Magnuson issues ruling in Phase II water rights litigation

On July 21, 2010, US District Court Judge Paul A. Magnuson denied all parties except for the federal Defendants’ in the Tri-State water rights litigation Motion for Summary Judgment in Phase II of the 20-year-old court battle.

In Phase I, the litigation involved challenges to the US Army Corps of Engineers operations at the northernmost dam and reservoir in the Apalachicola-Chattahoochee-Flint river basin.

In Phase II, Magnuson evaluated the actions of the Corps in light of the requirements of the National Environmental Policy Act, the Endangered Species Act and other similar statutes.

Additionally, Phase II challenged those operations at the southernmost dam in the system, the Jim Woodruff Dam, which is located on the Apalachicola River at the border of Georgia and Florida.

Magnuson dismissed all claims raised in Phase II as being moot because of his Phase I findings and order, which gave the Corps 3-years to obtain congressional authorization for the operational changes requested by the Metro-Atlanta area to Buford Dam.

At the end of the three-year period, without Congressional approval or some other resolution, the level of water withdrawn from the dam would return to the baseline levels of mid-1970.

In his 26-page ruling yesterday, Magnuson cautioned the Corps telling them that their refusals to comply with their statutory duties cannot be avoided merely by pleading prudential mootness.

Magnuson also wrote that the Court, or future courts when considering the Corps’s actions, would look favorably on the Corps’s stubborn insistence on excluding from its analysis all reasonable alternatives in the ACF basin.

The judge encouraged all the parties to work together toward an analysis that will advance the ultimate resolution of the litigation.

The governmental parties involved in Phase II included the states of Alabama, Florida, and Georgia; the cities of Atlanta, Columbus, and Gainesville, Georgia; the Georgia counties of Gwinnett, DeKalb, and Fulton; the US Fish and Wildlife Service; and the Army Corps of Engineers.

The only government within the State of Florida to join the litigation was the City of Apalachicola.

Riverkeeper intervenes in Tri-State Water War

This past Monday, November 23 the Apalachicola Bay and Riverkeeper, Inc., (Riverkeeper) became the third Florida interest to enter the 20-year old Tri-State Water Rights Litigation between Florida, Alabama, and Georgia.

Joining the State of Florida and the City of Apalachicola, the Riverkeeper received intervenor’s status after U.S. Magistrate Judge James Klindt granted the environmental advocacy group their motion filed September 30 to intervene in the City of Apalachicola v. U.S. Army Corps of Engineers case before U.S. District Court Judge Paul A. Magnuson.

However, the Riverkeeper Motion to Intervene was not without opposition, on October 19 the “Georgia Parties”, which includes the State of Georgia, the Atlanta Regional Commission, the City of Atlanta, Georgia, Fulton County, DeKalb County, the Cobb County-Marietta Water Authority, the City of Gainesville, Georgia, and the Lake Lanier Association argued against granting the motion.

The “Georgia Parties” argued that the City of Apalachicola and the State of Florida adequately represented the Riverkeeper interests in the suit and that the alignment of interests was so close that the Riverkeeper was able to simply adopt the City of Apalachicola’s complaint.

However, the Riverkeeper contended and successfully argued that the City of Apalachicola did not adequately represent their interests.

The group emphasized that it represents a unique and specialized interests of its members who seek stewardship and advocacy for the protection of Apalachicola River, Bay, tributaries, and watersheds in order to improve and maintain its environmental integrity.

The environmental group pointed out that governmental entities such as the City of Apalachicola seek to protect interests such as tax revenue, property values, water availability, and permitted water uses and because of this, the City of Apalachicola did not necessarily adequately represent their interests.

In his order, Judge Klindt concluded that the Riverkeeper had a right to intervene and that neither the City of Apalachicola nor the State of Florida adequately represented the groups interests.

However, in his ruling the Judge set forth the following conditions.

The Riverkeeper cannot challenge the completeness and adequacy of the Administrative Record. They cannot seek any deviation from the Fifth Amended Scheduling Order. The group must comply with and not seek any deviation from the deadlines set in the Court’s November 2, 2009 Order.

