Georgia’s water wars: Three lawsuits pending after Supreme Court rules on Florida case

By David Pendered

Metro Atlanta and Georgia are far from the finish line in the water wars. Even after the U.S. Supreme Court rules by June 30 on the case brought against Georgia by Florida, three federal lawsuits remain pending.

In each of the three cases pending before a U.S. District Court, the defendant is the U.S. Army Corps of Engineers. The issue in each case is the corps’ management of one of the two river basins that flow from Georgia into Alabama and Florida:

• The Apalachicola-Chattahoochee-Flint River Basin, which is the basin at issue in the Florida case now pending before the Supreme Court;
• The Alabama-Coosa-Tallapoosa River Basin, which flows into Alabama and includes Lake Allatoona.

The plaintiff in two cases is the state of Alabama. The plaintiff in the third case is the Cobb County-Marietta Water Authority.

There had been four cases, but a judge merged the fourth into one filed by Alabama. The fourth case against the corps was filed by the National Wildlife Federation, Florida Wildlife Federation and the Apalachicola Bay and River Keeper.

Metro Atlanta and Georgia are involved because the judges agreed to allow the governments to intervene in the cases. The governments contended that they have an interest in the outcome of each of the cases.

The list of intervenors in the various cases includes Georgia and a host of local entities including the Atlanta Regional Commission, which is charged with overseeing the region’s water plan; and local governments that provide water to the river basins including Atlanta, the Cobb-Marietta Water Authority; DeKalb County; Forsyth County Fulton County; Gainesville; and Gwinnett County.

This level of state involvement in water litigation explains the $3 million Gov. Nathan Deal released from the Governor’s Emergency Fund, on April 3.

Although the legal fees may be idling on the Supreme Court case, Deal provided the $3 million to the Georgia Department of Natural Resources, “to cover costs associated with water litigation,” according to Deal’s executive order.

Here’s a snapshot of the three cases:

Alabama vs. U.S. Army Corps of Engineers

Alabama filed the case to set aside the corps’ Final Environmental Impact Statement and the resulting Master Water Control Manual. The manual governs the release of water from the dams built in the Apalachicola-Chattahoochee-Flint River Basin.

An Army official approved the manual for use on March 30, 2017. Alabama filed its lawsuit April 5, 2017.

Alabama contends the manual is based on a faulty environmental impact statement.

Alabama says that during the review of the proposed statement, Alabama raised a number of environmental issues in a timely fashion on the negative impact Alabama says it will suffer if the manual were approved. Alabama contends the issues it raised were not adequately addressed.

The new manual is the first to be approved since 1958. However, a manual created in 1989 has guided water discharges from dams, though it never was officially adopted, according to the case.

The new manual will, according to the lawsuit:

• “[Allow the Corps to operate its ACF River Basin projects in an arbitrary and capricious manner that will reduce the quantity of flows into Alabama, change the timing of flows into Alabama, and reduce the quality of water that flows into Alabama. As a direct result, Alabama will suffer injury to its citizens, economy, and environment.”

This is the case to which a judge added the one filed by the National Wildlife Federation.

Of note, the manual is the document highlighted by the special master who heard the case Florida brought against Georgia. Special Master Ralph Lancaster determined that no matter how much water Georgia releases to Florida, the delivery of that water to Florida is totally under control of the corps. Lancaster observed in his advisory ruling to the Supreme Court, which preceded the updated manual:

• “Unless the Corps’ rules are changed, therefore, increased inflow into the reservoir system will not necessarily pass downstream to Florida.…”

Alabama vs. U.S. Army Corps of Engineers

Alabama filed a lawsuit to block the use of the 2015 Revised Water Control Manual for the Alabama-Coosa-Tallapoosa River Basin. Alabama’s main concern is the amount of water retained in Lake Allatoona. An Army official signed the manual into use on May 4, 2015 and Alabama filed its lawsuit May 7, 2015.

As in the ACF River Basin lawsuit, Alabama contends the environmental issues it raised during consideration of the Final Environmental Impact Statement were not properly addressed. The language in the case mirrors that of the ACF case:

• “The WCM [Water Control Manual] will allow the Corps to operate the Allatoona Project and other ACT River Basin projects in an arbitrary and capricious manner that will reduce the quantity of flows into Alabama, change the timing of flows into Alabama, and reduce the quality of water that flows into Alabama. As a direct result, Alabama will suffer injury to its citizens, economy, and environment.”

This river system begins in North Georgia with the Etowah River, across which the Allatoona dam was built. The Etowah flows to Rome, where it joins another river to for the Coosa River. The Coosa flows into Alabama, joins the Tallapoosa River to form the Alabama River, in the middle of the state. The river flows past Mobile, Ala. and into the Gulf of Mexico.

Mobile and Mongomery. were allowed to intervene in the suit on the side of Alabama, just like the governments in metro Atlanta.

Cobb County-Marietta Water Authority

The authority filed a lawsuit Feb. 1, 2017 contending the corps is violating a contract between the authority and the United States. The 1963 contract entitles the authority to store a specific amount of water in Lake Allatoona – 13,140 acre-feet.

The rub involves water flow from the Hickory Log Creek Reservoir. The $100 million reservoir was built through a partnership of the authority and the city of Canton, according to the lawsuit.

The corps permitted the reservoir in 2004 and it opened in 2008 at a location up the Etowah River from Lake Allatoona. Hickory Log has no treatment or distribution facilities. The idea is for it to store water that can be released into the Etowah, which will transport it to Lake Allatoona, where it can be stored, treated and distributed.

The lawsuit contends the corps now claims that once that water from the reservoir arrives in Lake Allatoona, the water is under the corps’ control.

The corps’ decision regarding water from Hickory Log violates the permit the state of Georgia has issued to allow the authority to store and dispense water released from Hickory Log and stored at Lake Allatoona, the lawsuit observes:

• “No federal law has preempted the State of Georgia’s authority to allocate made inflows to Cobb-Marietta. Further, the Corps has confirmed that the ‘Corps has no existing policy guidance that would preclude or govern accounting for that increased yield in the manner that CCMWA [the authority] proposes.” Letter from Steven L. Stockton, P.E., Director of Civil Works, to Glenn Page, P.E., Cobb County.”

A federal judge in Atlanta allowed the parties to enter settlement discussions. The deadline is imminent for the parties to report back to the judge. The judge signed the order Feb. 20 and granted 90 days for the parties to submit a report on the status of their mediated settlement.