Water Supply Context: Alabama, Florida and Georgia National Waterways Conference September 27, 2017 Steven Burns sburns@balch.com (205) 541-3087

The ACF Basin The ACT Basin Interests of the States History of Litigation Views on Water Supply Rule

The ACF Basin

Upper Chattahoochee River Buford Dam / Lake Lanier Tiny headwaters 2/3 of ACF storage capacity Middle Chattahoochee River Storage: West Point and Walter F. George ROR: Andrews and Woodruff Apalachicola River Flint River (uncontrolled)

Upper Chattahoochee River Middle Chattahoochee River ATLANTA AREA Middle Chattahoochee River Columbus, Georgia 3 major plants Historically, navigation to Columbus and Bainbridge Apalachicola River Oysters, shrimp, etc. Endangered fish & mussels

Water generally abundant In times of drought: Corps must meet minimum flow at Florida line for species (5,000 cfs) BUT no flow target in Mid-Chatt Flow levels during droughts have endangered withdrawals in Mid- Chatt Exacerbated to the extent flows from relatively large Flint watershed help meet Apalachicola targets

The ACT Basin

Headwaters Coosa River Tallapoosa River Alabama River Carters (Coosawattee River) Allatoona (Etowah River) Both with storage Coosa River 7 Alabama Power dams Tallapoosa River 4 Alabama Power dams Alabama River R.F. Henry, Millers Ferry, & Claiborne (ROR)

Headwaters Coosa River Alabama River ATLANTA AREA Water quality and quantity issues at the state line Alabama River Historically, navigation to Montgomery Pulp & paper plants Corps and Alabama Power coordinate flows for AL River

Interests of the States

Interests of the States (North) Georgia: Economic growth of Atlanta and other settlements Groundwater not plentiful Surface water resources are limited

Interests of the States Alabama (and southwestern Georgia): Current and future economic growth Water quality Restore navigation

Interests of the States Florida: Support for oysters and fisheries Environmental issues and water quality

Interests of the States No “project sponsors” in ACF or ACT No compact or regional body

Interests of the States Water withdrawal law: Georgia—generally, permit required for > 100,000 gallons daily average Generally riparian otherwise, plus drought planning Alabama—generally riparian, plus drought planning

History of Litigation

History of Litigation Just to provide a sense of the amount of litigation in the tri-state water wars… …(some of these cases have been consolidated)

History of Litigation Past Cases Alabama v. Corps (ACF & ACT) No. 1:90-cv-01331 (N.D. Ala. 1990) Challenging the proposed reallocation of water supply storage Se. Fed. Power Customers (SeFPC) v. Corps (ACF) No. 1:00-cv-02975 (D.D.C. 2000) Georgia v. Corps (ACF) No. 2:01-cv-00026 (N.D. Ga. 2001) Challenging denial of a water reallocation request at Lake Lanier Alabama v. Corps (ACF) Nos. 03-16424, 05-11123 (11th Cir. 2005) Challenge relating to SeFPC settlement agreement

History of Litigation Past Cases Georgia v. Corps (ACF) No. 1:06-cv-01473 (N.D. Ga. 2006) Challenging the Interim Operation Plan (IOP) (implementing ESA requirements) Florida v. USFWS (ACF) 4:06-cv-00410 (N.D. Ga. 2006) Challenging Biological Opinion for IOP SeFPC v. Geren (ACF) Nos. 06-5080, 06-5081 (D.C. Cir. 2006) Appeal responding to AL & FL challenges to district court settlement agreement In Re Tri-State Water Rights Litigation (ACF) MDL No. 1824 (M.D. Fla. 2007) Consolidation of all pending ACF cases (eventually including Columbus and Apalachicola cases as well)

History of Litigation Past Cases City of Columbus v. Corps (ACF) No. 4:07-cv-00125 (M.D. Ga. 2007) Challenging Corps operations, failure to conduct NEPA analysis City of Apalachicola v. Corps (ACF) No. 4:08-cv-00023 (N.D. Fla. 2008) Challenging Biological Opinion for IOP In Re Tri-State Water Rights Litigation (ACF) No. 09-14657 (11th Cir. 2009) Appeal of MDL case

History of Litigation Current Cases Florida v. Georgia (ACF) No. 142 (U.S.S.C. filed 2013) FL seeking equitable apportionment of water & cap on GA consumption - AL not a party Alabama v. Corps (ACF) No. 1:17-cv-00607 (D.D.C. filed 2017) Challenging the environmental analysis for Water Control Manual (WCM) and water supply assessment National Wildlife Federation v. Corps (ACF) No. 1:17-cv-00772 (D.D.C. filed 2017) Also challenging WCM

History of Litigation Current Cases Georgia v. Corps, (ACT) No. 1:14-cv-03593 (N.D. Ga. filed 2014) Plaintiffs also include Atlanta Regional Commission (ARC)* and Cobb County-Marietta Water Authority (CCMWA) NWC Member Challenging the ACT WCM; also a FOIA claim Alabama v. Corps (ACT) No. 1:15-cv-00696 (D.D.C. filed 2015) Plaintiffs also include the Mobile and Montgomery Water Works Challenging the ACT WCM Alabama Power Co.* v. Corps (ACT) NWC Member No. Case 1:15-cv-00699 (D.D.C filed 2015)

History of Litigation Current Cases CCMWA v. Corps (ACT) No. 1:17-cv-00400 (N.D. Ga. filed 2017) Challenging the Corps’ storage accounting system at Allatoona Lake

Views on Water Supply Rule

Views on Water Supply Rule Here’s a guess of the positions of upstream and downstream interests Just my speculation – comment deadline still outstanding (Nov. 16, 2017)

Views on Water Supply Rule Return Flows Upstream: Change current policy Credit return flows and “made” water Downstream: Keep current policy Suspicious of crediting if it results in net increase in withdrawals

Views on Water Supply Rule Federalism Upstream: Recognize primacy of states to allocate water Downstream: Federal law determines operation of federal reservoirs

Views on Water Supply Rule Water Supply Act Authorizations Upstream: Flexible withdrawal policies Downstream: Objective withdrawal limits

Views on Water Supply Rule Other Priority Issues Upstream: Pursue the rule Pricing issues “Equalize” federal customer considerations Downstream: Don’t pursue the rule Environment & water quality Contract enforcement Protect federal customers

Views on Water Supply Rule If I have seemed skeptical that NWC could adopt consensus positions on big issues… …I hope this helps explain why.