In re ACF Basin Water Litig.

• Decision Date: 11 August 2021
• Docket Number: CIVIL ACTION FILE NO. 1:18-MI-43-TWT
• Citation: 554 F.Supp.3d 1282
• Parties: IN RE ACF BASIN WATER LITIGATION
• Court: U.S. District Court — Northern District of Georgia

554 F.Supp.3d 1282

IN RE ACF BASIN WATER LITIGATION

CIVIL ACTION FILE NO. 1:18-MI-43-TWT

United States District Court, N.D. Georgia, Atlanta Division.

Signed August 11, 2021

OPINION AND ORDER

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

This action is before the Court on the Plaintiff State of Alabama's Motion for Summary Judgment and Amended Motion for Summary Judgment [Doc. 164, 220], the Plaintiff National Wildlife Federation, Florida Wildlife Federation, and Apalachicola Bay and River Keeper's Motion for Summary Judgment and Amended Motion for Summary Judgment [Doc. 165, 219], the Defendant U.S. Army Corps of Engineers’ Cross-Motions for Summary Judgment [Doc. 202, 203], the Defendant State of Georgia's Cross-Motions for Summary Judgment [Doc. 211, 213], and the Defendant Georgia Water Supply Providers’ Cross-Motions for Summary Judgment [Doc. 216, 218]. For the reasons set forth below, the Court DENIES the Plaintiff State of Alabama's Motion for Summary Judgment and Amended Motion for Summary Judgment [Doc. 164, 220], DENIES the Plaintiff National Wildlife Federation, Florida Wildlife Federation, and Apalachicola Bay and River Keeper's Motion for Summary Judgment and Amended Motion for Summary Judgment [Doc. 165, 219], GRANTS the Defendant U.S. Army Corps of Engineers’ Cross-Motions for Summary Judgment [Doc. 202, 203], GRANTS the Defendant State of Georgia's Cross-Motions for Summary Judgment [Doc. 211, 213] and GRANTS the Defendant Georgia Water Supply Providers’ Cross-Motions for Summary Judgment [Doc. 216, 218].

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. Alabama brings this action under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. , the Water Supply Act of 1958, 43 U.S.C. §§ 390b et seq. , and the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 - 4347, 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. 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 northeast 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 fifty miles north of Atlanta. 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 the Jim Woodruff Lock and Dam which impounds Lake Seminole on the Florida-Georgia line. Final Environmental Impact Statement ("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, 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. 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.

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 ("EIS") concerning any significant changes to its ACF operations. Id.

The Buford Project is at the center of this litigation. The Buford Project consists of the reservoir Lake Lanier north of Atlanta formed by Buford Dam. Congress gave the U.S. Army Corps authority to build and operate the Buford Project in two statutes: the Rivers and Harbors Act of 1945 and the Rivers and Harbors Act of 1946. Ala. Amend. Motion for Summary Judgment, at 6. In 1939, the Corps submitted a report to Congress recommending development of the ACF Basin for multiple purposes, including navigation, hydroelectric power, national defense, commercial value of riparian lands, recreation, and industrial and municipal water supply. U.S. Army Corps’ Cross-Motion for Summary Judgment, at 4. Congress approved the Corps’ plan in the Rivers and Harbors Act of 1945. Id.

In 1946, the Corps recommended in another report submitted to Congress, known as the Newman Report, several changes to the original plan, including reducing the proposed number of locks, dams, and reservoirs from twelve to four and moving one of the proposed hydropower generating dams and reservoirs further upstream from Atlanta to its eventual location in Buford, Georgia. Id. The explanation for doing so included "water supply" downstream, as well as to include sufficient storage in the reservoir for extensive flood control for the basin, which would free up storage in downstream projects for other uses. Id. If hydropower releases of water did not meet Atlanta's water-supply demands, the Newman Report recommended that the Corps make continuous releases from the Buford Project during "off-peak periods" to secure a flow of 650 cubic feet per second to Atlanta. Ala. Amend. Motion for Summary Judgment, at 8. The report mentioned that the releases "may have to be increased somewhat as the area develops" but stated that they "would not materially reduce the power returns." Id. In the Rivers and Harbors Act of 1946, Congress authorized the Corps to build and operate the Buford Project "in accordance with the report of the Chief of Engineers, dated May 13, 1946." Id. The Chief's Report recommended the "plans of division engineer" set forth in the Newman Report "with such changes therein as in the discretion of the Secretary of War and the Chief of Engineers may be advisable." Id.

Behind Buford Dam is Lake Lanier, which covers about 38,000 acres and has 692 miles of shoreline. U.S. Army Corps’ Cross-Motion for Summary Judgment, at 9. The Corps divides Lake Lanier into three "pools." Id. The top one is the "flood control pool" that generally remains empty, so it can take on water when inflows are too high. Id. The bottom one is the "inactive storage pool" and stays full. Id. The middle one is the "conservation storage pool" and is most pertinent to this litigation. Id. The Corps fulfills the hydropower and navigation purposes authorized by the Rivers and Harbors Acts of 1945 and 1946 by releasing water from the ...