Apalachicola-Chattahoochee-Flint (ACF) Drought: Federal Water Management Issues
Apalachicola-Chattahoochee-Flint (ACF) Drought:
Federal Water Management Issues
Updated May 1, 2008
Nicole T. Carter, Coordinator
Resources, Science, and Industry Division
M. Lynne Corn, Amy Abel, Stan Mark Kaplan,
and Eugene H. Buck
Resources, Science, and Industry Division
Cynthia Brougher and Kristina Alexander
American Law Division
Key Policy Staff
Water projects, Nicole T. Carter7-0854
Army Corps of EngineersSpecialist in Natural Resources Policy
Endangered speciesM. Lynne Corn7-7267
Specialist in Natural Resources Policy
Eugene H. Buck7-7262
Specialist in Natural Resources Policy
Fisheries and fisheriesEugene H. Buck7-7262
managementSpecialist in Natural Resources Policy
Fishing industry and Harold F. Upton7-2264
disaster assistanceAnalyst in Natural Resources Policy
Agricultural water use andJeffrey A. Zinn7-7257
conservationSpecialist in Natural Resources Policy
Agricultural disaster assistanceRalph M. Chite7-7296
Specialist in Agricultural Policy
Drought forecasts and climatePeter Folger7-1517
Specialist in Energy and
Natural Resources Policy
Electricity infrastructureAmy Abel7-7239
Specialist in Energy Policy
Electric power generationStan Mark Kaplan7-9529
Specialist in Energy and Environmental
Water qualityClaudia Copeland7-7227
Specialist in Resource and
Environmental law, Kristina Alexander7-8597
National Environmental PolicyLegislative Attorney
Water resources litigationCynthia Brougher7-9121
Apalachicola-Chattahoochee-Flint (ACF) Drought:
Federal Water Management Issues
Drought in the Southeast has brought congressional attention to an ongoing
interstate conflict among Alabama, Florida, and Georgia over water allocation in the
Apalachicola-Chattahoochee-Flint (ACF) river system. Drawdown of Lake Lanier,
the uppermost federal reservoir in the ACF basin, in fall 2007 to support minimum
flows in the lower basin’s Apalachicola River escalated the conflict. The Atlanta
metropolitan area’s municipal and industrial water users are concerned about
drawdown of their principal (in some cases, their only) water supply. They question
the justification for the minimum flow requirements. Lower basin stakeholders are
concerned about sustaining river flows to meet their municipal, electricity, and
ecosystem needs and are questioning the sufficiency of Georgia’s municipal,
industrial, and agricultural water conservation efforts.
The issue for the U.S. Army Corps of Engineers (Corps) is how to manage
federal reservoirs to equitably meet upper and lower basin multipurpose water needs,
especially during drought. The challenge is complying with federal law (e.g., the
Endangered Species Act (ESA)); minimizing harm to the river and Apalachicola Bay
species, ecosystems, and oyster industry; and providing flows for hydropower and
thermoelectric cooling, while also providing municipal and industrial water supply
security. The Corps’ challenge has increased as basin water demands have increased
(e.g., water supply to support the growing Atlanta metro area, agriculture’s increased
reliance on irrigation, and ecosystem and species needs), creating conflicts between
water in storage and flows for in-stream purposes. Is the ACF a harbinger of
conflicts between ESA implementation and other water uses across the nation? Is the
ACF a testing ground for both federal river management and resource allocation
during drought in multi-state basins with riparian water laws? Legislation in the
ACF drought management may set a precedent for drought responses on other
rivers regulated by federal dams. In November 2007, the Corps began managing the
ACF under an Exceptional Drought Operations (EDO) amendment to its previous
operations plan (which consisted of a 2006 Interim Operations Plan (IOP) amending
a draft 1989 comprehensive plan). The EDO lowered the minimum flow required in
the Apalachicola River and allowed for greater reservoir refill before resuming
normal operations, thus improving upper basin water supply security. Four species
protected by the ESA depend on Apalachicola River flows. The EDO’s immediate
and long-term species impacts continue as subjects of study and debate. The EDO
has not caused significant immediate harm to electricity generation or grid reliability.
The U.S. Fish and Wildlife Service (FWS) approved the EDO through June 1, 2008.
On April 15, the Corps submitted to FWS a modification to the IOP; the Corps
proposes that the modification be implemented starting June 1 until a new long-term
ACF comprehensive plan is adopted. The Corps began revising its comprehensive
plan during the 2007-2008 winter. With the failure of recent efforts by the
Administration to broker a tri-state water allocation agreement by March 2008, the
revision has gained additional significance for the future of ACF river management.
Balancing Storage and In-Stream Flow Tradeoffs ........................1
Federal Dams Regulate for Multiple Uses...........................3
Reservoir Drawdown and Minimum Flows..........................3
Tri-State Water Conflict........................................4
Federal and State Roles in the ACF................................5
ACF Reservoir Operations...........................................6
Corps Operations Plans.........................................6
Exceptional Drought Operations (November 2007-June 2008):
Lower Minimum Flows and More Reservoir Refill...........7
Proposed Modified Interim Operations Plan (June 2008 until
Water Control Plan Is Revised)...........................8
Water Control Plan Revision.................................8
Water Supply Issues: Municipal and Industrial (M&I) and Agricultural........8
Municipal and Industrial Water Supply............................10
Atlanta Area Water Supply.................................10
Agricultural Water Supply......................................12
Georgia’s Emergency Conservation Measures......................14
Drought Management Plan.................................14
Flint River Drought Protection Program.......................15
Ecosystem and Species Issues.......................................16
Bay Ecosystem and Industry....................................16
A Sturgeon and Three Mussels..............................16
EDO ESA Consultation........................................17
Biological Assessment of the EDO...........................18
Biological Opinion for the EDO.............................18
Incidental Take Statement and Reasonable and Prudent Measures...18
ACF and Southeast Water Supply Related Legislation....................19
ESA Changes — H.R. 3847 and S. 2165...........................19
Apalachicola River Ecosystem Restoration — H.R. 2650.............19
21st Century Water Commission — H.R. 135.......................20
Southeastern Watershed Management Study — H.R. 5587............20
ACF in the Federal Water Policy Context: Conclusions...................20
Appendix A. ACF Compact and Lawsuits..............................22
Appendix B. NEPA and Current ACF Operations.......................29
Appendix C. ACF Electric Power Generation Issues.....................33
Figure 1. ACF Dams and Selected Power Plants..........................2
Drought: Federal Water Management Issues
Balancing Storage and In-Stream Flow Tradeoffs
Recent drought in the Southeast has intensified a tri-state water conflict
involving Alabama, Florida, and Georgia over water allocation and management in
the Apalachicola-Chattahoochee-Flint (ACF) river basin (see Figure 1). The water
at stake is vital for the basin’s municipalities and industries. These include the
Atlanta metropolitan area’s populace, industry, and recreational economy;
hydropower dams and cooling of thermoelectric power plants throughout the basin;
lower basin navigation interests; agriculture, including irrigators; and the regionally
significant Apalachicola Bay oyster industry. The water also is vital to threatened
and endangered species and basin ecosystems. Management of the current drought
may shape long-term ACF management, set precedents for future federal drought
responses, and affect the role of the Endangered Species Act (ESA) in water
resources management. For more information on ACF species issues, see CRS
Report RL34440, Apalachicola-Chattahoochee-Flint Drought: Species and
Ecosystem Management, by M. Lynne Corn et al.
Drought has escalated competition for the water in federal ACF reservoirs. A
central issue for the U.S. Army Corps of Engineers (Corps) is how to manage its
reservoirs to meet municipal and industrial (M&I) water needs equitably in the upper
and lower basin, while complying with federal law (e.g., ESA) and minimizing harm
to river and bay ecosystems. The operation of federal reservoirs shapes both the
quantity of stored water and the river flows. Predictions for a continued drought
have Georgia’s upper basin municipal and industrial users concerned about depletion
of their principal (and, in some cases, their only) water supply — Lake Lanier —
which is slow to refill because of the limited drainage area feeding into it. Lower
basin interests (including those in southwest Georgia) are concerned about current
and future river flows to meet their municipal, electricity, and ecosystem needs.
This report provides an introductory analysis of federal water management
issues in the ACF, particularly during drought. The report underscores that decision-
makers are faced with the tradeoff of the current harm that reduced flows may cause
aquatic species against the benefits of maintaining water in storage for future multi-
purpose use later. The first section briefly introduces the basin’s water resources and
related federal issues. The second section summarizes current federal reservoir
operations. The third section discusses how the municipal, industrial, and agricultural
uses of ACF waters affect federal reservoir management. The fourth section covers
how species protections affect Corps operations and how Corps operations may affect
protected species. The fifth section briefly discusses legislation in the 110th Congress
related to the ACF and water supply and management issues in the Southeast. The
report concludes with comments about the ACF in the broader context of federal
water policies and projects. Many aspects of the complex ACF management issues
are not discussed in detail (e.g., ACF navigation and recreation issues, the influence
of the Alabama-Coosa-Tallapoosa (ACT) basin).
Figure 1. ACF Dams and Selected Power Plants
Source: Adapted from a Corps map at [http://www.sam.usace.army.mil/Drought2007/droughtacf.htm].
Federal Dams Regulate for Multiple Uses
The ACF basin drains areas of northern and western Georgia, southeastern
Alabama, and northwest Florida. (See Figure 1.) The basin extends from the Blue
Ridge Mountains to the Gulf of Mexico at Apalachicola Bay. Congress authorized
construction of federal facilities for water resources development of the ACF in 1945
and 1946.1 The Corps now operates five dams — four on the Chattahoochee and one
on the Apalachicola River at the confluence of Chattahoochee and Flint Rivers. Four
of these dams store water: Buford Dam forming Lake Lanier (62% of the Corps’
ACF storage capacity), West Point (18%), W. F. George (14%), and Woodruff
forming Lake Seminole (6%). Woodruff’s limited storage is primarily for flow
regulation and does not function as a water storage reservoir for ACF operational
purposes. These four facilities and other nonfederal dams in the ACF also house
hydroelectric facilities. The fifth federal dam — Andrews Dam — is operated for
navigation and has no storage capacity. No water storage facilities have been built
on the Flint River.2
Water resource use in the ACF has changed since the planning and construction
of the reservoirs, which originally were justified based on their navigation,
hydropower, and flood control benefits. For example, the Atlanta metro area has
developed into a significant economic and population center; basin agriculture has
become more dependent on irrigation; and environmental quality and species
concerns receive greater public attention and federal protections. These and other
factors have increased competition for ACF waters and produced conflicting interests
in maintaining water in storage and maintaining river flows for in-stream purposes.
Reservoir Drawdown and Minimum Flows
It is often difficult to recognize when a drought is starting, and it is challenging
to make decisions that entail tradeoffs between current and future costs and benefits
based on expectations about when a drought may end.3 The current drought is
already eclipsing conditions experienced by Georgia during the mid-1950s, which is
considered the state’s most severe drought on record.
1 Rivers and Harbors Act of 1945 (59 Stat. 10); and of 1946 (60 Stat. 634, 635).
2 In the 1960s and 1970s, three Corps dams were considered on the Flint River; they were
never built and were later deauthorized in §1002 of the Water Resources Development Act
(WRDA) of 1986 (P.L. 99-662.)
3 While this report does not specifically discuss climate change, questions often are raised
about the relationship between climate change and the possibility for increased drought and
other changes to the hydrologic cycle. Increasing temperatures from climate change are
expected to result in future hydrologic changes, but there are major uncertainties in making
detailed projections of those changes at the scale of drainage basins, such as the ACF basin.
