Apalachicola-Chattahoochee-Flint (ACF) Drought: Federal Reservoir and Species Management

Order Code RL34250
Apalachicola-Chattahoochee-Flint (ACF) Drought:
Federal Reservoir and Species Management
November 14, 2007
Nicole T. Carter, Coordinator
Resources, Science, and Industry Division
M. Lynne Corn, Amy Abel, Stan Mark Kaplan,
Eugene H. Buck, and Peter Folger
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
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
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 Resources and
Environmental Policy
Environmental law,
Kristina Alexander
7-8597
National Environmental Policy
Legislative Attorney
Act, Endangered Species Act
Water resources litigation
Cynthia Marie Brougher
7-9121
Law Clerk
Emergency management
Francis X. McCarthy
7-9533
Analyst in Emergency Management
Policy

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Apalachicola-Chattahoochee-Flint (ACF) Drought:
Federal Reservoir and Species Management
Summary
Drought in the Southeast in 2007 has brought attention to an ongoing interstate
water conflict among Alabama, Florida, and Georgia over management of the
Apalachicola-Chattahoochee-Flint (ACF) river basin. How the current drought is
managed may set precedents for federal drought responses on other rivers regulated
by federal dams and for future management of the ACF. The current debate about
managing the ACF is focused on whether the U.S. Army Corps of Engineers (Corps)
should implement emergency measures to preserve more water in storage than is
possible under current operating procedures. The water at stake is vital for
municipalities (including Atlanta), electricity generation, threatened and endangered
species, and the Apalachicola Bay oyster industry.
Drought in the ACF has escalated competition for the water in federal
reservoirs that are near or at record lows. Reservoir drawdown and predictions for
a continued drought have Georgia’s upper basin municipal customers concerned
about depleting their principal water supply, Lake Lanier. They also have Alabama’s
and Florida’s lower basin interests concerned about river flows to meet their
municipal, electricity, and ecosystem needs. At issue is how to manage federal
reservoirs to meet municipal and industrial water needs equitably in the upper and
lower basins, while maintaining compliance with federal law (e.g., the Endangered
Species Act (ESA)) and minimizing harm to the ACF river and Apalachicola Bay
species and ecosystems.
The Corps has proposed Exceptional Drought Operations that would maintain
a 16% lower flow in the Apalachicola River, thereby reducing the rate of drawdown
of federal reservoirs. The Corps currently is releasing water from Lake Lanier to meet
the minimum flow requirement in the Apalachicola River. Consultation with the U.S.
Fish and Wildlife Service under the ESA was initiated on November 1; a response
from the Service was anticipated as early as November 15. Three species protected
under the Endangered Species Act — two mussels and a sturgeon — depend on
minimum flows in the Apalachicola River; to date, the current flows have been
considered the minimum for these species. Maintaining more water in storage now
would benefit Atlanta because more water would be available in Lake Lanier and for
release to the Chattahoochee River next year. The Corps’ proposal does not appear
to cause significant immediate harm to electricity generation or grid reliability.
Federal decision-makers and the governors of the three states are faced with
weighing the impacts of reducing flows against the benefit of improved water supply
security. The current drought is raising the prominence of species protection as a
factor in river management. It is also raising concerns about the vulnerability of
urban areas to surface water supply shortages. Many view the conflict in the ACF
as a harbinger of increasing competition for water in basins across the nation,
including others in the East, and as a testing ground for legal action on federal river
management, especially during drought. Moreover, resolution of conflicts between
endangered species and other uses in the ACF basin could have much wider
implications for ESA implementation, especially in western states.

