Order Code RL34326
Apalachicola-Chattahoochee-Flint (ACF) Drought:
Federal Water Management Issues
Updated February 8, 2008
Nicole T. Carter, Coordinator
Resources, Science, and Industry Division
M. Lynne Corn, Amy Abel, Stan Mark Kaplan,
and Eugene H. Buck
Resources, Science, and Industry Division
Cynthia Brougher and Kristina Alexander
American Law Division

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Key Policy Staff
Legislative Issues
Name/Title
Tel.
Water projects,
Nicole T. Carter
7-0854
Army Corps of Engineers
Specialist in Natural Resources Policy
Endangered species
M. Lynne Corn
7-7267
Specialist in Natural Resources Policy
Eugene H. Buck
7-7262
Specialist in Natural Resources Policy
Kristina Alexander
7-8597
Legislative Attorney
Fisheries and fisheries
Eugene H. Buck
7-7262
management
Specialist in Natural Resources Policy
Fishing industry and
Harold F. Upton
7-2264
disaster assistance
Analyst in Natural Resources Policy
Agricultural water use and
Jeffrey A. Zinn
7-7257
conservation
Specialist in Natural Resources Policy
Agricultural disaster assistance
Ralph M. Chite
7-7296
Specialist in Agricultural Policy
Drought forecasts and climate
Peter Folger
7-1517
Specialist in Energy and
Natural Resources Policy
Electricity infrastructure
Amy Abel
7-7239
Specialist in Energy Policy
Electric power generation
Stan Mark Kaplan
7-9529
Specialist in Energy and Environmental
Policy
Water quality
Claudia Copeland
7-7227
Specialist in Resource and
Environmental Policy
Environmental law,
Kristina Alexander
7-8597
National Environmental Policy
Legislative Attorney
Act
Water resources litigation
Cynthia Brougher
7-9121
Legislative Attorney

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Apalachicola-Chattahoochee-Flint (ACF) Drought:
Federal Water Management Issues
Summary
Drought in the Southeast has brought congressional attention to an ongoing
interstate conflict among Alabama, Florida, and Georgia over water allocation in the
Apalachicola-Chattahoochee-Flint (ACF) river system. Drawdown of Lake Lanier,
the uppermost federal reservoir in the ACF basin, in fall 2007 to support minimum
flows in the lower basin’s Apalachicola River escalated the conflict. The Atlanta
metropolitan area’s municipal and industrial water users are concerned about
drawdown of their principal (in some cases, their only) water supply. They question
the justification for the minimum flow requirements. Lower basin stakeholders are
concerned about sustaining river flows to meet their municipal, electricity, and
ecosystem needs and are questioning the sufficiency of Georgia’s municipal,
industrial, and agricultural water conservation efforts.
The issue for the U.S. Army Corps of Engineers (Corps) is how to manage ACF
federal reservoirs to equitably meet upper and lower basin multipurpose water needs.
The challenge is to meet these needs while maintaining compliance with federal law
(e.g., the Endangered Species Act (ESA)); minimizing harm to the ACF river and
Apalachicola Bay species, ecosystems, and oyster industry; and providing flows for
hydropower and thermoelectric cooling, while also providing municipal and
industrial water supply security. The Corps’ operational challenge has increased as
water demands in the basin have increased (e.g., water supply to support the growing
Atlanta metro area, agriculture’s increased reliance on irrigation, and ecosystem and
species needs), creating conflicts between maintaining water in storage and
maintaining flows for in-stream purposes. Recent drought conditions have
exacerbated this challenge.
In November 2007, the Corps began managing five federal ACF reservoirs
under an Exceptional Drought Operations (EDO) amendment to its previous
operating plan (which consisted of a 2006 interim plan amending a draft 1989
comprehensive plan). The EDO lowered the minimum flow requirement for the
Apalachicola River, thereby reducing the rate of storage drawdown if drought persists
and allowing reservoirs to refill before normal operations resume, thus improving
upper basin water supply security. Three mussel species and one sturgeon species
protected by the ESA depend on Apalachicola River flows. The immediate and long-
term impacts of the EDO on these species continue to be the subject of study and
debate. The EDO does not appear to cause significant immediate harm to electricity
generation or grid reliability. The EDO was approved by the U.S. Fish and Wildlife
Service (FWS) through June 1, 2008.
Some view the ACF as a harbinger of conflicts between ESA implementation
and other water uses across the nation, and as a testing ground for both federal river
management and resource allocation during drought in a multi-state basin with
riparian water laws. How the ACF is managed during this drought may set a
precedent for future ACF management as well as federal drought responses on other
rivers regulated by federal dams.

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Contents
Balancing Storage and In-Stream Flow Tradeoffs . . . . . . . . . . . . . . . . . . . . . . . . 1
ACF Primer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Federal Dams Regulate for Multiple Uses . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Reservoir Drawdown and Minimum Flows . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Tri-State Water Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Federal and State Roles in the ACF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ACF Reservoir Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Corps Operating Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Exceptional Drought Operations: Lower Minimum Flows and
More Reservoir Refill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Water Supply Issues: Municipal and Industrial (M&I) and Agricultural . . . . . . . . 8
Consumptive Uses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Municipal and Industrial Water Supply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Atlanta Area Water Supply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Agricultural Water Supply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Georgia’s Emergency Conservation Measures . . . . . . . . . . . . . . . . . . . . . . 13
Drought Management Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Flint River Drought Protection Program . . . . . . . . . . . . . . . . . . . . . . . 15
Ecosystem and Species Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Bay Ecosystem and Industry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Protected Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
A Sturgeon and Three Mussels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
EDO ESA Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Biological Assessment of the EDO . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Biological Opinion for the EDO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Incidental Take Statement and Reasonable and Prudent Measures . . . 20
ESA Legislation Prompted by ACF Drought . . . . . . . . . . . . . . . . . . . . . . . 20
ACF in the Federal Water Policy Context: Conclusions . . . . . . . . . . . . . . . . . . . 21
Appendix A. ACF Compact and Lawsuits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Appendix B. NEPA and Current ACF Operations . . . . . . . . . . . . . . . . . . . . . . . 30
Appendix C. ACF Electric Power Generation Issues . . . . . . . . . . . . . . . . . . . . . 34
List of Figures
Figure 1. ACF Dams and Selected Power Plants . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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Apalachicola-Chattahoochee-Flint (ACF)
Drought: Federal Water Management Issues
Balancing Storage and In-Stream Flow Tradeoffs
Recent drought in the Southeast has intensified a tri-state water conflict
involving Alabama, Florida, and Georgia over water allocation and management in
the Apalachicola-Chattahoochee-Flint (ACF) river basin (see Figure 1). The water
at stake is vital for the basin’s municipalities and industries. These include the
Atlanta metropolitan area’s populace, industry, and recreational economy;
hydropower dams and cooling of thermoelectric power plants throughout the basin;
lower basin navigation interests; agriculture, including irrigators; and the regionally
significant Apalachicola Bay oyster industry. The water also is vital to threatened
and endangered species and basin ecosystems. Management of the current drought
may shape long-term ACF management, set precedents for future federal drought
responses, and affect the role of the Endangered Species Act (ESA) in water
resources management.
Drought has escalated competition for the water in federal ACF reservoirs. A
central issue for the U.S. Army Corps of Engineers (Corps) is how to manage its
reservoirs to meet municipal and industrial (M&I) water needs equitably in the upper
and lower basin, while complying with federal law (e.g., ESA) and minimizing harm
to river and bay ecosystems. The operation of federal reservoirs shapes both the
quantity of stored water and the river flows. Predictions for a continued drought
have Georgia’s upper basin municipal and industrial users concerned about depletion
of their principal (and, in some cases, their only) water supply — Lake Lanier —
which is slow to refill because of the limited drainage area feeding into it. Lower
basin interests (including those in southwest Georgia) are concerned about current
and future river flows to meet their municipal, electricity, and ecosystem needs.
This report provides an introductory analysis of federal water management
issues in the ACF, particularly during drought. The report underscores that decision-
makers are faced with the tradeoff of the current harm that reduced flows may cause
aquatic species against the benefits of maintaining water in storage for future multi-
purpose use later. The first section briefly introduces the basin’s water resources and
related federal issues. The second section summarizes current federal reservoir
operations. The third section discusses how the municipal, industrial, and agricultural
uses of ACF waters affect federal reservoir management. The fourth section covers
how species protections affect Corps operations and how Corps operations may affect
protected species. The report concludes with comments about the ACF in the
broader context of federal water policies and projects. Many aspects of the complex
ACF management issues are not discussed in detail (e.g., ACF navigation and
recreation issues, the influence of the Alabama-Coosa-Tallapoosa (ACT) basin).

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CRS-2
Figure 1. ACF Dams and Selected Power Plants
Source: Adapted from a Corps map at [http://www.sam.usace.army.mil/Drought2007/droughtacf.htm].

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ACF Primer
Federal Dams Regulate for Multiple Uses
The ACF basin drains areas of northern and western Georgia, southeastern
Alabama, and northwest Florida. (See Figure 1.) The basin extends from the Blue
Ridge Mountains to the Gulf of Mexico at Apalachicola Bay. Congress authorized
construction of federal facilities for water resources development of the ACF in 1945
and 1946.1 The Corps now operates five dams — four on the Chattahoochee and one
on the Apalachicola River at the confluence of Chattahoochee and Flint Rivers. Four
of these dams store water: Buford Dam forming Lake Lanier (62% of the Corps’
ACF storage capacity), West Point (18%), W. F. George (14%), and Woodruff
forming Lake Seminole (6%). Woodruff’s limited storage is primarily for flow
regulation and does not function as a water storage reservoir for ACF operational
purposes. These four facilities and other nonfederal dams in the ACF also house
hydroelectric facilities. The fifth federal dam — Andrews Dam — is operated for
navigation and has no storage capacity. No water storage facilities have been built
on the Flint River.2
Water resource use in the ACF has changed since the planning and construction
of the reservoirs, which originally were justified based on their navigation,
hydropower, and flood control benefits. For example, the Atlanta metro area has
developed into a significant economic and population center; basin agriculture has
become more dependent on irrigation; and environmental quality and species
concerns receive greater public attention and federal protections. These and other
factors have increased competition for ACF waters and produced conflicting interests
in maintaining water in storage and maintaining river flows for in-stream purposes.
Reservoir Drawdown and Minimum Flows
It is often difficult to recognize when a drought is starting, and it is challenging
to make decisions that entail tradeoffs between current and future costs and benefits
based on expectations about when a drought may end.3 The current drought is
already eclipsing conditions experienced by Georgia during the mid-1950s, which is
considered the state’s most severe drought on record.
1 Rivers and Harbors Act of 1945 (59 Stat. 10); and of 1946 (60 Stat. 634, 635).
2 In the 1960s and 1970s, three Corps dams were considered on the Flint River; they were
never built and were later deauthorized in §1002 of the Water Resources Development Act
(WRDA) of 1986 (P.L. 99-662.)
3 While this report does not specifically discuss climate change, questions often are raised
about the relationship between climate change and the possibility for increased drought and
other changes to the hydrologic cycle. Increasing temperatures from climate change are
expected to result in future hydrologic changes, but there are major uncertainties in making
detailed projections of those changes at the scale of drainage basins, such as the ACF basin.
(See, for example, the Intergovernmental Panel on Climate Change, Working Group II
Report (p. 201), at [http://www.ipcc-wg2.org/].)

