Water Resources in Georgia in a Time of Drought: Availability, Management, Storage and Conservation

Water Resources in Georgia in a Time of Drought: Availability, Management, Storage and Conservation SPEAKERS: Patricia T. Barmeyer Lewis B. Jones Joh...
Author: Cody Henry
3 downloads 0 Views 1MB Size
Water Resources in Georgia in a Time of Drought: Availability, Management, Storage and Conservation SPEAKERS:

Patricia T. Barmeyer Lewis B. Jones John L. Fortuna

Tuesday, May 20, 2008 12:30 – 1:30 p.m. Eastern time

If you have not downloaded the program materials, please do so now at – www.kslaw.com/ewww.kslaw.com/e-learn/handout

To connect to the audio part of the program, please call: 1-888888-291291-5971 A customer service representative will connect you to the seminar.

For technical assistance at any time during the presentation, please call: 1-888888-865865-7469

Speaker Biographies

Patricia T. Barmeyer [email protected]

Patricia Thrower Barmeyer is a partner in King & Spalding’s Atlanta office and the head of the firm’s Environmental Practice Group. She joined the firm in 1990 after serving 17 years as an assistant attorney general for the State of Georgia. At King & Spalding Ms. Barmeyer has concentrated her practice in environmental litigation in the areas of water, waste, and air, as well as the defense of major environmental tort cases. Chambers USA Leading Lawyers for Business 2007 ranks Ms. Barmeyer as a “Star Individual,” and the top environmental lawyer in Georgia. Chambers also describes her as “the consummate professional, the best out there,” and mentions her “amazing presentations in court.” Chambers reports that clients describe the firm’s environmental practice as “a group of talented, thoughtful and strategic lawyers.” Ms. Barmeyer’s expertise combines a detailed knowledge of environmental law with courtroom experience in environmental cases.

(404) 572-3563

Education J.D., cum laude, Harvard University B.A., Hollins College ■



Speaker Biography Lewis Jones is a counsel on King & Spalding’s Tort & Environmental Litigation Practice Group. Mr. Jones is recognized as an “up and coming individual” in Chambers USA (2006 & 2007) and as a “Rising Star” by the Georgia Super Lawyers. Chambers USA reports that Mr. Jones is regarded by clients as “a bright legal scholar who understands how to position issues strategically.” His practice concentrates on water law and water resources, and he also has extensive experience with the Endangered Species Act and wetlands permitting issues.

Lewis B. Jones [email protected] (404) 572-2742

Education J.D., cum laude, Harvard Law School M.S. in Land Resources, University of Wisconsin-Madison B.S., summa cum laude, University of the South (Sewanee, Tennessee) ■

Speaker Biographies John Fortuna is an associate in King & Spalding’s Tort & Environmental Litigation Practice Group. Prior to joining the firm in 2007, Mr. Fortuna served for two years as a law clerk to the Honorable Richard W. Story in the United States District Court for the Northern District of Georgia.

John L. Fortuna [email protected]

Mr. Fortuna received his law degree, magna cum laude, from the University of Georgia School of Law in 2005, and was inducted into the Order of the Coif. While in law school, Mr. Fortuna served as the Executive Notes Editor of the Georgia Law Review, where his Note, Water Rights, Public Resources, and Private Commodities: Examining the Current and Future Law Governing the Allocation of Georgia Water, was published in the Spring of 2004. He also received the Environmental Law Association Award for Excellence in Environmental Advocacy.

(404) 572-2828

Education J.D., magna cum laude, University of Georgia B.S., cum laude, Wake Forest University.

Water Resources in Georgia in a Time of Drought: Availability, Management, Storage and Conservation SPEAKERS:

Patricia T. Barmeyer Lewis B. Jones John L. Fortuna

Tuesday, May 20, 2008 12:30 – 1:30 p.m. Eastern time

1

Water Resources in Georgia in a Time of Drought ¾ Water Wars update ¾ Georgia Statewide Comprehensive Water Management Plan ¾ Georgia Water Supply Act of 2008

2

Water Wars Update

3

4

History of the Litigation ¾ 1989 - Lanier and Allatoona reallocation reports ¾ 1990 - Alabama files suit and Florida joins ¾ 1992 - Three states agree to study ¾ 1997 - Interstate compacts to negotiate water allocations ¾ 2003 - ACF Compact dissolves / negotiations fail ¾ 2004 - ACT Compact dissolves / negotiations fail ¾ 2003 - Litigation ¾ Presently • •

8 separate cases 3 different federal courts (Alabama, Florida, Washington DC)