(See, for example, the Intergovernmental Panel on Climate Change, Working Group II
Report (p. 201), at [http://www.ipcc-wg2.org/].)
The year 2007 was the second-driest on record for Atlanta, following 2006,
which also was dry. As runoff in the basin fell below the flows necessary to meet
both consumptive demand (i.e., M&I and agricultural uses) and in-stream flow
requirements (e.g., for species and thermoelectric power plant cooling purposes),
water stored in the reservoirs was released to meet these needs. The lower basin
reservoirs were drawn down first. In late summer 2007, Lake Lanier was the only
reservoir with significant remaining storage. When the Corps released water from
Lake Lanier in the upper basin to provide minimum flows in the Apalachicola River
in the lower basin, the lake experienced significant drawdown, surpassing the
reservoir’s previous record low and triggering urgent concern from lake Lanier water
users and recreational interests.
Lake Lanier water storage is of critical concern because it provides 72% of the
water supply for the Atlanta metro area and more than 62% of the storage space in
federal ACF reservoirs, but refills slowly. The drainage area feeding the lake is only
Lake Lanier’s drawdown escalated the conflict among the three states. Without
a water allocation agreement or decision to guide distribution of available supply
among the states, lower basin stakeholders began questioning the sufficiency of
Georgia’s municipal, industrial, and agricultural long-term and emergency water
conservation and demand management efforts. Upper basin stakeholders questioned
the justification for the minimum flow requirements in the Apalachicola River and
cited the Corps’ operating procedures, which had been adopted in 2006 to protect
threatened and endangered species, as significantly increasing the risk of depleting
ACF reservoirs by allowing their drawdown and insufficient opportunity for refill.
Tri-State Water Conflict
In the 1970s and 1980s, Georgia officials became increasingly concerned with
water supply for the Atlanta metro area’s growing needs. The Corps in 1989 agreed
to provide storage space for roughly twice as much M&I water in Lake Lanier by
reallocating space from hydropower to water supply; this decision resulted in
Alabama and Florida suing the Corps based on the impact that the reallocation would
have on the lower basin and for a failure to comply with National Environmental
Policy Act (NEPA) (42 U.S.C. §§ 4321 et seq.).5 (See Appendix A for an
introduction to selected ACF suits in federal courts and the history of efforts to
establish an ACF Compact. For a discussion of how NEPA relates to current ACF
operations, see Appendix B). The reallocation question has yet to be resolved.
Since this first suit, ACF waters have been the foundation of multiple ongoing legal
4 Testimony by Brigadier General Joseph Schroedel, Corps South Atlantic Division
Commander, before the U.S. Senate Committee on Agriculture, Nutrition, and Forestry, at
a hearing on the Effect of Corps’ Operation of the ACF and ACT River Basins on Georgia’s
Agricultural Community, October 24, 2006.
5 J. W. Hull, The War Over Water, Southern Legislative Conference (October 2000), at
[http://trendsinamerica.org/pubs/Documents/slc-0010-warwater.pdf]; J. Clemons, Water-
Sharing Compact Dissolves, Water Log (2003), at [http://www.olemiss.edu/orgs/SGLC/
disputes and the subject of a tri-state water compact that failed when the states could
not agree on how to allocate basin waters.
When states are the parties disputing water allocation, the conflict may be
resolved by agreement in an interstate compact,6 through apportionment by the
courts,7 or through allocation by Congress.8 The water rights doctrines operating in
the ACF states makes allocation particularly challenging. Alabama, Florida, and
Georgia, like most eastern states, generally follow a riparian water rights doctrine,
which permits those whose lands border waters to use them in a way that is
reasonable relative to other users. When the water quantities are insufficient to meet
all reasonable needs, all users are to reduce their usage proportionally.9 In contrast,
most western states follow a prior appropriation doctrine, which provides a superior
right to those who first put the water to use. When quantities are insufficient to meet
all needs, those with the superior right receive their allocation first, and others
receiving their share in order of priority. Because the ACF states follow the riparian
rights doctrine, their relative rights to use the water are not determined by priority
during drought. How to resolve water allocation during drought in a riparian context
has few precedents, thus contributing to the challenge of the three states in
successfully negotiating a water allocation compact. The three states most recently
failed at such an effort in 2003 (see Appendix A).
Federal and State Roles in the ACF
The federal government has authority under the Commerce Clause of the U.S.
Constitution to manage the nation’s water resources, but it recognizes the states’
authority to allocate and use water within their jurisdictions. Federal laws often
require federal agencies engaged in water resources management to defer to state
laws or cooperate with state officials in implementing federal laws. Although a state
generally has broad authority over waters within its border, exercise of its intrastate
authority cannot entirely dismiss the interests of other states. In the case of the ACF,
although the three states have authority over their waters, federal investments were
built and are operated for multiple purposes, thus affecting the states’ water use.
6 Generally, interstate compacts, which create a binding agreement between two or more
states, require congressional approval in addition to approval by the states involved in the
agreement. (U.S. Const., Art. I, § 10, cl. 3.)
7 The U.S. Supreme Court has original jurisdiction to hear disputes between states. (U.S.
Const., Art. III, § 2, cl. 1.) In the case of the ACF litigation, no state has sued another state,
and therefore the cases must be heard first by lower courts.
8 Congress may apportion interstate waters under its power to regulate interstate commerce.
(See U.S. Const., Art. I, § 8, cl. 3; Arizona v. California, 373 U.S. 546 (1963).) Although
Congress has the authority to act in the interest of interstate commerce, congressional
allocation in such conflicts is rare.
9 The riparian system of water rights generally applies to individuals’ use of water from
shared waterways. The Supreme Court has established a federal common law method of
resolution known as equitable apportionment when disputes between states come before the
Court. Equitable apportionment decisions attempt to balance the benefits and right to use
the water among the states involved. See Kansas v. Colorado, 206 U.S. 46 (1907); Colorado
v. New Mexico, 459 U.S. 176 (1982).
That is, the basin’s federal dams regulate the flows of the Chattahoochee and
Apalachicola Rivers, thereby shaping the states’ water use. Federal laws also shape
dam operations. Most recently, protection of species protected under the federal ESA
has become a significant factor in ACF dam operations. Additionally, certain federal
actions must be reviewed under NEPA.
ACF Reservoir Operations
Corps Operations Plans
As a consequence of the extensive ACF litigation and the absence of an
agreement on allocating water among the three states, the Corps operates the ACF
dams based on piece-meal guidance that has not received comprehensive analysis,
review, or comment. That is, current operations are conducted under a 2007
exceptional drought modification to a 2006 interim plan for Woodruff Dam, that
amended the 1989 draft plan for the entire ACF, as explained below.
In June 1990, the Corps began operating the ACF under its October 1989 Draft
Apalachicola-Chattahoochee-Flint Basin Water Control Plan (WCP). The 1989
WCP has not been finalized due to litigation and expectations before 2003 for a
negotiated agreement on tri-state water allocation. Under the WCP, the Corps largely
operated the reservoirs to meet the multiple uses in the basin while maximizing the
quantity of stored water. The WCP established operational zones for the federal
reservoir; these operational zones signaled to the Corps how to manage reservoir
releases based on changing storage volumes over the course of the year.
With the failure of the compact negotiations, the Corps had to address the ESA
issues in the lower basin without a tri-state water allocation agreement. After years
of informal communications and months of formal consultation with the U.S. Fish
and Wildlife Service (FWS), the Corps adopted the Interim Operations Plan (IOP)
for Woodruff Dam in October 2006.10 The plan is interim until an updated
comprehensive ACF water control plan is adopted. The IOP added new in-stream
Apalachicola River flow requirements for protection of threatened and endangered
species to the Corps’ ACF operational decision criteria. The IOP established
minimum flows in the Apalachicola River based on different inflow rates into ACF
reservoirs. The IOP, therefore, left in place the operational zones of the 1989 WCP
but constrained the Corps’ operations by requiring it to meet minimum flow
requirements in both normal and dry conditions. Under the IOP, the Corps would
make releases from reservoir storage to meet in-stream flow requirements if inflow
into the reservoirs was insufficient to support the minimum flows.11 In sum, the IOP
10 The IOP is integrated into the agency’s Environmental Assessment Interim Operations
Plan for Support of Endangered and Threatened Species, Jim Woodruff Dam (October
2006), available at [http://www.sam.usace.army.mil/ACF%20Water%20Resources%20
Management/J WDSect7/J WD_IOP_FONSI_ EA/ IOPFi na l EA.pdf ] .
11 The use of inflow into reservoirs, rather than unimpaired runoff in the basin, to guide
operations is contentious because inflow does not account for consumptive uses that might
resulted in both the 1989 WCP operational zones and the IOP minimum flows
guiding Corps’ ACF operations during 2007.
The IOP is the subject of litigation (see Appendix A) and of upper basin
interests’ criticisms of the Corps’ reservoir management during 2007. They argue
that the Lake Lanier drawdown in 2007 under the IOP created an unnecessary risk of
system storage depletion in an effort to provide minimum flows that have not been
scientifically justified. Others argue that system storage should be used to support
species during dry conditions because the ACF ecosystems and species have been
compromised by the cumulative long-term impacts of federal reservoir management
and the basin’s municipal, industrial, and agricultural water use.
Exceptional Drought Operations (November 2007-June 2008):
Lower Minimum Flows and More Reservoir Refill. On November 15, 2007,
the Corps began operating under an Exceptional Drought Operations (EDO)
modification to the IOP. The Corps proposed the EDO on November 1, 2007, and
requested an expedited ESA consultation and Biological Opinion by the FWS to
determine whether the EDO would jeopardize any of the four listed species. The
Biological Opinion (hereafter referred to as the BiOp for the EDO) approved the
EDO through June 1, 2008, with some stipulations.12 (See further discussion in CRS
Report RL34440, Apalachicola-Chattahoochee-Flint Drought: Species and
Ecosystem Management, by M. Lynne Corn et al.)
The significance of the EDO was that by reducing the minimum flow
requirement for the Apalachicola River more water was stored in basin reservoirs.
The EDO also largely lifted operational guidelines of the IOP until reservoir storage
significantly refilled. The EDO, therefore, reduced the rate of drawdown as dry
conditions persisted and allowed reservoirs to refill more quickly as climate
conditions improved. One justification provided for the lower minimum flows was
to lessen the risk of much lower flows in later months or years, if the drought
continues. In effect, the EDO risked some harm to the species now, to reduce the risk
of greater harm later.13 The effects of the lower flows on electricity generation also
occur above a reservoir, such as irrigation in the Flint River sub-basin above Lake Seminole.
12 FWS, Amended Biological Opinion and Conference Report on the U.S. Army Corps of
Engineers, Mobile District, Exceptional Drought Operations for the Interim Operations
Plan for Jim Woodruff Dam and the Associated Releases to the Apalachicola River (FWS,
Panama City, FL: Nov. 15, 2007), hereafter referred to as BiOp for the EDO, available at
[http://www.sam.usace.army.mil/ACF %20Water%20Resources %20Management/ACFDr
13 While this tradeoff in time — some risk now, to lower a species’ risk later — is not
especially common in the ESA consultation process, it has occurred before (e.g., spotted
owls and the Northwest Forest Plan). On the other hand, tradeoffs in general are very
common in the consultation process. Examples would include direct habitat protection (less
in one area, more acquired in another); greater intrusion outside a nesting season and less
intrusion during it; more public access if access is more carefully controlled, etc. At issue
with the EDO is not a tradeoff per se, but the degree to which the current clear harm to
were raised as a concern and are discussed in detail in Appendix C; as discussed
there, the EDO does not appear to have caused significant immediate harm to
electricity generation or grid reliability.