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The year 2007 was the second-driest on record for Atlanta, following 2006,
which also was dry. As runoff in the basin fell below the flows necessary to meet
both consumptive demand (i.e., M&I and agricultural uses) and in-stream flow
requirements (e.g., for species and thermoelectric power plant cooling purposes),
water stored in the reservoirs was released to meet these needs. The lower basin
reservoirs were drawn down first. In late summer 2007, Lake Lanier was the only
reservoir with significant remaining storage. When the Corps released water from
Lake Lanier in the upper basin to provide minimum flows in the Apalachicola River
in the lower basin, the lake experienced significant drawdown, surpassing the
reservoir’s previous record low and triggering urgent concern from lake Lanier water
users and recreational interests.
Lake Lanier water storage is of critical concern because it provides 72% of the
water supply for the Atlanta metro area and more than 62% of the storage space in
federal ACF reservoirs, but refills slowly. The drainage area feeding the lake is only
5% of the ACF basin.4
Lake Lanier’s drawdown escalated the conflict between the three states.
Without a water allocation agreement or decision to guide distribution of available
supply between the states, lower basin stakeholders began questioning the sufficiency
of Georgia’s municipal, industrial, and agricultural long-term and emergency water
conservation and demand management efforts. Upper basin stakeholders questioned
the justification for the minimum flow requirements in the Apalachicola River and
cited the Corps’ operating procedures, which had been adopted in 2006 to protect
threatened and endangered species, as significantly increasing the risk of depleting
ACF reservoirs by allowing their drawdown and insufficient opportunity for refill.
Tri-State Water Conflict
In the 1970s and 1980s, Georgia officials became increasingly concerned with
water supply for the Atlanta metro area’s growing needs. The Corps in 1989 agreed
to provide storage space for roughly twice as much M&I water in Lake Lanier by
reallocating space from hydropower to water supply; this decision resulted in
Alabama and Florida suing the Corps based on the impact that the reallocation would
have on the lower basin and for a failure to comply with National Environmental
Policy Act (NEPA) (42 U.S.C. §§ 4321 et seq.).5 (See Appendix A for an
introduction to selected ACF suits in federal courts and the history of efforts to
establish an ACF Compact. For a discussion of how NEPA relates to current ACF
operations, see Appendix B). The reallocation question has yet to be resolved.
Since this first suit, ACF waters have been the foundation of multiple ongoing legal
4 Testimony by Brigadier General Joseph Schroedel, Corps South Atlantic Division
Commander, before the U.S. Senate Committee on Agriculture, Nutrition, and Forestry, at
a hearing on the Effect of Corps’ Operation of the ACF and ACT River Basins on Georgia’s
Agricultural Community, October 24, 2006.
5 J. W. Hull, The War Over Water, Southern Legislative Conference (October 2000), at
[http://trendsinamerica.org/pubs/Documents/slc-0010-warwater.pdf]; J. Clemons, Water-
Sharing Compact Dissolves, Water Log (2003), at [http://www.olemiss.edu/orgs/SGLC/
MS-AL/Water%20Log%20PDF/23.3.pdf].

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CRS-5
disputes and the subject of a tri-state water compact that failed when the states could
not agree on how to allocate basin waters.
When states are the parties disputing water allocation, the conflict may be
resolved by agreement in an interstate compact,6 through apportionment by the
courts,7 or through allocation by Congress.8 The water rights doctrines operating in
the ACF states makes allocation particularly challenging. Alabama, Florida, and
Georgia, like most eastern states, generally follow a riparian water rights doctrine,
which permits those whose lands border waters to use them in a way that is
reasonable relative to other users. When the water quantities are insufficient to meet
all reasonable needs, all users are to reduce their usage proportionally.9 In contrast,
most western states follow a prior appropriation doctrine, which provides a superior
right to those who first put the water to use. When quantities are insufficient to meet
all needs, those with the superior right receive their allocation first, and others
receiving their share in order of priority. Because the ACF states follow the riparian
rights doctrine, their relative rights to use the water are not determined by priority
during drought. How to resolve water allocation during drought in a riparian context
has few precedents, thus contributing to the challenge of the three states in
successfully negotiating a water allocation compact. The three states most recently
failed at such an effort in 2003 (see Appendix A).
Federal and State Roles in the ACF
The federal government has authority under the Commerce Clause of the U.S.
Constitution to manage the nation’s water resources, but it recognizes the states’
authority to allocate and use water within their jurisdictions. Federal laws often
require federal agencies engaged in water resources management to defer to state
laws or cooperate with state officials in implementing federal laws. Although a state
generally has broad authority over waters within its border, exercise of its intrastate
authority cannot entirely dismiss the interests of other states. In the case of the ACF,
although the three states have authority over their waters, federal investments were
built and are operated for multiple purposes, thus affecting the states’ water use.
6 Generally, interstate compacts, which create a binding agreement between two or more
states, require congressional approval in addition to approval by the states involved in the
agreement. (U.S. Const., Art. I, § 10, cl. 3.)
7 The U.S. Supreme Court has original jurisdiction to hear disputes between states. (U.S.
Const., Art. III, § 2, cl. 1.) In the case of the ACF litigation, no state has sued another state,
and therefore the cases must be heard first by lower courts.
8 Congress may apportion interstate waters under its power to regulate interstate commerce.
(See U.S. Const., Art. I, § 8, cl. 3; Arizona v. California, 373 U.S. 546 (1963).) Although
Congress has the authority to act in the interest of interstate commerce, congressional
allocation in such conflicts is rare.
9 The riparian system of water rights generally applies to individuals’ use of water from
shared waterways. The Supreme Court has established a federal common law method of
resolution known as equitable apportionment when disputes between states come before the
Court. Equitable apportionment decisions attempt to balance the benefits and right to use
the water among the states involved. See Kansas v. Colorado, 206 U.S. 46 (1907); Colorado
v. New Mexico, 459 U.S. 176 (1982).

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CRS-6
That is, the basin’s federal dams regulate the flows of the Chattahoochee and
Apalachicola Rivers, thereby shaping the states’ water use. Federal laws also shape
dam operations. Most recently, protection of species protected under the federal ESA
has become a significant factor in ACF dam operations. Additionally, certain federal
actions must be reviewed under NEPA.
ACF Reservoir Operations
Corps Operating Plans
As a consequence of the extensive ACF litigation and the absence of an
agreement on allocating water among the three states, the Corps operates the ACF
dams based on piece-meal guidance that has not received comprehensive analysis,
review, or comment. That is, current operations are conducted under a 2007
exceptional drought modification to a 2006 interim plan for Woodruff Dam, that
amended the 1989 draft plan for the entire ACF, as explained below.
In June 1990, the Corps began operating the ACF under its October 1989 Draft
Apalachicola-Chattahoochee-Flint Basin Water Control Plan (WCP). The 1989
WCP has not been finalized due to litigation and expectations before 2003 for a
negotiated agreement on tri-state water allocation. Under the WCP, the Corps largely
operated the reservoirs to meet the multiple uses in the basin while maximizing the
quantity of stored water. The WCP established operational zones for the federal
reservoir; these operational zones signaled to the Corps how to manage reservoir
releases based on changing storage volumes over the course of the year.
With the failure of the compact negotiations, the Corps had to address the ESA
issues in the lower basin without a tri-state water allocation agreement. After years
of informal communications and months of formal consultation with the U.S. Fish
and Wildlife Service (FWS), the Corps adopted the Interim Operations Plan (IOP)
for Woodruff Dam in October 2006.10 The plan is interim until an updated
comprehensive ACF water control plan is adopted.11 The IOP added new in-stream
Apalachicola River flow requirements for protection of threatened and endangered
species to the Corps’ ACF operational decision criteria. The IOP established
minimum flows in the Apalachicola River based on different inflow rates into ACF
reservoirs. The IOP, therefore, left in place the operational zones of the 1989 WCP
but constrained the Corps’ operations by requiring it to meet minimum flow
requirements in both normal and dry conditions. Under the IOP, the Corps would
make releases from reservoir storage to meet in-stream flow requirements if inflow
10 The IOP is integrated into the agency’s Environmental Assessment Interim Operations
Plan for Support of Endangered and Threatened Species, Jim Woodruff Dam (October
2006), available at [http://www.sam.usace.army.mil/ACF%20Water%20Resources%20
Management/JWDSect7/JWD_IOP_FONSI_EA/IOPFinalEA.pdf].
11 The omnibus Consolidated Appropriations Act, 2008 in §134, Division C, Title I, (P.L.
110-161) prohibits the implementation of a new water control manual (but not its
development) and requires the Corps to provide data on basin withdrawals, use, and stream
flow by September 2008.

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CRS-7
into the reservoirs was insufficient to support the minimum flows.12 In sum, the IOP
resulted in both the 1989 WCP operational zones and the IOP minimum flows
guiding Corps’ ACF operations during 2007.
The IOP is the subject of litigation (see Appendix A) and of upper basin
interests’ criticisms of the Corps’ reservoir management during 2007. They argue
that the Lake Lanier drawdown in 2007 under the IOP created an unnecessary risk of
system storage depletion in an effort to provide minimum flows that have not been
scientifically justified. Others argue that system storage should be used to support
species during dry conditions because the ACF ecosystems and species have been
compromised by the cumulative long-term impacts of federal reservoir management
and the basin’s municipal, industrial, and agricultural water use.
Exceptional Drought Operations: Lower Minimum Flows and More
Reservoir Refill. On November 15, 2007, the Corps began operating under an
Exceptional Drought Operations (EDO) modification to the IOP. The Corps
proposed the EDO on November 1, 2007, and requested an expedited ESA
consultation and Biological Opinion by the FWS. The November 15, 2007,
Biological Opinion (hereafter referred to as the BiOp for the EDO) approved the
EDO through June 1, 2008, with some stipulations.13 (See further discussion on p.
19.) The significance of the EDO is that by reducing the minimum flow requirement
for the Apalachicola River more water could be stored in basin reservoirs. The EDO
also largely lifted operational guidelines of the IOP until reservoir storage
significantly refilled. The EDO, therefore, would reduce the rate of drawdown if dry
conditions persisted and would allow the reservoirs to refill more quickly as climate
conditions improved. One justification provided for the lower minimum flows was
to lessen the risk of much lower flows in later months or years, if the drought
continues. In effect, the EDO risks some harm to the species now, to reduce the risk
of greater harm later.14 The effects of the lower flows on electricity generation have
been raised as a concern and are discussed in detail in Appendix C; as discussed
12 The use of inflow into reservoirs, rather than unimpaired runoff in the basin, to guide
operations is contentious because inflow does not account for consumptive uses that might
occur above a reservoir, such as irrigation in the Flint River sub-basin above Lake Seminole.
13 FWS, Amended Biological Opinion and Conference Report on the U.S. Army Corps of
Engineers, Mobile District, Exceptional Drought Operations for the Interim Operating Plan
for Jim Woodruff Dam and the Associated Releases to the Apalachicola River (FWS,
Panama City, FL: Nov 15, 2007), hereafter referred to as BiOp for the EDO, available at
[http://www.sam.usace.army.mil/ACF%20Water%20Resources%20Management/ACFDr
ought_Consultation2007/2007-1115ACF_EDO_BO_Final.pdf].
14 While this tradeoff in time — some risk now, to lower a species’ risk later — is not
especially common in the ESA consultation process, it has occurred before (e.g., spotted
owls and the Northwest Forest Plan). On the other hand, tradeoffs in general are very
common in the consultation process. Examples would include direct habitat protection (less
in one area, more acquired in another); greater intrusion outside a nesting season and less
intrusion during it; more public access if access is more carefully controlled, etc. At issue
with the EDO is not a tradeoff per se, but the degree to which the current clear harm to
species is balanced by potential future benefits.