5

What the Water Wars Are Not ¾ The Water Wars litigation is not expressly about the allocation of water per se ¾ Instead, litigation is focused on challenges to the Corps’ operation of the federal reservoirs ¾ All parties challenge the Corps’ current operations •

FL claims more water is needed for endangered species, oysters, and the ecosystem; Alabama just wants to keep Atlanta from taking more water



GA wants more water stored in Lake Lanier and Lake Allatoona to provide M&I water supply, for recreational use, and to protect the systems in time of drought



FL and AL challenge the Corps’ authority to operate Lake Lanier and Lake Allatoona for water supply and for recreation

6

Interim Operations Plan (IOP) ¾ Since March 2006, the water wars have focused on the Interim Operations Plan for the ACF Reservoirs ¾ Response to Florida’s threat of litigation under the Endangered Species Act •

Threatened Gulf sturgeon, threatened purple bankclimber, and the “surprisingly abundant” endangered fat threeridge

¾ Not sustainable under drought conditions • •

Prevents reservoirs from refilling Draws heavily from storage to supplement flows in Florida

¾ Drained the system in 2007 • •

Conservation storage completely exhausted in lower reservoirs Lake Lanier reached lowest level in its history; 20’ below full pool

7

Metro Atlanta Uses Only a Small Fraction of the Water in the ACF Basin ¾ Use 1% of the water in the ACF basin above the Florida line in a normal year, 2% during extreme drought ¾ Average annual consumptive use is 250 cfs, compared to an average annual discharge at the Florida state line of approximately 21,000 cfs ¾ Only 9% of the flow of the ACF Basin above the Florida line passes through Lake Lanier

8

Other Uses Equal or Exceed Metro Atlanta ¾ Metro Atlanta net water withdrawal is approximately 250 cfs on an annual average ¾ Depletions to the Flint River from agricultural withdrawals average about 268 mgd (415 cfs) ¾ Evaporation from main stem reservoirs causes depletions of 135 mgd (209 cfs)

9

Releases from Reservoirs Far Exceeded Inflow ¾ From May to November 2007 •

Releases to the Apalachicola were almost 220% of the natural unimpaired flow of the river



During October and November 2007, releases from Lake Lanier were 7 times greater than inflow

10

Exceptional Drought Operations Plan (EDO) ¾ In November 2007, Corps acknowledged that releases under the IOP could not be sustained ¾ Adopted Exceptional Drought Operations Plan (EDO) •

Reduced minimum flow requirement for the Apalachicola River



Allowed for storage of all water in excess of that required to maintain minimum flows

¾ A good emergency recovery plan, but even with this plan it could take years to refill Lake Lanier

11

Lower Reservoirs Quickly Recovered Under the EDO ¾ West Point •

Current elevation: 634.81 ft



1 ft. above “rule curve” elevation

12

Lower Reservoirs Quickly Recovered Under the EDO ¾ Walter F. George •

Current elevation: 189.51 ft



½ ft. above “rule curve” elevation

13

Lake Lanier Remains at Critically Low Levels ¾ Lake Lanier •

Current elevation: 1057.68 ft



13.5 ft. below “rule curve” elevation



Approximately 5 ft below record low for this time of year

¾ Entering dry summer and fall ¾ "What you’re seeing is probably the high level for this year." Dr. Carol Couch, Director, Georgia EPD, Gainesville Times (May 13, 2008)

14

Modified IOP (MIOP) ¾ On April 15, 2008, Corps proposed modifications to the IOP (MIOP) •

Largely incorporates the EDO



Relaxes restrictions that prevent refill



Slightly increased minimum flow

¾ To be effective June 1, 2008 subject to approval of US Fish & Wildlife Service ¾ Still a bad operating plan, but probably the best we could hope for under the circumstances

15

Water Control Plan Update ¾ The Corps is currently updating Water Control Plans for both basins •

Last formal plan adopted in 1959. Currently operating under 1989 “Draft” Water Control Plan—formally withdrawn in 1992



Update is expected to take 3 years

¾ Both Basins have enough water and storage to meet all reasonable needs provided the reservoirs are properly managed ¾ The new plan must be based on facts and sound science— without political interference

16

Issues for the Long-Term Allocation ¾ Agricultural irrigation •

The largest consumptive user in the basin



Largely ignored in the district court litigation because the Corps does not have any control over users in the Flint River Basin



Will be a major issue in any apportionment between Florida and Georgia

¾ Georgia’s Ownership of / jurisdiction over the Chattahoochee River ¾ Reasonable use / conservation ¾ Balance between human uses and the environment •

No precedent in any previous interstate allocation

17

Just How Big Is the Pie?

