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

Water Supply Context: Alabama, Florida and Georgia National Waterways Conference September 27, 2017 Steven Burns sburns@balch.com (205) 541-3087. The ACF Basin The ACT Basin Interests of the States History of Litigation Views on Water Supply Rule. The ACF Basin.

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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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