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CRS-8
there, the EDO does not appear to cause significant immediate harm to electricity
generation or grid reliability.
As stipulated by the BiOp for the EDO, the Corps and FWS subsequently agreed
upon triggers for how the Corps was to reduce flows from the previous low of 5,000
cfs (cubic feet per second) in the Apalachicola River, to 4,750 cfs, then 4,500 cfs.
The Corps and FWS reportedly will consider triggers for reductions to 4,150 cfs in
late spring 2008 when data are available and if the situation warrants. As of mid-
January 2008, flows in the Apalachicola River had yet to be reduced below 4,750 cfs
due to winter rains. Although the rains have helped to refill the lower basin
reservoirs, they have had little impact on Lake Lanier, largely due to its small
drainage area.
What may happen in June 2008 when the EDO expires remains highly uncertain
and will depend on multiple factors including climate conditions and additional
species information. It could take years for reservoir storage to refill to the level set
in the EDO for returning to IOP operations.15
Water Supply Issues:
Municipal and Industrial (M&I) and Agricultural
Consumptive use of water reduces the amount of water available in the basin
for other uses, including in-stream flows. Efforts to reduce water consumption
through conservation and efficiency programs often fall into two categories:
programs to reduce water use without reducing services by improving efficiency and
reducing waste; and short-term emergency measures that cut services. Municipal,
industrial, and agricultural water use are the primary consumptive uses in the ACF
basin. This section provides a brief discussion of these consumptive uses and their
management during the current drought, including short-term emergency
conservation measures. Depletion or inability to access municipal drinking water
sources can represent a significant public health threat, and reductions in M&I and
agricultural water supply can have significant economic impacts.
Consumptive Uses
Georgia dominates consumptive water use in the ACF basin. Georgia’s
municipal and industrial consumptive use annually averages roughly 290 million
gallons per day (mgd, or 450 cfs). The Atlanta metro area is the largest M&I
consumer, but Columbus and other basin communities also demand ACF surface
water and groundwater.16 Georgia’s agricultural sector has highly variable demand
15 For example, Florida Department of Environmental Protection (DEP) stated that “the
Corps’ modeling shows the EDO in place through 2010” in a letter from Florida DEP to
FWS Field Office in Panama City, FL, and to Corps District Office in Mobile, AL, on ESA
Section 7 Consultation on Proposed “Exceptional Drought Operations” of November 8,
2007, hereafter referred to as Florida DEP November 8 Letter.
16 In the United States, mgd is the standard unit for municipal water supplies, whereas cfs
(continued...)

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CRS-9
over the course of the year (with use concentrated from May through September) and
depending on precipitation and soil conditions. Georgia agriculture’s consumptive
use of surface water and groundwater affecting ACF river flows can exceed 650 mgd
(1,000 cfs) during a dry summer’s growing season, can fall to close to nothing during
winter months of a normal year, and averages 170 mgd (260 cfs) during a normal
year.17 Alabama consumes considerably less ACF water than Georgia, consistently
averaging less than 50 mgd annually from the Chattahoochee River, primarily for
municipal and industrial use.18 Florida has no significant withdrawals directly from
the Apalachicola River. However, there is a water diversion from the Chipola River,
which is an Apalachicola River tributary. The withdrawal varies monthly and can
reach 81 mgd (126 cfs). This water is transferred out of the ACF basin; the resulting
reduction in flow in the Apalachicola River may affect salinity levels in the
Apalachicola Bay.19
Municipal and Industrial Water Supply
M&I water supplies are withdrawn from the ACF rivers and tributaries, the
federal reservoirs on those rivers, locally-owned surface storage, and aquifers. The
original authorized purposes of the federal investments in the ACF were navigation,
hydropower generation, and flood control. Subsequent laws expanded what the
Corps considers when making operating decisions. The Corps now operates ACF
reservoirs for fish and wildlife protection, water quality protection, and recreation as
well as for the original authorized purposes. Lake Lanier and its releases also supply
water to the Atlanta metro area; to what degree the Corps operates the reservoirs for
water supply is the subject of litigation (see Appendix A).
The Corps principally cites the Water Supply Act of 1958 (43 U.S.C. §390b) as
its authorization to make water supply storage space at Corps facilities available for
M&I purposes. The act does not authorize the Corps to sell or allocate quantities of
water. The contracts are for space in the reservoir and do not guarantee a fixed
quantity of water. The Corps delivers the water if it is available in the storage space
without significantly affecting the authorized purposes of the Corps project. The act
16 (...continued)
is the standard unit for streamflow. A flow of 1.55 cfs is approximately 1 mgd. Additional
estimates are available in Army Corps of Engineers, Mobile District, Extended Unimpaired
Flow Report January 1994 — December 2001 for the Alabama-Coosa-Tallapoosa and
Apalachicola Chattahoochee Flint (ACT/ACF) River Basin (April 2004).
17 Additional information on water use in the Flint River sub-basin, where ACF agricultural
water withdrawals are concentrated, is available in Georgia Department of Natural
Resources, Environmental Protection Division, Flint River Regional Water Development
and Conservation Plan (March 20, 2006), available at [http://www.gadnr.org/frbp/Assets/
Documents/Plan22.pdf].
18 Data derived from information provided to CRS by the Alabama Department of Economic
and Community Affairs.
19 Florida Department of Environmental Protection, Division of Water Resources
Management, Northwest District, Water Quality Assessment Report, Apalachicola-Chipola
(2005), at [ftp://ftp.dep.state.fl.us/pub/water/basin411/apalach/assessment/Apalach-LORES.
pdf].

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CRS-10
also does not authorize the Corps to make significant modifications to its projects in
order to provide for M&I water supply.
The majority of the M&I water being provided from Lake Lanier is being
delivered under temporary “holdover contracts” because earlier contracts expired in
1990. The Corps has proposed replacing these with interim storage contracts that
would make more M&I water storage space available as part of a Settlement
Agreement (see Appendix A). A February 2008 court decision held that the
increased storage space provided in the agreement constitutes a change that requires
congressional authorization before the Corps could proceed with the contracts.20
Atlanta Area Water Supply. The 28-county Atlanta metropolitan area is
home to more than 5 million people and represents 75% of Georgia’s economic
activity. In 2000, the 16-county Metropolitan North Georgia (which is a subset of the
28-county metropolitan statistical area (MSA) Atlanta metro region, plus one
additional county outside of the MSA) served 4 million people; under some
projections, it may grow to 8 million by 2030.21
Atlanta’s origins as a rail center, rather than a waterway commerce economy,
contributed to its unusual status as a major metropolitan area in the headwaters of a
river system. Metropolitan North Georgia gets more than 99% of its water from
surface water supplies.22 Lake Lanier and the Chattahoochee River supply 72% of
that water.23 The Atlanta metropolitan area’s surface water dependency makes its
water supply particularly vulnerable to regional drought and to changes in Buford
Dam operations that may reduce water stored at Lake Lanier, such as those prescribed
in the IOP. A significant amount of the water withdrawn for M&I use is not
consumed; it returns to the ACF water bodies. The return flows represent a
significant percentage of the upper Chattahoochee River’s flow below the metro area
in the upper basin.
Metropolitan North Georgia’s second-largest source is the Corps-operated Lake
Allatoona reservoir on the Etowah River. It is a tributary of the Alabama-Coosa-
Tallapoosa river basin immediately west of the ACF, which also is affected by the
current drought. The ACT’s Etowah basin provides 12% of Metropolitan North
Georgia’s water supply.24 Almost all of Metropolitan North Georgia’s other supplies
are surface water supplies from other basins.
20 See Southeastern Federal Power Customers v. Geren, 2008 U.S. App. LEXIS 2501 (D.C.
Cir. 2008), available at [http://pacer.cadc.uscourts.gov/docs/common/opinions/200802/
06-5080a.pdf]. A discussion of the court’s opinion and related judicial actions can be found
in Appendix A of this report.
21 Metropolitan North Georgia Water Planning District, Water Supply and Water
Conservation Management Plan, (Atlanta, GA: September 2003), p. ES-8, hereafter referred
to as MNG Water Supply Plan.
22 MNG Water Supply Plan, p. 3-1. The 16 counties range from rural to urban. Although
agriculture is practiced in many of the counties, few farms irrigate.
23 Data from Water Supply website of the Atlanta Regional Commission, available at
[http://www.atlantaregional.com/cps/rde/xchg/arc/hs.xsl/273_ENU_HTML.htm].
24 Ibid.

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CRS-11
Today groundwater makes up less than 1% of Metropolitan North Georgia’s
water supply. However, groundwater was a major water supply source for the region
prior to the 1940s; the region shifted to surface water supplies as the demands
surpassed aquifers’ yield.25 Aquifers in northwest Georgia are relatively small, so
that no single well provides significant yields as a long-term water source. The
possibility of diversifying existing surface water supplies by expanding groundwater
use (e.g., supply augmentation during drought) has received some attention and
exploration. Groundwater, however, is not anticipated to provide a significant long-
term supply.
Future Demand and Long-Term Conservation Measures. The
Metropolitan North Georgia Water Planning District’s Water Supply and Water
Conservation Management Plan concluded, given estimates of population growth
and water conservation that it chose, that the Atlanta metro area’s average annual
demand would exceed its available supplies between 2013 and 2020 unless water
supplies in Lake Lanier and Lake Allatoona can be reallocated for M&I use.26 The
Pacific Institute27 prepared for the Florida Department of Environmental Protection
A Review of Water Conservation Planning for the Atlanta, Georgia Region. The
review was critical of the plan’s choice of population projections and of the level and
breadth of conservation measures it considered. The review stated that the plan
overestimated future demand and underestimated the potential for cost-effective
demand management as a tool for meeting demand through 2030 with existing
supplies (i.e., without reallocations).
The Water Supply and Water Conservation Management Plan argues for and
relies heavily on the reallocation of water storage in the ACF’s Lake Lanier and in
the ACT’s Lake Allatoona from either hydropower or flood control to water supply
in order to have sufficient supplies to meet demand through 2030. Contracts for the
reallocated supply are considered “essential to guarantee water supply for the district
for the next 30 years and beyond.”28 The District also is proceeding with efforts to
complete the permitting process of new nonfederal reservoirs and options for indirect
potable reuse. The management plan also calls for water conservation measures; it
25 L. J. Williams, “Overview of Geology, Ground-Water Availability, and Ground-Water
Exploration and Development in the Greater Atlanta Region,” in Methods Used to Assess
the Occurrence and Availability of Ground Water in Fractured-Crystalline Bedrock: An
Excursion into Areas of Lithonia Gneiss in Eastern Metropolitan Atlanta, Georgia (USGS
Guidebook 23 Atlanta, GA: October 2003) p. 11, available at [http://ga.water.usgs.gov/pubs/
other/guidebook23/Guidebook23_press.pdf].
26 Estimated using data in MNG Water Supply Plan, p. ES-9.
27 The Pacific Institute is an independent, nonpartisan think-tank studying the intersection
of development, environment, and security, including water conservation and use. For more
information, see [http://www.pacinst.org/about_us/]. The report was included in testimony
submitted by Collen M. Castille, Secretary of Florida DEP, on September 15, 2006, before
the U.S. Senate Committee on Environment and Public Works, at a hearing on Oversight of
the Army Corps of Engineers’ Management of the ACT and ACF River Basins, on August
8, 2006.
28 MNG Water Supply Plan, p. ES-10.

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CRS-12
estimated that these measures had the potential to reduce demand by 11%, thus
extending existing supplies to 2020.29
A major concern for lower basin ACF stakeholders and environmental groups
is that increased M&I water use will further and more consistently reduce in-stream
flows, particularly in the Apalachicola River. Upper basin interests argue that the
operations of federal reservoirs should recognize the economic benefits of M&I water
supply and reservoir recreation. The analysis produced by these interests to support
this argument estimated the economic benefit for reallocation of Lake Lanier storage
at $19.3 billion; the analysis included the M&I and recreation benefits and losses to
hydropower.30 Lower basin interests criticize the analysis for ignoring the ecosystem
and species costs of reallocation, losses to lower basin uses, and the value of
ecosystems services.
Agricultural Water Supply
Agricultural water supply is not an authorized purpose of the federal ACF
reservoirs; however, it is a significant consumptive use in the ACF’s Flint River sub-
basin, representing more than 90% of the sub-basin’s annual withdrawal.31 The Flint
River joins with the Chattahoochee River to form the Apalachicola River; therefore,
agricultural consumptive water use in the Flint River sub-basin may shape ACF
reservoir operations when operations are dictated by sustaining minimum
Apalachicola River flows. This influence likely is greatest during the May to
September months of a drought year when agricultural consumption peaks.
A 1998-2002 drought brought attention to the effect of agricultural uses on
reducing in-stream flows in the Flint River and various creeks in the lower basin.
The current drought and adoption of the IOP have increased interest in better
understanding how irrigation is affecting water availability in the Flint River and
other smaller tributaries feeding into Lake Seminole (e.g., Spring Creek). Generally,
in normal to wet years, irrigation’s impact on stream flow and aquifer levels is
insufficient to jeopardize availability of water in the sub-basin or stream ecology.32
That is not the case during dry conditions.
Irrigation greatly increases crop yields, crop quality, crop diversity, gross and
net return, land values, etc. Cotton, peanuts, corn, and vegetables are the most
extensively irrigated crops in the sub-basin. For some crops, such as vegetable,
container nurseries, and ornamental horticulture, irrigation is a prerequisite.33
Agricultural irrigation in southwest Georgia, particularly in the lower Flint River sub-
29 MNG Water Supply Plan, pp. ES-9 and ES-12.
30 G.F. McMahon, et al., Lake Lanier National Economic Development Update: Evaluation
of Water Supply, Hydropower, and Recreation Benefits (Atlanta Regional Commission:
Atlanta, GA, February 2004), available at [http://www.atlantaregional.com/cps/rde/xbcr/arc/
ned_rept_f.pdf].
31 Flint River Basin Regional Water Plan, p. 37.
32 Ibid., pp. 51-52.
33 Ibid., p. 151.