See Climate of 2002-July Southeast Region Drought, National Climatic Data Center (Aug. 15, 2002), http://www.ncdc.noaa.gov/oa/climate/research/2002/jul/st104dv00pcp200207.html

18

Colorado River Flow at Lees Ferry (Upper/Lower Basin) Colorado River Compact (1922): 15 MAF allocated among Upper Basin states (above Lees Ferry) based on assumed average flow of 16.5 MAF

From Western Water Assessment, NOAA Earth System Research Laboratory, Colorado River Streamflow: A Paleo Perspective (http://wwa.colorado.edu/resources/paleo/lees/gage.html)

19

Measured and Estimated Unimpaired Flows to Colorado River Delta at the Southern International Boundary (1920-1998)

From Michael J. Cohen and Christine Henges-Jeck, Missing Water: The Uses and Flows of Water in the Colorado River Delta Region (Pacific Institute Sept. 2001)

20

Georgia Comprehensive Statewide Water Management Plan

21

Comprehensive State Water Plan ¾ Adopted by Water Council January 8, 2008 ¾ Approved by General Assembly February 18, 2008 ¾ Framework for water planning for the next decade •

Will do for the rest of the state what the Metropolitan North Georgia Water Planning District has done for the for the metro area



Does not give special consideration to MNGWPD and does not allow the metro area to take water from other areas

¾ Essential to our defense in the water wars, but also for our own ability to make optimal use of available resources

22

What’s in the Plan? ¾ General policy statements ¾ Actions items to be implemented by EPD within EPD’s existing authority •

Resource assessments



Regional planning

¾ Proposals for DNR rulemaking •

New authority to impose conditions on permits



New criteria for the issuance of permits

23

Policy Statements ¾ Manage water resources “in a sustainable manner to support the state’s economy, to protect public health and natural systems, and to enhance the quality of life for all citizens.” ¾ Water Quantity Policy • •

Manage Georgia’s waters in manner that recognizes the values and opportunities provided by surface and groundwater historic flow patterns Manage consumptive uses of Georgia waters so that opportunities associated with these historic flow patterns continue to be available to Georgians of the future

¾ Water Quality Policy • •

Protect and preserve the quality of Georgia’s waters through watershedbased management of both point and non-point sources of pollution Restore impaired waters through use of watershed-based management tools

24

Water Quantity Management Practices ¾ Water Demand Management— Water Conservation Implementation Plan • •

To be developed by EPD Permit applicants will be required to demonstrate compliance

¾ Return Management Practices •

Policies regarding septic systems & land application

¾ Water Supply Management Practices •



Policies regarding practices to increase supply: interbasin transfers, intrabasin transfers, surface storage, aquifer storage and recovery (ASR), and desalination No new raw water interbasin transfers and intrabasin transfers crossing 4 or more county lines until resource assessment is completed

25

Interbasin Transfers in North Georgia ¾ IBTs limited to situations where wastewater discharge and intake are located in different basins •

No pipelines



No aqueducts



No raw-water transfers



No long-distance transfers

26

Interbasin Transfers, California Style ¾ California Aqueduct: 444 Miles from Northern to Southern California ¾ Friant-Kern Canal: 152-mile irrigation canal for Central Valley ¾ Los Angeles Aqueduct: 253 Miles from Owens River Valley to L.A. ¾ Colorado River Aqueduct: 242 Miles to L.A. From California Water Plan Update 2005 http://www.waterplan.water.ca.gov/docs/cwpu2005/v ol4/vol4-infrastructure-camajorwaterprojects.pdf

27

Owens River Diversion —Near Aberdeen, Owens Valley CA (1984)—

From Images of the California Environment, G. Donald Bain, U.C. Berkeley http://geoimages.berkeley.edu/geoimages/BainCalif/cal400/jawsiphn.html

28

Owens Lake Bed —Dirty Socks Spring, Near Olancha, CA (1969)—

From Images of the California Environment, G. Donald Bain, U.C. Berkeley http://geoimages.berkeley.edu/geoimages/BainCalif/cal400/jawsiphn.html

29

Los Angeles Aqueduct —Jawbone Siphon Near Mohave, CA—

From Images of the California Environment, G. Donald Bain, U.C. Berkeley http://geoimages.berkeley.edu/geoimages/BainCalif/cal400/jawsiphn.html

30

Water Quality Management Practices ¾ Enhanced water quality standards •

Enhanced monitoring and assessment program



DNR to evaluate new classification: Natural Resource Waters



DNR to consider new standards for dissolved oxygen and bacteria

¾ Enhanced pollution management practices •

Compliance and inspection enforcement



Enhance control of non-point sources



Coordinated environmental planning » Watershed assessments and protection plans per OCGA 12-5-23(a)(1)

