[Senate Hearing 113-745]
[From the U.S. Government Publishing Office]
S. Hrg. 113-745
OVERSIGHT OF ARMY CORPS OF ENGINEERS WATER MANAGEMENT IN THE
APALACHICOLA-CHATTAHOOCHEE-FLINT (ACF) AND THE ALABAMA-COOSA-TALLAPOOSA
(ACT) RIVER
SYSTEM
=======================================================================
HEARING
before the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
----------
July 22, 2013
----------
Printed for the use of the Committee on Environment and Public Works
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.gpo.gov/fdsys
S. Hrg. 113-745
OVERSIGHT OF ARMY CORPS OF ENGINEERS WATER MANAGEMENT IN THE
APALACHICOLA-CHATTAHOOCHEE-FLINT (ACF) AND THE ALABAMA-COOSA-TALLAPOOSA
(ACT) RIVER
SYSTEM
=======================================================================
HEARING
before the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
JULY 22, 2013
__________
Printed for the use of the Committee on Environment and Public Works
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.gpo.gov/fdsys
U.S. GOVERNMENT PUBLISHING OFFICE
95-876 PDF WASHINGTON : 2016
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana DAVID VITTER, Louisiana
THOMAS R. CARPER, Delaware JAMES M. INHOFE, Oklahoma
BENJAMIN L. CARDIN, Maryland JOHN BARRASSO, Wyoming
BERNARD SANDERS, Vermont JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island MIKE CRAPO, Idaho
TOM UDALL, New Mexico ROGER WICKER, Mississippi
JEFF MERKLEY, Oregon JOHN BOOZMAN, Arkansas
KIRSTEN GILLIBRAND, New York DEB FISCHER, Nebraska
MAZIE K. HIRONO, Hawaii
Bettina Poirier, Majority Staff Director
Zak Baig, Republican Staff Director
C O N T E N T S
----------
Page
JULY 22, 2013
OPENING STATEMENTS
Sessions, Hon. Jeff, U.S. Senator from the State of Alabama...... 1
Rubio, Hon. Marco, U.S. Senator from the State of, prepared
statement...................................................... 199
Southerland, Hon. Steve II, U.S. Representative from the State of
Florida, prepared statement.................................... 200
WITNESSES
Jackson, Brigadier General Donald E. Jr., Commander, South
Atlantic Division, U.S. Army Corps of Engineers................ 6
Prepared statement........................................... 9
Responses to additional questions from Senator Sessions...... 15
Atkins, J. Brian, Division Director, Alabama Office of Water
Resources...................................................... 87
Prepared statement........................................... 90
Turner, Judson H., Director, Environmental Protection Division,
Georgia Department of Natural Resources........................ 172
Prepared statement........................................... 175
Munson, Gregory M., Deputy Secretary, Water Policy and Ecosystem
Restoration, Florida Department of Environmental Protection.... 187
Prepared statement........................................... 189
ADDITIONAL MATERIAL
ACF Stakeholders................................................. 202
Letters:
Department of the Army, Moble District Corps................. 234
To Chairman Shuster and Ranking Member Rahall in reference to
the Water Resources Develpoment Act (WRDA), dated May 13,
2013....................................................... 237
To Chairman Shuster and Ranking Member Rahall in reference to
the Water Resources Develpoment Act (WRDA), dated June 3,
2013....................................................... 240
To Secretary Darcy in reference to the Water Supply Act of
1958 (WSA)................................................. 242
Department of the Army, Office of the Assistant Secretary
Civil Works................................................ 244
State of Alabama, Officer of the Govenor..................... 245
Congressional Budget Office, Douglas W. Elmendorf, Director.. 296
Rick Scott, Governor of Florida.............................. 307
Department of the Army, Office of the Assistant Secretary
Civil Works................................................ 309
Hon. Jo-Ellen Darcy, Office of the Assistant Secretary (Civil
Works)..................................................... 312
Manufacture Alabama!......................................... 318
Alabama Pulp & Paper Council................................. 320
Apalach-Colo River Keeper.................................... 322
Business Council of Alabama.................................. 326
Alabama Department of Environmental Management............... 328
Coosa-Alabama River Improvement Association, Inc............. 344
Georgia Department of National Resources Environmental
Protection Division........................................ 359
Water Contingency Planning Task Force........................ 375
Cobb County-Marietta & Water Authority....................... 417
The Wall Street Journal; In Latest War Between the States,
Georgia Says Tennessee Is All Wet.............................. 428
.............................................................
OVERSIGHT OF ARMY CORPS OF ENGINEERS WATER MANAGEMENT IN THE
APALACHICOLA-CHATTAHOOCHEE-FLINT (ACF) AND THE ALABAMA-COOSA-TALLAPOOSA
(ACT) RIVER SYSTEM
----------
MONDAY, JULY 22, 2013
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 3 p.m. in room
406, Dirksen Senate Building, Hon. Jeff Sessions (co-chairman
of the committee) presiding. Present: Senators Sessions and
Boozman.
OPENING STATEMENT OF HON. JEFF SESSIONS,
U.S SENATOR FROM THE STATE OF ALABAMA
Senator Sessions. Good afternoon.
Welcome to today's Senate Environment and Public Works
Committee hearing entitled, Oversight of the Army Corps of
Engineers Water Management in the Apalachicola-Chattahoochee-
Flint and Alabama-Coosa-Tallapoosa River Systems. Today, the
Committee will hear from both Federal and State officials about
the status of the Corps' efforts in the ACF and the ACT basins
and impacts of those decisions.
I see my colleagues, Senators Isakson and Chambliss, who
have been very alert to these issues. We have discussed it at
length over a period of years. They have been very articulate
in advocating for Georgia's position on this. Gentlemen, it is
great to have you. I would be willing to have an opening
statement from you. You have indicated you would like to submit
statements for the record and I would be glad to receive them.
That is your choice.
Thank you for attending. Indeed, as we have all discussed
over a period of years, we really need a compact between the
three States involved and that has been difficult to achieve to
date.
[The prepared statements of Senators Isakson and Chambliss
follow:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Sessions. The first panel will include Brigadier
General Donald E. Jackson, Jr., Commander, South Atlantic
Division, headquartered in Atlanta, Army Corps of Engineers and
Hon. Jo-Ellen Darcy, Assistant Secretary of the Army, Civil
Works.
General Jackson and Secretary Darcy, thank you both for
taking time out of your schedules to be here. General Jackson,
congratulations on your recent promotion to Brigadier General.
The second panel consists of State officials from three
States that comprise the ACF and ACT basins, J. Brian Atkins,
Division Director, Alabama Office of Water Resources; Judson H.
Turner, Director, Environmental Protection Division, Georgia
Department of Natural Resources; and Gregory M. Munson, Deputy
Secretary for Water Policy and Ecosystem Restoration, Florida
Department of Environmental Protection.
Given my interest in the hearing, Chairman Boxer and
Ranking Member Vitter have graciously invited me to serve as
Co-Chairman. We expect sparse attendance today as the Majority
Leader has not scheduled any votes today, so many of our
members will not be returning from the weekend in their States.
During consideration of the WRDA bill, there were many
conversations and activities in this Committee and outside
about concerns with the status of operations at Lake Lanier in
the ACT system and Lake Allatoona in the ACT system. These
challenging issues have been facing Alabama, Georgia and
Florida for decades.
As Atlanta continues to consume increasing amounts of water
from these shared and limited water resources, it is imperative
that all stakeholders have a full understanding of the actions
the Corps of Engineers has taken or plans to take in the years
ahead in the region. Officials from all three States will give
testimony about the impact of the Corps' actions on their
constituents, industries and ecological resources.
I intend to ask Secretary Darcy and General Jackson
questions to understand their plans for the ACF and the ACT
basins and ask whether and how those plans follow the law,
including the Water Supply Act of 1958.
Ultimately, a reasonable resolution of this matter should
come through an InterState Water Compact agreed to by
Governors. For that to happen, I believe the Corps must
implement existing law and not take sides in discussions.