Furthermore, the defenses, denials, and uncontested admissions previously raised by the parties to the City of Apalachicola’s Amended Complaint apply with equal effect to the allegations in the Riverkeeper complaint, except that any party, if it so desires, may answer the Riverkeeper allegations differently.

Moreover, the Riverkeeper must comply with the briefing page limits set in the Court’s November 2, 2009 Order and the group must not seek to introduce expert testimony, however they may rely upon the expert testimony presented by other parties.

USA Today

Ruling leaves North Georgia with water crisis

The Jacksonville Observer

Despite Landmark Ruling, Waters Wars Will Likely Continue

Judge rules in 20-year old Water War

On Friday, July 17, United States District Court Judge Paul A. Magnuson for the middle district of Florida issued a ruling in the 20-year old Tri-State Water Rights Litigation favorable to Florida, Alabama, and the City of Apalachicola.

In a ninety-seven page order, Judge Magnuson stated that, “the Corps’s failure to seek Congressional authorization for the changes it has wrought in the operation of Buford Dam and Lake Lanier is an abuse of discretion and contrary to the clear intent of the Water Supply Act”.

Consequently, Magnuson granted in part Florida, Alabama and the City of Apalachicola’s motion for summary judgment.

In doing so, the judge stayed phase one of the litigation for three years to allow the U.S Army Corps of Engineers the opportunity to obtain Congressional authorization for the operational changes requested by the Metro-Atlanta area to Buford Dam.

During the stay, the Court ordered that the current level of water withdrawn from the Apalachicola-Chattahoochee-Flint (ACF) river system remain the same and ordered that the Corps not increase levels without an agreement from all parties involved, which includes the City of Apalachicola.

The Court further ruled that at the end of the three-year period, without Congressional approval or some other resolution, the level of water withdrawn would return to the baseline levels of mid-1970. That would require that the off-peak water flow return to 600 cfs and that only the Cities of Gainesville and Buford would have authorization to withdraw water from the system.

Judge Magnuson rightly recognized that the U.S. Army Corp of Engineers are not the sole blame for this dilemma, the judge cited as part of the problem local government’s allowance of unchecked growth and the like of sufficient planning for the resources unchecked growth requires.

By entering the historic lawsuit the City of Apalachicola has effectively secured itself a seat at the table, should anytime over the next three-years an agreement is negotiated outside of Congress, by the parties to the lawsuit. As a result, city officials are pleased with the outcome of the Court’s ruling.

The city entered the litigation on January 17, 2008, out of concern that the reduction of freshwater flow in the river system was causing irreparable harm to Apalachicola River and Bay and subsequently to the city’s way of life.

ACF Stakeholders Update

*NOTE: Along with other stakeholders of the Apalachicola, Chattahoochee, Flint River System (ACF), I received the following correspondence via electronic mail this past Wednesday, June 3, 2009, from Michael Sole, Secretary of Florida Department of Environmental Protection.

ACF Stakeholders,

I am writing to update you on our continued objections to the U.S. Army Corps of Engineers’ management of Jim Woodruff Dam. I also want to provide you with information about discussions that Governor Crist and I had last week with Secretary of the U.S. Department of Interior Ken Salazar.

On May 8, I wrote Colonel Byron Jorns, the Corps District Commander, asking him to review and correct an erroneous Corps staff reinterpretation of the Revised Interim Operations Plan (RIOP) for Jim Woodruff Dam, which extended the drought operations in the ACF Basin resulting in undue favor to upstream interests. Through this new interpretation, the Corps decided to limit composite storage in determining if drought operations should be discontinued, thereby avoiding suspension of drought operations which would require the Corps to release more water from Lake Lanier. The ongoing drought operations reduce flows faster than called for under the RIOP and deprive the Apalachicola River and Bay of modest protections which are particularly important to Florida because we are well into the riverine spawning season of listed and other species.

I again wrote Colonel Jorns on May 18 with the same request. On May 13 the Corps had acknowledged that the ACF composite conservation storage had entered Zone 2, which is the unconditional trigger for suspending drought operations. However, the Corps advised that they would not consider suspension of drought operations at that time and would reevaluate the issue on June 1.

On May 22, Colonel Jorns responded to my letters stating that the Corps’ operations are consistent with the RIOP and that it is likely that when they make their next assessment on June 1, drought operations will no longer be warranted under the conditions in the RIOP.

