Published Sunday, July 25, 2010

Judge raps all sides in tri-state water war rulings

By Sarah Fay Campbell

The Newnan Times-Herald

A year ago, Federal District Judge Paul Magnuson dealt a crushing blow to Georgia and the users of Lake Lanier.

Last week, he issued a stern reprimand to the other parties in the case: Florida, Alabama and the U.S. Army Corps of Engineers.

Magnuson dismissed Florida and Alabama's phase II claims in the ongoing legal battle over the waters of the Apalachicola, Chattahoochee and Flint (ACF) river basin. He ruled Florida's most recent claims under the Endangered Species Act were without merit.

"Last year, he gave Georgia the strongest language possible and said we've got to negotiate," said state Rep. Lynn Smith, R-Newnan, who chairs the Georgia House's National Resources and Environment Committee.

"This year, he has kind of told Florida and Alabama, in the strongest language possible, nope, y'all have got to negotiate with Georgia," Smith said.

"Now, you've got all three states hearing from the judge rulings they didn't want to hear," she said.

But Magnuson's harshest words -- and most of the blame -- were directed at the Corps of Engineers, which owns and operates the dams on the Chattahoochee River that are at the heart of the controversy. All parties in the case -- and there are nearly 20 -- argue the Corps of Engineers has violated the National Environmental Policy Act and the Endangered Species Act by failing to do the required environmental impact studies on its water control plans and various "interim operations plans."

"The court is troubled by the Corps' refusal to take responsibility for its utter failure to conduct any sort of environmental analysis whatsoever on the plan by which it has operated the ACF basin for more than 20 years," Magnuson said.

The Corps never completed an environmental impact study and statement for the draft water control plan that went into effect over 20 years ago, because the plan was never finalized.

"Of course, the lack of an EIS for the 1989 water control plan is not to be blamed solely on the Corps, for the states bear their share of the blame for the Corps' failure to update or finalize the 1989" plan, Magnuson said.

The judge specifically mentioned Alabama Sen. Richard Shelby. Shelby held up the confirmation of the assistant secretary of the Army until he promised the Corps would not revise the water control manuals.

"However, it is the Corps' ultimate responsibility to ensure that its actions conform to the law, and the law is clear that actions of the scope and magnitude" of the 1989 plan require a comprehensive environmental analysis, Magnuson said.

A major part of the battle over the ACF basin is the existence of threatened and endangered species in the Apalachicola River and bay.

If the Corps had done the study it should have completed, that "might have helped break the stalemate that has paralyzed this litigation for two decades," Magnuson said.

"It is possible that if the parties had more information about the true effects of the Corps' operations, resolving their differences would have been easier," he said.

The Corps is currently working on a new water control plan for the basin and has indicated that it will prepare the environmental impact statement.

That's a step in the right direction, Magnuson said.

But "had the Corps been less recalcitrant over the past 20 years, it is possible that such a step might have forestalled this phase of the litigation altogether," the judge said.

However, "given the contentious history of the ACF basin, it is not surprising that no party is willing to trust the Corps to do its job in accordance with the law."

But even though the Corps clearly violated federal law, at this point, they are "violations with a remedy," Magnuson said.

Because the Corps is working on a new water controlling plan, requiring it to go back and perform an environmental study on the old plan makes "little practical sense," Magnuson said.

Therefore, the "harms suffered are no longer redressable," Magnuson said. That renders the state's claims against the Corps for violation of the National Environmental Policy Act moot.

"However, the court must caution the Corps that further refusals to comply with its statutory duties cannot be avoided merely by pleading prudential mootness. Nor will this court ... look favorably on the Corps' stubborn insistence on excluding from its analysis all reasonable alternatives in the ACF basin."

In this phase of the case, Alabama was asking that the Corps not consider the use of Lake Lanier as a water supply while working on the water control plan and environmental impact statement.

Last summer, Magnuson ruled that, because drinking water supply was not one of the "authorized purposes" when Lake Lanier was created, Georgia water utilities had no real right to withdraw any water from the lake. He stayed the ruling for three years -- to give the three states time to come to an agreement, and for Congress to take action to add drinking water as an authorized purpose.

According to last week's order, the Corps has said it won't include a drinking water alternative in its study until there is Congressional re-authorization.

Magnuson ruled against Alabama and the Corps on that claim.

An environmental impact statement that "does not at least consider the effects of current and future water supply withdrawals from Lake Lanier as well as other points in the ACF system is, for all intents and purposes, a useless document," Magnuson said.

"The Georgia parties are correct that all decision-makers would benefit from the comprehensive analysis of a range of potential activities in the ACF basin," he said.

"And it is likely that the Corps' failure to conduct such an analysis would be an abuse of the Corps' discretion under the Administrative Procedures Act."

Florida's claims dealt with the Biological Opinion submitted by the U.S. Fish and Wildlife Service.

The USFWS began an environmental study in 2006 to determine the effects various flows over Jim Woodruff Dam at the Apalachicola would have on the mussels and sturgeon.

As the drought of 2007 and 2008 intensified and Lake Lanier's levels continued to sink lower, a new interim operations plan was developed that reduced the required flows over the dam when less water was coming into the basin.

The fish and wildlife service found that, as long as there were not sudden and drastic changes in river levels, the reduced flows would not have a major impact on the mussels.

Florida argued that the USFWS biological opinion was flawed, but Magnuson ruled that Florida didn't present any sound evidence to support its position.

"We are gratified by Judge Magnuson's order, which acknowledges the service's scientific expertise in forecasting the effect of flows on listed species," said Cynthia Dohner, southeast regional director for the fish and wildlife service. "Our biological opinion was based on the best science available, and we haven't stopped there. We continue to monitor the species and the habitats affected by the federal dams on the Chattahoochee River to better understand the total impact on federally-protected species."

"There was a lot of disagreement over whether or not it was a good opinion," said USFWS spokeswoman Stacy Shelton. "For us it was a nice validation from the judge."

The decision definitely does not mean that endangered species in the Apalachicola are no longer an issue.

"The Endangered Species Act will be an issue as long as there are dams on the Chattahoochee River," Shelton said.

"Going forward, we will continue to work with the Army Corps, and hopefully the states will be working with our partners ... to help them craft a water control plan that is protective of threatened and endangered species," Shelton said.

The judge concludes his narrative by saying "as always, the court encourages the parties to work together toward an analysis that will advance the ultimate resolution of this litigation."

"Now let's just hope that, after the negotiators absorb everything that happened, they sit down at the table and say, 'OK, we understand,'" said Smith. "I think the tone is changing. I think it can't be combative."

"I think what the judge is trying to do is move everyone away from boxing in the ring to diplomacy," she said.

Last summer's ruling was a wake-up call to Georgia. And the state got busy working on alternatives. This past session, Smith helped get new statewide water conservation measures passed, as well as a new law requiring the Metropolitan North Georgia Water Planning District to work on plans to connect the various water utilities to each other so that they can share water.

Perhaps last week's ruling will be a wake-up call to Florida and Alabama.

"In my mind, I think that we are showing very good faith in Georgia -- that yes, we got real..." Smith said. "We understand we've got a serious situation here and we need to work with our neighbors."

"To me, it is a re-balancing and that is the victory," Smith said. "He's not necessarily on our side," she said of Judge Magnuson "He's just saying, 'I want a resolution here -- and we're going to keep things equitable.'"