Endless water war: Army Corps still an issue in tri-state dispute
By David Pendered
The U.S. Army Corps of Engineers was a factor but not a party in the U.S. Supreme Court’s ruling in Georgia’s favor in the water war with Florida. The corps isn’t in the clear and the war isn’t thought to be over.
In a case distinct from the Supreme Court’s April 1 ruling for Georgia in the lawsuit brought in 2013 by Florida, the corps has been sued by Alabama and three environmental groups for its management of the Apalachacola-Chattahoochee-Flint River Basin. Alabama’s interest is 2,800 square miles of the basin within its borders. Florida’s interest is the ecosystem around the Apalachicola Bay.
A federal court in Atlanta issued a ruling Aug. 11 in favor of the corps. An expected appeal, or a new lawsuit, is part of the reason for the $3.9 million fund for research and legal affairs being assembled by metro water utilities and the Atlanta Regional Commission. The fund has operated continuously since it was established in 1992 to protect the region’s interest in the ACF basin.
U.S. District Judge Thomas Thrash determined the corps had operated properly in adopting a water management manual that seeks to balance water usage in the basin through the five dams and reservoirs the corps controls. Significantly, the judge observed the decades of debate over water usage should end.
Thrash’s conclusion addresses multiple levels of concerns that have developed over decades about a waterway that begins as a spring near Jacks Knob, in the Blue Ridge Mountains of Union County. Writing about the manual the corps adopted in 2017 to manage the basin, Thrash wrote:
- “The ACF Basin Master Water Control Manual Update assures a dependable supply of water from Lake Lanier and the Chattahoochee River to the Atlanta Metropolitan region through the year 2050. It does so without significant sacrifices to environmental standards, and recognizes the need to maintain other uses of the ACF system such as flood control, hydropower generation, fish and wildlife conservation, navigation and recreation.
- “The effect upon the Apalachicola River and Bay will be negligible. The decision was not arbitrary or capricious. The Plaintiffs have not met their burden of showing that this delicate balance should be upset. In the absence of an agreement among Georgia, Florida and Alabama, there is no better alternative.
- “Decades of deferral and delay due to litigation should end.”
The importance of the corps and its operating manual was underscored in a report issued in February 2017 by a special master appointed by the U.S. Supreme Court to advise on the Florida case. The special master noted the update to a manual that dated to 1958 was in a draft form at that point. The corps adopted the update in March 2017 and lawsuits challenging the new manual were filed in April l. The plaintiff in one lawsuit is Alabama, and in the other it’s the National Wildlife Federation, Florida Wildlife Federation, and Apalachicola Bay and River Keeper’s. Thrash consolidated the cases for his ruling.
The special master’s job was to advise justices of whether Florida had proven its allegations that Georgia’s overconsumption of water from the basin had reduced flow into Florida, thus harming the ecosystem around Apalachicola Bay.
Special Master Ralph Lancaster, a lawyer from Maine appointed an unprecedented four times as special master who died in 2019 at age 88, made two recommendations. The second one involves the corps, and it set the stage for the lawsuit Thrash just resolved and portends further litigation over the corps’ management of dams in the ACF basin.
First, Lancaster advised justices to rule that Florida had not proven its claim that Georgia over-consumes water in the ACF basin.
Second, Lancaster determined that the corps is responsible for the amount of water flow into Florida. He noted that no matter how much or how little water flows in the basin, the corps controls the amount of water that reaches Florida because the corps controls the dams. However, Lancaster noted, the corps can’t part of any solution because Florida didn’t make the corps a party to the lawsuit.
Lancaster discussed the corps’ management of river flow in 22 pages of his 70-page report. Among the observations:
- “The evidence presented at trial suggests that the Corps’ reservoir operations are a significant, and perhaps the primary, factor influencing the amount of streamflow crossing the state line during times of drought and low flows….
- “[I]t appears likely that ensuring relief for Florida during these times [of low river flow] would require modification of the rules governing the Corps’ reservoir operations and, hence, active participation by the Corps in this proceeding.”
After reviewing Lancaster’s report, justices decided Lancaster had taken too narrow a view of Florida’s claims and appointed a second special master to continue the review. Special Master Paul Kelly, Jr., who’s a U.S. Circuit Judge in New Mexico, noted that the Supreme Court didn’t question Lancaster’s findings on the corps and, thus, he carried them forward into his 2019 report.
The Supreme Court’s ruling noted the importance of the corps in regulating water flow into Florida. But, as did Lancaster, the court observed the corps is not a party to the case:
- “Many factors influence Apalachicola River flows, including precipitation, air temperature, and Georgia’s upstream consumption of Basin waters. The U. S. Army Corps of Engineers also plays an important role. The Corps regulates Apalachicola flows by storing water in, and releasing water from, its network of reservoirs in the Basin….
- “Florida asserts that Georgia’s overconsumption of Basin waters causes sustained low flows in the Apalachicola River, which in turn harm its oyster fisheries and river eco- system. As a remedy, Florida seeks an order requiring Georgia to reduce its consumption of Basin waters. Florida does not seek relief against the Corps….
- “Considering the record as a whole, Florida has not shown that it is ‘highly probable’ that Georgia’s alleged overconsumption played more than a trivial role in the collapse of Florida’s oyster fisheries.”