Apalachicola-Chattahoochee-Flint

Woodruff Dam. Courtesy of USGS.

WMRS | Implementation of ESA and Related Litigation | The Intersection of ESA and Water Projects

The Setting

The Chattahoochee River flows from the mountains of North Georgia across the state, runs along the border between Alabama and Georgia, then joins with the Flint River at the Florida-Georgia border to form the Apalachicola River. From there, the river flows into the Apalachicola Bay and the Gulf of Mexico. Those three rivers, their tributaries, and the associated drainage area form the ACF Basin.

The U.S. Army Corps of Engineers operates a series of dams and reservoirs in the ACF basin, and those operations have been the subject of a series of lawsuits by the states of Alabama, Georgia, and Florida brought under the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), and the Flood Control Act. Those actions have now been consolidated for pre-trial proceedings by the Judicial Panel on Multidistrict Litigation in the Middle District of Florida.

Under the Corps’s operating plan, and consistent with the analysis in the Fish and Wildlife Service’s biological opinion, the Corps releases a minimum of 5,000 cubic feet per second from Jim Woodruff Lock and Dam (the most downstream dam in the system). These flows are, in part, for the benefit of four federally-listed threatened and endangered species:

  • the threatened Gulf sturgeon,
  • the endangered fat threeridge mussel,
  • the threatened purple bankclimber mussel; and
  • the threatened Chipola slabshell mussel.

Florida has contended that the Corps has operated the reservoirs upstream from Woodruff Dam in a manner that favors upstream recreational and non-authorized uses to the detriment of the downstream ACF species. Specifically, Florida has argued that the Corps has failed to satisfy the interim flow needs of the ACF species during periods of low flow conditions.

However, under the extreme drought conditions that affected the Southeast until recently, the Corps must release significant amounts of water from system storage to augment flows on the Apalachicola to reach these flow levels. Because the other reservoirs in the system are extremely low, the Corps is required to draw this water from Lake Lanier, which also provides most of the water supply for the city of Atlanta and its metropolitan area.

In July 2009, the Court issued a decision in the first phase of this litigation, which dealt with claims not raised under the ESA, and concluded that the Corps was operating without the necessary authorization from Congress. The Court ordered the Corps to either obtain the necessary authorization from Congress, or return to its pre-1977 operations. This relief, however, could prevent the Corps from providing drinking water to the metropolitan Atlanta area. Thus, the Court has delayed this relief for a period of three years. 

On appeal, the Eleventh Circuit found that, because the Corps did not consummate its decision-making process, the district court lacked jurisdiction to hear the claims. The court further found that, while the Corps' denial of Georgia’s water supply request did constitute final agency action, the district court erred in its analysis of the Corps’ rejection of the request. Thus, the court remanded the cases to the district court with instructions to remand to the Corps for reconsideration.

Cases of Interest:

 

In re MDL-1824 Tri-State Water Rights Litigation, 644 F.3d 1160 (11th Cir. 2011)

In re Tri-State Water Rights Litigation, 639 F.Supp.2d 1308, 2009 WL 2371506 (M.D. Fla. 2009)

Alabama v. U.S. Army Corps of Engineers, 441 F.Supp.2d 1123 (N.D. Ala. 2006)

 

Updated May 15, 2015

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