Can the Endangered Species Act Save the Apalachicola?

• Publication year: 2013

Can the Endangered Species Act Save the Apalachicola?

Richard Hamann

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CAN THE ENDANGERED SPECIES ACT SAVE THE APALACHICOLA?

Richard Hamann^*

Abstract

The conflict over water use in the Apalachicola-Chattahoochee-Flint Rivers system (ACF) has coalesced into a single, complex federal case, the Tri-State Water Rights Litigation. The 11th Circuit settled only one fundamental issue, ruling that the U.S. Army Corps of Engineers has authority to allocate water for consumptive use from Lake Lanier. The Corps is now developing a new Master Water Control Manual to govern the operation of federal dams in the basin. The operation of these structures and water withdrawals throughout the basin can adversely affect three aquatic species listed under the ESA whose critical habitat includes the Apalachicola River and whose survival depends on flows of the river. The effect of flow reductions on these species and resulting violations of ESA has the potential to become the focus of a new generation of litigation intended to secure water for downstream states. The issues that might be raised in this aspect of the conflict and how they might be resolved may be illuminated by reviewing the effect of the Endangered Species Act on other recent conflicts over water.

Introduction

Conflict over the use of water from the complex of aquifers, creeks, streams, and rivers that drain to the Apalachicola Bay in Florida has lasted over thirty years.¹ The three major river systems

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involved—the Apalachicola, the Chattahoochee, and the Flint—form a basin that has earned its own acronym, the ACF; the conflict is known as the Tri-State Water Rights Litigation² or the Tri-State Water Wars.³ The three basin states—Alabama, Florida, and Georgia—have multiple interests at stake, with diverse, sometimes conflicting interests. Increasing withdrawals for consumptive use from the river system has fueled the growth of the Atlanta region.⁴ A series of federal dams provide hydropower, water supply, pollutant dilution, waterfront property, and recreational opportunities.⁵ Irrigated agriculture has expanded dramatically in the Flint Basin, where groundwater withdrawals have a direct, unquantified, effect on surface waters.⁶ Florida's interest is in maintaining sufficient flow to sustain the ecosystems of the Apalachicola, the floodplain forests, and the estuary, upon which the culture and the economy of Florida's Gulf Coast depend. Oysters are the iconic species there, and they have suffered a precipitous decline caused, at least in part, by reduced freshwater inflows to the Bay.⁷ Alabama seems primarily interested in protecting access to water for future economic development. Additionally, there are many groups whose interests transcend state borders. For example, the Upper Chattachoochee Riverkeeper, the Apalachicola Riverkeeper, and other conservation groups are close allies in seeking adequate instream flows for fish and wildlife.⁸ And, the Tri-Rivers Waterway Development Association advocates for interstate commercial navigation.⁹

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I. The Aquatic System

The ACF system drains almost 20,000 square miles, extending from the Appalachian Mountains to the Gulf of Mexico, and has an annual average discharge of 24,768 cubic feet per second (cfs).¹⁰ The variation in flow, however, can be extreme, ranging from 3,900 to 291,000 cfs.¹¹ Low-flow conditions may become more frequent in the future. Droughts are predicted to intensify in the Southeast as temperatures increase and rainfall patterns shift.¹²

Federal projects to "improve" the river system for navigation, hydropower, and flood control were authorized in 1945 and 1946.¹³ There are five federal dams in the system and many more nonfederal dams.¹⁴ But there is only limited ability to store surface water, and it is primarily in four federal structures. Buford Dam (Lake Lanier), at the upper reaches of the Chattahoochee, provides 62% of the storage capacity but is filled by only 5% of the drainage basin.¹⁵ Releases from Lake Lanier supply much of the water for the Atlanta area, dilute pollutants in the urban area, create navigation windows, and support minimum flows for wildlife as far downstream as the Apalachicola.¹⁶ The Woodruff Dam, on the Apalachicola just below the confluence of the Chattahoochee and Flint Rivers, has only 6% of the federal storage capacity, but impounds water from 87% of the

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basin.¹⁷ The Flint River has no federal dams, but its flow is subject to extensive groundwater withdrawals for irrigated agriculture.¹⁸

