Posts tagged "litigation"

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.

###

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.

Read the 11th Circuit Decision

June 29th, 2011 Posted by Water Quantity 0 comments on “Read the 11th Circuit Decision”

Click here to download the document

11th Circuit hands Georgia victory in water wars case

June 28th, 2011 Posted by Water Quantity 0 comments on “11th Circuit hands Georgia victory in water wars case”

By Bill Rankin, The Atlanta Journal-Constitution

The federal appeals court in Atlanta on Tuesday handed Georgia an enormous victory in the tri-state water litigation, overturning rulings by a federal judge that could have had catastrophic consequences for the metro area.

The court threw out a 2009 ruling by Senior U.S. District Judge Paul Magnuson, who had found it was illegal for the Corps of Engineers to draw water from Lake Lanier to meet the needs of 3 million metro residents. In its decision, the 11th U.S. Circuit Court of Appeals found that a purpose of the man-made reservoir was to supply water to the Atlanta region.

Magnuson had also set a doomsday clock ticking for Georgia, Alabama and Florida to arrive at a water-sharing agreement. If the states could not reach a settlement by July 2012, Magnuson said, metro Atlanta would only be allowed to take the same amount of water it received in the mid-1970s — when the population was less than one-third its current size.

That deadline is no longer in effect.

Instead, the 11th U.S. Circuit Court of Appeals set a new deadline. It gave the Corps one year to make a final determination over water allocation from Lake Lanier. And the court reminded the Corps that the water litigation has already been going on for more than two decades.

“Progress towards a determination of the Buford Dam’s future operations is of the utmost importance to the millions of power customers and water users that are affected by the operations of the project,” the court said. “The stakes are extremely high, and all parties are entitled to a prompt resolution. Accordingly, the process for arriving at a conclusion of the bounds of the Corps’ authority should be as swift as possible without sacrificing thoroughness and thoughtfulness.”

“At first glance it appears that the state of Georgia has won a great victory,” said a statement issued by the office of Gov. Nathan Deal. “The 11th Circuit panel has ruled unanimously that Lake Lanier was built for the purpose of water supply for the metro Atlanta area. This means that the lake will continue to be available to meet Georgia’s needs.”

The 95-page ruling, issued by a three-judge panel that heard arguments over the dispute in March, was unanimous.

In their ruling, the judges made important findings. Among them: they determined Magnuson erred in concluding that water supply was not an authorized purpose of the Buford Dam project.

“It’s a very good day for the state of Georgia,” lawyer Patricia Barmeyer, who represents the Atlanta Regional Commission, said.

The ruling is “a complete victory for Georgia,” said Todd Silliman, one of the lawyers representing Georgia.

“My initial reaction is that it helps put us on a more level playing field in negotiations,” said state Rep. Buzz Brockway, R-Lawrenceville. “We definitely had the most to lose.”

Staff writer Aaron Gould Sheinin contributed to this article.

Commission backs raising lake level

April 27th, 2011 Posted by Water Quantity 0 comments on “Commission backs raising lake level”

Pichon: Resolution in support of neighbors

Michele Hester, MHester@dawsonnews.com

Dawson is the latest county to sign a resolution in favor of raising the water level of Lake Lanier.

Forsyth, Gwinnett and Hall counties have approved similar measures to raise the lake’s level by 2 feet, to 1,073 feet above sea level.

“Basically what it says is that we recommend a study be done in support of raising [the lake] 2 feet for recreational purposes … but also to support additional water supply”, said Mike Berg, commission chairman.

The Dawson County commission on Thursday unanimously approved the resolution, which will be sent to state lawmakers. The Lake Lanier Association has been advocating for the increase since 2007, when the lake reached record lows due to the drought. Increasing the lake’s full pool elevation by 2 feet would increase available water supply by more than 25 billion gallons, according to the resolution.

“This will bring an abundance of water to the area without spending lots and lots of money,” Commissioner Gary Pichon said.

According to the resolution, raising the water level is also a viable alternative to building costly reservoirs.

“The construction of additional reservoirs may create additional supply, but no feasible location in Georgia permits building a new reservoir with a volume equivalent to Lake Lanier,” the resolution reads.

While Dawson County does not have a permit to withdraw water from Lanier, Pichon said it is imperative to support the project for “our neighbors.”

“We don’t have a dog in this fight, but our prosperity, future and well-being is tied to our neighbors’ well-being,” he said.

Referring to the July 2009 court ruling by U.S. District Judge Paul Magnuson that Lanier is not an authorized source for drinking water, Pichon said, “it is monumentally dumb and wrong to take away water from people who come to depend on it.”

Magnuson gave Georgia three years to resolve the situation with Alabama and Florida or face not being able to use Lanier as a water source.

“Our neighbors are at long-term water supply risk. This is a solution that would provide adequate water for a long time, “Pichon said.

Alyssa LaRenzie of the DCN regional staff contributed to this report.

http://www.dawsonnews.com/section/4/article/6527/

 

State Budget Includes Money to Study Raising Lake Lanier

March 30th, 2011 Posted by Water Quantity 0 comments on “State Budget Includes Money to Study Raising Lake Lanier”

The state senate passed a budget Wednesday that includes two million dollars to study raising the water level of Lake Lanier.

Judges appear disinclined to let water ruling stand

March 9th, 2011 Posted by Water Quantity 0 comments on “Judges appear disinclined to let water ruling stand”

A panel of judges on Wednesday appeared disinclined to let stand a ruling in the tri-state water dispute that, should it come to pass, could have catastrophic consequences for the metro region. The judges for the 11th U.S. Circuit Court of Appeals indicated they wanted to send the case back and order the Army Corps of Engineers, which operates Buford Dam, to make a final determination of how much water from Lake Lanier can be used to meet metro Atlanta’s needs.

Ga. asks appeals court to overturn water ruling

March 9th, 2011 Posted by Water Quantity 0 comments on “Ga. asks appeals court to overturn water ruling”

A long-running dispute threatening metro Atlanta’s main water supply for 3 million people went before appellate judges Wednesday who suggested they could revise or overturn a looming order that would severely restrict the city’s use of water from Lake Lanier.

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