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CRS-13
basin, has markedly increased since the late 1970s, with 40% of the harvested
cropland in the sub-basin being irrigated.34 Although some of irrigation water is from
surface water, the majority is withdrawn from aquifers hydraulically connected to
surface waters. Agricultural irrigation and its peak water use during dry conditions
compound the effect of climatic drought on low stream flows in the Flint River sub-
basin.35 Converting to more water-intensive crops could increase agricultural water
demand.
Irrigation water conservation measures are encouraged for all holders of Georgia
agricultural surface water and groundwater withdrawal permits. Starting January
2006, conservation measures that can reduce the demand and improve the efficiency
of water use are a required condition for all new or modified permits.36 Agricultural
water conservation practices range from source water management, to use of
reclaimed water, to more efficient irrigation. The USDA with state and private
partners has been funding the adoption of water conservation efforts, particularly
irrigation efficiency measures, in the Flint River basin through the voluntary
Environmental Quality Incentives Program (EQIP), which provides participating
farmers with cost-sharing assistance and technical assistance.37
Georgia’s Emergency Conservation Measures38
Drought Management Plan. The 1998-2002 drought raised awareness in
Georgia regarding drought impacts and interest in drought planning and management.
The first Georgia Drought Management Plan was adopted in 2003.39 The current
drought is the first test of the plan. The plan includes innovative elements; most
notably, the plan uses unique drought indicators for different geographic regions of
the state. These indicators were developed using a participatory approach involving
stakeholders in each region. This approach is being used as a model and is being
adapted to other states’ drought management plans.
According to the National Drought Mitigation Center, a successful drought plan
contains three basic elements — a monitoring and communication/information-
sharing program, a risk/impact/vulnerability analysis, and response and mitigation
measures. Few state plans fully utilize all these elements. Georgia’s plan covers the
first and the third, but it does not include a vulnerability analysis. For comparison,
34 Ibid., p. 151. Harvested acreage has remained relatively steady since the early 1980s.
35 Ibid., p. 22.
36 Ibid., p. 33.
37 Nationally the demand for EQIP funds exceeds the available funds, resulting in a backlog
of interest in participating in the program. For more information on EQIP and its backlog,
see CRS Report RS22040, Environmental Quality Incentives Program (EQIP): Status and
Issues, by Jeffrey A. Zinn and Carol Canada.
38 The focus of this section is on Georgia’s drought management activities because, of the
three states, its consumptive uses have the greatest influence on in-stream flows.
39 The report is available at [http://gaepd.org/Files_PDF/gaenviron/drought/drought_
mgmtplan_2003.pdf].

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CRS-14
Alabama currently is operating under a draft drought management plan that focuses
on monitoring and communication. Florida has no state drought management plan
because it has long-standing regional water management districts that are responsible
for comprehensive water resources management, including drought planning.
Georgia’s plan incorporates a process to inform state decision-makers that have
the ability to enact and enforce drought conservation measures. Most of the measures
are short-term actions to reduce water demand during a drought, rather than long-
term demand management. The plan does not encompass measures to control long-
term water demand related to population growth, nor does it contain significant
measures to manage the demand of the industrial and agricultural sectors. This is
a limitation typical of state drought plans. Consequently, with continued population
and agricultural growth in Georgia, the state’s drought risk is increasing, even though
the adoption and implementation of the drought plan is an improvement from 2000.
Some ACF stakeholders have criticized Georgia for not taking more emergency
conservation actions and for not fully complying with its Drought Management Plan.
The plan generally calls for a meeting to be held once indicators for a region are
shown to have moved into the next drought level (there are four tiers, 1 to 4, with 4
being the most severe) for two consecutive months. The meetings are for informing
decision-makers that then choose to act. During the current drought, the following
milestones occurred:
! Level 1 drought declared for entire state on June 21, 2006, and
placed hourly restrictions on residential outdoor watering;
! Level 2 drought declared for entire state on April 18, 2007, and
limited residential outdoor water use to mornings only;
! Level 3 drought was not declared. It would have further restricted
residential outdoor watering;
! Level 4 drought declared for 61 north and western counties
(primarily along the Chattahoochee River, and a few but not most of
the Flint River counties) on September 28, 2007, and prohibited
most outdoor residential water use; and
! Governor Perdue went beyond the Drought Management Plan’s
Level 4 actions on October 23, 2007, by calling for a 10% cut in
withdrawals by groundwater and surface water permit holders in 61
counties.
Data on the plan’s drought indicators show that multiple indicators for increasing the
level to 4 had been met for the counties along the Chattahoochee River in July 2007,
months before the Level 4 was declared; on the other hand, the indicators had not
been as clear regarding initiation of Level 3.40 Criticisms of Georgia’s actions are
countered by those arguing that the plan and its implementation are evolving and that
they have performed well during this initial test. Upper basin stakeholders instead
place the blame for the low storage levels and resulting adoption of the lower flows
under the EDO on the IOP for allowing the reservoir drawdown. They also note that
40 Georgia Department of Environmental Protection, Water Resources and Hydrological
Analysis Unit, Drought Monitoring Status, September 27, 2007, available at [http://www.
conservewatergeorgia.net/pdf/Drought_Monitoring_Status_Sept_2007.pdf].

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CRS-15
in addition to the Drought Management Plan, Georgia’s Environmental Protection
Division has drafted the first comprehensive statewide water management plan which
is anticipated to be considered by the Georgia legislature in 2008.41
Flint River Drought Protection Program. In 2000, Georgia enacted the
Flint River Drought Protection Act in response to drought conditions’ effects on
flows in the Flint River and other creeks in the sub-basin.42 The act created a
program to preserve in-stream flows in the Flint River by requiring the
Environmental Protection Division to conduct an auction to pay irrigators who
voluntarily participate to temporarily cease irrigating during declared severe
droughts, thus improving stream flows for aquatic species in the sub-basin.43 The
program is implemented if by March 1 of any year, the Director of Georgia’s
Environmental Protection Division has issued a severe drought declaration for the
Flint River basin. The program was implemented in 2001 and 2002; it is estimated
to have reduced irrigation by up to 130 mgd (roughly 200 cfs) during the 2001
growing season.44 Both auctions had problems that raised concerns regarding the
effectiveness of the program (e.g, the two auctions failed to remove the highest water
use cropland from irrigation).45 The Director did not issue a severe drought
declaration in 2006 or 2007; therefore, the program was not activated in those years.
The forecasts, stream flows, and groundwater levels in the lower Flint River sub-
basin reportedly did not support the designation.
Ecosystem and Species Issues
Bay Ecosystem and Industry
Apalachicola Bay oysters constitute an important part of northwestern Florida’s
economy. More than 1,000 people are employed by the oyster industry in Florida’s
Franklin County, which harvests approximately $10 million in oysters annually.
Historically, this county harvests more than 90% of Florida’s oysters and 10% of the
entire nation’s supply of this seafood. Within Franklin County, oysters account for
almost one-third of the value of all commercial marine landings.46
In Apalachicola Bay, oyster distribution is controlled by both salinity and
sea-floor geology. Oyster beds generally occur in areas where the salinity is 5 to 25
41 Georgia’s Water Resources: A Blueprint for the Future, Revised Draft is available at
[http://www.georgiawaterplan.org/PDFs/WholePlanDec5.pdf].
42 O.C.G.A. §§ 12-5-540 to-550
43 The program was not designed to maintain Apalachicola River flows.
44 Georgia Department of Natural Resources, Letter from Director of Environmental
Protection Division Harold F. Reheis, “Re: Flint River Drought Protection Act,” May 4,
2001.
45 Flint River Basin Regional Water Plan, p. 47.
46 Apalachicola Bay Chamber of Commerce, at [http://www.apalachicolabay.org/
eastpointhome.php].

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CRS-16
parts per thousand, on three types of shallow bars formed by different geologic
processes.47 Any decrease in freshwater inflow into the Bay from the Apalachicola
River may result in increased salinity in the Bay.48 The potential effects of such
increased salinity on oysters in the Bay would depend upon several factors, including
how freshwater and saltwater mix within the Bay, how rapidly and to what extent
salinity increases, and the amount of oyster habitat in the Bay that might be exposed
to salinities exceeding oyster tolerance (as well as the amount of time these oysters
were exposed to excessive salinities). Although some studies have found that Gulf
coast oyster landings may be inversely related to periods of freshwater inflow — i.e.,
oyster landings increase with periods of lower freshwater inflow,49 the Florida
Department of Environmental Protection has raised concerns that a sustained low
freshwater inflow could precipitate a catastrophic collapse of the oyster industry in
Apalachicola Bay.50
Apalachicola Bay is the site of the Apalachicola National Estuarine Research
Reserve, one of 27 research sites designated by the National Oceanographic and
Atmospheric Administration. The Bay also is an exceptionally important nursery
area for Gulf of Mexico commercial fish species. More than 95% of all species
harvested commercially and 85% of all species harvested recreationally in the open
Gulf spend a portion of their lives in estuarine waters (e.g., blue crabs may migrate
as far as 300 miles to spawn in Apalachicola Bay). In addition, Apalachicola Bay is
a major forage area for such offshore fish species as gag grouper and gray snapper.51
Changes in Apalachicola Bay salinity could affect the suitability of this habitat for
forage and nursery use.52 In particular, higher salinity levels in Apalachicola Bay
could prevent juvenile and adult Gulf sturgeon from entering the bay in fall/winter,
blocking access to productive feeding habitat. In contrast to oysters, short-term
47 D. Twichell, “Habitat Mapping to Assess Health of Oyster Fishery in Apalachicola Bay,
Florida,” Sound Waves (USGS, June 2005).
48 Some basin stakeholders argue that, rather than trying to keep salinities low in
Apalachicola Bay by managing Apalachicola River flows, the Corps should close the Bob
Sikes Cut in St. George Island.
49 R. E. Turner, “Will Lowering Estuarine Salinity Increase Gulf of Mexico Oyster
Landings?,” Estuaries and Coasts, vol. 29, no. 3 (June 2006), pp. 345-352.
50 Florida DEP November 8 Letter. The letter also cited expected increases in salinity, and
noted a potential increase in disease and predation with resulting adverse effects on the
oyster and seafood industries.
51 Florida Department of Environmental Protection, About the Apalachicola National
Estuarine Research Reserve and Associated Areas, available at [http://www.dep.state.fl.us/
coastal/sites/apalachicola/info.htm].
52 A letter from Florida Fish and Wildlife Conservation Commission to FWS Field Office
in Panama City, FL, on ESA Section 7 Consultation of November 7, 2007 (hereafter referred
to as Florida FWCC November 7 Letter) included data from Florida’s most recent annual
survey of sport fish in the Apalachicola River. The commission cited data on strong
production of sport fish in years with high flows that inundate the river floodplain, and data
on low production for the low flow years of 2006 and 2007. The commission also noted
higher salinities associated with low flows as diminishing fish habitat and food supplies.
It also cited studies showing that while previous droughts had produced temporary surges
in mussel populations, they were followed by rapid decreases in subsequent years.