As stipulated by the BiOp for the EDO, the Corps and FWS subsequently agreed
upon triggers for how the Corps was to reduce flows from the previous low of 5,000
cfs (cubic feet per second) in the Apalachicola River, to 4,750 cfs, then 4,500 cfs.
The Corps and FWS reportedly will consider triggers for reductions to 4,150 cfs in
late spring 2008 when data are available and if the situation warrants. As of mid- to
late spring 2008, flows in the Apalachicola River had yet to be reduced below 4,750
cfs due to winter rains. The winter rains have refilled the lower basin reservoirs and
have improved Lake Lanier storage, but not dramatically, largely due to the lake’s
small drainage area.
Proposed Modified Interim Operations Plan (June 2008 until Water
Control Plan Is Revised). On April 15, 2008, the Corps submitted to FWS a
proposal to modify its IOP, thus eliminating the temporary EDO by incorporating
elements of the EDO and other changes into a modified IOP (MIOP). A Biological
Opinion on the proposal is anticipated by June 1, 2008. The modified IOP proposal
includes provisions to store additional water during the winter and during drought
periods and to release more during spawning periods. The intent is to avoid storage
reaching levels that would trigger the lowering of the Apalachicola River minimum
flows from 5,000 cfs to 4,500 cfs. The Corps proposal is to store 50% of basin
inflow, instead of 30%; this would be accomplished by eliminating a minimum flow
of 6,500 cfs during wetter periods, making fish spawn releases dependent on the
storage level, and switching from a two-season to a three-season operation regime.
Water Control Plan Revision. During the 2007-2008 winter, the Corps
began revising its water control manual for the ACF reservoirs. The omnibus
Consolidated Appropriations Act, 2008 (P.L. 110-161), in §134, Division C, Title I,
prohibits the implementation of a new water control manual (but not its
development) and requires the Corps to provide data on basin withdrawals, use, and
stream flow by September 2008. The Corps plans to spend $1 million on the update
in FY2008; the Corps estimates that it will take two to three years to draft a revised
plan. When Administration efforts to broker a tri-state agreement by March 1, 2008,
failed, the Corps’ revision acquired additional significance as a mechanism for
determining future operations in the absence of a tri-state agreement and in the midst
Water Supply Issues:
Municipal and Industrial (M&I) and Agricultural
Consumptive use of water reduces the amount of water available in the basin
for other uses, including in-stream flows. Efforts to reduce water consumption
through conservation and efficiency programs often fall into two categories:
species is balanced by potential future benefits.
programs to reduce water use without reducing services by improving efficiency and
reducing waste; and short-term emergency measures that cut services. Municipal,
industrial, and agricultural water use are the primary consumptive uses in the ACF
basin. This section provides a brief discussion of these consumptive uses and their
management during the current drought, including short-term emergency
conservation measures. Depletion or inability to access municipal drinking water
sources can represent a significant public health threat, and reductions in M&I and
agricultural water supply can have significant economic impacts.
Georgia dominates consumptive water use in the ACF basin. Georgia’s
municipal and industrial consumptive use annually averages roughly 290 million
gallons per day (mgd, or 450 cfs). The Atlanta metro area is the largest M&I
consumer, but Columbus and other basin communities also demand ACF surface
water and groundwater.14 Georgia’s agricultural sector has highly variable demand
over the course of the year (with use concentrated from May through September) and
depending on precipitation and soil conditions. Georgia agriculture’s consumptive
use of surface water and groundwater affecting ACF river flows can exceed 650 mgd
(1,000 cfs) during a dry summer’s growing season, can fall to close to nothing during
winter months of a normal year, and averages 170 mgd (260 cfs) during a normal
year.15 Alabama consumes considerably less ACF water than Georgia, consistently
averaging less than 50 mgd annually from the Chattahoochee River, primarily for
municipal and industrial use.16 Florida has few consumptive withdrawals (less than
10 mgd total) directly from the Apalachicola River. There are permits for less than
3 mgd of average daily withdrawal from the Chipola River, an Apalachicola River
tributary, in Florida via the St. Joe Canal; the amount withdrawn from the St. Joe
Canal in recent years has been less than 0.5 mgd.17 In 2006, the water management
district in this region of Florida adopted a rule limiting consumptive water
withdrawals by largely reserving the water in the Apalachicola and Chipola Rivers
for fish and wildlife of the rivers, the associated floodplains, and the bay.18
14 In the United States, mgd is the standard unit for municipal water supplies, whereas cfs
is the standard unit for streamflow. A flow of 1.55 cfs is approximately 1 mgd. Additional
estimates are available in Army Corps of Engineers, Mobile District, Extended Unimpaired
Flow Report January 1994 — December 2001 for the Alabama-Coosa-Tallapoosa and
Apalachicola Chattahoochee Flint (ACT/ACF) River Basin (April 2004).
15 Additional information on water use in the Flint River sub-basin, where ACF agricultural
water withdrawals are concentrated, is available in Georgia Department of Natural
Resources, Environmental Protection Division, Flint River Regional Water Development
and Conservation Plan (March 20, 2006), available at [http://www.gadnr.org/frbp/Assets/
16 Data derived from information provided to CRS by the Alabama Department of Economic
and Community Affairs.
17 Kelly Layman, Chief of Staff, Florida Department of Environmental Protection, letter to
Mr. Daniel P. Mulhollan, Director, Congressional Research Service, February 28, 2008.
18 Florida Administrative Code, Rules of the Northwest Florida Water Management District,
Chapter 40A-2, Consumptive Uses of Water, (February 27, 2006) p. 10, available at
Municipal and Industrial Water Supply
M&I water supplies are withdrawn from the ACF rivers and tributaries, the
federal reservoirs on those rivers, locally-owned surface storage, and aquifers. The
original authorized purposes of the federal investments in the ACF were navigation,
hydropower generation, and flood control. Subsequent laws expanded what the
Corps considers when making operating decisions. The Corps now operates ACF
reservoirs for fish and wildlife protection, water quality protection, and recreation as
well as for the original authorized purposes. Lake Lanier and its releases also supply
water to the Atlanta metro area; to what degree the Corps operates the reservoirs for
water supply is the subject of litigation (see Appendix A).
The Corps principally cites the Water Supply Act of 1958 (43 U.S.C. §390b) as
its authorization to make water supply storage space at Corps facilities available for
M&I purposes. The act does not authorize the Corps to sell or allocate quantities of
water. The contracts are for space in the reservoir and do not guarantee a fixed
quantity of water. The Corps delivers the water if it is available in the storage space
without significantly affecting the authorized purposes of the Corps project. The act
also does not authorize the Corps to make significant modifications to its projects in
order to provide for M&I water supply.
The majority of the M&I water being provided from Lake Lanier is being
delivered under temporary “holdover contracts” because earlier contracts expired in
1990. The Corps has proposed replacing these with interim storage contracts that
would make more M&I water storage space available as part of a Settlement
Agreement (see Appendix A). A February 2008 court decision held that the
increased storage space provided in the agreement constitutes a change that requires19
congressional authorization before the Corps could proceed with the contracts.
Atlanta Area Water Supply. The 28-county Atlanta metropolitan area is
home to more than 5 million people and represents 75% of Georgia’s economic
activity. In 2000, the 16-county Metropolitan North Georgia (which is a subset of the
28-county metropolitan statistical area (MSA) Atlanta metro region, plus one
additional county outside of the MSA) served 4 million people; under some20
projections, it may grow to 8 million by 2030.
Atlanta’s origins as a rail center, rather than a waterway commerce economy,
contributed to its unusual status as a major metropolitan area in the headwaters of a
river system. Metropolitan North Georgia gets more than 99% of its water from
19 See Southeastern Federal Power Customers v. Geren, 2008 U.S. App. LEXIS 2501 (D.C.
Cir. 2008), available at [http://pacer.cadc.uscourts.gov/docs/common/opinions/200802/
06-5080a.pdf]. A discussion of the court’s opinion and related judicial actions can be found
in Appendix A of this report.
20 Metropolitan North Georgia Water Planning District, Water Supply and Water
Conservation Management Plan, (Atlanta, GA: September 2003), p. ES-8, hereafter referred
to as MNG Water Supply Plan.
surface water supplies.21 Lake Lanier and the Chattahoochee River supply 72% of
that water.22 The Atlanta metropolitan area’s surface water dependency makes its
water supply particularly vulnerable to regional drought and to changes in Buford
Dam operations that may reduce water stored at Lake Lanier, such as those prescribed
in the IOP. A significant amount of the water withdrawn for M&I use is not
consumed; it returns to the ACF water bodies. The return flows represent a
significant percentage of the upper Chattahoochee River’s flow below the metro area
in the upper basin.
Metropolitan North Georgia’s second-largest source is the Corps-operated Lake
Allatoona reservoir on the Etowah River. It is a tributary of the Alabama-Coosa-
Tallapoosa river basin immediately west of the ACF, which also is affected by the
current drought. The ACT’s Etowah basin provides 12% of Metropolitan North
Georgia’s water supply.23 Almost all of Metropolitan North Georgia’s other supplies
are surface water supplies from other basins.
Today groundwater makes up less than 1% of Metropolitan North Georgia’s
water supply. However, groundwater was a major water supply source for the region
prior to the 1940s; the region shifted to surface water supplies as the demands
surpassed aquifers’ yield.24 Aquifers in northwest Georgia are relatively small, so
that no single well provides significant yields as a long-term water source. The
possibility of diversifying existing surface water supplies by expanding groundwater
use (e.g., supply augmentation during drought) has received some attention and
exploration. Groundwater, however, is not anticipated to provide a significant long-
Future Demand and Long-Term Conservation Measures. The
Metropolitan North Georgia Water Planning District’s Water Supply and Water
Conservation Management Plan concluded, given estimates of population growth
and water conservation that it chose, that the Atlanta metro area’s average annual
demand would exceed its available supplies between 2013 and 2020 unless water
supplies in Lake Lanier and Lake Allatoona can be reallocated for M&I use.25 The26
Pacific Institute prepared for the Florida Department of Environmental Protection
21 MNG Water Supply Plan, p. 3-1. The 16 counties range from rural to urban. Although
agriculture is practiced in many of the counties, few farms irrigate.
22 Data from Water Supply website of the Atlanta Regional Commission, available at
[ h t t p : / / www.at l a nt ar egi onal . com/ cps/ r d e/ xchg/ a r c / h s.xsl / 273_ENU_HT ML.ht m] .
24 L. J. Williams, “Overview of Geology, Ground-Water Availability, and Ground-Water
Exploration and Development in the Greater Atlanta Region,” in Methods Used to Assess
the Occurrence and Availability of Ground Water in Fractured-Crystalline Bedrock: An
Excursion into Areas of Lithonia Gneiss in Eastern Metropolitan Atlanta, Georgia (USGS
Guidebook 23 Atlanta, GA: October 2003) p. 11, available at [http://ga.water.usgs.gov/pubs/
25 Estimated using data in MNG Water Supply Plan, p. ES-9.
26 The Pacific Institute is an independent, nonpartisan think-tank studying the intersection
of development, environment, and security, including water conservation and use. For more
A Review of Water Conservation Planning for the Atlanta, Georgia Region. The
review was critical of the plan’s choice of population projections and of the level and
breadth of conservation measures it considered. The review stated that the plan
overestimated future demand and underestimated the potential for cost-effective
demand management as a tool for meeting demand through 2030 with existing
supplies (i.e., without reallocations).