A primary focus of the hearing will be concerns about the
Army Corps decisions at Lake Lanier and Lake Allatoona under
the Water Supply Act of 1958. This important law ``declared it
to be the policy of Congress to recognize the primary
responsibility of the States and local interests in developing
water supplies for domestic, municipal, industrial and other
purposes.'
Section B of the Act authorized the Corps of Engineers to
allocate a portion of Federal reservoirs for municipal and
industrial water supply. In subsection (d) of the Act, however,
Congress imposed a requirement that Congress approve any such
allocation that would ``seriously affect the purposes for which
the project was authorized, surveyed, planned or constructed or
which would involve major structural or operational changes.'
Lake Lanier in the ACF and Lake Allatoona in the ACT
impound rivers that otherwise flow downstream to communities in
Alabama, Florida and other parts of Georgia. These communities
depend upon that steady flow of fresh water for their
livelihoods and environmental quality. Even though the
reservoirs were not built for Atlanta's water supply purposes,
the Atlanta area municipalities have made increasing use of
those two reservoirs for that purpose, local municipal and
industrial water supply.
Just this year, the State of Georgia asked the Corps for a
280 percent increase in their contractually authorized storage
allocation for Atlanta's water supply withdrawals from Lake
Allatoona, almost three times more than their current
allocation. In addition, this year Georgia has renewed its
request for water storage at Lake Lanier, seeking as much as 30
percent of Lake Lanier's storage for direct withdrawals for
Atlanta's water supply, where there is no current contract in
place. This issue has raised questions from Florida,
Apalachicola Bay and other areas.
How will the Corps handle these requests? That is an
enormously important question for the entire ACF and ACT
basins. Clearly, these significant demands from one area have a
severe impact on downstream communities.
I would like to thank Chairman Boxer and Ranking Member
Vitter for suggesting this hearing and their efforts on the
issue. They desire that all of us work together where possible
to reach common agreement. On May 16, Chairman Boxer and
Ranking Member Vitter sent an important letter to Secretary
Darcy correctly calling for an InterState Water Compact to
address the ongoing water dispute in the region. They also
correctly urged the Corps to serve as a neutral facilitator of
a negotiated solution.
Regrettably, in my view, the Corps has too often sided with
Atlanta by accommodating massive water withdrawals to the
detriment of my constituents in Alabama, as well as communities
in Florida and other parts of Georgia. Towns like Eufaula,
Columbus, LaGrange, Dothan, Gadsden, Montgomery, and
Apalachicola, are all impacted.
Around the time of the May 16 letter, Chairman Boxer
committed to me that this Committee, which has jurisdiction
over the Corps of Engineers, would hold a hearing on this
topic. She has kept her word by allowing this hearing to occur
today. I would say this is one of the few opportunities we have
had, and the people in the region have had, to have witnesses
from the Corps discuss these issues openly.
My understanding is that General Jackson will offer an
opening statement on behalf of the Army Corps and General
Jackson will primarily respond to questions about technical
issues and Secretary Darcy will respond to broader policy
issues.
Senator Sessions. Before we begin, I would like you to
agree, if you would, to respond in writing within 30 days to a
set of limited questions for the record that I would plan to
submit following today's hearing.
Ms. Darcy. Yes, sir.
Senator Sessions. General Jackson.
General Jackson. Yes, sir.
Senator Sessions. General Jackson, you can begin your
opening statement. We thank you.
STATEMENT OF BRIGADIER GENERAL DONALD E. JACKSON, JR.,
COMMANDER, SOUTH ATLANTIC DIVISION, U.S. ARMY CORPS OF
ENGINEERS
General Jackson. Senator Sessions, as you mentioned, I am
Brigadier General Donald Jackson, Commander of the U.S. Army
Corps of Engineers South Atlantic Division. I am honored to
testify before you today on the status of the Corps Water
Management in the Apalachicola-Chattahoochee-Flint, ACF, and
the Alabama-Coosa-Tallapoosa, ACT, river systems.
The ACF basin originates in northeast Georgia, crosses the
Georgia-Alabama border into central Alabama and follows the
State line south until it terminates in Apalachicola Bay,
Florida. There are five Federal reservoirs and ten non-Federal
reservoirs in the ACF system.
The ACT basin originates just north of the Tennessee-
Georgia border extending to central north Georgia, crosses the
Georgia-Alabama State line into north Alabama and continues
across central and south Alabama before terminating in Mobile
Bay. There are five Federal reservoirs and 11 non-Federal
projects owned by Alabama Power Company in the ACT system.
Corps' Mobile District is currently updating the basin-wide
Master Water Control Manuals for the ACT and the ACT River
systems through an open and deliberative process that includes
preparation of an environmental impact statement for each
system and solicitation and consideration of comments from the
public and all interested stakeholders.
The purpose of revising the manuals is to develop and
implement updated, basin-wide operational schemes for the
Federal projects in the two basins in accordance of their
authorized purposes, in light of current conditions and
applicable law.
Water control manuals assist Federal water managers in
operating individual and multiple interdependent Corps
reservoirs on the same river system consistent with applicable
law. Generally, a water control manual will include technical,
hydrologic, geographic, demographic, policy and other
information.
The Corps uses these manuals to inform and guide its
decisions on the management of waters in our reservoirs, which
typically involve different operating regimes for times of high
water, low water and normal conditions. The manuals contain
water control plans for each of the reservoirs in the basin
systems and specify how the various reservoirs will be operated
as a system.
As part of the update process, the Corps is preparing an
EIS for each of the two Federal systems and is soliciting and
considering comments from the public and interested
stakeholders. These actions will result in updated plans and
manuals for both systems that are consistent with applicable
law and take into account changes in basin hydrology and
demands from years of growth and development, new/rehabilitated
structural features, legal requirements and environmental
issues.
In June 2011, the United States Court of Appeals for the
Eleventh Circuit held that municipal and industrial water
supply for the city of Atlanta, Georgia is an authorized
purpose of the Lake Lanier project under the Rivers and Harbors
Act of 1946 and remanded the matter to the Corps to determine
the extent of its legal authority to accommodate the State of
Georgia's request in 2000 for additional water supply
withdrawals at and below Lake Lanier.
On October 12, 2012, the Corps published a notice
soliciting public comment on revising the scope of the EIS for
the ACF water control manual update in light of these
developments. The Corps published a revised Final Updated
Scoping Report in March 2013, providing notice that the Corps
is evaluating additional water supply alternatives within the
scope of the ACF water control manual updated and EIS,
including Georgia's updated request for water supply.
The Corps has not yet decided on a proposed mode of ACF
system operations. The proposed operations will be identified
in the draft water control manuals and EIS. These documents
will be made available for public comment before any final
decision is made on how the system should be operated.
The ACF Water Control Manual update and the EIS are being
prepared in accordance with Corps regulations, the National
Environmental Policy Act and all applicable law. As part of
this effort, the Corps will consult with other Federal agencies
as required, including consultation with the U.S. Fish and
Wildlife Service.
The draft water control manuals and EIS will be released
for public review and comment in accordance with NEPA and
requirements in the Corps regulations. Similarly, the draft
water control manuals and EIS will undergo quality control/
quality assurance reviews to include agency technical review
and independent external peer review.
The Corps is currently in the technical analysis stage of
the ACF manual update. We expect to reach the next major
milestone in the process about 2 years from now, when we file a
draft EIS with the Environmental Protection Agency and release
the draft water control manual and draft EIS for public review
and comment.
The ACT Water Control Manual update and EIS are also being
prepared in accordance with applicable law. The draft water
control manual and EIS were released for public review and
comment on March 1, 2013. The Corps is currently evaluating the
public review and independent external peer review comments it
received on these draft documents.
The draft Water Control Manual and EIS for the ACT reflect
the existing water supply storage at Lake Allatoona pursuant to
contracts entered under the Water Supply Act of 1958. Those
contracts remain valid and the operations we are considering in
the water control manual update process assume that withdrawals
will continue as contemplated under these contracts.
