Report by Clyde Morris re: Phase 2 Oral Argument
Judge Paul Magnuson heard oral argument in Phase 2 of the Water Wars on Tuesday, June 8. The issues involved the Revised Interim Operations Plan (RIOP) implemented by the Corps of Engineers and the Biological Opinion issued by the U. S. Fish and Wildlife Service (FWS), and especially whether the RIOP complied with the Endangered Species Act (ESA). Most LLA members will recall that the original version of the RIOP – the IOP – was the principal cause of the draw-down of Lake Lanier to its lowest point in history during the 2006-2007 drought.
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.