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Contents
Current Issues: Tradeoffs During Droughts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ACF Primer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Federal Dams Regulate for Multiple Uses . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Relationship Between Federal and State Authorities . . . . . . . . . . . . . . . 4
ESA and the ACF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
NEPA and the ACF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Current Drought . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Reservoir Storage Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
The Three Species: A Sturgeon and Two Mussels . . . . . . . . . . . . . . . . . . . . 7
Corps’ Proposal for Reducing Minimum Flows . . . . . . . . . . . . . . . . . . . . . . 8
Municipal Water Supply Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
M&I Water Supply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Atlanta/North Georgia Water Supply . . . . . . . . . . . . . . . . . . . . . . . . . 11
Electric Power Generation and Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Hydroelectric Generation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Nuclear Generation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Coal-Fired and Natural Gas-Fired Generation . . . . . . . . . . . . . . . . . . . . . . . 14
Species and Ecosystem Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Bay Ecosystem and Industry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
River Management and the Three ESA Species . . . . . . . . . . . . . . . . . . . . . 17
The Three Species Under the Corps’ Proposal:
Consultation under § 7 of ESA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Other Options for Reducing Minimum Flows . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Options Under the ESA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Dim Prospects Under the Disaster Provision . . . . . . . . . . . . . . . . . . . . 20
An Outright Exemption: The Long Road . . . . . . . . . . . . . . . . . . . . . . 21
Changing Current Law and Questions Raised . . . . . . . . . . . . . . . . . . . . . . . 21
ACF in the Federal Water Policy Context: Conclusions . . . . . . . . . . . . . . . . . . . 22
Appendix A. ACF Compact and Lawsuits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Appendix B. Is a NEPA Review Required? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Emergency Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
The Right to Sue under NEPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Appendix C. How the Endangered Species Act Works . . . . . . . . . . . . . . . . . . . . 30
Appendix D. The Corps and ACF Species Management: A Brief History . . . . . 31

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List of Figures
Figure 1. ACF Dams and Selected Power Plants . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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Apalachicola-Chattahoochee-Flint (ACF)
Drought: Federal Reservoir and
Species Management
Current Issues: Tradeoffs During Droughts
Drought in the Southeast has brought attention to an ongoing interstate water
conflict involving Alabama, Florida, and Georgia over management of the
Apalachicola-Chattahoochee-Flint (ACF) river basin. The water at stake is vital for
the basin’s municipalities (especially Atlanta), electric power plants, navigational
interests, irrigators, threatened and endangered species, and the Apalachicola Bay
oyster industry. How the current drought is managed may set precedents for future
federal drought responses, as well as the long-term management of the ACF.
Drought has escalated competition for the water in the ACF reservoirs, which
are near or at record lows. The operation of federal reservoirs shape both the quantity
of stored water and the river flows that support federally protected aquatic species
and other public or private uses. Reservoir drawdown and predictions for a
continued drought have Georgia’s upper basin municipal customers concerned that
their principal water supply may be depleted. They also have lower basin interests
concerned about availability of current and future river flows to meet their municipal,
electricity generation, and ecosystem needs. At issue is how to manage U.S. Army
Corps of Engineers (Corps) reservoirs to meet municipal, agricultural, and industrial
water needs equitably in the upper and lower basin, while maintaining compliance
with federal law (e.g., the Endangered Species Act (ESA)) and minimizing harm to
the ACF river and Apalachicola Bay ecosystems.
This report discusses issues in the ACF drought response, including the federal
role. It also underscores that decision-makers are faced with weighing possible
impacts of reducing flows in the current year to maintain water in storage against the
benefit of improved water supply security next year. Many aspects of the complex
ACF system are not discussed in detail in this report (e.g., navigation flows and
commercial traffic in the ACF, the interconnections of the ACF to the Alabama-
Coosa-Tallapoosa (ACT) basin, state or local water conservation efforts). Rather, the
focus of the report is on selected federal issues related to federal reservoir
management during drought. The first section of the report provides a brief
introduction to the basin’s water resources and issues, the current drought, and the
Corps’ proposal for reducing minimum flows for species to reduce the drawdown
rate of federal reservoirs. Each of the next three sections discusses how the drought
is affecting different water uses — municipal water supply, electric power generation,
and species and ecosystems — and the potential impacts of the Corps’ proposal. The
last section discusses other alternatives for reducing the minimum flows under ESA
and in proposed legislation. The report concludes with general comments about the
ACF and the issues it raises in the broader context of federal water resources policies
and projects.

