding involves a question of exceptional importance.  I would not speculate as to whether the 11th Circuit would grant an en bancrehearing in this case.  But if it does, I would be extremely disappointed if the decision were changed, as it is exceptionally thorough, well-reasoned, and well-written – as well as being almost completely in line with what we have argued since Day One.

Assuming the decision stands as written, the Corps has one year to give Georgia a decision on whether it will grant Georgia’s water supply request.  The Court has made it crystal-clear that the original 1946 legislation (the River and Harbor Act, or RHA) authorized Lanier to be used for water supply.  Over the years, the Corps has waffled on how much water it can supply under the RHA without having to rely on authority under a later statute, the Water Supply Act of 1958 (WSA). But the Court not only ruled that the RHA authorized water supply, it ruled that water supply is not inferior to hydropower as an authorized purpose.  By doing so, the Court laid the foundation for the Corps to reconsider what, if any, practical limit exists to the RHA authorization and how that limit is augmented by the WSA authorization.

You may also be wondering about how Gwinnett County, Buford, Cumming, and Gainesville have fared in all this.  These water suppliers are in a somewhat distinct posture from Atlanta and the counties south of Buford Dam because their water is taken directly out of the lake, rather than out of the river downstream of the dam.  As I read the opinion, they all have the same rights as the entities that take downstream of Buford Dam, plus whatever they were granted in compensation for losing their original river intakes when the lake was built (or, in the case of Gwinnett, an additional 10mgd authorized by a 1956 statute).

This is a great victory for LLA members and Georgia as well.  We all need water to drink, and the 11th Circuit seems firmly convinced that we have the right to get that water from Lake Lanier. But Phase 2 is still pending, which deals with Florida’s Endangered Species Act claims.  Florida is putting pressure on the Corps to send 20% more water than it does now to protect the mussels. If it is successful, that will translate into significantly lower lake levels, especially in droughts. Considering the fact that south Georgia is in an “exceptional” drought, we would already be seeing much lower lake levels.  So, Phase 2 is still critical for us, and demands our full attention going forward.

Georgia wins legal battle in water wars – From the Gainesville Times

June 29th, 2011 Posted by Water Quantity 0 comments on “Georgia wins legal battle in water wars – From the Gainesville Times”

Court rules that Lake Lanier can be used for water supply

By Ashley Fielding, Gainesville Times

An appellate court has overturned a 2-year-old decision that would have severely limited how Hall County, and much of metro Atlanta, could withdraw water from Lake Lanier.

A three-judge panel from the 11th Circuit Court of Appeals directed the U.S. Army Corps of Engineers on Tuesday to reconsider giving Georgia permanent access to the lake’s water.

Georgia stakeholders in the state’s ongoing litigation with Alabama and Florida over rights to the water in the Apalachicola-Chattahoochee-Flint river basin praised Tuesday’s decision as a “great victory” for Georgia.

Lake Lanier is the northernmost and largest reservoir located on the 550-mile river system. It is responsible for providing water to more than 3 million Georgians.

The ruling reverses a 2009 decision by U.S. District Court Judge Paul Magnuson that stated Georgia had few rights to the water in Lake Lanier.

The appellate decision instead states that Congress always intended for the lake to be used as a source of drinking water for the Atlanta area.

Previous decisions that said otherwise, including Magnuson’s ruling, were based on “a clear error of law,” Tuesday’s ruling stated.

“This is very good. This is good for the whole state of Georgia,” said Patricia Barmeyer, an attorney with King and Spalding, who represents a number of municipal water utilities in the Atlanta area, including Gainesville.

“This is good for the public interest. This is good for the metro Atlanta region. This is good for Gainesville and Hall County.”

The ruling, at the least, buys Georgia some time to nail down a viable source of drinking water for its largest metropolitan area.

But its recognition that water supply was likely the original intent of the congressional planners who authorized the construction of Lanier more than 50 years ago was encouraging to Georgia, which faced a stark alternative without the ruling.

Magnuson’s decision imposed a three-year deadline for Georgia to find another source of water, have Congress reauthorize Lanier as a specially designated source of drinking water or negotiate a water-sharing agreement with Florida and Alabama.

Nearly two years after that court-ordered ultimatum, none of that has happened.

