Posts tagged "Water Rights"

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.

###

Lake Lanier Association comments for Water Control Manual update

January 14th, 2013 Posted by Water Quantity 0 comments on “Lake Lanier Association comments for Water Control Manual update”

The Lake Lanier Association recently submitted comments for the Corps of Engineers Water Control Manual revision for the ACF System. A quick summary of our comments are as follows:

– The 5,000 cfs minimum flow required at the state line is not representative of the true lowest historical flows in the ACF and is not sustainable.

– Lanier was never designed to support ALL downstream demands and can’t be expected to because the dams originally proposed on the Flint River were never built.

– The Corps’ current operating rules require more water to be released from Lanier than is necessary and do not allow as much to be stored as is possible.  These draw the lake down more than necessary and make it less likely to refill to full pool under contemporary climatic conditions.

– The Endangered Species Act does not require the Corps to augment Apalachicola River flows above run-of-river levels and the practice should not be required because it depletes Lanier unnecessarily.

– Regular navigation is no longer feasible on the ACF and the Corps should not try to support it in view of the other demands on Lanier as a resource of last resort.

To see the full text of our comments, and the supporting document references, click the below links:

WCM Comments 01142013

A Long-Term Perspective on a Modern Drought in the American Southeast

Executive Summary – Lake Lanier Economic Impact Analysis Final Report

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.

Lake Lanier Association files brief in Tri-States Litigation

March 9th, 2010 Posted by Water Quantity 0 comments on “Lake Lanier Association files brief in Tri-States Litigation”

Clyde Morris, the attorney for the Lake Lanier Association, along with the attorneys for the State, metro Atlanta water supply providers, and Gwinnett County, has filed what we expect to be our last brief in Phase 2 of the Tri-State Water Rights Litigation.

Lake Lanier Association and the other Georgia Parties filed their second brief in Phase 2 of Tri-States Litigation

February 17th, 2010 Posted by Water Quantity 0 comments on “Lake Lanier Association and the other Georgia Parties filed their second brief in Phase 2 of Tri-States Litigation”

Lake Lanier Association and the other Georgia Parties filed their second brief in Phase 2 of Tri-States Litigation

Lake Lanier Association urges lawmakers to protect Lake Lanier from Florida and Alabama’s legal attacks on recreation and to consider raising the lake level to 1073 to create additional water storage

January 20th, 2010 Posted by Water Quantity 0 comments on “Lake Lanier Association urges lawmakers to protect Lake Lanier from Florida and Alabama’s legal attacks on recreation and to consider raising the lake level to 1073 to create additional water storage”

Letter sent to Georgia legislators from the districts around Lake Lanier on January 15, 2010 with copies to the governor, lieutenant governor, federal lawmakers and Corps officials.

As the Georgia legislature begins its session this month, the members of the Lake Lanier Association (LLA) ask for your help in protecting Georgia’s finest natural resource. As the Tri-States water wars litigation and negotiations move forward, we ask that the Georgia State Senators and State House Representatives protect Lake Lanier from the substantial and persistent Florida and Alabama attacks.

In addition to the highly publicized July 2009 ruling against Georgia regarding water supply authorization for Lanier, Judge Magnuson decided to not make a decision recreation as an authorized purpose of Lake Lanier. While the US Army Corps of Engineers has managed the Lake for recreation for 50+ years, and has been federally funded by congress for that activity through the budget process, Florida and Alabama contend that Lanier was not authorized for recreational purposes. Lanier contributes $1 – $2 billion to the North Georgia economy. Major water level draw downs (i.e. the 2007- 2008 drought) negatively affect that economic engine. We hope that Georgia will pass a resolution that supports a US Congressional authorization for recreation on Lake Lanier as an official purpose.

One of Governor Perdue’s initiatives as part of his task force on water alternatives is to investigate additional reservoirs in Georgia for water supply. For the past 3 years, LLA and the Georgia legislature have been driving for a 2 foot increase in the full pool level of Lanier (from 1071 to 1073 feet above sea level), thereby creating a new 26 – 27 billion gallon reservoir for the state (larger than Lake Seminole). This could be accomplished rapidly and implemented for modest costs. A resolution passed in the Georgia legislature in 2007 called for investigation into the possibility of 1073 as a strategy for additional water supply in the State. We ask that the Georgia legislature again pass a resolution that encourages the US Congress and the Corps to implement 1073 as “normal pool” water level for Lake Lanier.

Thank you in advance for your support of Lake Lanier and the economy of North Georgia.

Sincerely, V. M. Perry, Jr. Executive Vice President, LLA Lake Lanier Association Executive Summary

Lake Lanier Association Executive Summary

11th U.S. Circuit Court of Appeals in Atlanta ruled Wednesday that the judge’s ruling in July on Lake Lanier’s water supply can be appealed

January 20th, 2010 Posted by Water Quantity 0 comments on “11th U.S. Circuit Court of Appeals in Atlanta ruled Wednesday that the judge’s ruling in July on Lake Lanier’s water supply can be appealed”

We have just learned that on January 20, the U.S. Court of Appeals for the 11th Circuit denied a motion by Florida and Alabama to dismiss our appeals of Judge Magnuson’s July ruling.

This is a sigificant victory for everyone in Georgia, and gives us an opportunity to restore water supply as a Congressionally-intended benefit of Lake Lanier.  The Association will continue to fight to protect all our members’ interests in Georgia’s Great Lake.

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