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CRS-2
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. The basin’s waters are
used for hydropower generation at federal and private dams, for nuclear and fossil
fuel powerplant cooling, for municipal drinking water, for agriculture, and for
industrial water supplies. The rivers’ flows also support species listed as threatened
or endangered under the Endangered Species Act (ESA). The species most directly
affected by the river system’s management are discussed below. The ACF also
provides freshwater into the river-dominated ecosystem of the Apalachicola Bay,
which supports a regionally significant oyster industry.
Congress first authorized construction of federal facilities for water resources
development of the ACF in 1946.1 The Corps 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 — Buford Dam forming Lake
Lanier (62% of the Corps’ ACF storage capacity), West Point (18%), W. F. George
(14%), and Woodruff (6%) — provide water storage. These facilities and other
nonfederal dams in the ACF also have hydroelectric facilities. The fifth federal dam
— Andrews Dam — is operated for navigation. The Corps has contracts with local
interests for municipal and industrial (M&I) water supply storage space at Lake
Lanier.2 Lake Lanier provides Metropolitan North Georgia, the 10-county region that
includes Atlanta, with 72% of its water supply.3
Since June 1990, the Corps has been managing the ACF under the agency’s
October 1989 Draft Apalachicola-Chattahoochee-Flint Basin Water Control Plan
(WCP). In the fall of 2006, the Corps modified its operations under the plan to
comport with an Interim Operating Plan (IOP) for Woodruff Dam.4 The Corps
developed the IOP, in consultation with the U.S. Fish and Wildlife Service (FWS),
to guide Woodruff Dam operations until an updated ACF water control plan is
adopted; the IOP includes minimum instream flow requirements for protection of
threatened and endangered species.
1 Rivers and Harbors Act of 1946 (60 Stat. 634, 635).
2 The Corps principally cites the Water Supply Act of 1958 (43 U.S.C. §390b) as its
authorization to make water supply storage space 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. The act does not authorize the Corps to make
significant modifications to its projects in order to provide for M&I water supply.
3 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].
4 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). Hereafter referred to as the IOP. Available at [http://www.sam.usace.army.mil/
ACF%20Water%20Resources%20Management/JWDSect7/JWD_IOP_FONSI_EA/IOPF
inalEA.pdf].

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CRS-3
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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CRS-4
Relationship Between Federal and State Authorities. The federal
government has authority to manage water resources, but it recognizes the states’
authority to allocate and use water within their jurisdiction. 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,
there are three states involved in sharing the basin’s water resources, and the Corps
operates its five dams for multiple purposes — hydropower, flood control,
navigation, water quality, water supply, recreation, and fish and wildlife
conservation. Although the three states have authority over their waters, federal
investments were made to develop the ACF for multiple purposes. The basin’s
federal dams control the releases to the rivers, thereby shaping the states’ use of the
water. 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. Consequently, the Corps’ ACF operations
have been the subject of extensive and ongoing litigation extending over nearly two
decades. Most recently, the operations’ impacts on federally protected species have
joined the fray. (See Appendix A for an introduction to the history of efforts to
establish an ACF Compact and selected ACF suits in federal courts.)
ESA and the ACF. While the ESA plays an important role in protecting
species, it can also 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.” (16 U.S.C.
§1531(b).) Because other laws often lack ESA’s strict substantive provisions, the act
often becomes a surrogate battleground in such disputes, as it does in ACF
management.
NEPA and the ACF. Another factor in the Corps’ plan to release less water
is whether an environmental review document, such as an environmental assessment
(EA) or an environmental impact statement (EIS), is required under the National
Environmental Policy Act (NEPA) (42 U.S.C. §§4321 et seq.). NEPA requires
federal agencies to prepare an EIS when their actions constitute “major Federal
actions significantly affecting the quality of the human environment.”5 The act
requires that agencies comply “to the fullest extent possible.”6 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.”7 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. (See
Appendix B for a discussion of NEPA and management of the ACF basin.)
5 42 U.S.C. §4332(2)(C). For more details on environmental reviews, see CRS Report
RS20621, An Overview of the NEPA Process.
6 42 U.S.C. §4332.
7 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).