I called Colonel Jorns yesterday morning to confirm that the Corps had suspended drought operations after Monday’s assessment. He said that they had done so and have resumed non-drought operations under the RIOP.

On May 28, Governor Crist and I toured the Everglades with Senator Nelson and Secretary of the Interior Ken Salazar to discuss Florida’s natural resources, including the long-term needs of the ACF river basin. In a letter to Secretary Salazar after the tour, Governor Crist requested Secretary Salazar’s assistance and attention to the important environmental issues of the ACF river basin, emphasizing the need for a long-term solution. Governor Crist urged the Department of Interior to “engage in meaningful and independent participation as the three states look to an equitable sharing of this precious resource.” The Governor also requested that the Department of Interior “conduct a comprehensive review of the cumulative downstream effects that have occurred to threatened and endangered species, as well as the environment on which they depend.”

Mike Sole, Secretary
Florida Department of Environmental Protection

Everyone should've had a dog in the fight

Upon further reflection, I like to commend the leadership of the Apalachicola Board of City Commissioners for their foresight and fortitude in entering the tri-state water wars litigations. As the 20-year old court battle nears its end, it appears that not only was it the right thing to do, but also the only thing to do.

At Monday’s May 11, hearing in Jacksonville, it appeared that every community upstream of Apalachicola from the smallest hamlet to metro Atlanta had a seat at the table arguing their rights to the waters of the Apalachicola/Chattahoochee/Flint (ACF) River System.

From the key tri-state players, Florida, Alabama and Georgia to the Southeastern Federal Power Company Customers, along with the Atlanta Regional Commission which represents four Georgia counties in addition to the cites of Gainesville and Atlanta. Even the Lake Lanier Homeowners Association along with the Alabama Power Company all had seats at the table.

What’s particularly noteworthy is that the Lake Lanier Homeowners Association is made up of a group of lake front residents, individuals, businesses, boaters, and fishermen, which felt compelled to enter the fray to fight for their rights to this limited natural resource.

I commend this group as well, for realizing early on that the tri-state water rights conflict was a high stakes game and for stepping in to protect the water levels around their lake front homes.

Which is and should be very important to them, likewise the protection of the estuary of Apalachicola River and Bay should’ve been just as important to every man, woman, child, shrimper, oysterman, businessman and elected official whose communities boarders the ACF.

However, the only Florida defenders at the table during the May 11, hearing were the State of Florida itself, and the small city of Apalachicola.

Everyone else in the State that boarders the ACF or depend upon its resources only contribution appears to have been a large dose of lip service and a letter writing campaign.

In fact, the Lake Lanier Homeowners Association is now gearing up for phase two of the battle by soliciting donations through their website to help fund their legal war chest.

For the rest of us downstream, I just hope that at the end of day, the old saying, “you want miss the water until the well runs dry” isn’t true.

Tri-State Water Wars

A good day in court

Late yesterday May 11, City Attorney J. Patrick Floyd called from Jacksonville to report that he felt all went well for Florida, Alabama, and the City of Apalachicola in the hearing to resolve the nearly 20-year old tri-state water wars between Florida, Alabama, and Georgia.

The hearing scheduled before the Honorable U.S. District Court Judge Paul A. Magnuson for the Middle District of Florida was to determine whether metro Atlanta has the right to use Lake Sidney Lanier as its primary municipal water supply.

Judge Magnuson, appointed to the U.S. District Court for the District of Minnesota by President Ronald Reagan in 1991, was selected to oversee the tri-state case because of his prior experience in water rights litigations.

According to Floyd, from the onset the Minnesota Judge limited both sides to only one hour to make their opening and closing arguments, and questioned why Georgia didn’t take their concerns for additional water allocations directly to Congress.

Lake Lanier is a storage reservoir created in 1956 by the completion of Buford Dam, its primary use as authorized by Congress is to provide for hydroelectricity and flood control. The use of the lake for municipal drinking water is an incidental use secondary to hydroelectricity.

The City of Apalachicola entered into the litigation because of the irreparable harm imposed upon the ecosystem and our way of life by the U.S. Army Corps of Engineers decision to supply Atlanta its drinking water by restricting vital freshwater flows down the Apalachicola River Basin contrary to authorized congressional use.

