Water Resources Sb 213
| Citation | Vol. 31 No. 1 |
| Publication year | 2014 |
Water Resources SB 213
Georgia State University Law Review
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Water Resources: Amend Article 9 of Chapter 5 of Title 12 of the Official Code of Georgia Annotated, the "Flint River Drought Protection Act," so as to Clarify Legislative Intent; Revise Definitions; Expand Programs; Provide for Additional Powers of the Director; Provide for New Irrigation Efficiency Requirements; Provide for Participation in Augmented Flow Programs; Clarify Compliance and Enforcement Provisions; Provide for Related Matters; Repeal Conflicting Laws, and for Other Purposes
| Code Sections: | O.C.G.A. §§ 12-5-541, -542, -544, -546 (amended); -546.1 (new); -546.2 (new); -549 (amended) |
| Bill Number: | SB 213 |
| Act Number: | 537 |
| Georgia Laws: | 2014 Ga. Laws 302 |
| Summary: | The Act provides the Director of the Environmental Protection Division with flexibility in determining when and how to declare a drought and how to proceed in case of a drought. The Act no longer requires the Director to determine a drought status by a certain date or to conduct irrigation reduction auctions. The Act codifies the Director's ability to implement augmentation projects and limit the ability of those with withdrawal permits to withdraw the augmented water for irrigation. The Act also creates irrigation efficiency requirements and sets forth a schedule requiring all irrigation systems to achieve eighty percent efficiency by 2020. |
| Effective Date: | July 1, 2014 |
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History
The Flint River begins in Clayton County and flows through southwest Georgia.1 The Flint River Basin contains 8,460 square miles of land, primarily used for agriculture,2 which is the state's largest industry, producing billions of dollars in revenue annually.3 Farming in the Flint River Basin, specifically, produces over two billion dollars in revenue.4 The Flint River Basin is prone to droughts, and frequent use of the water for irrigation has resulted in water shortages in this area.5 These droughts have vast economic and ecological impacts.6 The Lower Flint River Basin is home to several species of rare mussels, whose continued existence is contingent upon sufficient stream flows.7 It has suffered most from the frequent droughts.8
In 2000, Georgia passed House Bill 1326 to put in place measures to protect the Flint River by restricting irrigation during periods of drought and providing financial incentives to farmers, who use the greatest amounts of water, to forego irrigating during droughts.9 The bill was proposed to regulate southern Georgia's water usage in a way that would most efficiently conserve water in the area. This bill required the Director of the Georgia Environmental Protection
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Division (EPD) to announce by March 1 of each year whether the area was in a drought.10
Despite these efforts to regulate stream flow, droughts persisted and the river reached record lows in 2012.11 EPD then began exploring new ways to help river flow.12 The first augmentation project targeted one of the creeks in the lower basin as a measure to protect endangered mussels.13 Additionally, EPD ceased issuing permits to those hoping to withdraw water within the Lower Flint River Basin.14 The Flint River Drought Protection Act was drafted to address the ongoing concerns of low stream flows, including preventing litigation over protected species in the Flint River Basin.15
In 2013, the General Assembly proposed Senate Bill (SB) 213, but there was not enough time remaining in the session at the time of the proposal to address all the concerns surrounding the bill and to pass the bill.16 Environmentalists were concerned the bill would deprive certain landowners in the Flint River Basin of rights to water and enable a controversial water transfer system.17 The bill was sent back to the House Agriculture and Consumer Affairs Committee, but would not be considered again until 2014.18
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Bill Tracking
Consideration and Passage by the Senate
Senators Ross Tolleson (R-20th), Freddie Powell Sims (D-12th), Dean Burke (R-11th), Jack Hill (R-4th), Ronnie Chance (R-16th), and others sponsored SB 213 in the Senate.19 The Senate first read the bill on February 26, 2013.20 The bill changed the existing law by providing irrigation efficiency requirements for farmers, giving the EPD Director (the Director) flexibility in issuing drought predictions, and permitting studies that could lead to changes in water regulation.21 The Senate Natural Resources and the Environment Committee favorably reported a committee substitute on March 1, 2013.22 This substitute revised language pertaining to compliance with the Act.23 The Senate read the bill for the second time on March 4, 2013.24 The Senate read the bill for the third time on March 7, 2013.25
