Georgia wins a water lawsuit, contends federal foot-dragging is slowing progress
By David Pendered
Georgia has scored a major victory in one battle of the ongoing water war involving river flow into other states. However, Georgia contends that foot-dragging by the U.S. Army Corps of Engineers has resulted in a lack of progress on the order issued by a federal judge, according to papers filed in U.S. District Court in Atlanta.
Meanwhile, the U.S. Supreme Court on Monday did not issue a ruling on the water case Florida has filed against Georgia. The court calendar shows just three days remain for a ruling to be issued before the court recesses for the summer.
In the case won by Georgia, the state prevailed in a confrontation that began in 1981 with the U.S. Army Corps of Engineers. The corps was found to have, “unreasonably delayed action on water supply requests at Allatoona Lake,” according to a Sept. 29, 2017 ruling by U.S. District Judge Richard Story.
The Cobb County-Marietta Water Authority filed in 1981 a formal request for additional storage in Allatoona Lake, according to the federal lawsuit Georgia filed against the corps in 2014. The state was joined by the Atlanta Regional Commission and the water authority. Each plaintiff has a specific legal claim to the water storage issue.
Georgia’s lawsuit contends the corps was caving to political pressure brought by Alabama:
- “[T]he Corps has made public and private statements indicating that, due to political pressure by the State of Alabama, the Corps in fact has no intention of developing plans and manuals that address current and future water supply needs and operations in the ACT Basin [the the Alabama-Coosa-Tallapoosa River Basin, which includes Allatoona Lake, a water resource for metro Atlanta].”
In his ruling for the Georgia parties, the judge instructed the corps to complete a response to a request from the water authority to store additional water in Allatoona Lake, located in Cobb County. The response is due March 1, 2021.
A wrinkle in the judge’s order is the uncertainty over federal funding for the corps to complete the review of its water allocation plan. The corps estimated the review could cost up to $3 million.
The corps observed that it cannot guarantee it will have money for the review after the current federal fiscal year ends, on Sept. 30. The issue is whether Congress and the Trump administration will fund the project.
Judge Story recognized the challenge in his Jan. 9 ruling:
- “The Court recognizes that Federal Defendants’ undertakings are subject to the availability of funds, whether appropriated or contributed.”
Georgia addressed the funding issue by agreeing to a request from the corps to provide up to $3 million in a deal called a “contributed funds agreement.” The judge supported the offer and ordered the corps to repay any of the $3 million not spent on the review.
The is the moment at which the Georgia parties contend the corps is dragging its feet. The judge’s order called for the deal for the $3 million to be complete by Feb. 14.
The deal was incomplete as of April 9, according to a joint statement filed by the corps and Georgia parties. Here’s the timeline presented by Georgia:
- Jan. 24 – Georgia sent its letter of promise for the $3 million to the corps;
- Feb. 13 – The corps’ South Atlantic Division sent the letter and other materials to headquarters;
- April 4 – Headquarters sent the package to the Assistant Secretary of the Army for Civil Works.
- Next steps – The assistant secretary submits the material to the federal Office of Management and Budget. OMB is to “draft letters providing notice of contributed funds to relevant congressional committees.”
The Georgia parties observed:
- “Because of the Corps’ delay in sending the required notices, the Parties have been unable even to begin negotiations over the contributed funds agreement.”
The corps began its report in the joint statement on a positive note:
- “The Corps is pleased to report it has made significant progress during the remand period, and expects to meet the March 2021 deadline to complete the reallocation decision as ordered by this Court.
The corps observed that it is following its internal processes for sending the information about the $3 million up the chain of command. Meanwhile, the corps says it is using existing funds to start the review and expects to meet the deadline set by the judge:
- “As indicated above, the Corps expects to respond to the Georgia Parties’ water supply requests by March 1, 2021 as contemplated by the Parties and ordered by the Court.”
Judge Story issued an order April 10 acknowledging receipt of the joint statement and offering a few observations:
- “The Court notes that while a joint funding agreement has not been reached, the Corps personnel acknowledge their obligation to continue to use their best efforts to pursue such an agreement.
- “The parties also acknowledge that the failure to meet the first two milestones should not be an obstacle to the Corps ultimately meeting the final milestone with a decision on the requests by March 1, 2021.
- “The next status report of the parties is due in three months.”