In addition, city officials felt that the issue was of local significant not to relegate our responsibility to fight for the residents of our community to others.

Floyd further reported that the Judge indicated that it would take some time before he would render his decision, however the city attorney surmised that it could be within a month.

City may seek award for damages

Since the late seventies, the U.S. Army Corps of Engineers systematically and illegally restricting freshwater flow down the ACF River Basin to the detriment of the environment and economy of the City of Apalachicola.

After witnessing decades of decline in the reproductive strength of the Apalachicola River and Bay, in January 2008, we filed suit in the federal district court for the Northern District of Florida challenging the Corps management and operation of the ACF facilities.

We challenged the Corps failure to complete an adequate National Environmental Policy Act (NEPA) review when it issued the original Interim Operations Plan (IOP), the modified IOP, and the Exceptional Drought Operations (EDO) modification to the modified IOP and their failure to comply with the environmental assessments requirements under the Coastal Zone Management Act (CZMA). The City was the first and only litigant to bring forth issues based upon the CZMA.

Further, the various contracts entered into by the Corps, which provides for withdrawals for purposes other than those authorized by law, and the Corps’ application of the draft water control plan violated and continues to violate the Water Supply Act, Flood Control Act, and NEPA.

After filing, the court consolidated our case with six others cases that dated back to 1990 and transferred the litigation to the federal district court for the Middle District of Florida before U.S. District Court Judge Paul A. Magnuson.

On Friday, January 23, City Attorney J. Patrick Floyd filed a motion for summary judgment, a move that could end the 20-year-old litigation. Giving the February 2008 ruling of the District Court of Appeals and the U.S. Supreme Courts recent refusal to hear Georgia’s appeal, we are very optimistic that the Consolidated Case will prevail.

Should that be the case and the suit reaches the remedy stage, I have already discussed with Floyd the possibility of the City filing a separate motion seeking a monetary award for the damages caused by the Corps illegal actions upon the economic livelihood of the citizens of Apalachicola.

Supreme Court delivers blow to Georgia

On Monday, January 12, the U.S. Supreme Court refused to hear the State of Georgia’s petition to overrule the District Court of Appeals February 5, 2008 ruling in the ongoing water war between Florida, Alabama, and Georgia. In February, the lower court ruled that the reallocation of Lake Lanier’s storage space constituted a major operational change that had not been authorized by Congress.

Although the earlier decision by the lower court was a major ruling for the local seafood industry and the citizens of Franklin County. The U.S. Army Corps of Engineers has yet to comply with the ruling and it remains to be seen whether Monday’s inaction by the Supreme Court will carry any weight with the Corps.

However, the city of Apalachicola remains dedicated to the protection of our water resources and we refuse to relegate to others our elected duty to safeguard the livelihood of our citizens.

Water War Update

Just in from the Florida Department of Environmental Protection (FDEP).

Kelly Layman, FDEP Chief of Staff, periodically provides ACF stakeholders with updates on the ongoing water war between Florida, Georgia, and Alabama.

The City of Apalachicola joined the water war by filing suit against the U.S. Army Corps of Engineers in early January. The city entered the litigation out of concerns that the reduction of freshwater flow was causing irreparable harm to Apalachicola Bay and subsequently to our way of life.

The city’s filing was consolidated into the multidistrict litigation in the U.S. District Court in Jacksonville, where Judge Paul A. Magnuson announced in August that he would render a decision resolving the litigation as early as January 2009.

In her December 8 email correspondence, Ms. Layman reported the following:

Florida and Alabama filed a joint brief on Friday in the U.S. Supreme Court in opposition to Georgia’s appeal. The appeal asks the U.S. Supreme Court to hear the D.C. Circuit Court of Appeals ruling, in which Florida and Alabama prevailed when that court nullified the 2003 agreement between the U.S. Army Corps, Georgia, and Atlanta area water suppliers, saying, among other things, that the agreement changed the purposes of Lake Lanier and required approval from Congress. We are hopeful that Georgia’s pending ask for writ of certiorari to have the case heard by the U.S. Supreme Court will be rejected. The joint brief by Florida and Alabama has been posted to the ACF area of the DEP web site: http://www.dep.state.fl.us/mainpage/acf/timeline.htm.