On the Senate floor, five amendments were proposed, and the Senate adopted four of these amendments.26 The first amendment specifically added the Georgia Water Planning and Policy Center to the list of entities involved with developing studies on new water management regulations.27 The second amendment included a provision prohibiting drilling wells or boreholes for the purpose of injecting surface water into any aquifer.28 Senator Tommie Williams (R-19th) proposed this amendment because, though he was not completely against augmentation, he feared that the bill would allow the injection of surface water into aquifers.29 The second amendment
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expressly prohibited the injection of surface water into the ground.30 The third amendment, failed on the floor, but the change would have omitted entirely the section of the bill allowing for augmentation projects.31 Senator Jason Carter (D-42nd) opposed augmentation for a two reasons.32 First, he was concerned with codifying such an experimental procedure.33 Second, Senator Carter opposed the idea of the state owning the augmented flow.34 The fourth amendment added two studies to the list of studies that EPD was permitted to conduct to establish new rules and regulations regarding water management, and set flow targets.35 Senator Bill Cowsert (R-46th) sought to broaden the scope of the bill with this amendment,36 which the Senate ultimately adopted.37 The final floor amendment struck from the fourth amendment all language about flow targets.38 The Senate passed the committee substitute with the floor amendments on March 7, 2013 by a vote of 52 to 1.39
Consideration and Passage by the House
Representative Buddy Harden (R-148th) sponsored the bill in the House.40 The first reading of the bill took place March 11, 2013.41 The second reading in the House was on March 12, 2013.42 The Agriculture and Consumer Affairs Committee favorably reported a substitute on March 22, 2013.43 This substitute made several changes to the bill passed in the Senate.44 The majority of changes merely clarified the intent of the bill to preserve water in specific portions of
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the Flint River and clarified who would be affected by these measures.45 This proposed bill itemized particular bodies of water as being exempt from the effects of augmentation.46 The substitute also replaced the term "application efficiency" with "irrigation efficiency" and defined the term.47 This change clarified the intent of the legislature to measure water use efficiency in irrigation.48 Regarding future studies on water management, the committee substitute added the Georgia Water Planning and Policy Center and the Lower Flint-Ochlockonee Regional Water Council to the list of entities with whom EPD must cooperate when conducting water management studies and revising regulations,49 removed three variations of studies from the list of water management studies that may be conducted,50 and added the Lower Flint-Ochlockonee Regional Water Council to the list of agencies that EPD must cooperate with when providing requirements for methods of showing efficiency.51 The Georgia Water Planning and Policy Center was included because of its heavy involvement with water management and its understanding of agriculture in the region.52 The substitute also removed the previous amendment to prohibit drilling or using wells and boreholes to inject surface water into aquifers.53 On March 26, 2013, due to the unrest in the legislature over the matters addressed in the substitute bills, the House postponed the vote on the bill until March 28, 2013 and sent it back to the committee.54
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The House Committee on Agriculture and Consumer Affairs favorably reported the bill by substitute on February 5, 2014.55 The committee substitute added specific types of data, indexes, and scientific analyses that EPD may consider when deciding whether or not it should predict a severe drought.56 Adding this language was a formality, as these practices were already implemented by EPD. The Committee included this language to ease concerns of those who feared EPD had too much liberty in implementing augmentation procedures.57 For similar reasons, this substitute also removed language about the effects of EPD studies on shaping water management regulations.58 Because of the selective nature of the augmentation procedures, the bill substitute also required the Director to determine which permittees59 would not be affected.60
The Rules Committee recommitted the bill to the Agriculture and Consumer Affairs Committee on March 3, 2014.61 The committee favorably reported another substitute on March 10, 2014.62 To provide more clarity on which portions of the Flint River the bill intends to address, the substitute listed by name the waters which fall within the previously-defined "affected area"63 and defined augmentation as "the addition of ground water from one or more aquifers underlying the affected areas into a surface water channel within the affected areas for the purpose of maintaining instream flows."64 Defining "augmentation" was a crucial addition to the bill's
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passage because the ambiguity...
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