In summary, the purpose of both the ACF and the ACT manual
updates is to improve the information and guidance that the
Corps uses to operate the Federal dams in these basins in
accordance with applicable law. We operate the dams in each
basin as a system and will continue to do so.
The updates will take into account changes in basin
hydrology and demands from years of growth and development,
new/rehabilitated structural features, legal requirements and
environmental issues. Throughout this process, the Corps
encourages the active participation of all stakeholders, and
the Corps will carefully consider all comments received.
Senator Sessions and members of the Committee, this
concludes my testimony. I look forward to continuing to work
with the Committee on these very important issues and answering
any questions you may have.
[The prepared statement of General Jackson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Sessions. Thank you, General Jackson.
Secretary Darcy.
Ms. Darcy. Senator, I do not have a prepared statement but
I am happy to be here to support General Jackson and answer any
questions you have about the update for the manuals.
Senator Sessions. Let's look at a few of the fundamentals.
You cite, General Jackson, that you assume the contracts remain
in force. I believe you indicated that the flow from Lake
Allatoona would continue. Is that correct?
General Jackson. The water control manual update for the
ACT only recognizes existing contracts in effect today and do
not reflect any increased requests for water withdrawals by the
State of Georgia out of Lake Allatoona.
Senator Sessions. Are you saying that the established
amount is the amount in that contract or the amount actually
being withdrawn now?
General Jackson. Sir, we recognize the amount that is in
the contract.
Senator Sessions. The way this historically arose I have
discovered is that Congress was concerned about being in a
position of financing water supply projects for cities,
counties and areas. The policy was clear that Congress would
not pay for developing peoples' water systems. In cities like
Birmingham, they pay for their own.
This is a chart that shows a quote from Mayor Hartsfield,
the famous Atlanta Mayor, back in 1948 about these projects and
whether or not he would contribute and whether or not he wanted
it to be done so that Atlanta could participate in getting
water from it. He said, ``The city of Atlanta has many sources
of potential water supply in north Georgia. Certainly in view
of other possible sources of Atlanta's future water, we should
not be asked to contribute funds to a dam which the Army
engineers have said is vitally necessary for navigation and
flood control on the balance of the river.'
It would seem to me, General Jackson, that Atlanta's Mayor
at the time said they would choose not to participate in this
and did not desire any water from the system. Is that the way
you would understand that quote?
General Jackson. Sir, I apologize. I am not familiar with
that quote. I do not have a response for that.
Senator Sessions. It is pretty obvious to me you need to be
thinking about it as you go through this process.
Gerald Ford was a Member of Congress about this time. He
was a frugal man and he raised this question at the hearing:
``Is it not conceivable in the future that the city of Atlanta
will make demands on the Corps for certain water at certain
times because of the needs of Atlanta when at the same time, it
will be for the best interests of the overall picture, power,
navigation, flood control, to retain the water in the
reservoir?' Are you familiar with that question?
General Jackson. No, sir, I am not.
Senator Sessions. Colonel Potter replied, ``We would have
to come back, I believe, to Congress to alter the authorization
of that project were it a major diversion of the water. We take
a very dim view of changing a project to the subsequent needs
without Congress having a hand in it.'
That sounds like pretty good policy, does it not? If
Congress authorizes a dam for a series of purposes, the Corps
of Engineers does not have the authority to alter that purpose,
does it?
General Jackson. That is correct, sir. We follow the
authorized purpose of our projects as directed by Congress and
the authorizing legislation.
Senator Sessions. That is what we are talking about. We
have some concern about that with regard to Allatoona
Reservoir. First, let me ask, you support, I suppose the goal,
I think most of us do, that there be a compact between the
Governors? That is what Chairman Boxer and Ranking Member
Vitter said in their letter to you. I think most of us advocate
that. Is it your belief that is the best way to fix the
problem?
Ms. Darcy. Yes, Senator, that has been the longstanding
view of the Army, that a compact between the three impacted
States would be the best resolution for this issue.
Senator Sessions. With regard to Cobb County and the Lake
Allatoona Reservoir, there is a contract, is there not,
executed in 1963 that allows, in effect, 4.6 percent of the
reservoir to be utilized for water resources for Cobb County?
General Jackson. Senator, there is a contract in place. I
am not familiar with the exact numbers of the withdrawal but
there is a contract in place.
Senator Sessions. You need to know that. It was allocated
just over 13,000 acre feet in that contract, is that correct?
Do you know?
General Jackson. Sir, I apologize. I am not familiar with
the exact numbers of the withdrawal amount.
Senator Sessions. That is about what it is as I read it.
Now they are proposing a new contract of 14 percent, three
times that amount. Are you aware of that?
General Jackson. Sir, I am aware of a request submitted to
Ms. Darcy by Governor Deal for increased water withdrawals at
Lake Allatoona.
Senator Sessions. Those increased withdrawals could
effectively amount to reallocating the purposes of that by the
reservoir from its original constructed purpose by the Federal
Government, could it not?
General Jackson. Sir, we are in the process right now, as I
mentioned before, of completing the water control manual for
the ACT system based on the authorized purposes as currently
outlined and taking only into account those storage agreements
currently in effect. That is what we have agreed to do and that
is how we are proceeding with the water control manual update.
Senator Sessions. Fill me in on that a little bit. You are
redoing your manuals consistently with the contract that is in
place, is that what you're saying?
General Jackson. That is correct, sir.
Senator Sessions. That would be the 4.6 percent of the
reservoir or whatever is in that contract?
General Jackson. Yes, Senator, whatever is reflected in the
current contract.
Senator Sessions. Secretary Darcy, are you aware that
periodically over the years Congress has altered these kinds of
contracts through explicit legislative action if they were to
be changed?
Ms. Darcy. Yes, it would take an act of Congress in order
to change the project purpose.
Senator Sessions. I know if our Governors can reach an
agreement, I am sure that our Senators would reach an
agreement. We could pass such legislation necessary to fix the
disputes that we have.
Are you aware, General Jackson, that Cobb County is drawing
far more water today from that reservoir than is allowed under
the contract?
General Jackson. Sir, we monitor withdrawals from Lake
Allatoona in support of the water supply contracts on a routine
basis. We expect all users who are abiding by the water supply
contracts to follow those water supply contracts. When we find
out they are exceeded, we notify the individuals in writing and
let them know they have exceeded their water supply contracts.
We continue to monitor that and work with the Department of
Justice for any adjudication that needs to occur.
Senator Sessions. You acknowledge that according to Corps
policy, the amount of water taken out by Cobb County far
exceeds the contract amount?
General Jackson. Sir, I am aware that they have been
exceeded in the past but I am aware currently they are within
the terms of their contract.
Senator Sessions. You believe they are within the terms of
the contract?
General Jackson. That is my understanding at present, yes,
sir.
Senator Sessions. Are you counting return flow downstream
or not in that evaluation?
General Jackson. We don't attribute return flows giving
them credit for the portion of the contract they have. We do
monitor return flows but only as general basin inflows inside a
water-controlled basin. The folks of Cobb County do not get
credit for return flows into Lake Allatoona as a result of
their contract.
Senator Sessions. That is my understanding of Corps policy
nationwide.
General Jackson. Yes, sir.
Senator Sessions. That is an important question.
We have a pretty big difference of opinion. I hope you are
correct in saying Cobb County is operating consistently at
their contract level, but I have been informed they are well
above the contract level. I was informed that during the 2007
drought, by the Corps' own calculation, Cobb County was using
three times more storage place for water at Lake Allatoona than
the contract allowed. It was allocated just over 13,000 acre
feet and it was using over 39,000 acre feet. At 39,000 acre
feet, that is 14 percent of the Lake's conservation pool and
the Corps had to cut back on hydropower generation to protect
that supply. Are you aware of that?
General Jackson. Senator, as I mentioned earlier, I am
aware of previous infractions and we have notified the contract
holder in writing of its excedences and we continue to monitor
on a daily basis what is taken in and out of the lake as a
result of those contracts.