The Water Supply and Water Conservation Management Plan argues for and
relies heavily on the reallocation of water storage in the ACF’s Lake Lanier and in
the ACT’s Lake Allatoona from either hydropower or flood control to water supply
in order to have sufficient supplies to meet demand through 2030. Contracts for the
reallocated supply are considered “essential to guarantee water supply for the district
for the next 30 years and beyond.”27 The District also is proceeding with efforts to
complete the permitting process of new nonfederal reservoirs and options for indirect
potable reuse. The management plan also calls for water conservation measures; it
estimated that these measures had the potential to reduce demand by 11%, thus
extending existing supplies to 2020.28
A major concern for lower basin ACF stakeholders and environmental groups
is that increased M&I water use will further and more consistently reduce in-stream
flows, particularly in the Apalachicola River. Upper basin interests argue that the
operations of federal reservoirs should recognize the economic benefits of M&I water
supply and reservoir recreation. The analysis produced by these interests to support
this argument estimated the economic benefit for reallocation of Lake Lanier storage
at $19.3 billion; the analysis included the M&I and recreation benefits and losses to
hydropower.29 Lower basin interests criticize the analysis for ignoring the ecosystem
and species costs of reallocation, losses to lower basin uses, and the value of
Agricultural Water Supply
Agricultural water supply is not an authorized purpose of the federal ACF
reservoirs; however, it is a significant consumptive use in the ACF’s Flint River sub-
information, see [http://www.pacinst.org/about_us/]. The report was included in testimony
submitted by Collen M. Castille, Secretary of Florida Department of Environmental
Protection, on September 15, 2006, before the U.S. Senate Committee on Environment and
Public Works, at a hearing on Oversight of the Army Corps of Engineers’ Management of
the ACT and ACF River Basins, on August 8, 2006.
27 MNG Water Supply Plan, p. ES-10.
28 MNG Water Supply Plan, pp. ES-9 and ES-12.
29 G. F. McMahon et al., Lake Lanier National Economic Development Update: Evaluation
of Water Supply, Hydropower, and Recreation Benefits (Atlanta Regional Commission:
Atlanta, GA, Feb. 2004), available at [http://www.atlantaregional.com/cps/rde/xbcr/arc/
basin, representing more than 90% of the sub-basin’s annual withdrawal.30 The Flint
River joins with the Chattahoochee River to form the Apalachicola River; therefore,
agricultural consumptive water use in the Flint River sub-basin may shape ACF
reservoir operations when operations are dictated by sustaining minimum
Apalachicola River flows. This influence likely is greatest during the May to
September months of a drought year when agricultural consumption peaks.
A 1998-2002 drought brought attention to the effect of agricultural uses on
reducing in-stream flows in the Flint River and various creeks in the lower basin.
The current drought and adoption of the IOP have increased interest in better
understanding how irrigation is affecting water availability in the Flint River and
other smaller tributaries feeding into Lake Seminole (e.g., Spring Creek). Generally,
in normal to wet years, irrigation’s impact on stream flow and aquifer levels is
insufficient to jeopardize availability of water in the sub-basin or stream ecology.31
That is not the case during dry conditions.
Irrigation greatly increases crop yields, crop quality, crop diversity, gross and
net return, land values, and the like. Cotton, peanuts, corn, and vegetables are the
most extensively irrigated crops in the sub-basin. For some crops, such as vegetable,
container nurseries, and ornamental horticulture, irrigation is a prerequisite.32
Agricultural irrigation in southwest Georgia, particularly in the lower Flint River sub-
basin, has markedly increased since the late 1970s, with 40% of the harvested
cropland in the sub-basin being irrigated.33 Although some irrigation water is from
surface water, the majority is withdrawn from aquifers hydraulically connected to
surface waters. Agricultural irrigation and its peak water use during dry conditions
compound the effect of climatic drought on low stream flows in the Flint River sub-
basin.34 Converting to more water-intensive crops could increase agricultural water
Irrigation water conservation measures are encouraged for all holders of Georgia
agricultural surface water and groundwater withdrawal permits. Starting January
2006, conservation measures that can reduce the demand and improve the efficiency
of water use are a required condition for all new or modified permits.35 Agricultural
water conservation practices range from source water management, to use of
reclaimed water, to more efficient irrigation. The USDA with state and private
partners has been funding the adoption of water conservation efforts, particularly
irrigation efficiency measures, in the Flint River basin through the voluntary
30 Flint River Basin Regional Water Plan, p. 37.
31 Ibid., pp. 51-52.
32 Ibid., p. 151.
33 Ibid., p. 151. Harvested acreage has remained relatively steady since the early 1980s.
34 Ibid., p. 22.
35 Ibid., p. 33.
Environmental Quality Incentives Program (EQIP), which provides participating
farmers with cost-sharing assistance and technical assistance.36
Georgia’s Emergency Conservation Measures37
Drought Management Plan. The 1998-2002 drought raised awareness in
Georgia regarding drought impacts and interest in drought planning and management.38
The first Georgia Drought Management Plan was adopted in 2003. The current
drought is the first test of the plan. The plan includes innovative elements; most
notably, the plan uses unique drought indicators for different geographic regions of
the state. These indicators were developed using a participatory approach involving
stakeholders in each region. This approach is being used as a model and is being
adapted to other states’ drought management plans.
According to the National Drought Mitigation Center, a successful drought plan
contains three basic elements — a monitoring and communication/information-
sharing program, a risk/impact/vulnerability analysis, and response and mitigation
measures. Few state plans fully utilize all these elements. Georgia’s plan covers the
first and the third, but it does not include a vulnerability analysis. For comparison,
Alabama currently is operating under a draft drought management plan that focuses
on monitoring and communication. Florida has no state drought management plan
because it has long-standing regional water management districts that are responsible
for comprehensive water resources management, including drought planning.
Georgia’s plan incorporates a process to inform state decision-makers that have
the ability to enact and enforce drought conservation measures. Most of the measures
are short-term actions to reduce water demand during a drought, rather than long-
term demand management. The plan does not encompass measures to control long-
term water demand related to population growth, nor does it contain significant
measures to manage the demand of the industrial and agricultural sectors. This is
a limitation typical of state drought plans. Consequently, with continued population
and agricultural growth in Georgia, the state’s drought risk is increasing, even though
the adoption and implementation of the drought plan is an improvement from 2000.
Some ACF stakeholders have criticized Georgia for not taking more emergency
conservation actions and for not fully complying with its Drought Management Plan.
The plan generally calls for a meeting to be held once indicators for a region are
shown to have moved into the next drought level (there are four tiers, 1 to 4, with 4
being the most severe) for two consecutive months. The meetings are for informing
decision-makers that then choose to act. During the current drought, the following
36 Nationally the demand for EQIP funds exceeds the available funds, resulting in a backlog
of interest in participating in the program. For more information on EQIP and its backlog,
see CRS Report RS22040, Environmental Quality Incentives Program (EQIP): Status and
Issues, by Jeffrey A. Zinn and Carol Canada.
37 The focus of this section is on Georgia’s drought management activities because, of the
three states, its consumptive uses have the greatest influence on in-stream flows.
38 The report is available at [http://gaepd.org/Files_PDF/gaenviron/drought/drought_
!Level 1 drought declared for entire state on June 21, 2006, and
placed hourly restrictions on residential outdoor watering;
!Level 2 drought declared for entire state on April 18, 2007, and
limited residential outdoor water use to mornings only;
!Level 3 drought was not declared. It would have further restricted
residential outdoor watering;
!Level 4 drought declared for 61 north and western counties
(primarily along the Chattahoochee River, and a few but not most of
the Flint River counties) on September 28, 2007, and prohibited
most outdoor residential water use; and
!Governor Perdue went beyond the Drought Management Plan’s
Level 4 actions on October 23, 2007, by calling for a mandatory
10% cut in withdrawals by groundwater and surface water permit
holders in 61 counties.
Data on the plan’s drought indicators show that multiple indicators for increasing the
level to 4 had been met for the counties along the Chattahoochee River in July 2007,
months before the Level 4 was declared; on the other hand, the indicators had not
been as clear regarding initiation of Level 3.39 Criticisms of Georgia’s actions are
countered by those arguing that the plan and its implementation are evolving and that
they have performed well during this initial test. Upper basin stakeholders instead
place the blame for the low storage levels and resulting adoption of the lower flows
under the EDO on the IOP for allowing the reservoir drawdown. They also note that
in addition to the Drought Management Plan, Georgia’s Environmental Protection
Division has drafted the first comprehensive statewide water management plan which
is anticipated to be considered by the Georgia legislature in 2008.40
Flint River Drought Protection Program. In 2000, Georgia enacted the
Flint River Drought Protection Act in response to drought conditions’ effects on
flows in the Flint River and other creeks in the sub-basin.41 The act created a
program to preserve in-stream flows in the Flint River by requiring the
Environmental Protection Division to conduct an auction to pay irrigators who
voluntarily participate to temporarily cease irrigating during declared severe
droughts, thus improving stream flows for aquatic species in the sub-basin.42 The
program is implemented if by March 1 of any year, the Director of Georgia’s
Environmental Protection Division has issued a severe drought declaration for the
Flint River basin. The program was implemented in 2001 and 2002; it is estimated
to have reduced irrigation by up to 130 mgd (roughly 200 cfs) during the 2001
39 Georgia Department of Environmental Protection, Water Resources and Hydrological
Analysis Unit, Drought Monitoring Status, September 27, 2007, available at [http://www.
40 Georgia’s Water Resources: A Blueprint for the Future, Revised Draft is available at
[ h t t p : / / www.ge or gi awat er pl an.or g/ PDFs/ W hol ePl a nDec5.pdf ] .
41 O.C.G.A. §§ 12-5-540 to-550
42 The program was not designed to maintain Apalachicola River flows.
growing season.43 Both auctions had problems that raised concerns regarding the
effectiveness of the program (e.g, the two auctions failed to remove the highest water
use cropland from irrigation).44 The Director did not issue a severe drought
declaration in 2006 or 2007; therefore, the program was not activated in those years.
The forecasts, stream flows, and groundwater levels in the lower Flint River sub-
basin reportedly did not support the designation.
Ecosystem and Species Issues
Bay Ecosystem and Industry
Apalachicola Bay oysters constitute an important part of northwestern Florida’s
economy. More than 1,000 people are employed by the oyster industry in Florida’s
Franklin County, which harvests approximately $10 million in oysters annually.
Historically, this county harvests more than 90% of Florida’s oysters and 10% of the
entire nation’s supply of this seafood. Within Franklin County, oysters account for
almost one-third of the value of all commercial marine landings.45
Apalachicola Bay is the site of the Apalachicola National Estuarine Research
Reserve, one of 27 research sites designated by the National Oceanographic and
Atmospheric Administration.46 The bay also is an exceptionally important nursery
area for Gulf of Mexico commercial fish species. More than 95% of all species
harvested commercially and 85% of all species harvested recreationally in the open
Gulf spend a portion of their lives in estuarine waters (e.g., blue crabs may migrate
as far as 300 miles to spawn in Apalachicola Bay).
A Sturgeon and Three Mussels. A focal point of recent debate on ACF
water management during this drought has been protection of four species listed47
under the federal ESA: Gulf sturgeon (Acipenser oxyrinchus desotoi), fat threeridge
43 Georgia Department of Natural Resources, Letter from Director of Environmental
Protection Division Harold F. Reheis, “Re: Flint River Drought Protection Act,” May 4,
44 Flint River Basin Regional Water Plan, p. 47.
45 Apalachicola Bay Chamber of Commerce, at [http://www.apalachicolabay.org/
46 The State of Florida designated the Apalachicola Bay as an aquatic preserve and an
Outstanding Florida Water, worthy of special protection because of its natural attributes.