While I’m here, we also look forward to a final decision in the pending “consolidated case” in the spring of 2009 and a ruling that would continue the momentum of the past year in Florida’s legal victories. We are very thankful to the ACF legal and scientific teams for their very hard work and multiple successes in 2008.

DEP wishes each of you a happy and blessed holiday season.

Kelly Layman
Chief of Staff, Florida Dept. of Environmental Protection

Obama supports Apalachicola Bay

On Thursday, October 16, the Barack Obama Campaign for Change announced the Presidential candidate’s plan to protect the Apalachicola/Chattahoochee/Flint (ACF) River System.

At the St. Andrews Marina in Panama City, Florida, residents, commercial fishermen, elected officials and other local stakeholders were on hand to hear the Campaign for Change announce Obama’s plan.

The plan first acknowledged, that the reduction of freshwater flow of the Apalachicola River before it empties into Apalachicola Bay – threatens the livelihood of the local commercial fishing industry, which is responsible for $134 million in economic output and an additional $71 million in value-added impacts.

Obama has pledged that if elected President he will make protecting Florida’s water resources a priority.

His plan calls for ending the 20-year old Water War between Florida, Georgia, and Alabama and the subsequent lawsuits by utilizing sound science to help stakeholders reach an equitable solution. The difference this time is that as President, Obama would direct the National Research Council (NRC) to conduct a study to assess the water availability, supply options, and demand-management alternatives that factor into ACF River System usage, as well as the impact of freshwater flow on the ecology of the Apalachicola River and Bay.

In early January, after no signs of resolution and no leadership coming from our elected County and State Officials, the City of Apalachicola felt alone and restricted, so we took the only action we felt necessary for the continued existence of the Apalachicola River and Bay. The City petitioned the courts to declare unlawful the U.S. Army Corps of Engineers actions in reducing freshwater flow as a response to the drought in Atlanta.

As Mayor, I find it encouraging and inviting that Barack Obama has brought to the National forefront, this vital economic issue that is important to more than 800 Franklin County families who make their living from the waters of the Apalachicola River and Bay.

Dr. Robert “Skip” Livingston’s Report

Attached, is a must-read report titled, “Importance of River Flow to the Apalachicola River-Bay System”, the report commissioned by the Florida Department of Environmental Protection (FDEP) and written by Dr. Robert “Skip” Livingston of Florida State University’s Department of Biological Science.

Kelly Layman, FDEP Chief of Staff sent the report to all stakeholders, elected officials and interested parties along the ACF River Basin, and asked that we review the contents of the report.

In addition, Layman stated in part, “that the report is an important and comprehensive summary on the ACF (Apalachicola-Chattahoochee-Flint) River Basin.

She futher stated, “that the report provides a summary of the broad, extensive research conducted and peer-reviewed over many years on the Apalachicola River and Bay ecosystem, and that the report includes research results and scientific modeling on how flows affect nutrient transport, river and bay productivity and diversity, and individual species”.

Click here to review the Report:

Army Corps Response Letter

Attached, is a copy of the letter recently received from Brigadier General Joseph Schroedel with the U.S. Army Corps of Engineers. The correspondence is in response to my July 8 letter sent to the General following a breakfast meeting with representatives from the Corps at the Gibson Inn in early July.

In my letter, I asked General Schroedel in part why the U.S. Army Corps of Engineers had not changed its Revised Interim Operations Plan (RIOP) on the Apalachicola-Chattahoochee-Flint (ACF) River System to comply with the February 5 ruling of the Federal District Court of Appeals concerning the use of freshwater from the ACF River Basin.

Response Letter

Some People are going to be Hurt

It has been almost a year since the City of Apalachicola filed a lawsuit against the U.S. Army Corps of Engineers for endangering our way of life by reducing the amount of freshwater flow down the Apalachicola-Chattahoochee-Flint River System.

Early on, the court consolidated the lawsuit with the State of Florida and others into a multidistrict litigation in the U.S. District Court in Jacksonville, Florida.

It has been our position all alone that the U.S. Congress would not resolve this 20-year old water war, but that a resolution would come from the courts.