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CRS-17
reductions in freshwater flow are generally associated with a decline in some coastal
fisheries and with overall harm to biota.53
Protected Species
A Sturgeon and Three Mussels. A focal point of recent debate on ACF
water management during this drought has been protection of four species listed
under the federal ESA:54 Gulf sturgeon (Acipenser oxyrinchus desotoi), fat threeridge
mussel (Amblema neislerii), Chipola slabshell mussel (Elliptio chipolaensis), and
purple bankclimber mussel (Elliptoideus sloatianus). Water flow, temperature,
dissolved oxygen, and other aspects of water quality are important to all four.
The threatened Gulf sturgeon are anadromous, migrating upriver from the Gulf
of Mexico in the springtime to spawn near the headwater of rivers. These fish then
spend the summer in the mid- to lower river before migrating back into the Gulf.
Gulf sturgeon seldom feed while in rivers, conserving energy needed for spawning.55
Major limiting factors for the population include barriers (e.g., dams) to historical
spawning habitats, loss of habitat, poor water quality, and overfishing.56 The
Woodruff Dam prevents sturgeon from reaching previous spawning habitat; sturgeon
were once found in both the Chattahoochee and Flint Rivers. (See Figure 1.) The
sturgeon was listed as threatened under the federal ESA on September 30, 1991, and
its critical habitat was designated on March 19, 2003.
The endangered fat threeridge mussel, threatened purple bankclimber and
Chipola slabshell live in the sand and gravel bottoms of streams and rivers. Larvae
of these mussels are parasites on the gills and fins of freshwater fishes (e.g., darters,
minnows, and bass), using these host fish for dispersal and causing them little or no
harm. These mussels require good water quality, stable stream channels, and flowing
water. Major limiting factors include habitat modification by manmade structures
53 K. F. Drinkwater and K. T. Frank, “Effects of River Regulation and Diversion on Marine
Fish and Invertebrates,” Aquatic Conservation: Marine and Freshwater Ecosystems, v. 4,
no. 2 (1994), pp. 135-151.
54 The ESA protects species identified as endangered or threatened with extinction and
attempts to protect the habitat on which they depend. It is administered primarily by the Fish
and Wildlife Service and also by the National Marine Fisheries Service for certain marine
and anadromous species. Dwindling species are listed as either endangered or threatened
according to assessments of the risk of their extinction. Once a species is listed, legal tools
are available to aid its recovery and to protect its habitat. The ESA defines an endangered
species as “any species which is in danger of extinction throughout all or a significant
portion of its range ...” and a threatened species as “any species which is likely to become
an endangered species within the foreseeable future throughout all or a significant portion
of its range.” For more information on the ESA, see CRS Report RL31654, by M. Lynne
Corn, Eugene H. Buck, Kristina Alexander.
55 U.S. Department of the Interior, Geological Survey (USGS), Gulf Sturgeon Facts,
available at [http://cars.er.usgs.gov/ Marine_Studies/Sturgeon_FAQs/sturgeon_faqs.html].
56 U.S. Department of Commerce, National Marine Fisheries Service, Gulf Sturgeon
Recovery/Management Plan, available at [http://www.nmfs.noaa.gov/pr/pdfs/recovery/
sturgeon_gulf.pdf].

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CRS-18
(e.g., dams and channel alterations) that destroy free-flowing water habitats and
restrict species from dispersing, resulting in small, isolated populations. These three
species also are threatened by point source pollution, such as discharge from factories
and sewage treatment plants, and by nonpoint source pollution, such as runoff
containing fertilizers, herbicides, and pesticides from various land-use practices.57
These species usually move very little, but a muscular “foot” helps them burrow and
allows slow and limited movement if disturbed by floods or droughts. All three
species were listed under the federal ESA on March 16, 1998. Critical habitat was
designated on November 15, 2007,58 and took affect on December 17, 2007. Of the
four species (Gulf sturgeon and three mussels), concern related to the EDO has been
greatest for the three mussels. According to FWS, not only is flow rate, per se,
important to the mussels, but so are the effects of flow rates on other aspects of the
species’ biology.
EDO ESA Consultation
On November 1, 2007, the Corps requested expedited consultation with FWS
under §7 of the Endangered Species Act to consider its proposed EDO.59 In support,
the Corps submitted a Biological Assessment of the EDO (BA of the EDO) to
FWS.60 FWS conducted an expedited review and responded on November 15, 2007.
Biological Assessment of the EDO. In the BA of the EDO, the Corps
proposed to reduce flows from the Jim Woodruff Dam below the 5,000 cfs minimum
established in the IOP. The EDO, as previously noted, proposed to incrementally
reduce flows to a minimum flow of 4,150 cfs — first to 4,750 cfs, then 4,500 cfs, and
finally the target of 4,150 cfs. The IOP had a minimum of 5,000 cfs, and had
57 FWS, Endangered and Threatened Mussels in the Apalachicola-Chattahoocheee-Flint
Basin, available at [http://www.fws.gov/southeast/october07/Mussels-FactSheet-ACFBasin.
pdf].
58 72 Federal Register 64286.
59 Under the ESA, federal agencies must insure that their actions are “not likely to jeopardize
the continued existence” of any endangered or threatened species, nor to adversely modify
critical habitat. If federal actions or actions of non-federal parties that require a federal
approval, permit, or funding might affect a listed species, the federal action agencies must
complete a biological assessment. To be sure of the effects of their actions, the action
agency must consult with the appropriate Secretary. This is referred to as a § 7 consultation.
“Action” includes any activity authorized, funded, or carried out by a federal agency,
including permits and licenses.
60 Army Corps of Engineers, Biological Assessment: Temporary Modifications to the Interim
Operating Plan for Jim Woodruff Dam and the Associated Releases to the Apalachicola
River, Document #CESAM-PD-E1, available at [http://www.sam.usace.army.mil/ACF
%20Water%20Resources%20Management/ACFDrought _Consultation2007/
FinalBiologicalAssessment_1_Nov_2007.pdf]. The BA was amended on November 7,
2007; the amendment is available at
[ h t t p : / / w w w . s a m . u s a c e . a r m y . m i l / A C F % 2 0 W a t e r % 2 0 R e s o u r c e s
%20Management/ACFDrought_Consultation2007/BA_AmendmentLetter11_7_2007.pdf].
Hereafter the two documents collectively are referred to as the BA of the EDO.

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CRS-19
considered 6,500 cfs as “desirable.” The EDO would maintain a 0.25 ft/day
maximum fall rate, until 4,150 cfs was achieved.
According to the BA of the EDO, “adverse impacts to listed species (especially
the listed mussel species) are reasonably certain to occur as flows on the
Apalachicola River drop below 5,000 cfs.”61 Among the issues mentioned in the
rationale for adopting the EDO’s lower minimum flows was reducing “the demand
for storage in order to ... have greater assurance of future ability to sustain flows for
listed species during a severe multi-year drought, as currently being experienced in
the ACF basin.”62 In essence, the proposal was that the listed species would face a
reduced water flow this year to reduce risks in later years, if the drought continues.
Biological Opinion for the EDO. In its November 15, 2007, BiOp on the
EDO, FWS concluded there would be no appreciable effect on the survival and
recovery of the Gulf sturgeon and no appreciable effect on the ability of its
designated critical habitat to provide its intended conservation role.63 In addition,
FWS concluded that for the three mussels, the Corps’ EDO would have a measurable
— but not appreciable — impact on survival and recovery. While critical habitat
primary constituent elements for these mussel species may be adversely affected by
reducing minimum releases to 4,500 cfs, FWS did not anticipate that the EDO’s
adverse impact would alter or affect the critical habitat to the extent that it would
appreciably diminish the habitat’s intended conservation role.64 The BiOp for the
EDO required that the Corps supply FWS with triggers for making the incremental
reductions.
The effects of a reduction to 4,500 cfs on the listed species are outlined in the
BiOp.65 Sturgeon spawning habitat is highly dependent on the proper water depth;
the reduction would reduce habitat of proper depth by 1-3 acres, down from 13 acres.
The reduction was judged “probably not significant” but the BiOp noted a paucity of
data. FWS commented on lack of data to permit drawing long-term conclusions
about the EDO’s effects. To that end, it limited its opinion to June 1, 2008, and to
an initial reduction to 4,750 cfs, to be followed by a reduction to not less than 4,500
cfs, then to 4,150 cfs..66 Moreover, the BiOp for the EDO did not determine a
minimum flow that would avoid jeopardy indefinitely.
61 Ibid., p. 6.
62 Ibid., p. 6.
63 Note that FWS does not state in the BiOp for the EDO that no harm would come to these
species. Rather, it concludes that the Corps’ action would not be sufficient to jeopardize the
continued existence of the species, provided that certain reasonable and prudent alternatives
are carried out. Any future consultation would occur in light of a pre-existing harm that, if
not appreciable, was still measurable according to the BiOp.
64 BiOp for the EDO, pp. 56-57.
65 Ibid., pp. 39-48.
66 Ibid., p. 58.

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Incidental Take Statement and Reasonable and Prudent Measures.
FWS’ Incidental Take Statement (ITS) related to the BiOp included non-
discretionary measures to determine the appropriate triggers for these incremental
reductions. It directed that the Corps ensure that the measures become binding
conditions of any contract or permit issued to carry out the EDO. Mandatory terms
and conditions were attached to the ITS to ensure its implementation. These terms
and conditions included reporting requirements, monitoring, and assuming
responsibility for certain studies, among other things. These studies include
measurements of take of the listed species resulting from lower flows, changes in
mussel distribution, and life history studies to provide information to better inform
future decisions. The ITS also warned that failure to carry out the terms and
conditions could invalidate the ITS.67
In addition to mandatory terms and conditions, the ITS also made discretionary
recommendations to the Corps. For example, the ITS recommended that the Corps
work with states and other stakeholders to reduce depletions to ACF stream flow,
particularly in the Flint River; its examples included incentives to reduce agricultural
demands. It also recommended that the Corps, with other stakeholders, “evaluate
ways to ensure that listed mussel mortality due to low flows does not become a
chronic or annual source of mortality.”68
ESA Legislation Prompted by ACF Drought
While the ESA plays an important role in protecting species, it also can become
a surrogate in quarrels whose primary focus is the allocation of scarce or diminishing
water, lands, or other resources. Indeed, a stated purpose of the ESA is to “provide
a means whereby the ecosystems upon which endangered species and threatened
species depend may be conserved.”69 Because other laws commonly lack ESA’s
strict substantive provisions, the ESA often becomes a surrogate battleground in such
disputes, as it has in the ACF basin. The current ESA debate in the basin relates to
the Corps’ consultation with FWS under 16 U.S.C. § 1536 on the effects of the
operation of dams in the watershed and how these operations may affect the Gulf
sturgeon and three species of mussels.
In the 110th Congress, identical bills, H.R. 3847 and S. 2165, have been
introduced to address conflicts with the ESA arising from recent operations of the
federal ACF dams. These bills would suspend the entire ESA for both federal and
state agencies managing a federal river basin if either the Corps or a basin governor
determines that there is a drought in such a river basin and that the drought threatens
the region’s health, safety, or welfare. The bills would end the suspension if the
Corps or the governor determines that the drought is no longer in effect in the basin.
These bills raise several issues and questions, including their potential effect on
ESA issues in other locations and situations. For example, as written, the bills may
67 Ibid., pp. 58-59.
68 Ibid., p. 64.
69 16 U.S.C. §1531(b).

