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…)
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.
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
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
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.
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.
Public utilities workers for Gainesville and Hall County are finding it hard to plan these days.
With a looming deadline to reauthorize Lake Lanier for drinking water, officials are trying to sort out how much water withdrawal will be allowed, how to adjust for population growth and how water restrictions will be calculated.
“Ultimately, we have to wait and see what the judges will say in about two months and keep doing what we’re doing,” said Pat Stevens, chief environmental planning officer for the Atlanta Regional Commission. “We have to use efficiency, focus on conservation and watch the timing with the recession.”
Last month, judges from the 11th Circuit U.S. Court of Appeals heard testimony about the tri-state water war.
Georgia officials asked the court to overturn a July 2009 ruling by U.S. District Judge Paul Magnuson that gave the state three years to work out an agreement with neighbors Alabama and Florida or face not being able to withdraw water from Lake Lanier. The judges have not yet made a ruling.
Both Gainesville Public Utilities Director Kelly Randall and Hall County Public Utilities Director Ken Rearden agree the governments need to move forward with plans to bring Cedar Creek and Glades reservoirs online as water resources, but they still have questions about when and how to do it.
For example, if Magnuson’s ruling stands, Hall County officials who are planning Glades Reservoir would be required to build pipelines around Lake Lanier to move the water.
“We need the permit, which is good for a 10-year period, but we don’t have to go out and build the $346 million project tomorrow,” Rearden said during a recent panel discussion on the water war. “Hopefully we won’t have to build that much because more than half of the pipelines would have to pipe around the lake. If it touches the lake, the water would be considered Lake Lanier water.”
The biggest complication comes from guessing where water use levels will be set, Randall said.
“When we initially got 8 million gallons of water per day, we thought that was enough to last forever,” he said. “And later we gained an additional 12 million gallons. We kept growing and had even more customers.”
In 1990, the city used 11 million gallons per day, which grew to 17.9 million in 2000 and hit a peak at 19.7 million in 2006. Through conservation measures, today’s use is back at 17.6 million.
Magnuson’s ruling suggests water use may be forced back to 1970s levels. For Gainesville, that could mean about 20 million gallons per day, when accounting for a credit Gainesville’s utilities department received for clean wastewater it returned to the lake.
In addition, a 2003 negotiation contract with the U.S. Army Corps of Engineers set Gainesville’s level at 18 million.
“Recently, it’s the Army’s viewpoint that the amendment is still valid,” Randall said. “Then others seem to think we would go back to usage in 2006, which was 19.7, so you see the questions we’re dealing with here.”
That’s the largest hiccup when it comes to budgeting.
“Right now, it’s anybody’s guess what might happen with Judge Magnuson’s ruling, and depending on the curve, we could have between 8 million gallons and 35 (million) gallons per day, which we may need now, by 2015 or 2025,” he said. “Based on growth, my finance folks and engineers are saying different things. So what is it? I don’t know.”
As Rearden and Randall do their part to plan in the short term, others are looking at water use for the next generation.
“We need to plan this for a full 30-50 years out and fix what we can by controlling our destiny here in Hall County with Cedar Creek and Glades,” said Kit Dunlap, president of the Greater Hall Chamber of Commerce and chairwoman of the Metropolitan North Georgia Water Planning District. “We always think about the court case, but we have no control over that.”
With a projected population increase, it’s better to plan for steady growth and an increase in water use in the next few years, Dunlap said.
“I don’t think that will change,” she said. “It’s better to plan for the future than get into a crisis again if we’re short on water or have a drastic drought or something else changes with the court cases.”
Residents should be a part of the planning by joining local water advocacy groups, such as the Apalachicola-Chattahoochee-Flint River Stakeholders, Stevens added.
“The stakeholders are a group of Lake Lanier folks who came together to talk about solutions to see if the people can look at the problem and come up with ideas,” Stevens said.
“There’s never one right answer, so more than anything it’s a vehicle for communication. We get to know the people in the basin and find out what their issues are as well.”
The state senate passed a budget Wednesday that includes two million dollars to study raising the water level of Lake Lanier.
Georgia Gov. Nathan Deal recently told members of his state’s water-supply task force that he plans to resolve the water-war dispute with Alabama before going on to deal with Florida. Is this some sort of a “divide and conquer” tactic? Maybe. However, it also may be the simple recognition that setting an acceptable flow of water for the Alabama-Coosa-Tallapoosa river basin may be the easiest of Georgia’s problems to deal with.