In re ACF Basin Water Litig.

Citation467 F.Supp.3d 1323
Decision Date22 May 2020
Docket NumberCIVIL ACTION FILE NO. 1:18-MI-43-TWT
Parties IN RE ACF BASIN WATER LITIGATION
CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
OPINION AND ORDER

THOMAS W. THRASH, JR., United States District Judge

This action is before the Court on Defendant Georgia Water Supply Providers' Motion for Partial Judgment on the Pleadings regarding the National Wildlife Federation, the Florida Wildlife Federation, Apalachicola Bay and River Keeper, Inc.'s Complaint [Doc. 116], and Defendant Georgia Water Supply Providers' Motion for Partial Judgment on the Pleadings regarding the State of Alabama's Complaint [Doc. 117]. For the reasons set forth below, the Court GRANTS the Defendant Georgia Water Supply Providers' Motion for Partial Judgment on the Pleadings regarding the National Wildlife Federation, the Florida Wildlife Federation, Apalachicola Bay and River Keeper, Inc.'s Complaint [Doc. 116], and the Court GRANTS the Defendant Georgia Water Supply Providers' Motion for Partial Judgment on the Pleadings regarding the State of Alabama's Complaint [Doc. 117].

I. Background

On April 5, 2017, the State of Alabama filed its Complaint against Defendants U.S. Army Corps of Engineers; Robert M. Speer in his official capacity as Acting Secretary of the U.S. Army; Douglas Lamont in his official capacity as senior official exercising the functions of the Assistant Secretary of the U.S. Army for Civil Works; Todd T. Semonite in his official capacity as Commander and Chief of Engineers for the U.S. Army Corps of Engineers; C. David Turner in his official capacity as Division Commander for the South Atlantic Army Corps of Engineers; and James A. Delapp in his official capacity as the District Commander for Mobile District of U.S. Army Corps of Engineers. Ala. Compl., [Doc. 1]. Alabama brings this action under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. and the Water Supply Act of 1958, 43 U.S.C. §§ 390b et seq. , to set aside the U.S. Army Corps of Engineers' adoption in 2017 of the Final Environmental Impact Statement ("Final EIS") for the Apalachicola-Chattahoochee-Flint ("ACF") River Basin Water Control Manual and Water Supply Storage Assessment. Id.

Similarly, on April 27, 2017, the National Wildlife Federation, the Florida Wildlife Federation and Apalachicola Bay and River Keeper, Inc. filed their Complaint against Defendants U.S. Army Corps of Engineers; Douglas Lamont in his official capacity as senior official exercising the functions of the Assistant Secretary of U.S. Army for Civil Works; Todd T. Semonite in his official capacity as Commander and Chief of Engineers for U.S. Army Corps of Engineers; and C. David Turner in his official capacity as Division Commander for South Atlantic Army Corps of Engineers. NWF Compl., [Doc. 7]. The Plaintiffs bring this action under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. , the Water Resources Development Act of 2007, 33 U.S.C. § 2283(d), the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 - 4347, and the Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661 - 667e to set aside the Corps' Updated ACF River Basin Water Control Manual. The State of Georgia, Atlanta Regional Commission, City of Atlanta, Cobb County-Marietta Water Authority, DeKalb County, Forsyth County, Fulton County, City of Gainesville, and Gwinnett County have intervened as Defendants in both cases.

These actions arise from the U.S. Army Corps' operations of five reservoirs within the ACF River Basin, formed by the Apalachicola, Chattahoochee, and Flint rivers, their tributaries and their drainage areas. Ala. Compl., at ¶ 11. The Chattahoochee River forms a large portion of the eastern border between Alabama and Georgia. Id. at ¶ 12. The Chattahoochee River starts in Georgia, and flows southwest toward Alabama, where it flows south before emptying into Lake Seminole at the Florida-Georgia line. Id.

The Corps operates five reservoirs on the Chattahoochee River. The uppermost and largest of the reservoirs is Buford Dam, which impounds the Chattahoochee River to create Lake Lanier approximately 50 miles north of Atlanta. Final Environmental Impact Statement, Master Water Control Manual, Apalachicola-Chattahoochee-Flint River (ACF) Basin, Alabama, Florida, Georgia (December 2016), [Final EIS, at 2-26]. Below Lake Lanier, the Corps operates three dams along the Chattahoochee River on the Alabama border, including West Point Dam (associated with West Point Lake), Walter F. George Lock and Dam (associated with Walter F. George Lake), and George Andrews Lock and Dam (associated with Lake George W. Andrews). Ala. Compl., at ¶ 13. Approximately 2,800 square miles of the ACF River Basin lie within Alabama's borders. Id. at ¶ 14. The Corps' southernmost project within the ACF River Basin is Jim Woodruff Lock and Dam which impounds Lake Seminole on the Florida-Georgia line. Final EIS, 1-1 to 1-2. Water released from the Woodruff Dam forms the Apalachicola River in Florida. Id.