Senator Sessions. Would you acknowledge that at a time of
drought, as occurred in 2007, exceeding substantially the
amount of withdrawals would be particularly problematic for
downstream individuals depending on that water flow?
General Jackson. I would agree that in periods of drought,
there is significant impact up and down the basin to all users.
Any excedences would certainly cause additional problems for
users downstream.
Senator Sessions. I would agree. If you make an operational
change in that water supply flow with Allatoona, it would be
require congressional approval, would you agree?
General Jackson. As laid out for us in the Water Supply Act
of 1958, any operational change we make as part of our water
control manual update would remain, at this time, under the
delegated discretion of the Chief of Engineers, assuming it
does not include a major structural change, a major change in
operation or a significant impact to the operational purposes
for any of the authorized purposes for that reservoir.
Senator Sessions. Would you repeat that? I am not sure I
fully got that. Will you repeat what you said? I am not sure I
fully understood that.
General Jackson. You asked me about a reallocation of
water?
Senator Sessions. Yes.
General Jackson. What I referred to is in the water control
manual update we are currently doing, I am not sure. If you
could rephrase the question, I want to make sure I answer your
question correctly.
Senator Sessions. I am not sure I can do that. Actually, I
was asking you if there was a major operational change in water
withdrawal by Cobb County or anyone else would it require
congressional approval? The Corps of Engineers is not empowered
to make those kinds of policy decisions.
General Jackson. Any major changes or effects that
fundamentally depart from the congressional intent of that
particular project would require congressional authorization.
Senator Sessions. The Water Supply Act says, among other
things, that Congress must approve a major operational change,
I believe is the phrase.
I am informed that Cobb County, by its own admission, has
exceeded for decades the contractual amount of water storage
and they basically claim that their return of the water counts
and therefore, they are entitled to do it and intend to keep on
doing it. This has been going on for quite a long time,
decades, and the Corps had done nothing about it. This is
causing some unease downstream. That is our problem. Do you
dispute that they have drawn more than the Corps policy allows
consistently?
General Jackson. All I can do is refer to my previous
comment. I have been made aware of previous excedences which we
have addressed in written correspondence with Cobb County.
Senator Sessions. When you get back to Atlanta, you should
be able to ascertain these amounts of flows and withdrawals.
Would you submit a report to us setting forth how much has been
withdrawn from that reservoir since the contract was in force?
General Jackson. Yes, Senator.
Senator Sessions. One of the things that concerns us is
when it appears contracts are not being enforced, the Corps may
be overlooking its deep fundamental responsibility to deal with
the multi-State problem that has impacts throughout the region.
Therefore, a Corps agreement with one city, county or State has
to reflect the impact it would have on the other areas of the
State.
Really, that is why Congress maintained and kept for itself
final authority to amend the congressionally passed purpose of
these reservoirs. If it is changed, Congress would change it
and it would represent a national decision, not a local
decision. Do you think that is sound policy?
General Jackson. I believe as spelled out in the Water
Supply Act of 1958, that is sound policy.
Senator Sessions. The environmental impact statement, if
you change the manuals, the flow rate and the withdrawal rate,
an environmental impact statement is required?
General Jackson. Yes, Senator, it is.
Senator Sessions. I have been informed that you intend to
use the contractual amount as the authorized amount when you do
the environmental impact statement, but if the historical flow
coming out of there is greater and that withdrawal rate is
going to be approved in the future, wouldn't you have to do an
environmental impact statement on the larger flow rather than
the contract flow?
General Jackson. I am assuming you are talking about the
ACT Water Manual update?
Senator Sessions. Yes.
General Jackson. We are basing our water control manual
update on what is in the contracted amount.
Senator Sessions. What if you take out more than that? Are
you telling me you're going to stay at that contract amount?
General Jackson. Senator, yes, I am.
Senator Sessions. Let me ask you about the modified fall
releases under the proposed Lake Allatoona manual. The Corps'
decision or effort to alter the elevation levels in the Lake
from October 1 through November 15 of each year, would simply
extend a recreation system at Lake Allatoona, but fall is the
dry time of the year and can have a big impact downstream.
In other words, you maintain high levels of the Lake from
October through mid November through retaining water, not
allowing it to flow as you have before and that could have a
significant impact downstream during the fall season which is
traditionally dry. If it follows a dry summer, it can be
particularly problematic.
Why would you want to change that and reduce the flow
downstream at that time of the year?
General Jackson. I am not intimately familiar with all the
details of that. I would have to refer those to my technical
experts and reply in writing to the Committee.
Senator Sessions. This would be very important to us
because there is a good deal of concern on that. It seems to me
it would violate the common sense objective that the point of a
reservoir is to store water so it is available for release when
there is a shortage of water downstream.
Lake Lanier, in light of the unequivocal congressional
testimony by the Corps officers in the 1950's and the passage
of the 1956 Act, the Act actually amended the flow to 10
million gallons per day by congressional action.
I am concerned and wouldn't it be consistent with that
previous precedent that Congress would be called upon to
approve or not, Lake Lanier allowing withdrawal of 170 million
gallons a day in water. Wouldn't Congress need to be involved
in approval of that?
General Jackson. I am not quite sure I understand your
question. Could you please repeat the question?
Senator Sessions. In 1956 after the lakes had been built,
there was a desire to get more water from Lake Lanier. Congress
approved 10 million gallons per day in withdrawal from the
lake. Now it appears we are talking about 170 million gallons
per day. Wouldn't that take congressional approval for such a
large increase?
General Jackson. It is my understanding Congress has
delegated to us authority to make certain changes
administratively without additional legislation as long as it
does not require or cannot involve a major structural change,
major operational change or seriously affect any of the
authorized project purposes.
Senator Sessions. In 1956, you apparently felt it was
necessary to get approval for 10 million gallons per day. It
seems to me if you jumped that to 170 million gallons per day,
you for sure ought to get congressional approval. Would you
agree?
General Jackson. I can only follow my interpretation and
understanding of the authority we have under the Water Supply
Act of 1958. That is the process we are following now as we
take a look at Lake Lanier and the ACF system.
Senator Sessions. With regard to Lake Lanier, we have the
Eleventh Circuit opinion. It has been cited as a victory for
the Georgia position and I suppose it is in some ways but also,
in a footnote, it was quite clear that it only allows more
releases of water from Lake Lanier if there is a withdrawal of
water downstream for Atlanta or the other areas in the
metropolitan area. Is that the way you understand the decision?
General Jackson. My understanding of the decision was that
it authorized water supply as an authorized purpose for Lake
Lanier.
Senator Sessions. That is an overstatement of it, I think,
and you need to know this. You need to go back and have your
lawyers look at it because it explicitly did not approve direct
withdrawals of water from the reservoir. It indicated that
water could be released from the reservoir to flow downstream
if it was needed downstream to be captured for water supply in
the region. Do you understand it that way?
General Jackson. I will have to refer to my lawyers to make
sure that I do understand it correctly.
Senator Sessions. You should talk to your lawyers and make
sure your lawyers are thinking correctly too, because a bit of
his memorandum I think goes beyond what the opinion said.
I would offer for the record some analysis we did of the
memo by Mr. Stockdale, the Chief Counsel for the Corps. We
questioned some of the opinions in his memorandum. Without
objection, it will be accepted.
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Senator Sessions. The downstream areas, Florida and Alabama
particularly, have been concerned about a possible bias of the
Corps toward Atlanta on these water issues over quite a long
time. It is causing a number of problems.
Will you agree to take a close look at the letter submitted
by Chairman Boxer and Ranking Member Vitter and the comments
filed by the Alabama and Florida stakeholders and not favor any
one State but follow the law as plainly written?
General Jackson. We follow all of the authorized purposes
for the system and all the applicable laws that are
appropriate. We do consider all comments and work
collaboratively up and down the system as we work to make
decisions on our operations manuals as they are being
developed.
