The Failure of the Apalachicola-chattahoochee-flint River Basin and Alabama-coosa-tallapoosa River Basin Compacts and a Guide to the Successful Establishment of Interstate Water Compacts

• Publication year: 2010

The Failure of the Apalachicola-Chattahoochee-Flint River Basin and Alabama-Coosa-Tallapoosa River Basin Compacts and a Guide to the Successful Establishment of Interstate Water Compacts

Charles T. DuMars, Esq. & David Seeley, Ph.D., Esq.

Introduction

Forging interstate water compacts is extremely difficult. The hydrology is often a complicated, moving target. Thus, the mechanisms for allocating water also tend to be complex and sometimes unwieldy to implement. Finally, any politicians who sign off on these compacts immediately expose themselves to opportunistic criticism for "giving away" their state's water, even if the agreements represent a reasonable compromise.

The Apalachicola-Chattahoochee-Flint River Basin ("ACF Basin") and the Alabama-Coosa-Tallapoosa River Basin ("ACT Basin") Compacts fell prey to the many perils inherent in the compact process. This Article provides a postmortem and analysis of these Compacts and concludes with more hopeful prospects for forging new compacts. Part I provides a concise survey of water allocation mechanisms—the heart of any interstate water compact. Part II recounts the emblematic birth, life, and untimely death of the ACF Basin and the ACT Basin Compacts. Part III considers the alternative to the Compacts. Part IV considers the advantages of interstate water compacts in general. Finally, Part V discusses how, in light of all these factors, states can successfully create compacts.

I. Typical Interstate Water Compact Allocation Mechanisms

[1] However, in the absence of a congressional apportionment, the interstate compact and the equitable apportionment lawsuit are the only mechanisms that parties have successfully utilized to achieve this end.[2] The goal of interstate compacts is to provide the final division of waters between states and to avoid the lengthy and expensive process of equitable apportionment lawsuits.[3] Unfortunately, while these compacts may be equitable, they are rarely final. In most cases, parties eventually litigate the terms.[4]

Although compacts contain numerous provisions, traditionally the most important is the one allocating the water. Interstate water compacts contain three principle types of allocation clauses. The first is a provision that mandates the delivery of a specific quantity of water at the border between the two states or at some delivery point between water basins.[5] The Colorado River Compact of 1922 contains this type of provision.[6] These kinds of compacts carry the advantage of clarity, but as demonstrated below, clarity does not always yield simplicity.[7] A second type of clause places a cap on the consumption of the upstream state.[8] Compacts with these provisions are almost always subject to litigation because downstream states frequently accuse upstream states of consuming more than their allotments.[9] The Pecos River Compact contains an example of this type of restrictive clause.[10]

A third type of clause uses a set of index points, requiring that if X quantity of water passes a gauge upstream, Y amount must remain available to the downstream state.[11] This is preferable to a fixed amount because it factors in variations of flow. The Rio Grande Compact contains this type of formula.[12] A fourth kind of clause allocates percentages of the total watershed shared by the states.[13] This kind of clause is the least likely to lead to litigation because it accounts for variations in supply and does not require delivery of a specific amount. However, it does lead to debate over how much water each state is actually putting to beneficial use and how much water natural losses consume. The Upper Colorado River Compact contains this type of provision.[14]

The ACF Basin and the ACT Basin Compacts were unique because, while they contained a request that Congress allow the signatory states to enter into compacts, they contained no final apportionment.[15] The Compacts have terminated, per their own terms, because the political process failed to provide an allocation mechanism acceptable to the states.[16] However, the Compacts can nonetheless teach valuable lessons.

II. The Apalachicola–Chattahoochee–Flint River Basin Compact: A Contemporary Attempt at Resolution of Interstate Transboundary Water Conflicts

The U.S. Army Corps of Engineers has provided a succinct description of the ACF Basin:

The Apalachicola-Chattahoochee-Flint ("ACF") River Basin originates in north Georgia and Alabama and ends in Florida's Apalachicola Bay. It extends a distance of approximately 385 miles and encompasses 19,600 square miles. The drainage area is comprised of the Apalachicola, Chattahoochee, and Flint rivers and their tributaries. During the last 160 years, the water resources in the basin have been developed to meet various demands for municipal and industrial water supply, flood control, hydropower, navigation, fish and wildlife conservation, recreation, and agricultural water supply. There are hundreds of small reservoirs in the basin, but 16 (5 federal and 11 non-federal) are located on these three principal rivers. They provide for regional uses of the basin water resources for navigation, hydropower, flood control, water supply, recreation, and fish and wildlife.[17]