The U.S. Army Corps operates the ACF projects pursuant to "specific" and "general" authorities established by Congress. Final EIS, 2-59 to 2-60. Specific authorities are established in the original legislation authorizing construction of a certain project. Final EIS at ES-1, 2-59 to 2-60. The authorizing statutes usually refer to and incorporate "reports" that the Corps presents to Congress as part of the authorization process to provide recommendations regarding the benefits of the projects. Defs.' Motion for Partial Judgment regarding NWF's Compl., [Doc. 116-1, at 5]. For the ACF reservoirs, specific authorities include navigation, hydropower, flood control, water supply, and fish and wildlife conservation. Final EIS, ES-1, 2-59 to 2-60. General authorities supplement these specific authorities and apply to all federal agencies or Corps reservoirs, including the Endangered Species Act and the Fish and Wildlife Coordination Act. [Doc. 116-1, at 6].

Because authorized purposes often conflict, the Corps is required to develop a Master Manual to describe how it will operate the system to balance conflicting purposes. 33 U.S.C. § 709 ; Final EIS, ES-1 to ES-2. The Master Manual governs the operation of the five Corps reservoirs on the Chattahoochee River in the ACF Basin. Ala. Compl., ¶ 18. The Corps last official Master Manual for the ACF system was adopted in 1958. Id. at ¶ 19. While the Corps was conducting its ACF operations under the 1958 Manual, Congress passed, and the President signed, the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. , ("NEPA"). Id. at ¶ 20. The National Environmental Policy Act requires the Corps to issue an environmental impact statement concerning any significant changes to its ACF operations. Id.

The Corps proposed to amend the Master Manual in 1989 to accommodate the water supply needs of metropolitan Atlanta, but Alabama sued to block that plan in 1990. NWF's Compl., ¶¶ 81-82. The updated Master Manual was delayed by negotiations and litigation that did not conclude until 2011. Id. at ¶¶ 83-88. The litigation focused in large part on claims that water supply was not an "authorized purpose" of Lake Lanier. Id. at ¶ 88. In 2011, the Eleventh Circuit held in In re MDL-1824 Tri-State Water Rights Litig. , 644 F.3d 1160, 1192 (11th Cir. 2011) that water supply is an authorized purpose of Lake Lanier under the River and Harbor Act of 1946, which authorized the project for construction. The Court also held that the Corps must reconsider the Georgia water supply request that they had erroneously denied based on lack of authority. Id. at 1192-1193.

Now, the National Wildlife Federation, the Florida Wildlife Federation, Apalachicola Bay and River Keeper, Inc. and the State of Alabama argue for judicial review of an update by the Corps to the Master Manual for the ACF River Basin. The updated Master Manual at issue is the culmination of the process triggered by the Eleventh Circuit's 2011 decision. In 2012, the Corps' Chief Counsel issued a legal opinion concluding that the Corps was fully authorized to grant Georgia's request, but that an environmental impact statement would need to be prepared before any decision could be made. NWF's Compl., ¶ 89.

In 2015, the Corps prepared a draft updated master manual and individual manuals. Ala.'s Compl., ¶ 24. It also prepared the draft environmental impact statement under NEPA and a water supply storage assessment allocating space at Lake Lanier for Georgia's water supply. Id. In the documents, the Corps proposed increasing the amount of Lake Lanier's water that metro Atlanta uses for water supply. Id. at ¶ 51. Some potential effects included reduced flows downstream and an adverse impact on dissolved oxygen, nitrogen and chlorophyll. Id. at ¶¶ 32, 45, 59. During the public comment period on the draft manual, Alabama and the Environmental Protection Agency objected to the aspects of the proposal concerning the impairment of applicable water quality standards. Id. at ¶¶ 25, 28.

Contrary to Alabama's and the EPA's concerns, the Corps issued a Final Environmental Impact Statement ("Final EIS") which analyzes the effects of the Corps' updated operations and concludes that the updated Master Manual will have a "negligible" effect on the Apalachicola River and Bay. NWF's Compl., ¶ 172; Final EIS, ES-42. The EIS also acknowledges that the updated Master Manual could have "substantially adverse" effects on riverine fish and aquatic resources in reaches of the Chattahoochee River and "slightly adverse" to "substantially adverse" impacts on the phosphorous, nitrogen, and dissolved oxygen content in the Chattahoochee River. NWF's Compl., ¶ 210.

On March 30, 2017, the Corps issued a Record of Decision adopting the updated Master Manual through the guidance and support of the Final EIS. Id. at ¶ 23. The National Wildlife Federation, the Florida Wildlife Federation, Apalachicola Bay and River Keeper, Inc. and the State of Alabama...

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