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apply to species not directly affected by drought but which occur within the basin.
Even terrestrial species in the basin could lose protections. It appears that the bills
would suspend FWS’s obligation to consult with federal agencies even to help inform
them about potential consequences of their actions. In regions of the country where
water shortages are chronic, and conflicts concerning listed species are abundant,
would the bills effectively allow governors to opt out of the ESA permanently?
ACF in the Federal Water Policy Context:
Conclusions
Although the drought has made reservoir management and endangered species
protections the ACF basin’s most active federal issues, the tri-state disagreement over
water allocation and managing municipal, industrial, and agricultural demand will
persist even when the drought subsides. The drought is drawing attention to how the
Corps operates its ACF reservoirs under a draft water supply plan from 1989 that is
being modified through interim plans for individual dams and exceptional drought
waivers. This situation and the expanding set of lawsuits is increasing interest in
having the three states devise a comprehensive long-term solution in order to avoid
congressional or judicial resolutions on a piecemeal basis.
How the federal government responds to the current ACF drought may set
precedents for the long-term management of the ACF basin and other basins whose
stakeholders compete for water resources, as well as other basins where the demands
on federal infrastructure have changed significantly since their original
authorizations. Increasing pressures on the quality and quantity of available water
supplies — due to growing population, environmental regulation, in-stream species
and ecosystem needs, water source contamination, agricultural water demand, climate
variability, and changing public interests — have resulted in heightened water use
conflicts throughout the country. The federal government has a long history of
involvement in water resource development and management to facilitate
water-borne transportation, expand irrigated agriculture, reduce flood losses, and
more recently restore aquatic ecosystems. Congress makes decisions that define the
federal role in planning, constructing, maintaining, inspecting, and financing water
resource projects. These decisions occur within the context of multiple and often
conflicting objectives, competing legal decisions, and long-established institutional
mechanisms (e.g., century-old water rights, contractual obligations, etc.).
The ACF is a prime example of the complexity of the river management issues
in which the Corps and other federal water management and resource agencies are
embroiled along with state and local governments and the general public. How the
nation uses and values its rivers has changed over time. Rivers are now seen as not
only providing economic benefits but also recreational opportunities and ecosystem
services, such as species habitat, which also have economic dimensions. These
changes have manifested themselves in law (e.g., ESA) and implementation of water
resources statutes. This shift has caused a reexamination by the courts, agencies, and
stakeholders of the distribution of economic and other benefits of river management
alternatives. The debate over ACF management raises some fundamental questions
about water resources management in the nation, such as whether some river uses

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CRS-22
should take priority over others (e.g., threatened and endangered species protection
over inland waterway transportation), how to evaluate alternatives (e.g., balancing
multiple uses, maximizing economic benefits, reducing short-term or long-term risk),
and how to manage extreme conditions and changing water availability and use.
Actions by federal agencies remain controversial on the Middle Rio Grande, San
Joaquin, Colorado, Klamath, Columbia, Snake, Mississippi, and Missouri Rivers.
Like the ACF, federal actions and facility operations on these rivers frequently are
challenged in the courts and by state and local interests.

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CRS-23
Appendix A. ACF Compact and Lawsuits
After almost 20 years of lawsuits about and attempts at allocating water among
the basin states, the three basin states have been unsuccessful at resolving how to
allocate water through a compact. There are several pending cases related to ACF
waters, filed in various federal district courts.70 The first, Alabama v. U.S. Corps of
Engineers (the Alabama case),71 was the original case that led to a 1997 ACF
Compact; it was revived after the ACF Compact expired in 2003. The second,
Southeastern Federal Power Customers, Inc. v. U.S. Army Corps of Engineers (the
D.C. case),72 was filed in the district court for the District of Columbia in December
2000. The third case, Georgia v. U.S. Army Corps of Engineers (the Georgia I
case),73 was filed in the federal district court for the Northern District of Georgia in
February 2001. The fourth case, Georgia v. U.S. Army Corps of Engineers (the
Georgia II case),74 was filed in the federal district court for the Northern District of
Georgia in June 2006. The fifth case, Florida v. U.S. Fish and Wildlife Service (the
Florida case),75 was filed in the federal district court for the Northern District of
Florida in September 2006. The sixth case, City of Columbus v. U.S. Army Corps of
Engineers (the City of Columbus case),76 was filed in the federal district court for the
Middle District of Georgia in August 2007. The seventh case, City of Apalachicola
v. U.S. Army Corps of Engineers (the City of Apalachicola case),77 was filed in the
federal district court for the Northern District of Florida in January 2008.
Many of these cases raise the same legal issues in differing contexts. In order
to avoid repetitive litigation over very similar issues, many of the cases were
consolidated in March 2007.78 One of the recurring issues in the litigation is
determination of the authorized purposes of Lake Lanier. This issue was addressed
in the most recent decision relating to the ACF (see discussion of the D.C. case
below). In February 2008, the Court of Appeals for the D.C. Circuit held that
70 These lawsuits are ongoing, interrelated, and contain voluminous filings and numerous
orders. Accordingly, the precise legal posture of each case may be subject to rulings or
filings that CRS has not obtained or reviewed and the analysis herein is necessarily general.
71 Alabama v. U.S. Corps of Engineers, No. CV-90-H-01331-E (N.D. Ala., Eastern Division,
filed June 29, 1990).
72 Southeastern Federal Power Customers, Inc. v. U.S. Army Corps of Engineers, No.
1:OOCV02975 (D.D.C., filed on December 12, 2000).
73 Georgia v. U.S. Army Corps of Engineers, No. CV 2:01-CV-26-RWS (N.D. Ga.,
Gainesville Division, filed on February 7, 2001).
74 Georgia v. U.S. Army Corps of Engineers, No. 06-CV-1473 (N.D. Ga., Atlanta Division,
filed June 20, 2006).
75 Florida v. U.S. Fish and Wildlife Service, No. 06-CV-410 (N.D. Fla., filed September 6,
2006).
76 City of Columbus v. U.S. Army Corps of Engineers, No. 07-CV-125 (M.D. Ga., Columbus
Division, filed August 13, 2007).
77 City of Apalachicola v. U.S. Army Corps of Engineers, No. 4:08-CV-23-RH/WCS (N.D.
Fla., filed January 15, 2008).
78 See In re Tri State Water Rights Litigation, 481 F.Supp.2d 1351, 1352 (Judicial Panel on
Multidistrict Litigation 2007).

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CRS-24
congressional authorization would be necessary in order to provide local water
supply for municipalities near the reservoir.79 That opinion directly affected only the
D.C. case, the sole case omitted from the consolidation. This appendix includes a
discussion of each of the cases and the consolidation. It also discusses considerations
for the future of the litigation, including Supreme Court jurisdiction and possible
effects of the D.C. case on the remainder of the litigation.
ACF Cases
The Alabama Case and the ACF Compact. In 1990, Alabama and Florida
filed suit (the Alabama case) against the Corps to stop the larger withdrawals it had
approved for Georgia, based in part on the impact they would have on downstream
users and a failure to comply with the National Environmental Policy Act (NEPA;
42 U.S.C. §§ 4321-4347).80 The suit alleged that the Corps exceeded its authority
under the Water Supply Act of 195881 by reallocating storage in the ACF reservoirs.
Under the Water Supply Act, a modification to reservoir projects “which would
seriously affect the purposes for which the project was authorized ... or which would
involve major structural or operational changes shall be made only upon the approval
of Congress.”82 The authorized purposes of Lake Lanier are disputed among the
parties and have become a recurring issue in each of the lawsuits filed.83 Generally,
each of the parties except Georgia recognizes three authorized uses: flood control,
hydropower, and navigation. Georgia has maintained that municipal and industrial
use was also authorized.
The parties suspended the proceeding in 1992 to negotiate a settlement.
Settlement negotiations ultimately resulted in an interstate compact (the ACF
Compact) which was approved by Congress in 1997 (P.L. 105-104). Through the
ACF Compact, the parties intended “to develop an allocation formula for equitably
apportioning the surface waters of the ACF Basin among the states while protecting
the water quality, ecology and biodiversity of the ACF.”84 In other words, the
Compact provided an agreement to agree on allocations at some future date.
Although the states negotiated for years, they never reached an agreement and, after
many extensions of the 1998 date on which the ACF Compact was to terminate, the
79 See Southeastern Federal Power Customers v. Geren, 2008 U.S. App. LEXIS 2501, 18-20
(D.C. Cir. 2008).
80 Alabama v. U.S. Corps of Engineers, No. CV-90-H-01331-E (N.D. Ala., Eastern Division,
filed June 29, 1990). Georgia joined the suit later as a defendant.
81 43 U.S.C. §390b.
82 43 U.S.C. §390b(d).
83 The parties have cited various sources when alleging what purposes are authorized. See
Rivers and Harbors Act of 1945; H.Doc. 342; Army Corps of Engineers, Authorized and
Operating Purposes of Corps of Engineers Reservoirs (1992, revised 1994); 33 C.F.R. §
222.5. One scholar provides a summary of the confusion, noting that the Corps has, at
various times, offered between three and six authorized purposes. See George William
Sherk, “The Management of Interstate Water Conflicts in the Twenty-First Century: Is It
Time to Call Uncle?,” 12 N.Y.U. ENVTL. L.J. 764, 771 (2005).
84 P.L. 105-104.

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Compact expired on August 31, 2003. Since then, the litigation has resurfaced as the
states attempt to secure their water rights (see discussion below).
The D.C. Case. The D.C. case involved a dispute brought by Southeastern
Federal Power Customers (SeFPC), a non-profit corporate consortium of rural
electric cooperatives and municipal electric systems. SeFPC alleged that the Corps
contracts that provided for increased withdrawals from Lake Lanier exceeded the
Corps’ authority under the Water Supply Act of 1958. The increased withdrawals,
they argued, consequently diminished the flow-through by which hydropower is
generated. SeFPC claimed that its members were paying for Buford Dam
hydropower at prices disproportionate to their residual share of water stored in Lake
Lanier devoted to power generation.85
The proceedings of the Alabama and D.C. cases are interrelated. In the
Alabama case, Alabama and Florida sued to prevent withdrawals of water from Lake
Lanier made to the detriment of downstream users. While the action was suspended
pending negotiations, the D.C. case was filed. In January 2003, the parties in the
D.C. case, including Georgia and the Corps, reached a settlement agreement and
requested the court’s approval. Because the parties to the D.C. case attempted to
implement a settlement agreement that would affect the use of the water at issue in
the Alabama case, Alabama and Florida revived the Alabama case to challenge the
settlement agreement. Alabama and Florida also intervened in the D.C. case to
oppose the approval of the agreement as a violation of the suspension of proceedings
in the Alabama case. In October 2003, the federal district court in the Alabama case
granted Alabama and Florida’s motion for a preliminary injunction, enjoining the
Corps and Georgia from implementing the agreement in the D.C. case.86 In 2004, the
district court in the D.C. case approved the settlement agreement, but required that
the injunction entered in the Alabama case be dissolved before the agreement could
be implemented.87 In 2005, the 11th Circuit Court of Appeals vacated the Alabama
district court’s injunction order, finding that Alabama and Florida did not establish
an imminent threat of irreparable harm or a substantial likelihood of prevailing on the
merits of the case.88
85 Southeastern Federal Power Customers, Inc. v. Caldera, 301 F.Supp.2d 26, 30 (D.D.C.
2004). The Corps and Georgia were both named defendants in this suit.
86 See Alabama v. United States Army Corps of Engineers, No. CV 90-BE-1332, Preliminary
Injunction (N.D. Ala., entered October 15, 2003).
87 301 F.Supp.2d at 35. Alabama and Florida appealed the court’s decision. The Court of
Appeals for the D.C. Circuit dismissed the appeal for lack of jurisdiction, noting that
because the district court’s decision was conditional, it lacked the finality required to
proceed with an appeal. See Southeastern Federal Power Customers, Inc. v. Harvey, 400
F.3d 1, 4 (D.C. Cir. 2005).
88 Alabama and Florida v. United States Army Corps of Engineers, 424 F.3d 1117, 1133
(11th Cir. 2005).

