Georgia Reservoir Law Update: New Cases, New Statutes, New Directions
Largely as a result of the severe drought in 2007 and the uncertainty of the water wars between Alabama, Florida and Georgia, reservoir construction has taken center stage in Georgia environmental law. Since 2000, 14 localized reservoirs have been constructed, and 16 potential reservoir sites are now under consideration. This advisory describes the most pressing environmental issues facing new and old reservoirs alike.
Tri-State Water Rights Update
The battle between Georgia, Florida and Alabama, which centers on the right to use flows from the Chattahoochee and other rivers, continues to move forward. On June 28, 2011, the U.S. Court of Appeals for the Eleventh Circuit reversed Judge Magnuson’s decision that Lake Lanier was not to be operated as a public supply reservoir. Judge Magnuson’s order sent shockwaves throughout the state because it held Lake Lanier could not be used as a source for Atlanta’s water needs except at minimal levels.
In reversing Judge Magnuson’s order, the Eleventh Circuit upheld the U.S. Army Corps of Engineers’ decision to permit water withdrawals from Lake Lanier under the Rivers and Harbors Act of 1946, the Water Supply Act of 1958, and Gwinnett County’s 1956 legislation affording Atlanta, Gwinnett County, and others a right to withdraw from the reservoir. The Eleventh Circuit’s decision lifted the doomsday scenario, which targeted July 17, 2012, for return of metropolitan Atlanta water withdrawals to 1970s levels. Recently, the Eleventh Circuit denied further review of this decision, and the State of Alabama has indicated it will challenge the decision before the U.S. Supreme Court.
Other legal challenges involving water allocation between the states still remain. Although the Eleventh Circuit presently has before it an appeal of Judge Magnuson’s decision relative to the Endangered Species Act, which approved Corps’ management plans for the river system for endangered and threatened species, that appeal has been stayed while the Corps pursues a consultation with the Fish and Wildlife Service regarding the impact of downstream flows on one of the mussel species. In addition, the litigation decided by the Eleventh Circuit in June did not resolve the controversy between Georgia and Alabama relative to the Alabama, Coosa, and Tallapoosa (ACT) River Basin pending in an Alabama federal district court, though it may limit that litigation.
Reservoir Developments at the Capitol
Reservoir development is also a big issue at the Georgia Capitol. Governor Nathan Deal’s budget for the fiscal year that began July 1 calls for $46 million for new reservoirs and water supply development, the first installment in his four-year, $300 million plan to support reservoir development in Georgia.
The budget move dovetails with the ramping up of the governor’s new Water Supply Program Task Force, which had its introductory meeting March 21. The task force was established by a January 25, 2011, Executive Order, and is led by the Georgia Environmental Facilities Authority (GEFA). GEFA is to coordinate with the Department of Natural Resources, the Department of Environmental Protection (GEPD), the Georgia State Financing and Investment Commission, the State Properties Commission, the Department of Agriculture, and the Georgia Soil and Water Conservation Commission.
GEFA has established the Water Supply Technical Assistance Program, which provides support to local governments trying to obtain the numerous permits and government approvals necessary to begin reservoir construction, and seeks to streamline the development process. In addition, geographic subdivisions of the task force have coordinated water needs and hope to supply the governor with a statewide plan by year’s end.
Senate Bill 122, the Georgia Public/Private Water Supply Act of 2011, signed into law by Governor Deal on May 2, also aims to promote reservoir development. Introduced in the General Assembly by Senate Natural Resources Committee Chairman Ross Tolleson, the legislation allows private companies to work with local governments to finance and build reservoirs. The bill, along with the governor’s efforts, was designed to address the significant expenditures involved in reservoir development. For example, Hickory Log Creek Reservoir, located in Canton and one of the state’s newest reservoirs, took years to finish and reportedly ran $75 million over budget.
Another effort that may spur reservoir development is Georgia’s State Water Plan, which was authorized by the 2004 Comprehensive State-wide Water Management Planning Act. The State Water Plan called for regional water planning beginning in 2010 through 2050 by Georgia’s ten water planning regional councils.
Initial draft-recommended regional water plans included selected water management practices. Chief among the water management practices selected by several of the regional councils was increasing water supply and storage. The initial draft-recommended regional water plans were available for public notice and comment from May 9 until June 23, 2011, and final versions of the recommended plans were submitted to GEPD on September 30, 2011. GEPD will either adopt the recommended plans or adopt the recommended plans with conditions.
Legal Challenges
Legal challenges are a reality in reservoir development. One recent lawsuit is Georgia River Network v. U.S. Army Corps of Engineers, a case in which the Southern Environmental Law Center, on behalf of the Georgia River Network and American Rivers, is challenging the U.S. Army Corps of Engineers’ (Corps) May 2010 decision to permit a $17 million, 960-acre fishing lake in Grady County outside Cairo.
The suit claims that the study on which the permit is based overestimates the number of people that would use the lake. The challenge also asserts that the project would destroy streams and up to 518 acres of wetlands, which is greater than the 129 acres of wetlands estimated by the Corps.
In February, the court granted the Grady County Board of Commissioners’ motion to intervene as a defendant in the case, and in April, Leon County, Florida filed a motion to intervene as a plaintiff, claiming that “[t]he amount and quality of water received by Leon County will be adversely affected by the impoundment.” In early October, the Corps and the Grady County Board of Commissioners separately filed Motions for Summary Judgment on all counts of Plaintiffs’ and Plaintiff-Intervenor’s Complaints. Responses were due October 31, 2011.
Even when a reservoir is complete, legal battles continue to be a risk. In Upper Oconee Basin Water Authority v. Jackson County,a water authority member, Jackson County, sued the authority over the capacity of the authority’s new reservoir. That capacity determines how much water member counties can use.
Jackson County, both plaintiff and a defendant in the case, alleges that the data used to determine the capacity is deeply flawed, that the authority failed to recalculate the capacity using stream data from the drought of 2007, and that the 505-acre lake can provide just 40% of its stated capacity. In July 2010, the Georgia Court of Appeals affirmed Jackson County Superior Court’s denial of the authority’s motion to dismiss the suit, and a petition for certiorari was denied by the Supreme Court of Georgia in March of this year.
Proposed Sale of Hickory Log Creek Reservoir
Just as others are ramping up to build reservoirs, others are trying to sell reservoirs. Earlier this year, the City of Canton recently announced that it was putting its reservoir, the Hickory Log Creek Reservoir, up for sale, citing the huge costs associated with owning and operating the reservoirs. If successful, this will be one of the first transfers of a large-scale reservoir in Georgia.
Future Reservoir Construction Challenges
Even without legal challenges, the process of reservoir permitting is challenging and complex. On average, reservoir completion can take years to complete, cradle to grave, with a four- to seven-year period after issuance of a 404 permit alone.
Similarly, current regulation of inter-basin transfers can impede site selection, and refill qualities of potential South Georgia reservoirs fed by aquifer are radically different from surface water impoundments required in north Georgia. Finally, advocacy groups have argued that reservoir construction should commence only after conservation is exhausted, claiming environmental impacts may exceed benefits.