Yesterday, Judge Paul Magnuson issued his ruling in Phase 2 of the Water Wars. His decision amounts to a complete victory for us.
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.