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CRS-5
The Current Drought
Droughts create water management challenges because they are creeping
disasters.8 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 on expectations about when a drought may end. The current drought is
already eclipsing conditions experienced by Georgia during the mid-1950s, which is
considered the most severe drought on record for the state. In addition, if the current
drought extends another one or two years longer, its duration may equal or exceed
the multi-year drought that afflicted Georgia in the 1920s.9
Extreme to exceptional drought conditions prevail over northwest Georgia and
northeast Alabama, western North Carolina, and the northwest corner of South
Carolina.10 According to the U.S. Drought Monitor, these conditions would be
expected to result in major to exceptional crop and pasture losses, widespread water
shortages in reservoirs, streams, and wells, and accompanying water emergencies or
restrictions. Abnormally dry conditions affected the region in the late winter of 2006
and spring of 2007, and warmer than average temperatures and lower than average
rainfall contributed to extreme and exceptional drought conditions in the summer and
early fall, particularly August through October 2007.11 Streamflow measurements
indicate that the current drought is approaching record levels;12 and according to the
Corps staff meteorologist, Georgia and northern Alabama are experiencing the worst
drought on record.13 If drought conditions persist, record low streamflows and ACF
lake levels are expected to decline further.
8 While this report does not specifically discuss climate change, questions are often 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/]).
9 Personal communication between Peter Folger and David Stooksbury, Georgia State
Climatologist, Nov. 5, 2007.
10 Drought conditions per the U.S. Drought Monitor at [http://www.drought.unl.edu/
dm/monitor.html].
11 See the U.S. Drought Monitor at [http://www.drought.unl.edu/dm/thumbnails/2007.gif].
The drought may have begun in 2006 when abnormally dry conditions persisted for much
of the year in parts of the southeast, including Georgia, beginning in the spring months
(Personal communication between Peter Folger and David Stooksbury, Georgia State
Climatologist, Nov. 5, 2007).
12 U.S. Geological Survey, “Drought Worsens During September with Many Georgia
Streams Setting New Record Lows” (Sept. 2007); see [http://ga.water.usgs.gov/drought/
drought_sept2007.pdf].
13 U.S. Army Corps of Engineers, Mobile District River System Status for October 25, 2007,
at [http://www.sam.usace.army.mil/pa/riverstatus.htm].

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CRS-6
Drought conditions in the afflicted region are anticipated to continue or intensify
over parts of Georgia and Alabama through at least early 2008, if forecasts for
strengthening La Niña conditions prove accurate.14 The National Weather Service
also indicates that drought conditions will persist or intensify at least through January
2008.15
Reservoir Storage Conditions
The federal reservoirs on the ACF are insufficient to capture water volumes that
can both augment stream flows during drought conditions and meet the water supply
demands of the basin for more than a few months. As runoff in the basin has fallen
below the flows necessary to meet demands and meet instream flow requirements,
the reservoir levels have declined. Of critical concern is the reservoir level in Lake
Lanier, which is the principal water supply for the 10-county Metropolitan North
Georgia area that includes Atlanta. On October 19, 2007, the Corps commented on
the near record low levels at Lake Lanier, stating:

Engineers estimate if we get virtually no more rain and we continue using water
at the same rate, approximately 282 days of usable water supply in Lake Lanier
are remaining. This includes approximately 169 days from below the normal
usable pool. Access to this additional water may require modification to
municipal owned withdrawal infrastructure.16
In early November, Lake Lanier was slightly over 2 feet above the reservoir’s record
low. The reservoir has approximately 50% of its conservation pool (550 thousand
acre-feet of the 1,050 thousand acre-feet in the conservation pool).17 Below the
conservation pool is the inactive storage which is accessed only to meet basic water
supply needs; Lake Lanier’s inactive storage provides another 868,000 acre-feet.
The debate about how to manage the ACF through the end of the current
drought is currently focused on whether the Corps should implement emergency
measures to preserve more water in storage than is permitted under its current
operating procedures. The Corps has indicated that it has been releasing water from
Lake Lanier to augment the water available at Woodruff Dam, and thus to provide
minimum flow in the Apalachicola River of 5,000 cubic feet per second (cfs). In
addition to being the minimum flow established in the IOP, a minimum flow of 5,000
cfs for downstream industrial users of the Apalachicola River was discussed in the
14 The National Weather Service Climate Prediction Center, El Niño/Southern Oscillation
(ENSO) Diagnostic Discussion, at [http://www.cpc.noaa.gov/products/analysis_monitoring/
enso_advisory/ensodisc.pdf]; see this report for definitions of El Niño and La Niña; The
University of Georgia College of Agricultural and Environmental Sciences, at
[http://apps.caes.uga.edu/news/storypage.cfm?storyid=3261].
15 The National Weather Service Climate Prediction Center, U.S. Seasonal Drought Outlook,
at [http://www.cpc.ncep.noaa.gov/products/expert_assessment/seasonal_drought.html].
16 Army Corps of Engineers, ACF Drought Conditions and Lake Lanier Water Storage for
Water Supply (Mobile, AL: Oct. 19, 2007).
17 The conservation pool is the normal usable pool of water. Above the conservation pool
is flood and surcharge storage, and below the conservation pool is inactive storage.