We will, in fact, consider all comments as I mentioned in
my statement from members of the public and stakeholders in
regard to these issues.
Senator Sessions. I am asking a little more than that. I am
saying will you ensure that you follow the recommendations of
Chairman Boxer and Ranking Member Vitter and not favor any one
State but follow the law?
General Jackson. Yes, sir, we will follow the law.
Senator Sessions. Would you agree that it is not
permissible under the law to take the water first and then get
a legal authority later?
General Jackson. We follow the authorized purposes and what
is represented to us in law. That is how we will work our
alternatives for water that would be withdrawn to meet any
requests or project purposes.
Senator Sessions. One of the questions suggested from
Florida is this. Does the Corps agree with the U.S. Fish and
Wildlife Service's assessment that projected increases in
Georgia's consumptive uses will increase the frequency and
duration of low flows in Florida's Apalachicola River?
General Jackson. I am not quite sure I understand.
Senator Sessions. Do you agree with the Fish and Wildlife
Service's assessment that the increases in Georgia's
consumptive uses of water, withdrawal of water, will increase
the frequency and duration of low flows in Florida's
Apalachicola River?
General Jackson. Senator, I have not seen that Fish and
Wildlife Service opinion.
Senator Sessions. You can get back with us on that, but I
would note that is the Fish and Wildlife Service's opinion. It
seems pretty obvious.
Has the Corps determined the maximum amount of water that
Georgia can consume without affecting the downstream?
General Jackson. No, Senator, we have not. That is part of
what we will be doing in our water control manual.
Senator Sessions. How will you do that? What kind of
testimony or evaluation will occur to determine the impact
downstream?
General Jackson. We will do a complete environmental impact
study as part of our water control manual update process. We
will take in information from all affected parties up and down
the water basin. That will be the basis for what we use to
develop our alternatives for consideration for our water
control manual operational updates.
Senator Sessions. With regard to withdrawals from Lake
Lanier and Lake Allatoona, Georgia is violating your contract
or otherwise having favorable benefits, do you understand how
that can undermine the ability of the Governors of Florida and
Alabama to negotiate with the Governor of Georgia?
In other words, if the Governor of Georgia is able to
obtain the kind of withdrawal rights he or she would want, they
have little incentive, wouldn't you agree, to negotiate some
sort of permanent agreement with Florida and Alabama?
General Jackson. I will attempt to answer that, Senator. We
expect any water supply user who has a contract to follow the
guidelines set forth in their contract. I don't think I am the
right person to determine whether or not Governors could or
wouldn't get together to discuss what actions they might take
in the future.
Senator Sessions. I would sum it up this way. It is hard to
have negotiations if we are looking the other way on the
withdrawal rates from those two lakes and the Corps of
Engineers is allowing Georgia to get a flow larger than they
would otherwise be entitled to. It is difficult to have
negotiations with Florida and Alabama because otherwise they
have gotten what they wanted.
I think you should think about that. Maybe Secretary Darcy,
you could comment on that but it is a very real thing. That was
explained to me previously as one of the impediments to being
able to get an agreement among the States.
Ms. Darcy. Senator, I think because of our ongoing look at
the water control manuals and the fact they will not be
completed, one of them will not be completed even for public
comment until 2 years from now that within those 2 years
hopefully the States will be able to come to some agreement
because there will not be any finality to any kind of
withdrawals between now and then.
Senator Sessions. Thank you.
I have a statement for the record from Senator Vitter, the
Ranking Member. I also have a letter from Governor Scott of
Florida who has been a very strong advocate on this issue and
takes it very seriously. The same is true for Congressman Steve
Sutherland of Florida. They have both been strong about this
issue and are deeply concerned. I would offer statements from
both of them for the record.
I would also ask consent to enter the statement from
Senator Nelson. He also has been very aggressive on this issue
and has discussed legislation and other actions that might
occur. I know Senator Nelson is deeply engaged in it.
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Senator Sessions. Senator Rubio, I understand, is having
field hearings in Florida about this subject. He feels strongly
about it.
I would share with you that it is a matter that is very
important. You are in a very difficult position. I would urge
you to make up your mind and just follow the law as it is. I
appreciate what I think you are saying, General Jackson, that
you are going to comply with the contract because I don't see
how we could have a contract with Cobb County and allow it to
be systematically violated substantially over a long period of
time and then somehow reach an accord with them that Alabama
could accept and that is the level of withdrawals that are
going to be allowed.
Senator Boozman, thank you for joining us on a Monday
afternoon. There are not many in town but we are glad you are
here at your post.
Senator Boozman. Thank you.
We appreciate having you all here and appreciate working
with you.
General Jackson was in Little Rock and I had the
opportunity to work with him very, very closely. He did an
outstanding job there and I know he has done an outstanding job
at his present post.
It is always good to see you, Secretary Darcy. We do
appreciate your hard work.
When you talk to the future, water is always No. 1 or two.
Energy and water are the two things that are the drivers. I
think this problem, and it really is a problem and not an easy
problem at all, but certainly illustrates how important these
things are.
We appreciate your having the hearing and shedding further
light, Senator. Thank you all.
Senator Sessions. As an Alabamian, I think I speak for all
Alabamians and the Governor that we understand north Georgia
needs water and we can work this out. We have gotten close a
couple of times to reaching an agreement.
Then one side or the other wins some lawsuit, the momentum
seems to switch and they harden their position. No agreement is
reached and usually some lawsuit turns the other way before
long. We continue without an agreement. I hope that you will
help us facilitate neutrally an agreement.
I would offer for the record an index of organizations and
persons who filed comments on the ACF master manual process,
including the Alabama Office of Water Resources, Apalachicola
Bay Chamber of Commerce, Apalachicola River Keepers and also a
document provided by the ACF Stakeholders Group, a diverse
group of cities, counties, industries, businesses, fishermen,
farmers, environmental, conservation, recreational groups from
all three States working together to achieve a common goal.
We also have written comments of the Coosa Alabama
Improvement Association submitted to the Army Corps of
Engineers Mobile District and written comments recently
submitted to the Army Corps by other organizations in Alabama
concerned about the ACT master manual. You will have a lot of
documents to read.
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Senator Sessions. Is there anything else you would like to
share before we move to the next panel?
Ms. Darcy. No, but thank you, Senator, for this hearing.
Senator Sessions. Thank you all and I appreciate the
opportunity to ask these questions.
We will now have the second panel: J. Brian Atkins,
Division Director, Alabama Office of Water Resources; Judson H.
Turner, Director, Environmental Protection Division, Georgia
Department of Natural Resources.
You are a Bradley Arant attorney, Mr. Turner, previously?
Mr. Turner. Previously, yes, sir.
Senator Sessions. I will have to be careful asking you any
questions.
We also have Mr. Gregory Munson, Deputy Secretary, Water
Policy and Ecosystem Restoration, Florida Department of
Environmental Protection.
Gentlemen, if you would share your comments with us at this
time, we would be pleased to receive them.
STATEMENT OF J. BRIAN ATKINS, DIVISION DIRECTOR, ALABAMA OFFICE
OF WATER RESOURCES
Mr. Atkins. Thank you, Senator Sessions.
Senator Sessions and members of the Committee, the State of
Alabama believes it is vital for Congress to retain its
authority under the Water Supply Act of 1958 to approve any
substantial reallocation of Federal reservoirs for local water
supply uses.
Alabama is keenly interested in this issue because it is
downstream from major Federal reservoirs in the Alabama-Coosa-
Tallapoosa River Basin, also known as the ACT River Basin, and
the Apalachicola-Chattahoochee-Flint River Basin, also known as
the ACF Basin.
Increasing use of those reservoirs to serve local water
supply needs in the Atlanta leads to lower downstream flows in
both basins. Those lower flows inflict substantial
environmental and economic damage on Alabama communities and
Alabama citizens.
Lake Allatoona in the ACT Basin and Lake Lanier in the ACF
Basin were both constructed in north Georgia in the middle part
of the 20th Century for three primary purposes: flood control,
hydropower generation and downstream navigation support. These
purposes are legislatively mandated in the bills authorizing
construction of the reservoirs.