The demand for water for municipal and industrial use in Georgia is projected to increase dramatically, from 2,047 mgd in 2010 to 3,236 mgd in 2050.¹⁹ Demand in the Atlanta area alone is expected to increase from 718 mgd to 1,202 mgd during that same time period.²⁰ Statewide agriculture is expected to increase from 1,345 mgd to 1,541 mgd.²¹ Much of Georgia's irrigated agriculture is located in the basin of the Flint River where, because of the karst geology, surface flows are particularly dependent on groundwater discharge to the river, and existing levels of groundwater extraction appear to be significantly lowering surface flows²² and impacting aquatic species.²³

Georgia is seeking to reduce demand through water conservation measures,²⁴ though advocates believe far more should be done to conserve water.²⁵ The state and local governments are also investing substantially in the development of new or expanded water storage facilities. Georgia Governor Nathan Deal has committed to spending $300 million over four years to expand surface water storage.²⁶ In 2012 the Georgia Environmental Finance Authority and the Georgia

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Department of Community Affairs committed almost $100 million to water supply projects, including $82 million in loans for the three reservoirs.²⁷ Although none of these projects are in the ACF basin, the proposed Glades Reservoir would be filled by withdrawing water from the Chattahoochee River.²⁸

A. The Water Conflict

The conflict over water use began in the 1970s with disagreements about "improvements" to the federal navigation project extending upstream to Columbus, Georgia. Florida objected to a series of projects that would have blasted rock ledges, installed partial dams and deposited dredged spoil in the riverine floodplains of the Apalachicola to support waterborne commerce in Georgia and Alabama.²⁹ One of Florida's concerns was the effect of the projects on Gulf sturgeons, the floodplain forest, and the estuary.³⁰ During the course of negotiating these issues, the effect of federal dams on water levels and flows in the river became better understood. In 1983, the three states and the Corps of Engineers agreed to negotiate a water management system for the ACF basin.³¹ Meanwhile, in 1989, Georgia water users secured the commitment by the Corps of additional water supplies from the system.³² In response, Alabama and Florida sued to compel the Corps to prepare an Environmental

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Impact Statement (EIS).³³ Attempting to settle the conflict, the three states joined with the Corps in conducting a comprehensive study from 1992 to 1997 and entered into an interstate compact in 1997 for management of the ACF Basin system.³⁴ Decisions on how to actually allocate water had not yet been reached, however, and the compact provided for automatic expiration unless the parties agreed on a water allocation formula by December 31, 1998.³⁵ After multiple extensions, the parties admitted failure, allowed the compact to expire on August 31, 2003, and renewed the litigation.³⁶

With the failure of an interstate compact, such a fundamental conflict among three states might seem most appropriate for resolution by one of the other two superior authorities, Congress or the Supreme Court. Congress has the authority to allocate water among states but has never used it until after states come to an agreement.³⁷ In today's dysfunctional Congress, opposition by one of the states could effectively bar any consideration, much less resolution. The Supreme Court has resolved many interstate water conflicts,³⁸ but the jurisprudence is problematic for all of the parties. For Georgia, which has been steadily increasing withdrawals and vesting users with water rights, there is no incentive for an early equitable apportionment. Existing users are typically treated well in such adjudications.³⁹ Florida and Alabama face the preliminary hurdle of convincing the Court to take jurisdiction, which requires

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clear evidence of significant harm.⁴⁰ Furthermore, the legal standards governing equitable apportionment are so ambiguous and subjective that it is well-nigh impossible to predict the outcome. Unwilling to roll those dice, the affected states have turned to other federal law.

When the compact expired, there were multiple federal cases underway.⁴¹ The original litigation in the Northern District of Alabama concerned claims that the Corps had violated NEPA in allocating water from both the ACF and Alabama-Coosa-Tallapoosa (ACT) systems.⁴² In 2001, Georgia challenged the Corps in the Northern District of Georgia for denying an allocation of water from Lake Lanier.⁴³ Federal hydropower customers had already sued the Corps in the District of Columbia for allocating water for municipal water supply.⁴⁴ Florida sued the U.S. Fish and Wildlife Service in 2006 alleging violation of ESA in the management of the federal projects.⁴⁵ Georgia water users filed a second suit in the Northern District of Georgia challenging the authority of the Corps to make any water allocation from Lake Lanier,⁴⁶ and the cities of Columbus, Georgia and Apalachicola, Florida filed additional lawsuits.⁴⁷ Eventually all but one of these cases were transferred to the Middle District of Florida under the jurisdiction of Judge Paul Magnuson from the District of Minnesota.⁴⁸

The allocation of water from Lake Lanier dominated the legal discussion until 2012. The D.C...