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CRS-7
1989 Water Control Plan. CRS could locate no Corps estimates of how much water
has been released to date from Lake Lanier specifically to meet that minimum flow.
Attempts to independently estimate releases from Lake Lanier for Apalachicola River
minimum flows are complicated by numerous factors (e.g., withdrawals along the
course of the river, return flows, and contributions from streams and groundwater)
that influence river flow.18
The Three Species: A Sturgeon and Two Mussels
A focal point of the debate on management of the ACF basin during drought is
protection of three species: Gulf sturgeon (Acipenser oxyrinchus desotoi), fat
threeridge mussel (Amblema neislerii), and purple bankclimber mussel (Elliptoideus
sloatianus). Water flow, temperature, oxygen content, and quality are important to
all three. (See Appendix C for a brief description of the ESA.)
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 of
Mexico. Gulf sturgeon seldom feed while in rivers, conserving energy needed for
spawning.19 Major limiting factors for the population include barriers (dams) to
historical spawning habitats, loss of habitat, poor water quality, and overfishing.20
The Woodruff Dam prevents sturgeon from reaching previous spawning habitat
above the dam, but it was once found in both the Chattahoochee and Flint Rivers.
(See Figure 1.) It was listed on September 30, 1991. Critical habitat was designated
on March 19, 2003.
The endangered fat threeridge mussel and threatened purple bankclimber mussel
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 (e.g.,
dams and channel alterations) that destroy free-flowing water habitats and restrict
species from dispersing, resulting in small, isolated populations. These two species
are also threatened by point and nonpoint source pollution, such as runoff containing
fertilizers, herbicides, and pesticides from various land-use practices.21 These species
usually move very little, but a muscular “foot” helps them burrow and allows slow
18 For example, there are numerous minimum flow requirements along the length of the
Chattahoochee River (e.g., a 750 cfs requirement below Atlanta is required to maintain
water quality conditions in the river).
19 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].
20 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].
21 U.S. Department of the Interior, Fish and Wildlife Service, Endangered and Threatened
Mussels in the Apalachicola-Chattahoocheee-Flint Basin, available at [http://www.fws.gov/
southeast/october07/ Mussels-FactSheet-ACFBasin.pdf].

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CRS-8
and limited movement if they are disturbed by floods or droughts. Both species were
listed on March 16, 1998. No critical habitat has been designated for either species.
Corps’ Proposal for Reducing Minimum Flows
On November 1, 2007, the governors of the three basin states met with President
Bush to discuss the drought in the Southeast and its effects on the ACF Basin.
Reportedly the three governors tentatively agreed to a 16% reduction in the
Apalachicola River flows — a reduction from 5,000 cubic feet per second (cfs) to
4,200 cfs22 — and to develop a joint comprehensive basin drought water management
plan for Corps ACF operations by February 2008. Although these two elements
were tentatively agreed upon, their implementation requires additional steps. Since
the November 1 meeting of the governors, the Florida Department of Environmental
Protection and the Florida Fish and Wildlife Conservation Commission have
expressed concerns about the impacts of the reduced flows.23 These concerns and the
protracted history and current tension of the tri-state water conflict have raised doubts
about the feasibility of the February 2008 deadline. Others are optimistic about the
Bush Administration’s ability to bring the three Republican governors to an
agreement on a drought management plan.
On November 1, 2007, the Corps requested expedited consultation with FWS
under §7 of the Endangered Species Act to consider its proposed action of
Exceptional Drought Operations (EDO). In support, the Corps submitted a
Biological Assessment (BA) to FWS.24 This proposal is now under an expedited
22 See p. 1 of Army Corps of Engineers, Question and Answers: Biological Assessment
(2007), hereafter referred to as “Corps BA Q&A,” available at [http://www.sam.usace.
army.mil/ACF%20Water%20Resources%20Management/ACFDrought_Consultation200
7/Q&A_BA_11-02-07.pdf].
23 Letter from Florida Fish and Wildlife Conservation Commission to FWS Field Office in
Panama City, FL, on ESA Section 7 Consultation of Nov. 7, 2007, hereafter referred to as
Florida FWCC Nov. 7 Letter; Letter from Florida Department of Environmental Protection
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 Nov. 8,
2007, hereafter referred to as Florida DEP Nov. 8 Letter. The Florida FWCC Nov. 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. The Florida DEP Nov. 8 Letter stated opposition
to the proposed lower minimum flows, claiming it would “starve the Apalachicola River and
Bay of freshwater flows needed to keep the ecosystems, species, and economy alive.” The
department cited expected increases in salinity, and noted a potential increase in disease and
predation with resulting effects on the oyster and seafood industries. The department
requested that any biological opinion by FWS on the proposed lower minimum flows and
related Corps drought operations expire no later than February 15, 2008.
24 U.S. Army Corps of Engineers, Biological Assessment: Temporary Modifications to the
Interim Operating Plan for Jim Woodruff Dam and the Associated Releases to the
(continued...)