31

Water Resource Assessments ¾ Water Quantity Assessments •

Quantify historic flows (including both natural and altered flows)



Determine quantities available to support human uses “consumptive use assessment” / consumptive use budgets

¾ Water Quality Assessments •

Determine remaining assimilative capacity

¾ To be developed by Georgia EPD

32

Resource Assessments-Timeline

33

Regional Planning ¾ Regional Water Councils • • •

County-based Opt-in / opt-out provisions Up to 25 members plus 3 alternates » Appointed by Governor (13), Lt. Gov. (6) and Speaker (6) » One ex officio, non-voting member from both House and Senate

¾ Regional Water Development and Conservation Plans • • • •

Based on resource assessments provided by EPD Forecast future water supply and assimilative capacity needs Identify management practices for stormwater, wastewater treatment, water supply, water conservation and water quality Identify steps that can be taken to ensure that forecasted needs can be met within the water resources’ capabilities

34

Water Planning Regions

35

Regional Planning ¾ Plans to be reviewed and approved by Georgia EPD •

EPD will review for consistency with rules and guidance



45-day public comment period

¾ Once approved, regional plans will guide Permit decisions by Georgia EPD ¾ Will also determine eligibility for GEFA grants and loans for water-related projects

36

Regional Planning Timeline

37

What to Watch ¾ Resource Assessments (EPD) •

Consumptive use budgets will establish the allocation of resources among regions.

¾ Regional Water Plans (Regional Water Councils) •

May allocate water to particular users or types of users subject to the regional consumptive use budget



Any new water supply projects will need to be included

¾ Technical Guidance / Water Conservation Implementation Plan (EPD) and DNR Rulemaking •

Must ensure appropriate flexibility and balance

38

S.B. 342 Water Conservation and Drought Relief Act (Part I) and

Georgia Water Supply Act of 2008 (Part II)

39

Water Conservation and Drought Relief Act ¾ State Soil and Water Conservation Commission authorized to provide funding for construction and permitting of water supply reservoirs: • • •

Up to 20% for permitting and improvements to dams built or funded by the Soil Conservation Service Up to 40% of cost of construction and permitting of new water supply reservoirs Funding considerations » » » »

Regional effects Water supply yield Projected population growth Local government funding commitment

¾ Streamlined permitting process •

Expedited review of permits and certifications by EPD

40

Georgia Water Supply Act of 2008 ¾ Creates new Water Supply Division within the Georgia Environmental Facilities Authority ¾ Authorities and responsibilities fall broadly into 4 groups: •

Direct project development



Cooperation with local governments to facilitate local projects



Site selection / permitting responsibilities



Funding

41

Direct Project Development ¾ New Division is authorized to acquire or develop water projects directly or under contract with others •

May charge users for the use of projects

¾ May “upsize” projects developed by local governments •

To achieve maximum water development objectives at minimum total expenditure



Subject to cost-sharing agreement for portion allocated to state.

42

Cooperative Agreements / Streamlining ¾ Will be the primary state agency to cooperate with EPD, the Army Corps of Engineers, and all other federal agencies ¾ Authorized to create wetlands mitigation bank(s) and stream mitigation bank(s) to facilitate construction and permitting. ¾ Authorized to assume responsibility by intergovernmental contract for procuring all necessary federal permits on behalf of local governments ¾ Authorized to provide technical services to local governments ¾ May conduct needs analysis for local governments

43

Site Selection ¾ Directed to inventory and survey feasible sites for water reservoirs •

Progress report to legislative oversight committee by October 2008



Quarterly reports thereafter

¾ Directed to promulgate rules governing selection of sites for projects •

Rules will apply to all projects, not just those sponsored by the water supply division

44

Funding ¾ Authorized to utilize financial advisory and construction related services of the Georgia State Financing and Investment Commission ¾ Georgia Reservoir Fund •

To be used for water projects



To consist of proceeds of bonds issued and any moneys paid to the authority under intergovernmental contracts, voluntary contributions and/or federal grants



Administered by GEFA

45

Limitations ¾ Limitations apply to all projects developed or funded in whole or in part by the division •

Projects must be primarily for water supply purposes



No consumptive use for electrical generation facilities



Must acquire surrounding land sufficient to allow future expansion and to provide passive recreation



No private development on any reservoir or its surrounding land



No motorized vessels unless powered by electric motors

46

Take Away ¾ Water Control Plan Update ¾ EPD Resource Assessments ¾ Regional Water Councils ¾ Assess and document future needs ¾ Conservation

47

Questions Self Study Code: 344151

48

Suggest Documents