The United Nations also designated the bay as an International Biosphere Reserve.
47 The ESA protects species identified as endangered or threatened with extinction and
attempts to protect the habitat on which they depend. It is administered primarily by FWS
and also by the National Marine Fisheries Service for certain marine and anadromous
species. Dwindling species are listed as either endangered or threatened according to
assessments of the risk of their extinction. Once a species is listed, legal tools are available
mussel (Amblema neislerii), Chipola slabshell mussel (Elliptio chipolaensis), and
purple bankclimber mussel (Elliptoideus sloatianus). Water flow, temperature,
dissolved oxygen, and other aspects of water quality are important to all four. The
threatened Gulf sturgeon are anadromous, migrating upriver from the Gulf of Mexico
in the springtime to spawn near the headwater of rivers. The Woodruff Dam prevents
sturgeon from reaching previous spawning habitat; sturgeon were once found in both
the Chattahoochee and Flint Rivers. (See Figure 1.) The endangered fat threeridge
mussel, threatened purple bankclimber and Chipola slabshell live in the sand and
gravel bottoms of streams and rivers. Major limiting factors include habitat
modification by manmade structures (e.g., dams and channel alterations) that destroy
free-flowing water habitats and restrict species from dispersing, resulting in small,
isolated populations. These species also are threatened by point source pollution,
such as discharge from factories and sewage treatment plants, and by nonpoint source
pollution, such as runoff containing fertilizers, herbicides, and pesticides from48
various land-use practices. Of the four species (Gulf sturgeon and three mussels),
concern related to the EDO has been greatest for the three mussels. According to
FWS, not only is flow rate, per se, important to the mussels, but so are the effects of
flow rates on other aspects of the species’ biology.
EDO ESA Consultation
On November 1, 2007, the Corps requested expedited consultation with FWS
under §7 of the Endangered Species Act to consider its proposed EDO.49 In support,
the Corps submitted a Biological Assessment of the EDO (BA of the EDO) to
FWS.50 FWS conducted an expedited review and responded on November 15, 2007.
to aid its recovery and protect its habitat. The ESA defines an endangered species as “any
species which is in danger of extinction throughout all or a significant portion of its range
...” and a threatened species as “any species which is likely to become an endangered
species within the foreseeable future throughout all or a significant portion of its range.”
For more on the ESA, see CRS Report RL31654, The Endangered Species Act: A Primer,
by M. Lynne Corn et al.
48 FWS, Endangered and Threatened Mussels in the Apalachicola-Chattahoocheee-Flint
Basin, available at [http://www.fws.gov/southeast/october07/Mussels-FactSheet-ACFBasin.
49 Under the ESA, federal agencies must insure that their actions are “not likely to jeopardize
the continued existence” of any endangered or threatened species, nor to adversely modify
critical habitat. If federal actions or actions of non-federal parties that require a federal
approval, permit, or funding might affect a listed species, the federal action agencies must
complete a biological assessment. To be sure of the effects of their actions, the action
agency must consult with the appropriate Secretary. This is referred to as a § 7 consultation.
“Action” includes any activity authorized, funded, or carried out by a federal agency,
including permits and licenses.
50 Army Corps of Engineers, Biological Assessment: Temporary Modifications to the Interim
Operations Plan for Jim Woodruff Dam and the Associated Releases to the Apalachicola
River, Document #CESAM-PD-E1, available at [http://www.sam.usace.army.mil/ACF
%20Water%20Res o u r c e s % 2 0 M a n a ge me n t / A C F D r o u gh t _ C o n s u l t a t i o n 2007/
Biological Assessment of the EDO. In the BA of the EDO, the Corps
proposed to reduce flows from the Jim Woodruff Dam below the 5,000 cfs minimum
established in the IOP. The IOP had a minimum of 5,000 cfs, and had considered
until 4,150 cfs was achieved.
According to the BA of the EDO, “adverse impacts to listed species (especially
the listed mussel species) are reasonably certain to occur as flows on the51
Apalachicola River drop below 5,000 cfs.” Among the issues mentioned in the
rationale for adopting the EDO’s lower minimum flows was reducing “the demand
for storage in order to ... have greater assurance of future ability to sustain flows for
listed species during a severe multi-year drought, as currently being experienced in52
the ACF basin.” In essence, the proposal was that the listed species would face a
reduced water flow this year to reduce risks in later years, if the drought continues.
Biological Opinion for the EDO. In its November 15, 2007, BiOp on the
EDO, FWS concluded there would be no appreciable effect on the survival and
recovery of the Gulf sturgeon and no appreciable effect on the ability of its
designated critical habitat to provide its intended conservation role.53 In addition,
FWS concluded that for the three mussels, the Corps’ EDO would have a measurable
— but not appreciable — impact on survival and recovery. The BiOp for the EDO
required that the Corps supply FWS with triggers for making the incremental
reductions. FWS limited its opinion to June 1, 2008, and to an initial reduction to
Moreover, the BiOp for the EDO did not determine a minimum flow that would
avoid jeopardy indefinitely.
Incidental Take Statement and Reasonable and Prudent Measures.
FWS’s Incidental Take Statement (ITS) contained in the BiOp included non-
discretionary measures to determine the appropriate triggers for these incremental
reductions. It directed that the Corps ensure that the measures become binding
conditions of any contract or permit issued to carry out the EDO. Mandatory terms
and conditions were attached to the ITS to ensure its implementation. These terms
FinalBiologicalAssessment_1_Nov_2007.pdf]. The BA was amended on November 7,
2007; the amendment is available at [http://www.sam.usace.army.mil/ACF%20Water
%20Resources%20Management/ACFDr ought_Consultation2007/BA_Ame ndment
Letter11_7_2007.pdf]. Hereafter the two documents collectively are referred to as the BA
of the EDO.
51 Ibid., p. 6.
52 Ibid., p. 6.
53 Note that FWS does not state in the BiOp for the EDO that no harm would come to these
species. Rather, it concludes that the Corps’ action would not be sufficient to jeopardize the
continued existence of the species, provided that certain reasonable and prudent alternatives
are carried out. Any future consultation would occur in light of a pre-existing harm that, if
not appreciable, was still measurable according to the BiOp.
54 BiOp for the EDO, p. 58.
and conditions included reporting requirements, monitoring, and assuming
responsibility for certain studies, among other things. These studies included
measurements of take of the listed species resulting from lower flows, changes in
mussel distribution, and life history studies to provide information to better inform
future decisions. The ITS also warned that failure to carry out the terms and
conditions could invalidate the ITS.55
In addition to mandatory terms and conditions, the ITS also made discretionary
recommendations to the Corps. For example, the ITS recommended that the Corps
work with states and other stakeholders to reduce depletions to ACF stream flow,
particularly in the Flint River; its examples included incentives to reduce agricultural
demands. It also recommended that the Corps, with other stakeholders, “evaluate
ways to ensure that listed mussel mortality due to low flows does not become a
chronic or annual source of mortality.”56
ACF and Southeast Water Supply
ESA Changes — H.R. 3847 and S. 2165
In October 2007, identical bills, H.R. 3847 and S. 2165, were introduced to
address conflicts with the ESA arising from recent operations of the federal ACF
dams. H.R. 3847 was referred to the House Natural Resources Subcommittee on
Fisheries, Wildlife, and Oceans. S. 2165 was referred to the Senate Environment and
Public Works Committee. These bills would suspend the entire ESA for both federal
and state agencies managing any federal river basin if either the Corps or a basin
governor determines that there is a drought in such a river basin and that the drought
threatens the region’s health, safety, or welfare. The bills would end the suspension
if the Corps or the governor determines that the drought is no longer in effect in the
Apalachicola River Ecosystem Restoration — H.R. 2650
In June 2007, H.R. 2650, Restore the Apalachicola River Ecosystem Act, was
introduced and referred to the House Transportation and Infrastructure Subcommittee
on Water Resources and Environment. It would modify the ACF authorizations from
Dredging is required to maintain the navigable channel; this dredging can disrupt and
harm river species and ecosystems. The bill would also authorize the Corps to
undertake a two-year study to restore the Apalachicola River’s ecosystem.
55 Ibid., pp. 58-59.
56 Ibid., p. 64.
21st Century Water Commission — H.R. 135
The Twenty-First Century Water Commission Act of 2007, H.R. 135, is similar
to legislation introduced in recent Congresses to create a commission to make
recommendations for a comprehensive water strategy for the nation based on a study
federal, state, local, and private water management programs. H.R. 135 was referred
to the House Natural Resources Committee, and additionally the House
Transportation and Infrastructure Committee, for consideration of such provisions
within the jurisdiction of each committee. The Natural Resources Committee
reported the bill in December 2007. The Transportation and Infrastructure
Committee has not acted.
H.R. 135 is national in scope, but it is often discussed as part of the debate
related to management of federal reservoirs for water supply purposes, including the
ACF reservoirs. The commission would be charged with developing
recommendations while respecting the primary role of states in water rights law and
not increasing mandates on state and local governments. It also would be charged
with identifying incentives for adequate and dependable domestic water supply for
means of capturing excess water for future droughts; technologies for increasing
water supply efficiently, while safeguarding the environment; financing options for
public works projects; and water conservation strategies. The commission would be
directed to submit a final report no later than three years after its first meeting and
would sunset within 30 days of the final report.
Southeastern Watershed Management Study — H.R. 5587
On March 11, 2008, H.R. 5887 was introduced. On the same day, the House
Transportation and Infrastructure Subcommittee on Water Resources and the
Environment held a hearing titled “Comprehensive Watershed Management and
Planning — Drought Related Issues in the Southeastern US.” The bill was referred
to the same subcommittee. The bill would require the Corps, in coordination with
other federal agencies, to conduct a comprehensive study of long-term water
management in the southeastern United States, including the ACF, ACT, and
Savannah River basins. The purpose of the study would be to develop within three
years recommendations to address current and future water needs in the region.
ACF in the Federal Water Policy Context:
Although the drought has made reservoir management and endangered species
protections the ACF basin’s most active federal issues, the tri-state disagreement over
water allocation and managing municipal, industrial, and agricultural demand will
persist even when the drought subsides. The drought is drawing attention to how the
Corps operates its ACF reservoirs under a draft water supply plan from 1989 that is
being modified through interim plans for individual dams and exceptional drought
waivers. This situation and the related lawsuits are increasing interest in having the
three states devise a comprehensive long-term solution in order to avoid
congressional or judicial resolutions on a piecemeal basis; however, the
Administration’s attempt to garner such a tri-state agreement failed in early 2008.
How the federal government responds to the current ACF drought may set
precedents for the long-term management of the ACF basin and other basins whose
stakeholders compete for water resources, as well as other basins where the demands
on federal infrastructure have changed significantly since their original
authorizations. Increasing pressures on the quality and quantity of available water
supplies — due to growing population, environmental regulation, in-stream species
and ecosystem needs, water source contamination, agricultural water demand, climate
variability, and changing public interests — have resulted in heightened water use
conflicts throughout the country. The federal government has a long history of
involvement in water resource development and management to facilitate
water-borne transportation, expand irrigated agriculture, reduce flood losses, and
more recently restore aquatic ecosystems. Congress makes decisions that define the
federal role in planning, constructing, maintaining, inspecting, and financing water
resource projects. These decisions occur within the context of multiple and often
conflicting objectives, competing legal decisions, and long-established institutional
mechanisms (e.g., century-old water rights, contractual obligations, etc.).