A. The Formation of the ACF Basin Compact

In the 1960s, state and local officials in Georgia began to recognize that the Chattahoochee River and Lake Lanier, Atlanta's primary sources of water, would be inadequate to meet the City's projected growth.[18] In addition to supplying Atlanta's water needs, other management objectives for both the Chattahoochee River and Lake Lanier included peak hydropower production, flood control, and navigation support below Columbus, Georgia.[19]

In 1973, the Atlanta Regional Commission ("ARC"), the Georgia Mountains Regional Development Center ("GMRDC"), the Georgia Department of Natural Resources ("GADNR"), and the United States Army Corps of Engineers ("Corps") began collaborating on a study to determine metropolitan Atlanta's water needs through 2010, options to meet those needs, and the costs associated with each option.[20] In 1980, they issued an interim report that predicted significant, negative economic consequences for the region if it did not secure a long-range water supply.[21] The report suggested several options to remedy the situation, including construction of a regulation dam 6.8 miles below Lake Lanier, raising the elevation of Lake Lanier's summer pool, increasing storage in the Morgan Falls Reservoir through silt removal, and reduction of hydropower generation in favor of increased storage water supplies.[22] The 1981 Final Report recommended the regulation dam option, and in 1986, over opposition from the environmental community, Congress authorized the dam's construction.[23] However, in 1988, the Corps recalculated the cost-benefit ratios of the various options and determined that the reallocation of storage in Lake Lanier was more viable.[24]

In 1989, the Corps completed a Draft Post Authorization Change Document recommending the reallocation of storage in Lake Lanier, Carters Lake, and Allatoona Lake; the Document proposed using the latter two lakes to meet the future water supply needs of Chatsworth and Cartersville, Georgia.[25] That same year, the ARC completed negotiations with the Southeastern Power Administration and Oglethorpe Power to compensate the federal government for lost revenues due to the reallocation.[26] Also in 1989, the GADNR and the West Georgia Regional Water Authority announced the proposed construction of the West Georgia Regional Reservoir.[27] It was one of several potential regional reservoir projects, all part of a plan to "drought proof" Georgia.[28]

In response to the proposed West Georgia Regional Reservoir Project, Alabama filed a lawsuit in federal court in June 1990. It sought to prevent the Corps from proceeding with the reallocation proposals on the basis of inadequacies in the Draft Post Authorization Change Document.[29] Florida joined the lawsuit in September of 1990.[30] After considerable effort, the states agreed to negotiate a resolution of their differences.[31]

The GADNR filed a Section 404 application for the West Georgia Regional Reservoir in 1990.[32] In 1991, Georgia and Alabama developed a Letter of Agreement for additional withdrawals of water from Allatoona Lake—15.3 million gallons per day ("mgd")—and from Carters Lake near Cartersville—1.82 mgd.[33] The agreement further stipulated that the Corps must obtain approval for the water contracts mentioned above and that Georgia would participate fully in a comprehensive study of the situation.[34] Moreover, the Letter of Agreement stated that Georgia would withdraw its West Georgia Regional Reservoir Section 404 application.[35] Finally, the Letter of Agreement contained a pledge by Florida and Alabama to cooperate with all parties to resolve any present or future conflicts.[36]

The three states and the Corps developed a Memorandum of Agreement and additional supplemental agreements to set the parameters of a Joint Comprehensive Study of the two Tri-Rivers Basins ("Comprehensive Study").[37] The parties designed the first Memorandum of Agreement, signed on January 3, 1992, as a supplement to the 1991 Letter of Agreement.[38] The Memorandum of Agreement stipulated that the Corps would withdraw its Draft Post Authorization Change Notification Report and further required that the Corps operate all federal reservoirs in the ACF Basin to "maximize" the water resource benefits to the Basin as a whole.[39] Moreover, the parties agreed to a three-year time limit for completing all or a substantial portion of the Comprehensive Study, which had to include: 1) a plan for the management of all water resources within the ACF Basin, 2) an assessment of current and future needs regarding human, natural, and other systems, and 3) an appropriate mechanism to implement all findings or recommendations.[40] The Memorandum of...