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In February 2008, the Court of Appeals for the D.C. Circuit reversed the district
court’s approval of the settlement agreement reached by the parties in the D.C. case.89
The settlement agreement, entered by Georgia and the Corps, provided for two 10-
year contracts that allocated water to Georgia for municipal use. The court’s opinion
addressed only one of the statutory issues raised by the appeal — the Water Supply
Act.90 The court held that “the Agreement’s reallocation of Lake Lanier’s storage
space constitutes a major operational change on its face” and therefore, under the
Water Supply Act, required prior congressional approval.91 Because Congress did
not authorize the change, the court ruled that the agreement could not be enforced.92
Florida and Alabama also claimed that the agreement violated the Flood Control Act
and NEPA, but the court did not reach those issues.
The Georgia I Case. In 2000, the Governor of Georgia made a written water
supply request asking the Corps to commit to making increased releases of water
from the Buford Dam until the year 2030 in order to assure a reliable municipal and
industrial water supply to the Atlanta region. In 2001, after nine months without a
reply to the request, Georgia sued the Corps to increase its water supply. While the
Alabama and DC cases were being litigated, Florida and SeFPC filed motions to
intervene in the Georgia I case, but the motions were denied by the district court.93
After this denial, the Corps denied Georgia’s request, claiming that it lacked the
“legal authority to grant Georgia’s request without additional legislative authority,
because the request would involve substantial effects on project purposes and major
operational changes.”94
On appeal, the Court of Appeals for the 11th Circuit overturned the district
court’s decision. The court permitted Florida and SeFPC to intervene and returned
the case to the district court for further adjudication.95 The district court, noting the
similarity of the parties and the subject matter, found the case to be parallel to the
Alabama case.96 The court suspended the proceedings in the Georgia I case pending
resolution of the Alabama case.
The Georgia II Case. In 2006, the Corps issued an interim operations plan
(IOP) for Woodruff Dam for the purpose of protecting federally protected species in
the Apalachicola River. (See discussion on p. 6.) Georgia sued the Corps to
challenge the IOP, claiming that it constituted a change from the only approved water
89 Southeastern Federal Power Customers v. Geren, 2008 U.S. App. LEXIS 2501 (D.C. Cir.
2008).
90 See 43 U.S.C. § 390b.
91 Id. at 3.
92 Id.
93 See Georgia v. United States Army Corps of Engineers, 302 F.3d 1242, 1247-1250 (11th
Cir. 2002).
94 Id. at 1249.
95 Ibid., p. 1252, 1258.
96 Georgia v. United States Army Corps of Engineers, 223 F.R.D. 691, 696-699 (N.D. Ga.
2004).

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CRS-27
control plan (which was adopted in the late 1950s).97 Georgia argued that, by
releasing more water from reservoir storage to meet the in-stream requirements for
the Apalachicola River in the IOP, the Corps was jeopardizing the state’s future
water supply. The releases allegedly did not account for dry weather conditions and
did not reserve enough water to supplement the dry summer conditions in northern
Georgia. The suit also alleged that water supply was a contemplated purpose of the
Corps’ water project.98
The Florida Case. In 2006, FWS issued a biological opinion (BiOp) regarding
the impact of the IOP for Woodruff Dam on protected species downstream (see
discussion on p. 6). Florida filed a lawsuit to review the BiOp, which was issued
pursuant to the ESA. The BiOp concluded that the Corps’ operations under the IOP
were not likely to jeopardize the species or their habitat. Florida sought review,
claiming that operations had already caused significant damage. The BiOp,
according to Florida, violated rational decision-making standards. Florida also
alleged that the municipal and industrial uses for which Georgia sought water were
not authorized purposes.
The City of Columbus Case. In 2007, the City of Columbus, Georgia, sued the
Corps, challenging the validity of the IOP. Columbus asserted that the Corps failed
to adopt a formally finalized water control plan for the ACF basin and that the Corps’
current operation under the IOP violated its legal authority. The Corps was operating
under a third revision of the IOP, each changing the flow levels in the rivers, at the
time Columbus filed the lawsuit. Columbus claimed that the lack of reliable flow
from the Chattahoochee River impaired its ability to discharge water that it used to
provide services to the city in compliance with regulatory requirements. The city
alleged that the IOP improperly revised the water control plan because it was
published in final form without public comment and was put into effect for an
indefinite period of time. According to Columbus, the IOP resulted in over-releases
of water from the ACF reservoirs to the city’s detriment.
The City of Apalachicola Case. In 2008, the City of Apalachicola, Florida,
sued the Corps, challenging its management and operation of the ACF facilities. The
lawsuit arose from the city’s interest in maintaining the Apalachicola Bay ecosystem,
which the city claims as a basis for its economy and livelihood. Apalachicola alleged
that the Corps did not complete an adequate NEPA review when it issued the original
IOP, the modified IOP, or the Exceptional Drought Operations modification (EDO)
to the modified IOP. The city also claimed that the Corps did not comply with
environmental assessments required under the Coastal Zone Management Act
(CZMA).99 Apalachicola also alleged that various contracts entered by the Corps,
which provide for withdrawals for purposes other than those authorized by law, and
97 See 33 C.F.R. §222.5.
98 Georgia cited a Corps document created in response to the WRDA 1990 (P.L. 101-640)
and Corps regulations as sources indicating water supply as an authorized purpose. See
Army Corps of Engineers, Authorized and Operating Purposes of Corps of Engineers
Reservoirs (1992, revised 1994); 33 C.F.R. §222.5.
99 This case was the first to allege issues based on the CZMA. See 16 U.S.C. § 1456.

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the Corps’ application of the draft water control plan violate the Water Supply Act,
Flood Control Act, and NEPA.
Consolidation of Cases. In March 2007, the Alabama, Georgia I, Georgia II,
and Florida cases were consolidated and transferred to the federal district court for
the Middle District of Florida “to serve the convenience of the parties and witnesses
and promote the just and efficient conduct of the litigation.”100 The City of
Columbus case was also included in this litigation after it was filed. Other cases filed
since the consolidation that relate to the ACF dispute, including the City of
Apalachicola case, are likely to be included in the consolidated proceedings. The
D.C. case was excluded from this consolidation of proceedings because it had already
reached the appellate court, whereas the cases that were consolidated remained in
various federal district courts.101
Considerations for Future Litigation Efforts
U.S. Supreme Court Review. The U.S. Supreme Court has not addressed the
issues raised by the ACF litigation at this time. In June 2006, the Court declined to
review an 11th Circuit decision in the Alabama case.102 The underlying 11th Circuit
opinion held that the action did not involve a controversy between states, which
would have to be heard by the U.S. Supreme Court, but did involve a dispute
between states and a federal agency, which was properly heard by the lower federal
courts.103 Therefore, the Court would only hear arguments regarding the ACF dispute
if a new lawsuit is filed by one state against another state or if a party to one of the
lawsuits appeals a circuit court’s decision.
Anticipated Effects of the D.C. Case Decision. As discussed above, the
various lawsuits involve many recurring issues, including authorized purposes of
Lake Lanier, the effect of the Water Supply Act of 1958 on authorized purposes, and
whether the environmental reviews that have been conducted satisfy the requirements
of NEPA. The D.C. Circuit’s decision holding that reallocation of water supply
storage for municipal use would require congressional authorization addresses one
of these issues. That decision may affect the future path of litigation in the other
cases.
Although the court determined that the settlement agreement was unenforceable,
the litigation of the D.C. case may continue at different levels. One or more of the
parties may try to appeal the circuit court’s decision to the U.S. Supreme Court. If
the Supreme Court accepts the case for review, it may or may not uphold the D.C.
Circuit’s interpretation of the issue. The D.C. Circuit’s decision addressed only one
100 In re Tri-State Water Rights Litigation, 481 F.Supp.2d 1351, 1352 (Judicial Panel on
Multidistrict Litigation 2007).
101 Id.
102 See Alabama and Florida v. United States Army Corps of Engineers, 126 S. Ct. 2862
(2006).
103 Alabama and Florida v. United States Army Corps of Engineers, 424 F.3d 1117, 1130
(11th Cir. 2005).

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CRS-29
of the statutory challenges raised before the court. As a result, the case may also be
remanded to the original court (the D.C. district court) for further review of other
issues raised but not resolved in the higher courts.
If the case is remanded to the district court, it may be consolidated with the
other cases. The D.C. case was omitted from the original consolidation because it
was the only case not on the trial level. If it is remanded to the district court for
further consideration, it would again be on the same level of review as the other cases
and potentially be appropriate for consolidation.
Generally, the consolidated cases, being litigated in a different jurisdiction (a
district court within the 11th Circuit), are not controlled by decisions in the D.C.
Circuit.104 That is, the 11th Circuit, or district courts within its jurisdiction (including
Alabama, Florida and Georgia), may choose to interpret the issue of required
congressional authorization differently than the D.C. Circuit did. However, other
courts may be bound by the D.C. Circuit’s decision under a legal principle known as
collateral estoppel. The principle of collateral estoppel, also known as issue
preclusion, prevents parties from raising issues that have already been resolved in
previous legal proceedings in later cases under certain circumstances.105 In order to
raise the issue of collateral estoppel and prevent the consolidated cases from further
litigating the issue decided by the D.C. Circuit, a party must show that:
(1) the issue at stake is identical to the one involved in the prior proceeding; (2)
the issue was actually litigated in the prior proceeding; (3) the determination of
the issue in the prior litigation must have been “a critical and necessary part” of
the judgment in the first action; and (4) the party against whom collateral
estoppel is asserted must have had a full and fair opportunity to litigate the issue
in the prior proceeding.106
If a court determines that these four elements have been met, the ruling from the prior
proceeding stands, meaning that the party raising the issue of collateral estoppel wins
on that claim. If at least one element is not met, the court hearing the consolidated
cases would be free to interpret the issue independent of the D.C. Circuit’s decision.
104 The federal court system is three-tiered: the trial court (federal district courts), the
appellate court (federal circuit courts), and the U.S. Supreme Court. Under this system,
district courts are bound only by decisions of the circuit court under which the district court
sits and decisions of the U.S. Supreme Court. Circuit courts are bound only by their own
prior decisions and decisions of the U.S. Supreme Court. The circuit courts may, but are not
required to, follow decisions of other circuit courts when considering similar issues raised.
105 See Allen v. McCurry, 449 U.S. 90, 94 (1980); I.A. Durbin, Inc. v. Jefferson Nat’l Bank,
793 F.2d 1541, 1549 (11th Cir. 1986).
106 Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1359 (11th Cir. 1998); Christo v.
Padgett, 223 F.3d 1324, 1339 (11th Cir. 2000).

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Appendix B. NEPA and Current ACF Operations
NEPA and the Exceptional Drought Operations

When a federal agency takes an action that could significantly affect the
environment, it is required to conduct a review under the National Environmental
Policy Act (NEPA) (42 U.S.C. §§ 4321 et seq.). The Corps submitted an
environmental assessment (EA) of the Exceptional Drought Operations (EDO)
modification to its operations of Woodruff Dam with a finding of no significant
impact (FONSI). This EA-FONSI means the Corps determined that any adverse
environmental effects were not so significant that an environmental impact statement
(EIS) was required. Under NEPA, an agency is required to take a hard look at the
environmental consequences of its action. The U.S. Supreme Court has said NEPA
“merely prohibits uninformed — rather than unwise — agency action.”107 The
original case (see Alabama Case in Appendix A) raises a NEPA complaint.
Legal challenges to EAs are based on the following: timing, contents, and
conclusions. The timing factor is whether the document informed the agency
decision, rather than providing an after-the-fact rationalization of the agency action.
Challenges based on the contents of a document argue that the document does not
show the agency took a hard look at the relevant environmental effects. The
conclusion that no EIS was required can also be a basis for a legal challenge.
Timing and Content
NEPA requires federal agencies to comply “to the fullest extent possible.”108
However, NEPA does not require any particular results, such as choosing the least
harmful project. The U.S. Supreme Court has said NEPA “merely prohibits
uninformed — rather than unwise — agency action.”109 Accordingly, where courts
have found that agencies took a hard look at the relevant areas of environmental
impact and satisfied the other demands of Section 4332(2)(C), the courts have upheld
the NEPA process.
To comply with NEPA the agency must show that the environmental review
informed the decision-making process. NEPA regulations promulgated by the
Council on Environmental Quality (CEQ) address the timing of an environmental
review. The regulations all require the environmental review before the agency
decision, indeed, as early as practical. A section discussing timing of environmental
reviews says:
An agency shall commence preparation of an environmental impact statement as
close as possible to the time the agency is developing or is presented with a
proposal (Sec. 1508.23) so that preparation can be completed in time for the
107 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).
108 42 U.S.C. § 4332. For a general discussion of NEPA, see CRS Report RS20621,
Overview of NEPA Requirements, by Kristina Alexander.
109 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).