As the Atlanta metropolitan area has grown, water supply
providers in that region have failed or refused to construct
their own water supply reservoirs and thus avoided expending
hundreds of millions of dollars in construction costs. Instead,
providers in the Atlanta metropolitan area have made massive
withdrawals from the Federal reservoirs and the Corps has
allowed these withdrawals.
In doing so, the Corps has bypassed the required
congressional approval. In the Water Supply Act of 1958,
Congress expressly recognized that the obligation to meet water
supply needs rests primarily with the State and local
governments. While Congress in that Act contemplated some
limited use of Federal reservoirs for water supply, Congress
expressly reserved the right to approve any water supply usage
that would involve major operational changes or cause serious
effects to the authorized project purposes.
Rather than go through the appropriate congressional
process to seek permission for water supply usage at Lake
Allatoona and Lake Lanier, Atlanta area interests have simply
taken water without any legal authority to do so. It has been a
take first, seek permission later mindset and much to the
dismay of Alabama, the Corps of Engineers has been complicit in
this improper water grab by taking no steps to curtail the
unauthorized use of Federal resources.
It is even worse than that. Not only has the Corps failed
to prevent the massive and illegal water supply uses of these
two Federal reservoirs, but the Corps also has taken steps to
curtail operation of the projects for their congressionally
authorized purposes in order to protect Georgia's water supply
usage at the expense or the downstream States, Alabama and
Florida.
Furthermore, the Corps has given a pass to Atlanta's
contractual violation of the water storage agreements and
permitted excess water storage in violation of its agreements
and of the Water Supply Act. The results of this course of
conduct have imposed serious costs and harm on downstream
communities which were most severe during the 2007 drought.
Water quality in Alabama lakes and river segments
deteriorated badly. Local Alabama water supply providers had to
incur huge costs to treat the degraded water in order for it to
be fit for public consumption. Levels of Alabama reservoirs
dropped sharply inflicting major economic damage on Alabama's
recreation industry.
Numerous industrial plants were threatened with shut down
because it became more and more difficult for those companies
to meet their environmental permit requirements as a result of
the degraded water in the rivers. The electric grid in Alabama
was also threatened due to those types of environmental permit
issues.
What is happening is crystal clear. Georgia wants Alabama
to take less water than it has always received historically so
that Atlanta may take more water in order that Atlanta may
expand at the expense of downstream communities and without
regard to the ecological effect.
If Alabama simply wants to maintain its historical usages
and flows, then it will have to spend hundreds of millions of
dollars on infrastructure so Atlanta does not have to pay for
its own development.
Congress clearly understands that many Federal reservoirs
sit in basins that cover multiple States. The need for
congressional approval of significant water supply uses of
Federal reservoirs is vital to ensure that a proper balance is
struck.
Upstream communities should not be allowed to disrupt
settled usages and expectations of downstream communities
through unauthorized and improper usage of Federal reservoirs
built with Federal taxpayer dollars.
Senator Sessions, members of the Committee, the Corps and
Atlanta have ignored the plain language of the Water Supply Act
that would have required congressional approval for the water
grab that has taken place. Alabama urges this Committee to
strengthen the language of the Water Supply Act so that
Congress' proper role in controlling local water supply uses of
Federal reservoirs is maintained.
Thank you.
[The prepared statement of Mr. Atkins follows:]
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Senator Sessions. Thank you very much.
Mr. Turner?
STATEMENT OF JUDSON H. TURNER, DIRECTOR, ENVIRONMENTAL
PROTECTION DIVISION, GEORGIA DEPARTMENT OF NATURAL RESOURCES
Mr. Turner. Good afternoon, Senator Sessions and members of
the Committee. My name is Jud Turner and I am the Director of
the Environmental Protection Division of the Georgia Department
of Natural Resources.
Georgia EPD is the State agency responsible for managing
the State's surface waters and groundwater.
I appreciate the opportunity to share Georgia's
perspectives on the Corps of Engineers' management of the
Federal reservoirs in the ACF and ACT basins. I have submitted
written testimony that I ask to be submitted for the record. I
will not read that testimony in full but make a few broad
points from it.
Senator Sessions. We will make it a part of the record.
Mr. Turner. Thank you, sir.
There are two principal reasons I believe we are at this
juncture with respect to the interState river basins at issue.
First, for much of the last 23 years, Senator Sessions, you
referenced this, the Corps has been involved and often thwarted
in finalizing new water control manuals for the ACF and ACT
basins as required by law.
Second, recent multi-year droughts that were longer and
more severe than any we have seen before have increased the
scrutiny and concern of stakeholders in all three States. Had
the Corps been able to update the water control manuals before
now, it might have better managed the reservoirs to the benefit
of all users, upstream and down.
We might also have answers to some of the questions that
Alabama and Florida have raised in their testimony today.
Instead, often paralyzed by litigation and political pressure,
and unaided by environmental and economic studies that would
have accompanied properly developed plans, the Corps has
operated on an ad hoc and trial and error basis.
Each State has had its complaints regarding the Corps'
operation of these reservoirs. This paralysis has blocked the
development of complete, up to date plans, and has not served
any State well. Whether one is talking about the ACT or the ACF
basins, the perception among stakeholders in downstream States,
as evidenced by testimony today submitted by representatives
from Florida and Alabama, the belief is the Corps and water
users in Georgia are responsible when stream flows fall.
The Corps, as this narrative goes, should release more
water and all the problems would be solved. While I can
empathize that people are hurt by drought, we too feel this
pain in Georgia, the facts simply do not support that Georgia
or the Corps are to blame for these effects.
Per capita water consumption in the metropolitan Atlanta
area is less than per capita water use in Montgomery, in
Mobile, in Birmingham and in Tallahassee. The metropolitan
Atlanta's total consumption of water from Lake Lanier and the
Chattahoochee River in 2011 was a net 171 cfs. That is less
than 1 percent of the average flow in the Apalachicola River at
the State line in a normal year and less than 2 percent of that
flow in a drought year.
In the ACT Basin, the metro Atlanta water consumption is
around 1.2 of the average flow at the Coosa River at the State
line and around one-half of 1 percent if you measured the flow
at the Alabama River.
The facts are that metro Atlanta's use has almost no effect
at all on the flow into Alabama and Florida.
The downstream perceptions about the effects of the Corps
operations are similarly misplaced. Take the stream flow in the
Apalachicola River. That is an instance where the Corps
operations have helped, not hurt, Florida. During the last two
drought cycles, natural inflow into the ACF Basin has fallen to
approximately 50 percent of normal levels. The Corps provided a
great deal of augmentation from storage to mitigate the effect,
but it can only do so much.
Had the Corps drained all the conservation storage in the
ACF Basin over the course of the drought to provide the maximum
possible flow augmentation, it would have only replaced 4
percent of the natural 50 percent drop in the natural basin
inflow.
The Corps has operated the Federal reservoirs in Georgia to
a State line flow target at Jim Woodruff Dam that was much
above the amount of water entering the basin. For recent
drought years in particular, take 2006, 2007, 2011 and 2012,
the augmentation numbers are staggering.
From 2006 through 2007, the Corps used 850,000 acre feet of
storage drawn down to meet the State line flow requirement at
Woodruff. That target was often 5,000 cfs when natural inflow
was 3,000 csf or lower for extended periods of time. Often,
this is 2,000 cfs of augmentation coming out of these Federal
reservoirs hour after hour, day after day during the droughts.
In 2011, the Corps drew approximately 700,000 acre feet from
storage and in 2012, 570,000 acre feet. When it comes to the
effects of drought, these reservoirs unequivocally help, not
hurt.
There are similar misconceptions about the ACT. Unlike the
Federal reservoirs in the ACF, those in the ACT Basin,
Allatoona and Carters, encompass only a small portion, 17
percent, of the total basin storage. The rest is in reservoirs
in Alabama. Similar to Lanier, however, draining the reservoirs
in Georgia will not solve the problems of drought.