After taking that position, the City of Apalachicola along with two other small Georgia communities bordering the AFC River Basin mounted separate legal challenges aimed at protecting our community’s natural resources and our way of life. To date, Apalachicola is the only Florida community that felt this issue was important enough to take what is emerging to be the only action that is going to resolve the matter.

The Judge assigned to hear the case, U.S. District Court Judge Paul A. Magnuson has announced that he is set and ready to resolve this issue by January 2009. Judge Magnuson has stated that he must first decide whether the Metro-Atlanta area has the authority to continue using Lake Lanier as its main source of freshwater and that the earlier District Court of Appeals ruling would have a bearing on the current litigation.

The early Appeals Court ruling stated in part that the taking of water from the federal reservoirs at Lake Sidney Lanier for municipal purposes was not an authorized congressional use. Should Judge Magnuson rule accordingly, Atlanta would have to start looking for a new source of drinking water.

This is the same account City Attorney Pat Floyd, reported to the City Commission at our August 5 meeting when he quoted, Judge Magnuson as saying at the July 21 hearing held in Jacksonville, “some people are going to be hurt a lot and some are going to be helped a little”.

Boyd to Host ACF River Forum

Congressman Allen Boyd has scheduled a Congressional Forum in Chattahoochee on July 21, to discuss the impact the southeastern drought and low freshwater flows are having on the ACF River System.

Invited to participate in the forum are representatives from the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, Florida’s stakeholders, local business owners, local oystermen, and experts on the ACF River System.

Maybe during this forum the Florida stakeholders will seize the opportunity to urge Congressman Boyd to use his influences to insist upon the U.S. Army Corps of Engineers compliance with the U.S. District Court of Appeals February 5, 2008, ruling.

Afterward, should the ACOE continue to disregard the Courts ruling then the stakeholders should join to create an ACF River System Legal Defense Fund to fight for the preservation of our Apalachicola Bay and River System.

If we are not willing to stand and fight to protect our own way-of-life, then how can we honestly expect someone else to do so?

Click HERE to review the U.S. District Court of Appeals Ruling.

Letter to Army Corps of Engineers

Attached, is a copy of the letter I forwarded to Brigadier General Joseph Schroedel and Mr. Wayne Fuller, both with the U.S. Army Corp of Engineers. The letter was prompted following a breakfast meeting at the Gibson Inn with representatives from the Crop concerning the reduction of freshwater flow into the ACF River System.

Letter to the ACOE

ACF River System Needs Freshwater

As I applaud Senator Bill Nelson and Congressman Allen Boyd for their introduction of legislation, calling for a comprehensive study of the water management needs along the Apalachicola-Chattahoochee-Flint (ACF) River System, at the same time, I welcome both men to the front line of the water war.

For almost a year now, as we witnessed further reductions in water flow, it appeared as if the small community of Apalachicola stood alone in the struggle to impede the Army Corp of Engineers from causing irreparable harm to the Apalachicola Bay and River System.

The justification for such a comprehensive study as announced in Senator Nelson and Congressman Boyd June 18, press release, suggests that the earlier Corps decision to reduce freshwater flow was made without the benefit of scientific data or a formula as to the amount of freshwater Apalachicola Bay needs to remain a healthy, productive Bay.

Before the Army Corps of Engineers allowed a reduction in water flow, they should have already had the data necessary to foresee the damage it could cause. This precipitous action has already caused significant damage to the reproductive strength of the bay.

Creation and funding of a study at this time is very notable. There is far too little science available to justify any action by the Corp of Engineers. However, it is quite possible that the Bay cannot survive the two years it will take to complete the scientific research. We need action now to prevent further deterioration of the essential natural resource that is made up of the Apalachicola river system and bay. I call on both Senator Nelson and Congressman Boyd, without hesitation, to follow their creation of a study with the introduction of emergency legislation that guarantees the return of historic water levels in the river system and prevent any further decisions that will reduce flow by the Corp of Engineers while the study is being completed.

The noticeable harm that continued reduction of freshwater flow is having on my community should be paramount to both congressional representatives and to every stakeholder along the Apalachicola-Chattahoochee-Flint (ACF) River Basin. A comprehensive study is good, but we need freshwater and we need it now.