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CRS-31
final statement to be included in any recommendation or report on the proposal.
The statement shall be prepared early enough so that it can serve practically as
an important contribution to the decisionmaking process and will not be used to
rationalize or justify decisions already made.110
Although this section refers specifically to an environmental impact statement
(EIS), the rationale of not using an environmental document to justify decisions
already made applies to environmental assessments as well. After all, EAs are
intended to be performed to see whether an EIS must be prepared. Therefore, since
they precede an EIS (if an EIS is deemed necessary), they must also precede the
agency decision on a course of action. A specific regulatory reference to EAs further
supports that the document is intended to contribute to the discussion of choosing an
action: “Agencies may prepare an environmental assessment on any action at any
time in order to assist agency planning and decisionmaking.”111
Another section discusses the benefits of starting the environmental review at
the earliest possible time: “Agencies shall integrate the NEPA process with other
planning at the earliest possible time to insure that planning and decisions reflect
environmental values, and to avoid delays later in the process, and to head off
potential conflicts.”112
Early in NEPA practice, the courts established that a NEPA review should occur
before an agency action was decided upon: “That the filing of an EIS should precede
rather than follow federal agency action has been consistently recognized by the
courts.”113 The Fifth Circuit described the harm in reversing the order:
Whenever an agency decision to act precedes issuance of its impact statement,
the danger arises that consideration of environmental factors will be pro forma
and that the statement will represent a post hoc rationalization of that decision.
NEPA was intended to incorporate environmental factors and variables into the
decisional calculus at each stage of the process.114
The courts agree that a NEPA review is intended to inform the decision-making
process. The Ninth Circuit addressed the timing of the environmental review in
relationship to the agency decision. It said the purpose of the review is to provide
“decisionmakers with an environmental disclosure sufficiently detailed to aid in the
substantive decision whether to proceed with the project in light of the environmental
consequences.”115 A reviewing court is likely to find that an agency failed to take a
110 40 C.F.R. § 1502.5
111 40 C.F.R. § 1501.3(b).
112 40 C.F.R. § 1501.2.
113 Cady v. Morton, 527 F.2d 786, 794 (9th Cir. 1975).
114 Sierra Club v. Lynn, 502 F.2d 43, 59-60 (5th Cir. 1974).
115 Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810 (9th Cir. 1987). See
also Save Barton Creek Ass’n v. FHWA, 950 F.2d 1129, 1137 (5th Cir. 1992) (purpose of
NEPA is to inform the decision-maker).

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hard look at the environmental consequences of its action when the decision on what
action to take predates the consideration of the environmental effects.
The contents of a NEPA document may also influence a court as to whether an
agency took a hard look at the environmental effects of the proposed action. The
regulations provide a general description of the contents. EAs are intended to be
concise, but are also required to consider the need for the project, the environmental
impacts of the project and its alternatives, alternatives required by section 102(2)(E),
and a list of the agencies and persons consulted.116 In the context of an action that
could affect species listed under the ESA, the NEPA review and the biological
assessment (BA) under the ESA can be synchronized. The statutory provision for a
BA contemplates that it will be used in conjunction with the NEPA process, and in
fact can be considered part of a NEPA review, although it does not mandate that the
two go together.117
Another issue related to the contents of an EA is whether the document indicates
that an EIS is needed or that there is no significant impact.118 Reasonable people can
disagree as to what conclusion the data in an EA justify. Deference is given to the
agency’s determination by courts, however. That judicial deference can be reduced
under certain circumstances, including when a court finds the agency has pre-judged
the environmental impacts.119 The environmental document must adequately support
the conclusions within it in order for a court to uphold it.120 Also, the record must
show how the agency reached its determination: “mere perfunctory or conclusory
language will not be deemed to constitute an adequate record and cannot serve to
support the agency’s decision not to prepare an EIS.”121
If an EA with a finding of no significant impact is found to be inadequate, most
courts will remand the action to the agency, where another EA could be prepared by
the agency. In certain rare cases, courts have directed agencies to prepare an EIS,
without leaving the matter to the agency’s discretion.122
116 40 C.F.R. §1508.9(b).
117 16 U.S.C. §1536(c)(1): “Such assessment may be undertaken as part of a Federal
agency’s compliance with the requirements of section 102 of the National Environmental
Policy Act of 1969.”
118 See 40 C.F.R. §1508.9(a)(1).
119 Davis v. Mineta, 302 F.3d 1104, 1112 (10th Cir. 2002).
120 O’Reilly v. U.S. Corps of Engineers, 477 F.3d 225 (5th Cir. 2007) (EA-FONSI violated
NEPA because Corps failed to consider cumulative adverse effects and properly document
how mitigation would render adverse impacts insignificant).
121 Maryland-National Capital Park & Planning Comm’n v. U.S. Postal Serv., 487 F.2d 1029,
1039 & 1040 (D.C. Cir.1973).
122 See Middle Rio Grande Conservancy Dist. v. Babbitt, 206 F. Supp. 2d 1156 (D.N.M.
2000) (court ordered agency to prepare EIS because agency delays had imperiled the
species), aff’d sub nom., Middle Rio Grande Conservancy Dist. v. Norton, 294 F.3d 1220
(10th Cir. 2002).

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The Right to Sue Under NEPA
NEPA suits are brought under the Administrative Procedure Act (APA).
Therefore, courts review whether an agency’s action was arbitrary or capricious or
otherwise not in accordance with law.123 Parties have to show standing. That limits
plaintiffs to those who could show they were adversely affected or aggrieved by the
agency action and that NEPA intended to protect against that actual or threatened
injury.124 For example, an economic injury by itself is not the type of harm NEPA
protects against and could not be the basis for a lawsuit. However, the reduced use
of the river by a recreational kayaker could be the basis for standing. Plaintiffs could
include individuals and groups, provided they were able to show they suffered an
injury in fact that was different from the injury suffered by the community at large.125
123 5 U.S.C. §706(2)(A).
124 5 U.S.C. §702.
125 See Massachusetts v. EPA, 127 S. Ct. 1438, 1453 (2007) (a personal stake confers
standing, even when there is “widespread harm”).

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CRS-34
Appendix C. ACF Electric Power Generation Issues
ACF Power generation includes hydroelectric facilities operated by the Corps,
Georgia Power, and private entities as well as coal-fired, gas-fired, and nuclear plants
operated by Southern Company and its subsidiaries, Southern Nuclear and Gulf
Power.
Hydroelectric Generation
Historically, hydropower at dams on the ACF provides power primarily during
peak demand. An issue is the effect of decreased river flows on turbine operations,
specifically whether lower reservoir levels would drop below the turbine’s water
intake. Currently, water levels are sufficient to generate peaking power for the
region. According to the Corps, the two main units at Buford Dam can generate as
long as water levels do not fall below 1035 feet. Even before the reduced flows
under the EDO, the two main units at Buford were projected to be operational at least
until summer 2008.126
The Southeastern Power Administration (SEPA) markets the power generated
at Corps-operated dams to its customers in the Southeast.127 SEPA enters into five-
year contracts with its preference customers (cooperatives and municipal power
systems) with power delivery obligations based on 1981 drought levels. SEPA is
obligated to meet its contract requirements whether or not sufficient hydroelectric
power is available to meet its obligations. In the event of a hydropower shortfall,
SEPA purchases power on the open market, generally at a cost greater than
hydroelectric generation. The additional cost is passed on to SEPA’s customers.
SEPA does not own transmission lines and must contract with other utilities for use
of the transmission system.128
Nuclear Generation
Plant Farley, located in southeastern Alabama near the town of Dothan, is a
1,711 megawatt (MW) nuclear plant; water is used in the cooling system. (See
Figure 1.) According to the SERC Reliability Corporation, in addition to being a
large source of electricity, generation from Farley is also important for maintaining
the stability of the local power system.129
126 Corps BA, p. 51.
127 Southeastern Power Administration. Annual Report 2005, available at [http://www.sepa.
doe.gov/files/2005%20SEPA%20Annual%20Report%205-3.pdf].
128 Personal communication between Amy Abel and Douglas Spencer, Southeastern Power
Administration, November 5, 2007.
129 Personal communication between Stan Kaplan and Carter Edge, Director, Reliability
Services, SERC Reliability Corp., November 6, 2007. SERC is the regional industry
organization responsible for monitoring power grid reliability in the southeastern states.

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Plant Farley requires a minimum water flow of 2,000 cfs to operate at full load
under its current water permit.130 At lower flow, water discharges from the plant may
have thermal or other impacts on the Chattahoochee River that could trigger
regulatory action. Under the lowest flows in the EDO, the flow at Farley may drop
to roughly 2,300 cfs, still above the plant’s full load requirement.
Because of the plant’s design, it appears unlikely that all of the generation from
Farley could be lost due to low water conditions, at least in the foreseeable future.
Farley is a two-unit plant. On September 28, 2007, Unit 1 went off-line for refueling,
and through October and early November, water flows often dipped far below 2,000
cfs (e.g., to a flow of 1,048 cfs on November 3, 2007).131 This indicates that the plant
can operate with one unit at full load with much less water than required for two unit
operation. However, according to Southern Company, during the period October to
May, when other generation and transmission assets are taken off-line for
maintenance, both Farley units are necessary for reliable operation of the local power
system.132
According to the SERC Reliability Corp., alternative, albeit more expensive,
natural gas-fired generation could be used to compensate for reduced generation from
Farley during off-peak seasons. However, these alternatives may be otherwise
committed during summer peaks and very cold winter periods, in which case
reliability risks would be greater if Farley generation is unavailable or reduced.133
Coal-Fired and Natural Gas-Fired Generation
Coal-fired power plants, older (steam electric) gas-fired plants, and modern
combined cycle gas plants are dependent on water for steam processing, and
primarily cooling. Older power plants, those whose construction began prior to 1972,
use a once-through system where the water is discharged back into the water source.
Newer power plants do not discharge water, but use cooling towers to evaporate the
water. In low water years, once-through plants may encounter issues with thermal
discharge. The discharge from the power plant is typically warmer than the water
source, and increases in the surrounding water temperature could affect the ability of
fish and other aquatic species to survive. This effect is more pronounced with low
stream flows. For both older and newer plants, water intakes for the plant must be
below water level.
130 E-mail and attachment from Jerry L. Stewart, Southern Company, to Stan Kaplan,
November 7, 2007.
131 Daily reactor status is posted by the Nuclear Regulatory Commission at [http://www.
nrc.gov/reading-rm/doc-collections/event-status/reactor-status/2007/index.html]; dam
discharge data is posted at [http://water.sam.usace.army.mil/acfframe.htm].
132 E-mail and attachment from Jerry L. Stewart, Southern Company, to Stan Kaplan,
November 7, 2007.
133 Personal communication between Stan Kaplan and Carter Edge, Director, Reliability
Services, SERC Reliability Corp., November 6, 2007.

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Although several large coal and gas-fired plants are located along the ACF
rivers, only the coal-fired Plant Scholz in the Florida Panhandle has been mentioned
as potentially being affected by low flow in the Apalachicola River. (See Figure 1.)
This plant is considered a base load plant which generates power throughout the day.
Although Scholz is small (capacity of 92 MW), the plant is a low-cost source of
generation and is used in some situations to maintain the reliability of the local power
system. Specifically, Scholz is needed during high-demand periods to help prevent
overloading power lines under some circumstances, and during low demand periods
to maintain voltage levels.134
According to Southern Company affiliate Gulf Power, the plant’s owner, the
plant can operate with flows at 5,000 cfs. With the EDO flows, the plant should be
able to continue operating without modifications for three months. The plant does
not expect any issues with thermal discharge with the lower flows. Plant operators
plan to make some modifications in its intake system to be able to continue operating
into the summer of 2008.135
If Scholz needs to shut down, there do not appear to be any transmission
constraints in the area that would prevent power from being delivered from other
generating plants. However, the cost of purchased power or generation from other
Southern Company assets may be more expensive than generation from Scholz and
Farley. Also, the reduction in reserve margins from taking Plant Scholz and other
generating plants off line could create reliability concerns, especially during the peak
summer season.
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134 E-mail and attachment from Jerry L. Stewart, Southern Company, to Stan Kaplan,
November 7, 2007.
135 Personal communication between Amy Abel and John Hutchinson, spokesperson for Gulf
Power, November 5, 2007.

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