The 2006 and 2008 is instructive, State line flow from
Georgia supported heavily by augmentation releases by Allatoona
made up 80 to 90 percent of the flow target at Montgomery. Yet,
as I noted, those reservoirs were only 17 percent of the
storage.
In reality, the downstream states and those downstream
communities within Georgia, for that matter, have greatly
benefited from the existence of these Federal reservoirs and
the Corps' operation of them.
We find ourselves in this dialog because Florida and
Alabama naturally, in times of drought, would like more water.
As I have mentioned, the Corps cannot eliminate all the effects
of drought; it can, however, improve its operations to more
optimally meet the needs of all stakeholders.
Federal law provides the proper mechanism for the Corps to
take up this balancing act and prepare that environmental
impact statement that takes into account current and future
operations and demands and to look at environmental, economic
and socioeconomic effects of operating different scenarios and
then use those studies to develop the plan.
Once the water control manuals have been finalized with the
attendant EIS work and NEPA analysis, you will have significant
data and significant stakeholder impact. At that time, any
aggrieved State can pursue whatever remedies it may have at
law. There is no need for Congress to add to the regulatory
framework or work to block what the courts have ruled to be
legally required and badly needed.
Whether you are a citizen of Alabama, Florida or Georgia,
the best route to a long term, balanced solution is for the
process and legal frameworks to be followed as the court has
required by law.
Thank you.
[The prepared statement of Mr. Turner follows:]
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Senator Sessions. Thank you, Mr. Turner.
Mr. Munson from Florida.
STATEMENT OF GREGORY M. MUNSON, DEPUTY SECRETARY, WATER POLICY
AND ECOSYSTEM RESTORATION, FLORIDA DEPARTMENT OF ENVIRONMENTAL
PROTECTION
Mr. Munson. Thank you, Chairman Sessions and members of the
Committee. I am Greg Munson, Deputy Secretary of the Florida
Department of Environmental Protection. I am responsible for
water policy and ecosystem restoration, including the
Apalachicola River and Bay for the State of Florida.
I have submitted testimony for the record and would ask
that it be included. I will only hit the high points of that
testimony here today.
Senator Sessions. It will be included and made a part of
the record, without objection.
Mr. Munson. Thank you, sir. Thank you for convening this
important hearing about water management for the ACF and ACT
river systems.
My testimony is given to provide Florida's perspective on
the effect of reduced freshwater inflows into the Apalachicola
River and Bay and the injury to this important economic and
environmental region in the State and the country.
The Apalachicola River's flood plain ecosystem is the
largest in Florida and the Apalachicola Bay is one of the most
productive estuarine systems in the northern hemisphere.
Hundreds of thousands of acres at the cost of millions of
dollars have been acquired by Federal, State, local and private
entities to protect this unique environment.
Oysters and other local seafood are the lynchpin of the
Apalachicola region's social and economic structure.
Apalachicola Bay provides about 90 percent of Florida's oyster
harvest and 10 percent of the national oyster harvest. It gives
Florida the third largest shrimp harvest as well. The river is
the life blood of this extraordinarily productive estuarine
system and the productivity of the Bay is strongly influenced
by the amount, timing and duration of the fresh water inflow
from the Apalachicola River.
The amount of water flowing into the river, and ultimately
to the Bay, is a function of Georgia's consumption on the
Chattahoochee and Flint Rivers and the Corps reservoir
operations on the Chattahoochee. Since the 1970's, Georgia
consumption has grown substantially in both systems and the
Corps implemented its ``draft' Water Control Plan to prioritize
municipal and industrial water supply operations elevating them
above other uses in 1989.
As a consequence, Apalachicola River flows have been lower
and low flows have occurred more frequently and for longer
durations than at any time in recorded history. In 2012,
Florida experienced widespread damage to its oyster resources
resulting from this prolonged low flow condition.
Flows in 2012 were at their lowest since records were kept
beginning in 1923 but this is not the year with the lowest
rainfall. Oyster production estimates are the lowest in the
past 20 years. In fact, the data suggests that many of the
stocks are not sufficiently abundant to support commercial
harvesting, devastating the livelihoods of the men and women
who make their living directly harvesting or processing
oysters.
As a result, Governor Scott requested that the Secretary of
the Department of Commerce declare a commercial fishery failure
for Florida's oyster harvesting areas.
Under the Corps' operations of Buford Dam and Lake Lanier
the Corps has entered numerous contracts with Georgia water
suppliers to permit withdrawals for municipal and industrial
uses. In 1989, the Corps began prioritizing operations to
support this water supply demand which has increased
dramatically.
Under the Corps' operating schedule, each new demand placed
on the system upstream is absorbed, not from reservoir storage,
but entirely from downstream river flows. In other words, every
acre foot of water Georgia wants is taken directly from flows
that would otherwise reach Alabama and Florida.
These practices have deprived downstream interests of basic
river flow needs, despite the empirical evidence that such
operations are devastating Apalachicola Bay and its oyster
population. It is clear that the Apalachicola River needs more
flow to help recover from the devastating oyster mortality in
the Bay that occurred in 2012, as well as the previous massive
die-offs of endangered mussels, decline in fisheries and drying
of the floodplain forest that has occurred in recent years.
The Corps' plan to develop a master manual presents an
opportunity to restructure its present priority system as
reflected in the existing Draft Water Control Manual and assign
greater weight to downstream needs. The Corps can no longer
assume that all needs can be met without proactively insisting
on upstream conservation.
At a minimum, the Corps should mandate that Georgia develop
strict conservation measures as a condition to entertaining any
further withdrawals from the ACF system.
Thank you for the chance to talk to you today about one of
Florida's most precious resources, the Apalachicola River and
Bay. If you are ever able to visit Apalachicola, Florida, we
would always be happy to host you and give you the oysters that
are still left in the Bay so you can understand how unique that
environment is to Florida and Floridians.
I am happy to answer any questions. Thank you.
[The prepared statement of Mr. Munson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Sessions. Thank you, Mr. Munson.
They do pretty well competing with Bon Secour oysters from
Alabama. I have been there and have fished in the Bay.
Mr. Atkins, Alabama does not want to stop all withdrawal of
water from Georgia. What do you want and would you articulate
for us what you think a proper solution to this water problem
is?
Mr. Atkins. No, Alabama does not want to turn off the tap
for all drinking water usage at Lake Lanier and Lake Allatoona.
So long as Alabama gets its historical amounts in terms of the
amount of water that it has always had flowing in its rivers,
then Atlanta simply can drink as much as it wants.
However, that is going to result in lower elevations at the
two reservoirs, but Georgia cannot realistically expect to
increase its drinking water usage and maintain those reservoir
elevation levels in the two reservoirs.
The only way for both those things to happen would be if
downstream flows are cut back and Alabama just cannot accept
that.
Senator Sessions. With regard to the Corps of Engineers,
are there things they can do to help the States reach an
accord, without going into detail because there have been
ongoing discussions between the States for a number of years?
Has resolution of the matter by agreement been hampered by some
of the Corps' actions, in your opinion?
Mr. Atkins. I would say yes in answer to that. The issue
with the Corps is that the Corps must follow the law. That
means they need to follow the law as established by the Water
Supply Act by seeking congressional approval for the major
water supply uses and Federal reservoirs.
Second, they need to enforce limits of the storage
contracts, the contracts that allocate the storage space in the
reservoir for water supply. Once they do that, if they will
stay out of the way, then I think that will create an
opportunity for the States to be able to get together.
Otherwise, as it stands now, there is no incentive for Georgia
to try to make a deal because the Corps is basically providing
everything they want.
By the Corps getting out of the way, letting the States
have the opportunity to talk to each other and negotiate in
good faith, I think that would be the best chance for that.
Senator Sessions. I have talked to Governor Bentley about
it. I know he cares about this issue deeply and he is a good
and decent man. I believe he is willing to make an agreement
but it has to be one that he can justify to the long term
interests of the people of Alabama. It has just been difficult.
