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Water Supply Context: Alabama, Florida and Georgia National Waterways Conference

Join the discussion on water supply management in the ACF and ACT Basins at the National Waterways Conference on September 27, 2017. Gain valuable insights into the interests and history of litigation among Alabama, Florida, and Georgia. Explore topics such as water withdrawals, economic growth, environmental issues, and current legal cases shaping water management strategies. Engage in discussions with experts and stakeholders to address the complex challenges faced by these states in maintaining sustainable water resources.

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Water Supply Context: Alabama, Florida and Georgia National Waterways Conference

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  1. Water Supply Context: Alabama, Florida and Georgia National Waterways Conference September 27, 2017 Steven Burns sburns@balch.com (205) 541-3087

  2. The ACF Basin • The ACT Basin • Interests of the States • History of Litigation • Views on Water Supply Rule

  3. The ACF Basin

  4. Upper Chattahoochee River • Buford Dam / Lake Lanier • Tiny headwaters • 2/3 of ACF storage capacity Middle Chattahoochee River • Storage: West Point and Walter F. George • ROR: Andrews and Woodruff Apalachicola River Flint River (uncontrolled)

  5. Upper Chattahoochee River • ATLANTA AREA Middle Chattahoochee River • Columbus, Georgia • 3 major plants • Historically, navigation to Columbus and Bainbridge Apalachicola River • Oysters, shrimp, etc. • Endangered fish & mussels

  6. Water generally abundant • In times of drought: • Corps must meet minimum flow at Florida line for species (5,000 cfs) • BUT no flow target in Mid-Chatt • Flow levels during droughts have endangered withdrawals in Mid-Chatt • Exacerbated to the extent flows from relatively large Flint watershed help meet Apalachicola targets

  7. The ACT Basin

  8. Headwaters • Carters (Coosawattee River) • Allatoona (Etowah River) • Both with storage • Coosa River • 7 Alabama Power dams • Tallapoosa River • 4 Alabama Power dams • Alabama River • R.F. Henry, Millers Ferry, & Claiborne (ROR)

  9. Headwaters • ATLANTA AREA • Coosa River • Water quality and quantity issues at the state line • Alabama River • Historically, navigation to Montgomery • Pulp & paper plants • Corps and Alabama Power coordinate flows for AL River

  10. Interests of the States

  11. Interests of the States (North) Georgia: • Economic growth of Atlanta and other settlements • Groundwater not plentiful • Surface water resources are limited

  12. Interests of the States Alabama (and southwestern Georgia): • Current and future economic growth • Water quality • Restore navigation

  13. Interests of the States Florida: • Support for oysters and fisheries • Environmental issues and water quality

  14. Interests of the States • No “project sponsors” in ACF or ACT • No compact or regional body

  15. Interests of the States Water withdrawal law: • Georgia—generally, permit required for > 100,000 gallons daily average • Generally riparian otherwise, plus drought planning • Alabama—generally riparian, plus drought planning

  16. History of Litigation

  17. History of Litigation Just to provide a sense of the amount of litigation in the tri-state water wars… …(some of these cases have been consolidated)

  18. History of Litigation Past Cases • Alabama v. Corps (ACF & ACT) • No. 1:90-cv-01331 (N.D. Ala. 1990) • Challenging the proposed reallocation of water supply storage • Se. Fed. Power Customers (SeFPC) v. Corps (ACF) • No. 1:00-cv-02975 (D.D.C. 2000) • Challenging the proposed reallocation of water supply storage • Georgia v. Corps (ACF) • No. 2:01-cv-00026 (N.D. Ga. 2001) • Challenging denial of a water reallocation request at Lake Lanier • Alabama v. Corps (ACF) • Nos. 03-16424, 05-11123 (11th Cir. 2005) • Challenge relating to SeFPC settlement agreement

  19. History of Litigation Past Cases • Georgia v. Corps (ACF) • No. 1:06-cv-01473 (N.D. Ga. 2006) • Challenging the Interim Operation Plan (IOP) (implementing ESA requirements) • Florida v. USFWS (ACF) • 4:06-cv-00410 (N.D. Ga. 2006) • Challenging Biological Opinion for IOP • SeFPC v. Geren (ACF) • Nos. 06-5080, 06-5081 (D.C. Cir. 2006) • Appeal responding to AL & FL challenges to district court settlement agreement • In Re Tri-State Water Rights Litigation (ACF) • MDL No. 1824 (M.D. Fla. 2007) • Consolidation of all pending ACF cases (eventually including Columbus and Apalachicola cases as well)

  20. History of Litigation Past Cases • City of Columbus v. Corps (ACF) • No. 4:07-cv-00125 (M.D. Ga. 2007) • Challenging Corps operations, failure to conduct NEPA analysis • City of Apalachicola v. Corps (ACF) • No. 4:08-cv-00023 (N.D. Fla. 2008) • Challenging Biological Opinion for IOP • In Re Tri-State Water Rights Litigation (ACF) • No. 09-14657 (11th Cir. 2009) • Appeal of MDL case

  21. History of Litigation Current Cases • Florida v. Georgia (ACF) • No. 142 (U.S.S.C. filed 2013) • FL seeking equitable apportionment of water & cap on GA consumption - AL not a party • Alabama v. Corps (ACF) • No. 1:17-cv-00607 (D.D.C. filed 2017) • Challenging the environmental analysis for Water Control Manual (WCM) and water supply assessment • National Wildlife Federation v. Corps (ACF) • No. 1:17-cv-00772 (D.D.C. filed 2017) • Also challenging WCM

  22. History of Litigation Current Cases • Georgia v. Corps, (ACT) • No. 1:14-cv-03593 (N.D. Ga. filed 2014) • Plaintiffs also include Atlanta Regional Commission (ARC)* and Cobb County-Marietta Water Authority (CCMWA) • NWC Member • Challenging the ACT WCM; also a FOIA claim • Alabama v. Corps (ACT) • No. 1:15-cv-00696 (D.D.C. filed 2015) • Plaintiffs also include the Mobile and Montgomery Water Works • Challenging the ACT WCM • Alabama Power Co.* v. Corps (ACT) • NWC Member • No. Case 1:15-cv-00699 (D.D.C filed 2015) • Challenging the ACT WCM

  23. History of Litigation Current Cases • CCMWA v. Corps (ACT) • No. 1:17-cv-00400 (N.D. Ga. filed 2017) • Challenging the Corps’ storage accounting system at Allatoona Lake

  24. Views on Water Supply Rule

  25. Views on Water Supply Rule Here’s a guess of the positions of upstream and downstream interests • Just my speculation – comment deadline still outstanding (Nov. 16, 2017)

  26. Views on Water Supply Rule Upstream: • Change current policy • Credit return flows and “made” water Downstream: • Keep current policy • Suspicious of crediting if it results in net increase in withdrawals Return Flows

  27. Views on Water Supply Rule Upstream: • Recognize primacy of states to allocate water Downstream: • Federal law determines operation of federal reservoirs Federalism

  28. Views on Water Supply Rule Upstream: • Flexible withdrawal policies Downstream: • Objective withdrawal limits Water Supply Act Authorizations

  29. Views on Water Supply Rule Upstream: • Pursue the rule • Pricing issues • “Equalize” federal customer considerations Downstream: • Don’t pursue the rule • Environment & water quality • Contract enforcement • Protect federal customers Other Priority Issues

  30. Views on Water Supply Rule If I have seemed skeptical that NWC could adopt consensus positions on big issues… …I hope this helps explain why.

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