The ACF is a prime example of the complexity of the river management issues
in which the Corps and other federal water management and resource agencies are
embroiled along with state and local governments and the general public. How the
nation uses and values its rivers has changed over time. Rivers are now seen as not
only providing economic benefits but also recreational opportunities and ecosystem
services, such as species habitat, which also have economic dimensions. These
changes have manifested themselves in law (e.g., ESA) and implementation of water
resources statutes. This shift has caused a reexamination by the courts, agencies, and
stakeholders of the distribution of economic and other benefits of river management
alternatives. The debate over ACF management raises some fundamental questions
about water resources management in the nation, such as whether some river uses
should take priority over others (e.g., threatened and endangered species protection
over inland waterway transportation), how to evaluate alternatives (e.g., balancing
multiple uses, maximizing economic benefits, reducing short-term or long-term risk),
and how to manage extreme conditions and changing water availability and use.
Actions by federal agencies remain controversial on the Middle Rio Grande, San
Joaquin, Colorado, Klamath, Columbia, Snake, Mississippi, and Missouri Rivers.
Like the ACF, federal actions and facility operations on these rivers frequently are
challenged in the courts and by state and local interests.
Appendix A. ACF Compact and Lawsuits
After almost 20 years of lawsuits about and attempts at allocating water among
the basin states, the three basin states have been unsuccessful at resolving how to
allocate water through a compact. There are several pending cases related to ACF57
waters, filed in various federal district courts. The first, Alabama v. U.S. Corps of
Engineers (the Alabama case),58 was the original case that led to a 1997 ACF
Compact; it was revived after the ACF Compact expired in 2003. The second,
Southeastern Federal Power Customers, Inc. v. U.S. Army Corps of Engineers (the59
D.C. case), was filed in the district court for the District of Columbia in December
case), was filed in the federal district court for the Northern District of Georgia in
February 2001. The fourth case, Georgia v. U.S. Army Corps of Engineers (the61
Georgia II case), was filed in the federal district court for the Northern District of
Georgia in June 2006. The fifth case, Florida v. U.S. Fish and Wildlife Service (the62
Florida case), was filed in the federal district court for the Northern District of
Florida in September 2006. The sixth case, City of Columbus v. U.S. Army Corps of63
Engineers (the City of Columbus case), was filed in the federal district court for the
Middle District of Georgia in August 2007. The seventh case, City of Apalachicola64
v. U.S. Army Corps of Engineers (the City of Apalachicola case), was filed in the
federal district court for the Northern District of Florida in January 2008.
Many of these cases raise the same legal issues in differing contexts. In order
to avoid repetitive litigation over very similar issues, many of the cases were
consolidated in March 2007.65 One of the recurring issues in the litigation is
determination of the authorized purposes of Lake Lanier. This issue was addressed
in the most recent decision relating to the ACF (see discussion of the D.C. case
57 These lawsuits are ongoing, interrelated, and contain voluminous filings and numerous
orders. Accordingly, the precise legal posture of each case may be subject to rulings or
filings that CRS has not obtained or reviewed and the analysis herein is necessarily general.
58 Alabama v. U.S. Corps of Engineers, No. CV-90-H-01331-E (N.D. Ala., Eastern Division,
filed June 29, 1990).
59 Southeastern Federal Power Customers, Inc. v. U.S. Army Corps of Engineers, No.
60 Georgia v. U.S. Army Corps of Engineers, No. CV 2:01-CV-26-RWS (N.D. Ga.,
Gainesville Division, filed on February 7, 2001).
61 Georgia v. U.S. Army Corps of Engineers, No. 06-CV-1473 (N.D. Ga., Atlanta Division,
filed June 20, 2006).
62 Florida v. U.S. Fish and Wildlife Service, No. 06-CV-410 (N.D. Fla., filed Sept. 6, 2006).
63 City of Columbus v. U.S. Army Corps of Engineers, No. 07-CV-125 (M.D. Ga., Columbus
Division, filed August 13, 2007).
64 City of Apalachicola v. U.S. Army Corps of Engineers, No. 4:08-CV-23-RH/WCS (N.D.
Fla., filed January 15, 2008).
65 See In re Tri State Water Rights Litigation, 481 F.Supp.2d 1351, 1352 (Judicial Panel on
Multidistrict Litigation 2007).
below). In February 2008, the Court of Appeals for the D.C. Circuit held that
congressional authorization would be necessary in order to provide local water
supply for municipalities near the reservoir.66 That opinion directly affected only the
D.C. case, the sole case omitted from the consolidation. This appendix includes a
discussion of each of the cases and the consolidation. It also discusses considerations
for the future of the litigation, including Supreme Court jurisdiction and possible
effects of the D.C. case on the remainder of the litigation.
The Alabama Case and the ACF Compact. In 1990, Alabama and Florida
filed suit (the Alabama case) against the Corps to stop the larger withdrawals it had
approved for Georgia, based in part on the impact they would have on downstream
users and a failure to comply with the National Environmental Policy Act (NEPA;
under the Water Supply Act of 1958 by reallocating storage in the ACF reservoirs.
Under the Water Supply Act, a modification to reservoir projects “which would
seriously affect the purposes for which the project was authorized ... or which would
involve major structural or operational changes shall be made only upon the approval69
of Congress.” The authorized purposes of Lake Lanier are disputed among the
parties and have become a recurring issue in each of the lawsuits filed.70 Generally,
each of the parties except Georgia recognizes three authorized uses: flood control,
hydropower, and navigation. Georgia has maintained that municipal and industrial
use was also authorized.
The parties suspended the proceeding in 1992 to negotiate a settlement.
Settlement negotiations ultimately resulted in an interstate compact (the ACF
Compact) which was approved by Congress in 1997 (P.L. 105-104). Through the
ACF Compact, the parties intended “to develop an allocation formula for equitably
apportioning the surface waters of the ACF Basin among the states while protecting
the water quality, ecology and biodiversity of the ACF.”71 In other words, the
Compact provided an agreement to agree on allocations at some future date.
Although the states negotiated for years, they never reached an agreement and, after
66 See Southeastern Federal Power Customers v. Geren, 2008 U.S. App. LEXIS 2501, 18-20
(D.C. Cir. 2008).
67 Alabama v. U.S. Corps of Engineers, No. CV-90-H-01331-E (N.D. Ala., Eastern Division,
filed June 29, 1990). Georgia joined the suit later as a defendant.
68 43 U.S.C. §390b.
69 43 U.S.C. §390b(d).
70 The parties have cited various sources when alleging what purposes are authorized. See
Rivers and Harbors Act of 1945; H.Doc. 342; Army Corps of Engineers, Authorized and
Operating Purposes of Corps of Engineers Reservoirs (1992, revised 1994); 33 C.F.R. §
222.5. One scholar provides a summary of the confusion, noting that the Corps has, at
various times, offered between three and six authorized purposes. See George William
Sherk, “The Management of Interstate Water Conflicts in the Twenty-First Century: Is It
Time to Call Uncle?,” 12 N.Y.U. ENVTL. L.J. 764, 771 (2005).
71 P.L. 105-104.
many extensions of the 1998 date on which the ACF Compact was to terminate, the
Compact expired on August 31, 2003. Since then, the litigation has resurfaced as the
states attempt to secure their water rights (See discussion below and discussion on
“Consolidation of Cases.”)
The D.C. Case. The D.C. case involved a dispute brought by Southeastern
Federal Power Customers (SeFPC), a non-profit corporate consortium of rural
electric cooperatives and municipal electric systems. SeFPC alleged that the Corps
contracts that provided for increased withdrawals from Lake Lanier exceeded the
Corps’ authority under the Water Supply Act of 1958. The increased withdrawals,
they argued, consequently diminished the flow-through by which hydropower is
generated. SeFPC claimed that its members were paying for Buford Dam
hydropower at prices disproportionate to their residual share of water stored in Lake
Lanier devoted to power generation.72
The proceedings of the Alabama and D.C. cases are interrelated. In the
Alabama case, Alabama and Florida sued to prevent withdrawals of water from Lake
Lanier made to the detriment of downstream users. While the action was suspended
pending negotiations, the D.C. case was filed. In January 2003, the parties in the
D.C. case, including Georgia and the Corps, reached a settlement agreement and
requested the court’s approval. Because the parties to the D.C. case attempted to
implement a settlement agreement that would affect the use of the water at issue in
the Alabama case, Alabama and Florida revived the Alabama case to challenge the
settlement agreement. Alabama and Florida also intervened in the D.C. case to
oppose the approval of the agreement as a violation of the suspension of proceedings
in the Alabama case. In October 2003, the federal district court in the Alabama case
granted Alabama and Florida’s motion for a preliminary injunction, enjoining the
Corps and Georgia from implementing the agreement in the D.C. case.73 In 2004, the
district court in the D.C. case approved the settlement agreement, but required that
the injunction entered in the Alabama case be dissolved before the agreement could74th
be implemented. In 2005, the 11 Circuit Court of Appeals vacated the Alabama
district court’s injunction order, finding that Alabama and Florida did not establish
an imminent threat of irreparable harm or a substantial likelihood of prevailing on the
merits of the case.75
72 Southeastern Federal Power Customers, Inc. v. Caldera, 301 F.Supp.2d 26, 30 (D.D.C.
73 See Alabama v. United States Army Corps of Engineers, No. CV 90-BE-1332, Preliminary
Injunction (N.D. Ala., entered October 15, 2003).
74 301 F.Supp.2d at 35. Alabama and Florida appealed the court’s decision. The Court of
Appeals for the D.C. Circuit dismissed the appeal for lack of jurisdiction, noting that
because the district court’s decision was conditional, it lacked the finality required to
proceed with an appeal. See Southeastern Federal Power Customers, Inc. v. Harvey, 400
F.3d 1, 4 (D.C. Cir. 2005).
75 Alabama and Florida v. United States Army Corps of Engineers, 424 F.3d 1117, 1133
(11th Cir. 2005).
In February 2008, the Court of Appeals for the D.C. Circuit reversed the district
court’s approval of the settlement agreement reached by the parties in the D.C. case.76
The settlement agreement, entered by Georgia and the Corps, provided for two 10-
year contracts that allocated water to Georgia for municipal use. The court’s opinion
addressed only one of the statutory issues raised by the appeal — the Water Supply
Act.77 The court held that “the Agreement’s reallocation of Lake Lanier’s storage
space constitutes a major operational change on its face” and therefore, under the
Water Supply Act, required prior congressional approval.78 Because Congress did
not authorize the change, the court ruled that the agreement could not be enforced.79
Florida and Alabama also claimed that the agreement violated the Flood Control Act
and NEPA, but the court did not reach those issues.
The Georgia I Case. In 2000, the Governor of Georgia made a written water
supply request asking the Corps to commit to making increased releases of water
from the Buford Dam until the year 2030 in order to assure a reliable municipal and
industrial water supply to the Atlanta region. In 2001, after nine months without a
reply to the request, Georgia sued the Corps to increase its water supply. While the
Alabama and DC cases were being litigated, Florida and SeFPC filed motions to80
intervene in the Georgia I case, but the motions were denied by the district court.
After this denial, the Corps denied Georgia’s request, claiming that it lacked the
“legal authority to grant Georgia’s request without additional legislative authority,
because the request would involve substantial effects on project purposes and major81
On appeal, the Court of Appeals for the 11th Circuit overturned the district
court’s decision. The court permitted Florida and SeFPC to intervene and returned82
the case to the district court for further adjudication. The district court, noting the
similarity of the parties and the subject matter, found the case to be parallel to the83
Alabama case. The court suspended the proceedings in the Georgia I case pending
resolution of the Alabama case. (See discussion below on “Consolidation of Cases.”)