Tuesday’s decision gave corps officials a year to determine the organization’s authority under the Rivers and Harbors Act and the Water Supply Act.

It also charged the corps to make final decisions on how much water should be stored in Lake Lanier for water supply.

In their 95-page opinion, the appellate judges encourage the corps to determine its authority in delegating water resources from Lake Lanier “as swift as possible without sacrificing thoroughness and thoughtfulness.”

“The stakes are extremely high, and all parties are entitled to a prompt resolution,” the ruling read.

A spokesman for Gov. Nathan Deal praised the ruling, and said the governor would continue to work with Alabama and Florida toward a water-sharing agreement in the river basin.

The Associated Press reported Tuesday that Deal met with Alabama Gov. Robert Bentley for about two hours June 15 in an unpublicized meeting to talk over the water issue.

A gag order prevents the governors from discussing the details of that meeting, Deal’s spokesman, Brian Robinson, said.

Attorney General Sam Olens said the ruling affirms the state’s long-held belief that the lake was authorized as a source of drinking water.

“This is a great day in Georgia,” Olens said in a statement.

Yet Bentley said he was disappointed by the panel’s decision and would appeal to the full court.

“We recognize that it is only one step on the long road of litigation of these disputes,” he said in a statement.

Florida Gov. Rick Scott’s legal team was still reviewing the decision late Tuesday. Eric Draper, executive director for Audubon of Florida, said he hoped Scott would appeal.

“This is one time when Gov. Scott is going to need to stand up for Florida’s environment. This is the place that Gov. Scott can connect the dots between Florida’s economy and the environment because Florida’s economy relies on that water.”

Draper said Georgia needs to develop plans to conserve water so less comes out of Lake Lanier.

The ruling also had significant local impact, according to Barmeyer, who represents Gainesville’s interests in water litigation.

Gainesville’s Public Utilities Department now is entirely reliant on Lake Lanier to provide its more than 46,000 customers with water.

Though the Magnuson’s ruling left Gainesville with some access to the water in Lanier, it would have limited the department’s withdrawals to 10 million gallons per day.

On average, the city withdraws about 18 million gallons of water from the lake per day to meet Hall County’s current demand.

Tuesday’s ruling will also allow the corps to evaluate whether municipal water providers like Gainesville can, in calculating water use, receive credit for the amount of cleaned-up water they return to the reservoir.

Gainesville officials have long argued that their withdrawals should be offset by the amount of treated wastewater they put back in the lake daily.

Magnuson’s ruling said water providers could not be credited for returned water. Tuesday’s ruling put that decision back in the corps’ hands.

Gainesville’s Public Utilities Director Kelly Randall could not be reached for comment Tuesday on the impact of the ruling on the city’s future water supply.

Though Hall County Board of Commissioners Chairman Tom Oliver praised the ruling, he said the court’s decision Tuesday would have little effect on the county’s plans to build an 856-acre reservoir in North Hall.

“I think it’s an excellent ruling. We somewhat anticipated this,” said Oliver. “However, I think we are a ways off from controlling our water destiny.”

After Magnuson’s ruling in 2009, county officials withdrew a permit application to build Glades Reservoir in North Hall and revise the application to allow for a much larger reservoir that could meet the county’s daily needs.

The county submitted its most recent application on June 10 for a reservoir that would yield 80 million gallons of water per day, more than 10 times the yield of the original permit.

Oliver said Tuesday the county will continue those efforts because litigation could continue for several years.

“I think it’s more important than ever (to proceed with) the Glades Reservoir …” Oliver said. “It’s a very critical, time-sensitive issue. We might not want to pipe it or set up piping, but we should go ahead and build the lake. We have the opportunity to do that.”

And while an attorney for the Lake Lanier Association said Tuesday’s decision was gratifying, Clyde Morris said the group is also waiting to hear from the next decision in the case, which will determine if recreation should be a consideration when determining water levels in Lake Lanier.

“We think it is equally clear that recreation was also authorized by Congress as a benefit of Lake Lanier, and we look forward to working in Phase 2 to ensure that the benefit of recreation is preserved for our members and everyone who depends on the lake,” Morris said in an emailed statement.

Associated Press contributed to this report.

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