Mr. Turner, after Judge Magnuson's ruling in 2009, it
appeared there was a setback for the Georgia interests. Atlanta
interests did a study showing that in little more than a
decade, Atlanta could get by without water supply usage from
Lake Lanier if it spent maybe $2 billion on infrastructure and
took other actions.
At more than $272 billion a year, Atlanta has the tenth
largest GDP among all U.S. cities, for which I congratulate
you. It is a fabulous city. The city plans to build a billion
dollar football stadium for the Falcons; why shouldn't Atlanta
spend some more of its money on infrastructure rather than ask
downstream communities to deal with severe impacts of low water
that could cause them to have to spend more money as a result?
Mr. Turner. Senator, I take from your question when you
refer to Atlanta, you mean the metro Atlanta region. We are
spending and will spend and have spent significant State
resources. Cobb County, one of the municipalities with an issue
with respect to their withdrawal contract from Allatoona, spent
$100 million with the city of Canton on the Hickory Log Creek
Reservoir trying to provide for that additional storage that
could benefit, frankly, all of us downstream and upstream.
Governor Deal, when he came in having lived this issue for
years as a Congressman from the Lake Lanier area, understood
this clearly. Georgia is well on the way to appropriating the
$300 million he pledged under the Governor's Water Supply
Program to bring on strategically additional storage so that we
can share that in times of drought and catch it in times like
right now when there is plenty.
Those things are happening, have happened and will continue
to happen with vigor. I think I know the study you referenced
and we certainly viewed it differently than you did. I think
replacement of Lanier, when you consider environment impacts
and what it means when you have a very large main stem
reservoir that we don't build anymore in this Country, to take
that amount of storage and act like you are going to make none
of it available for water supply would have been a travesty, a
waste of the resource and I am glad we are not in that boat
anymore and that we are talking about what is the right way to
balance these authorized legal purposes for these Federal
reservoirs.
Senator Sessions. I agree. I don't think it would be
necessary to go to zero but I do think there are alternatives
as that study showed.
Senator Boozman, thank you for attending and for your good
work on all these issues.
Senator Boozman. Thank you, Mr. Chairman. I enjoyed the
testimony.
Thank you for being here. It has been very helpful.
Senator Sessions. Mr. Munson, a former Governor of Georgia
described the dispute over the ACF Basin as involving people
versus a few mussels. Is that what this is about? What does
Florida want fundamentally?
Mr. Munson. No, sir, it is not about just a few mussels,
not that I want to give away even a few of the endangered
mussels. It is about a lot more than some endangered mussels.
It is really about a way of life in Franklin County, Florida
and the people who have spent generations there farming oysters
and engaging in other forms of commercial fishing.
Basically, they are being asked to bear the brunt of the
growth of Atlanta and other upstream interests in Georgia,
meanwhile watching their way of life get taken apart. It is not
about a few mussels; it is about a whole way of life in a very
rural county, Franklin County, Florida.
All we really seek is an equitable share of the waters of
the ACF system. We don't want to take everything, but there is
a unique way of life being driven to extinction in
Apalachicola. We would start with commitment from the Corps
that it will not entertain anymore requests from the State of
Georgia for water supply contracts unless and until it sees
some verifiable commitments to water conservation measures from
that State.
Even that, of course, will not do it. There are many things
Georgia will need to undertake on its own besides what the Army
Corps can accomplish by itself, but that would be a very good
start.
Senator Sessions. Mr. Turner suggested that water supply
use in north Georgia is a drop in the bucket compared to flows
into Apalachicola. How would you respond to that concern?
Mr. Munson. I was not familiar with Mr. Turner's numbers. I
was struck a little like the oak tree telling the maple tree to
be happy in our shade. I think that is what I took from it.
In fact, I think the comparison is meaningless. The truth
is that the depletions throughout Georgia, including Atlanta
and the rest of Georgia, take over half the total basin inflow
of the ACF river system in times of drought. That is really the
dry period, I should say, not necessarily just drought. That is
the time period on which we are most focused.
To look outside that timeframe doesn't shed a lot of light
on the system. When there is plenty of water in the system,
there is plenty for everyone. It is during the dry periods that
Florida needs that equitable share.
Senator Sessions. Mr. Atkins, with regard to augmentation,
that was the purpose of the reservoirs, was it not? You don't
get as much augmentation if the water has been drawn out to be
consumed as you could get if it were not drawn, it seems to me.
Would you comment on that?
Mr. Atkins. The purpose of reservoirs, generally, is to
store water during times of the year when you have high flows,
store that water and generally at the drier times of the year,
lower flow periods, you release that water to help provide
flows downstream.
Senator, may I ask permission to submit for the record the
Corps' 2007 letter to Cobb County-Marietta Water Authority
about their contract excedence? I forgot to mention that
earlier.
Senator Sessions. Can you share the key point of that?
Mr. Atkins. It is the Corps' letter they wrote in late 2007
recognizing the excedences from the Cobb County-Marietta Water
Authority storage contract and the results of their analyses.
They acknowledged that there were excedences as far as what
they had withdrawn in relation to the contract.
You mentioned earlier the contract being 13,000 acre feet.
The excedence had been up to 39,000 acre feet. We would like to
introduce that.
Senator Sessions. I would be glad to accept that and we
will make it a part of the record, without objection.
[The referenced information was not received at time of
print.]
Senator Sessions. Mr. Munson, as an official in the State
of Florida, can you tell the Committee that Florida is serious
about working in good faith toward achieving an interState
compact?
Mr. Munson. Florida would be interested in doing that.
Obviously that requires some engagement by the other parties as
well. Although we have taken a number of efforts at it over the
years, no such compact has been readily available. I don't
believe that is going to change but of course, we would always
be happy to have a negotiated compact as a result.
Senator Sessions. Don't you think that would be the
preferable way to solve this dispute, if it could be achieved?
Mr. Munson. If it could be fair to the people of Florida,
then absolutely.
Senator Sessions. Mr. Turner, is Georgia prepared to work
with the other States to achieve a mutually agreeable solution
to this difficult problem?
Mr. Turner. Yes, sir. Governor Deal has been clear on that
point since he has been in office. I would even say where there
is a will there is a way. We do not live in the arid west. We
do get times like now which are plenty and we are open to those
conversations and will get to work on them. I am instructed to
participate in that way from Governor Deal.
I do not think it ought to stop the work the Corps is, by
law, obligated to do under these water control manual updates.
Therefore, that should progress, irrespective of what continues
to happen between the State conversations.
Senator Sessions. Mr. Atkins, would you believe Governor
Bentley is committed to trying to reach an agreement that could
solve this problem permanently?
Mr. Atkins. Absolutely, Senator. Again, I think the biggest
obstacle is the Corps of Engineers as far as their actions and
their role in this. If they would simply stay out of this, if
they will follow the law according to the Water Supply Act and
enforce the storage contracts, I think that will definitely
help things.
Senator Sessions. Thank all of you for your testimony. You
have to know that maybe other Senators do not feel the problems
of Alabama, Georgia and Florida as the Senators from these
three States do but it is a very real situation.
Senators Chambliss and Isakson, thank you for your
attendance and thank you for being engaged in this and being
knowledgeable about it. We have been able to work together and
I hope we can continue to do that.
We will have 2 weeks for all members to submit questions
for the record. I have exhibits I have offered dealing with the
history of these reservoirs and the impact of policies since
then. I also have congressional correspondence about the ACF
and the ACT issues of which we received a good bit.
Senators Chambliss or Isakson, is there anything you would
like to add before we finish? I thank you for your attendance.
Senator Chambliss. Thank you very much for a fair hearing
today, Senator Sessions. I do have our joint statement that we
will submit to you for the record.
Senator Sessions. We will make it a part of the record,
without objection.
If there is nothing further to come before the Committee,
we are adjourned.
[Whereupon, at 4:25 p.m., the committee was adjourned.]
[Additional material submitted for the record follows.]
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