76 Southeastern Federal Power Customers v. Geren, 2008 U.S. App. LEXIS 2501 (D.C. Cir.
2008). In March 2008, Georgia state and local officials submitted a petition urging the court
to rehear the case and remand it to the district court for more fact-finding relating to whether
the settlement agreement requires a “major operational change” under the Water Supply Act.
Joint Petition for Panel Rehearing at 2, Southeastern Federal Power Customers v. Geren,
Nos. 06-5080 & 06-5081 (D.C. Cir. March 21, 2008). Those parties argued that the court
did not have sufficient evidence in the record to resolve the issue.
77 See 43 U.S.C. § 390b.
78 Ibid, p. 3.
80 See Georgia v. United States Army Corps of Engineers, 302 F.3d 1242, 1247-1250 (11th
81 Ibid, p. 1249.
82 Ibid, p. 1252, 1258.
83 Georgia v. United States Army Corps of Engineers, 223 F.R.D. 691, 696-699 (N.D. Ga.
The Georgia II Case. In 2006, the Corps issued an interim operations plan
(IOP) for Woodruff Dam for the purpose of protecting federally protected species in
the Apalachicola River. (See discussion on p. 6.) Georgia sued the Corps to
challenge the IOP, claiming that it constituted a change from the only approved water84
control plan (which was adopted in the late 1950s). Georgia argued that, by
releasing more water from reservoir storage to meet the in-stream requirements for
the Apalachicola River in the IOP, the Corps was jeopardizing the state’s future
water supply. The releases allegedly did not account for dry weather conditions and
did not reserve enough water to supplement the dry summer conditions in northern
Georgia. The suit also alleged that water supply was a contemplated purpose of the85
Corps’ water project. (See discussion below on “Consolidation of Cases.”)
The Florida Case. In 2006, FWS issued a biological opinion (BiOp) regarding
the impact of the IOP for Woodruff Dam on protected species downstream (see
discussion on p. 6). Florida filed a lawsuit to review the BiOp, which was issued
pursuant to the ESA. The BiOp concluded that the Corps’ operations under the IOP
were not likely to jeopardize the species or their habitat. Florida sought review,
claiming that operations had already caused significant damage. The BiOp,
according to Florida, violated rational decision-making standards. Florida also
alleged that the municipal and industrial uses for which Georgia sought water were
not authorized purposes. (See discussion below on “Consolidation of Cases.”)
The City of Columbus Case. In 2007, the City of Columbus, Georgia, sued the
Corps, challenging the validity of the IOP. Columbus asserted that the Corps failed
to adopt a formally finalized water control plan for the ACF basin and that the Corps’
current operation under the IOP violated its legal authority. The Corps was operating
under a third revision of the IOP, each changing the flow levels in the rivers, at the
time Columbus filed the lawsuit. Columbus claimed that the lack of reliable flow
from the Chattahoochee River impaired its ability to discharge water that it used to
provide services to the city in compliance with regulatory requirements. The city
alleged that the IOP improperly revised the water control plan because it was
published in final form without public comment and was put into effect for an
indefinite period of time. According to Columbus, the IOP resulted in over-releases
of water from the ACF reservoirs to the city’s detriment.
The City of Apalachicola Case. In 2008, the City of Apalachicola, Florida,
sued the Corps, challenging its management and operation of the ACF facilities. The
lawsuit arose from the city’s interest in maintaining the Apalachicola Bay ecosystem,
which the city claims as a basis for its economy and livelihood. Apalachicola alleged
that the Corps did not complete an adequate NEPA review when it issued the original
IOP, the modified IOP, or the Exceptional Drought Operations modification (EDO)
to the modified IOP. The city also claimed that the Corps did not comply with
environmental assessments required under the Coastal Zone Management Act
84 See 33 C.F.R. §222.5.
85 Georgia cited a Corps document created in response to the WRDA 1990 (P.L. 101-640)
and Corps regulations as sources indicating water supply as an authorized purpose. See
Army Corps of Engineers, Authorized and Operating Purposes of Corps of Engineers
Reservoirs (1992, revised 1994); 33 C.F.R. §222.5.
(CZMA).86 Apalachicola also alleged that various contracts entered by the Corps,
which provide for withdrawals for purposes other than those authorized by law, and
the Corps’ application of the draft water control plan violate the Water Supply Act,
Flood Control Act, and NEPA.
Consolidation of Cases. In March 2007, the Alabama, Georgia I, Georgia II,
and Florida cases were consolidated and transferred to the federal district court for
the Middle District of Florida “to serve the convenience of the parties and witnesses87
and promote the just and efficient conduct of the litigation.” The City of Columbus
case was also included in this litigation after it was filed. Other cases filed since the
consolidation that relate to the ACF dispute, including the City of Apalachicola case,
are likely to be included in the consolidated proceedings. The D.C. case was
excluded from this consolidation of proceedings because it had already reached the
appellate court, whereas the cases that were consolidated remained in various federal88
Considerations for Future Litigation Efforts
U.S. Supreme Court Review. The U.S. Supreme Court has not addressed the
issues raised by the ACF litigation at this time. In June 2006, the Court declined to
review an 11th Circuit decision in the Alabama case.89 The underlying 11th Circuit
opinion held that the action did not involve a controversy between states, which
would have to be heard by the U.S. Supreme Court, but did involve a dispute
between states and a federal agency, which was properly heard by the lower federal
courts.90 Therefore, the Court would only hear arguments regarding the ACF dispute
if a new lawsuit is filed by one state against another state or if a party to one of the
lawsuits appeals a circuit court’s decision.
Anticipated Effects of the D.C. Case Decision. As discussed above, the
various lawsuits involve many recurring issues, including authorized purposes of
Lake Lanier, the effect of the Water Supply Act of 1958 on authorized purposes, and
whether the environmental reviews that have been conducted satisfy the requirements
of NEPA. The D.C. Circuit’s decision holding that reallocation of water supply
storage for municipal use would require congressional authorization addresses one
of these issues. That decision may affect the future path of litigation in the other
Although the court determined that the settlement agreement was unenforceable,
the litigation of the D.C. case may continue at different levels. One or more of the
86 This case was the first to allege issues based on the CZMA. See 16 U.S.C. § 1456.
87 In re Tri-State Water Rights Litigation, 481 F.Supp.2d 1351, 1352 (Judicial Panel on
Multidistrict Litigation 2007).
89 See Alabama and Florida v. United States Army Corps of Engineers, 126 S. Ct. 2862
90 Alabama and Florida v. United States Army Corps of Engineers, 424 F.3d 1117, 1130
(11th Cir. 2005).
parties may try to appeal the circuit court’s decision to the U.S. Supreme Court. If
the Supreme Court accepts the case for review, it may or may not uphold the D.C.
Circuit’s interpretation of the issue. The D.C. Circuit’s decision addressed only one
of the statutory challenges raised before the court. As a result, the case may also be
remanded to the original court (the D.C. district court) for further review of other
issues raised but not resolved in the higher courts.
If the case is remanded to the district court, it may be consolidated with the
other cases. The D.C. case was omitted from the original consolidation because it
was the only case not on the trial level. If it is remanded to the district court for
further consideration, it would again be on the same level of review as the other cases
and potentially be appropriate for consolidation.
Generally, the consolidated cases, being litigated in a different jurisdiction (a
district court within the 11th Circuit), are not controlled by decisions in the D.C.
Circuit.91 That is, the 11th Circuit, or district courts within its jurisdiction (including
Alabama, Florida and Georgia), may choose to interpret the issue of required
congressional authorization differently than the D.C. Circuit did. However, other
courts may be bound by the D.C. Circuit’s decision under a legal principle known as
collateral estoppel. The principle of collateral estoppel, also known as issue
preclusion, prevents parties from raising issues that have already been resolved in
previous legal proceedings in later cases under certain circumstances.92 In order to
raise the issue of collateral estoppel and prevent the consolidated cases from further
litigating the issue decided by the D.C. Circuit, a party must show that:
(1) the issue at stake is identical to the one involved in the prior proceeding; (2)
the issue was actually litigated in the prior proceeding; (3) the determination of
the issue in the prior litigation must have been “a critical and necessary part” of
the judgment in the first action; and (4) the party against whom collateral
estoppel is asserted must have had a full and fair opportunity to litigate the issue93
in the prior proceeding.
If a court determines that these four elements have been met, the ruling from the prior
proceeding stands, meaning that the party raising the issue of collateral estoppel wins
on that claim. If at least one element is not met, the court hearing the consolidated
cases would be free to interpret the issue independent of the D.C. Circuit’s decision.
91 The federal court system is three-tiered: the trial court (federal district courts), the
appellate court (federal circuit courts), and the U.S. Supreme Court. Under this system,
district courts are bound only by decisions of the circuit court under which the district court
sits and decisions of the U.S. Supreme Court. Circuit courts are bound only by their own
prior decisions and decisions of the U.S. Supreme Court. The circuit courts may, but are not
required to, follow decisions of other circuit courts when considering similar issues raised.
92 See Allen v. McCurry, 449 U.S. 90, 94 (1980); I.A. Durbin, Inc. v. Jefferson Nat’l Bank,
93 Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1359 (11th Cir. 1998); Christo v.
Padgett, 223 F.3d 1324, 1339 (11th Cir. 2000).
Appendix B. NEPA and Current ACF Operations
NEPA and the Exceptional Drought Operations
When a federal agency takes an action that could significantly affect the
environment, it is required to conduct a review under the National Environmental
Policy Act (NEPA) (42 U.S.C. §§ 4321 et seq.). The Corps submitted an
environmental assessment (EA) of the Exceptional Drought Operations (EDO)
modification to its operations of Woodruff Dam with a finding of no significant
impact (FONSI). This EA-FONSI means the Corps determined that any adverse
environmental effects were not so significant that an environmental impact statement
(EIS) was required. Under NEPA, an agency is required to take a hard look at the
environmental consequences of its action. The U.S. Supreme Court has said NEPA
“merely prohibits uninformed — rather than unwise — agency action.”94 The
original case (see Alabama Case in Appendix A) raises a NEPA complaint.
Legal challenges to EAs are based on the following: timing, contents, and
conclusions. The timing factor is whether the document informed the agency
decision, rather than providing an after-the-fact rationalization of the agency action.
Challenges based on the contents of a document argue that the document does not
show the agency took a hard look at the relevant environmental effects. The
conclusion that no EIS was required can also be a basis for a legal challenge.
Timing and Content
NEPA requires federal agencies to comply “to the fullest extent possible.”95
However, NEPA does not require any particular results, such as choosing the least
harmful project. The U.S. Supreme Court has said NEPA “merely prohibits
uninformed — rather than unwise — agency action.”96 Accordingly, where courts
have found that agencies took a hard look at the relevant areas of environmental
impact and satisfied the other demands of Section 4332(2)(C), the courts have upheld
the NEPA process.
To comply with NEPA the agency must show that the environmental review
informed the decision-making process. NEPA regulations promulgated by the
Council on Environmental Quality (CEQ) address the timing of an environmental
review. The regulations all require the environmental review before the agency
decision, indeed, as early as practical. A section discussing timing of environmental
An agency shall commence preparation of an environmental impact statement as
close as possible to the time the agency is developing or is presented with a
proposal (Sec. 1508.23) so that preparation can be completed in time for the
94 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).
95 42 U.S.C. § 4332. For a general discussion of NEPA, see CRS Report RS20621,
Overview of NEPA Requirements, by Kristina Alexander.
96 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).
final statement to be included in any recommendation or report on the proposal.
The statement shall be prepared early enough so that it can serve practically as
an important contribution to the decisionmaking process and will not be used to97
rationalize or justify decisions already made.
Although this section refers specifically to an environmental impact statement
(EIS), the rationale of not using an environmental document to justify decisions
already made applies to environmental assessments as well. After all, EAs are
intended to be performed to see whether an EIS must be prepared. Therefore, since
they precede an EIS (if an EIS is deemed necessary), they must also precede the
agency decision on a course of action. A specific regulatory reference to EAs further
supports that the document is intended to contribute to the discussion of choosing an
action: “Agencies may prepare an environmental assessment on any action at any
time in order to assist agency planning and decisionmaking.”98
Another section discusses the benefits of starting the environmental review at
the earliest possible time: “Agencies shall integrate the NEPA process with other
planning at the earliest possible time to insure that planning and decisions reflect
environmental values, and to avoid delays later in the process, and to head off
Early in NEPA practice, the courts established that a NEPA review should occur
before an agency action was decided upon: “That the filing of an EIS should precede
rather than follow federal agency action has been consistently recognized by the
courts.”100 The Fifth Circuit described the harm in reversing the order:
Whenever an agency decision to act precedes issuance of its impact statement,
the danger arises that consideration of environmental factors will be pro forma
and that the statement will represent a post hoc rationalization of that decision.
NEPA was intended to incorporate environmental factors and variables into the
decisional calculus at each stage of the process.101
The courts agree that a NEPA review is intended to inform the decision-making
process. The Ninth Circuit addressed the timing of the environmental review in
relationship to the agency decision. It said the purpose of the review is to provide
“decisionmakers with an environmental disclosure sufficiently detailed to aid in the
substantive decision whether to proceed with the project in light of the environmental102
consequences.” A reviewing court is likely to find that an agency failed to take a
97 40 C.F.R. § 1502.5
98 40 C.F.R. § 1501.3(b).
99 40 C.F.R. § 1501.2.
100 Cady v. Morton, 527 F.2d 786, 794 (9th Cir. 1975).
101 Sierra Club v. Lynn, 502 F.2d 43, 59-60 (5th Cir. 1974).
102 Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810 (9th Cir. 1987). See
also Save Barton Creek Ass’n v. FHWA, 950 F.2d 1129, 1137 (5th Cir. 1992) (purpose of
NEPA is to inform the decision-maker).
hard look at the environmental consequences of its action when the decision on what
action to take predates the consideration of the environmental effects.
The contents of a NEPA document may also influence a court as to whether an
agency took a hard look at the environmental effects of the proposed action. The
regulations provide a general description of the contents. EAs are intended to be
concise, but are also required to consider the need for the project, the environmental
impacts of the project and its alternatives, alternatives required by section 102(2)(E),
and a list of the agencies and persons consulted.103 In the context of an action that
could affect species listed under the ESA, the NEPA review and the biological
assessment (BA) under the ESA can be synchronized. The statutory provision for a
BA contemplates that it will be used in conjunction with the NEPA process, and in
fact can be considered part of a NEPA review, although it does not mandate that the
two go together.104
Another issue related to the contents of an EA is whether the document indicates
that an EIS is needed or that there is no significant impact.105 Reasonable people can
disagree as to what conclusion the data in an EA justify. Deference is given to the
agency’s determination by courts, however. That judicial deference can be reduced
under certain circumstances, including when a court finds the agency has pre-judged
the environmental impacts.106 The environmental document must adequately support
the conclusions within it in order for a court to uphold it.107 Also, the record must
show how the agency reached its determination: “mere perfunctory or conclusory
language will not be deemed to constitute an adequate record and cannot serve to
support the agency’s decision not to prepare an EIS.”108
If an EA with a finding of no significant impact is found to be inadequate, most
courts will remand the action to the agency, where another EA could be prepared by
the agency. In certain rare cases, courts have directed agencies to prepare an EIS,
without leaving the matter to the agency’s discretion.109
103 40 C.F.R. §1508.9(b).
104 16 U.S.C. §1536(c)(1): “Such assessment may be undertaken as part of a Federal
agency’s compliance with the requirements of section 102 of the National Environmental
Policy Act of 1969.”
105 See 40 C.F.R. §1508.9(a)(1).
106 Davis v. Mineta, 302 F.3d 1104, 1112 (10th Cir. 2002).
107 O’Reilly v. U.S. Corps of Engineers, 477 F.3d 225 (5th Cir. 2007) (EA-FONSI violated
NEPA because Corps failed to consider cumulative adverse effects and properly document
how mitigation would render adverse impacts insignificant).
108 Maryland-National Capital Park & Planning Comm’n v. U.S. Postal Serv., 487 F.2d
109 See Middle Rio Grande Conservancy Dist. v. Babbitt, 206 F. Supp. 2d 1156 (D.N.M.
2000) (court ordered agency to prepare EIS because agency delays had imperiled the
species), aff’d sub nom., Middle Rio Grande Conservancy Dist. v. Norton, 294 F.3d 1220th
(10 Cir. 2002).
The Right to Sue Under NEPA
NEPA suits are brought under the Administrative Procedure Act (APA).
Therefore, courts review whether an agency’s action was arbitrary or capricious or
otherwise not in accordance with law.110 Parties have to show standing. That limits
plaintiffs to those who could show they were adversely affected or aggrieved by the
agency action and that NEPA intended to protect against that actual or threatened
injury.111 For example, an economic injury by itself is not the type of harm NEPA
protects against and could not be the basis for a lawsuit. However, the reduced use
of the river by a recreational kayaker could be the basis for standing. Plaintiffs could
include individuals and groups, provided they were able to show they suffered an
injury in fact that was different from the injury suffered by the community at large.112
110 5 U.S.C. §706(2)(A).
111 5 U.S.C. §702.
112 See Massachusetts v. EPA, 127 S. Ct. 1438, 1453 (2007) (a personal stake confers
standing, even when there is “widespread harm”).
Appendix C. ACF Electric Power Generation Issues
ACF Power generation includes hydroelectric facilities operated by the Corps,
Georgia Power, and private entities as well as coal-fired, gas-fired, and nuclear plants
operated by Southern Company and its subsidiaries, Southern Nuclear and Gulf
Historically, hydropower at dams on the ACF provides power primarily during
peak demand. An issue is the effect of decreased river flows on turbine operations,
specifically whether lower reservoir levels would drop below the turbine’s water
intake. Currently, water levels are sufficient to generate peaking power for the
region. According to the Corps, the two main units at Buford Dam can generate as
long as water levels do not fall below 1035 feet. Even before the reduced flows
under the EDO, the two main units at Buford were projected to be operational at least
until summer 2008.113
The Southeastern Power Administration (SEPA) markets the power generated114
at Corps-operated dams to its customers in the Southeast. SEPA enters into five-
year contracts with its preference customers (cooperatives and municipal power
systems) with power delivery obligations based on 1981 drought levels. SEPA is
obligated to meet its contract requirements whether or not sufficient hydroelectric
power is available to meet its obligations. In the event of a hydropower shortfall,
SEPA purchases power on the open market, generally at a cost greater than
hydroelectric generation. The additional cost is passed on to SEPA’s customers.
SEPA does not own transmission lines and must contract with other utilities for use115
of the transmission system.
Plant Farley, located in southeastern Alabama near the town of Dothan, is a
1,711 megawatt (MW) nuclear plant; water is used in the cooling system. (See
Figure 1.) According to the SERC Reliability Corporation, in addition to being a
large source of electricity, generation from Farley is also important for maintaining
the stability of the local power system.116
113 Corps BA, p. 51.
114 Southeastern Power Administration. Annual Report 2005, available at [http://www.sepa.
115 Personal communication between Amy Abel and Douglas Spencer, Southeastern Power
Administration, November 5, 2007.
116 Personal communication between Stan Kaplan and Carter Edge, Director, Reliability
Services, SERC Reliability Corp., November 6, 2007. SERC is the regional industry
organization responsible for monitoring power grid reliability in the southeastern states.
Plant Farley requires a minimum water flow of 2,000 cfs to operate at full load
under its current water permit.117 At lower flow, water discharges from the plant may
have thermal or other impacts on the Chattahoochee River that could trigger
regulatory action. Under the lowest flows in the EDO, the flow at Farley may drop
to roughly 2,300 cfs, still above the plant’s full load requirement.
Because of the plant’s design, it appears unlikely that all of the generation from
Farley could be lost due to low water conditions, at least in the foreseeable future.
Farley is a two-unit plant. On September 28, 2007, Unit 1 went off-line for refueling,
and through October and early November, water flows often dipped far below 2,000
cfs (e.g., to a flow of 1,048 cfs on November 3, 2007).118 This indicates that the plant
can operate with one unit at full load with much less water than required for two unit
operation. However, according to Southern Company, during the period October to
May, when other generation and transmission assets are taken off-line for
maintenance, both Farley units are necessary for reliable operation of the local power
According to the SERC Reliability Corp., alternative, albeit more expensive,
natural gas-fired generation could be used to compensate for reduced generation from
Farley during off-peak seasons. However, these alternatives may be otherwise
committed during summer peaks and very cold winter periods, in which case
reliability risks would be greater if Farley generation is unavailable or reduced.120
Coal-Fired and Natural Gas-Fired Generation
Coal-fired power plants, older (steam electric) gas-fired plants, and modern
combined cycle gas plants are dependent on water for steam processing, and
primarily cooling. Older power plants, those whose construction began prior to 1972,
use a once-through system where the water is discharged back into the water source.
Newer power plants do not discharge water, but use cooling towers to evaporate the
water. In low water years, once-through plants may encounter issues with thermal
discharge. The discharge from the power plant is typically warmer than the water
source, and increases in the surrounding water temperature could affect the ability of
fish and other aquatic species to survive. This effect is more pronounced with low
stream flows. For both older and newer plants, water intakes for the plant must be
below water level.
117 E-mail and attachment from Jerry L. Stewart, Southern Company, to Stan Kaplan,
November 7, 2007.
118 Daily reactor status is posted by the Nuclear Regulatory Commission at [http://www.
discharge data is posted at [http://water.sam.usace.army.mil/acfframe.htm].
119 E-mail and attachment from Jerry L. Stewart, Southern Company, to Stan Kaplan,
November 7, 2007.
120 Personal communication between Stan Kaplan and Carter Edge, Director, Reliability
Services, SERC Reliability Corp., November 6, 2007.
Although several large coal and gas-fired plants are located along the ACF
rivers, only the coal-fired Plant Scholz in the Florida Panhandle has been mentioned
as potentially being affected by low flow in the Apalachicola River. (See Figure 1.)
This plant is considered a base load plant which generates power throughout the day.
Although Scholz is small (capacity of 92 MW), the plant is a low-cost source of
generation and is used in some situations to maintain the reliability of the local power
system. Specifically, Scholz is needed during high-demand periods to help prevent
overloading power lines under some circumstances, and during low demand periods121
to maintain voltage levels.
According to Southern Company affiliate Gulf Power, the plant’s owner, the
plant can operate with flows at 5,000 cfs. With the EDO flows, the plant should be
able to continue operating without modifications for three months. The plant does
not expect any issues with thermal discharge with the lower flows. Plant operators
plan to make some modifications in its intake system to be able to continue operating
into the summer of 2008.122
If Scholz needs to shut down, there do not appear to be any transmission
constraints in the area that would prevent power from being delivered from other
generating plants. However, the cost of purchased power or generation from other
Southern Company assets may be more expensive than generation from Scholz and
Farley. Also, the reduction in reserve margins from taking Plant Scholz and other
generating plants off line could create reliability concerns, especially during the peak
121 E-mail and attachment from Jerry L. Stewart, Southern Company, to Stan Kaplan,
November 7, 2007.
122 Personal communication between Amy Abel and John Hutchinson, spokesperson for Gulf
Power, November 5, 2007.