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CRS-9
review by FWS; a response was expected as early as November 15, 2007. (See
Appendix C for an explanation of consultation procedures.)
The EDO proposes a new minimum flow that would change the operations of
the Corps’ dams. Under the current IOP and its provisions for drought conditions,
he Corps has been releasing 5,000 cfs (the minimum allowable under the IOP) from
Woodruff Dam since May 2007. The record low precipitation in the basin has
resulted in the Corps having to make releases from its upper basin reservoirs,
including Lake Lanier, to maintain the 5,000 cfs minimum in the lower basin. The
EDO would establish a set of immediate measures to reduce storage drawdown and
to maintain the other purposes of its ACF projects, including species protection. The
Corps is proposing to lower the minimum flow required below Woodruff Dam to
4,150 cfs; the Corps has stated its intention to ensure this minimum flow by releasing
4,200 cfs.25 This 16% reduction in the minimum flow at Woodruff Dam would allow
the releases from upstream storage reservoirs to be reduced. In other words, a
justification provided for the lower minimum flows below Woodruff Dam is to
lessen the risk of much lower flows in later years, if the drought continues. In effect,
the EDO would risk harm to the species now, to reduce the risk of greater harm later.
On November 7, 2007, the Corps amended its BA to take into account new data
it had received from FWS indicating a greater level of harm to the fat threeridge
mussel could result from a reduction to 4,150 cfs than was previously thought.26 It
therefore proposed to reduce flows in increments — first to 4,750 cfs, then 4,500 cfs,
and finally the target of 4,150 cfs. The Corps’ letter also stated that it would consult
with FWS on the triggers and conditions that would allow it to make the incremental
reductions. It stated the Corps’ understanding “based on review of the new mussel
and modeling data and consultation with your [FWS] office, that this amendment will
result in less adverse impacts” to the listed species and their designated or proposed
critical habitat.
Given current storage levels, the EDO would become effective immediately if
approved. These lower minimum flows would be maintained until reservoir storage
returns to the levels specified under the EDO for triggering resumption of the 5,000
cfs minimum flows. One scenario in the Corps BA indicates that the reduced flows
may be sustained through August 2009;27 the Florida Department of Environmental
Protection stated “the Corps’ modeling shows the EDO in place through 2010.”28
24 (...continued)
Apalachicola River, Document #CESAM-PD-E1 (hereafter referred to as the Corps BA),
at [http://www.sam.usace.army.mil/ACF%20Water%20Resources%20Management/
ACFDrought_Consultation2007/FinalBiologicalAssessment_1_Nov_2007.pdf].
25 See Corps BA Q&A, p. 1, for an explanation of this difference.
26 Letter from Corps to FWS Field Office in Panama City, FL, to amend BA of Nov. 1, 2007,
at [http://www.sam.usace.army.mil/ACF%20Water%20Resources%20Management/
ACFDrought_Consultation2007/BA_AmendmentLetter11_7_2007.pdf].
27 Corps BA, p. 50.
28 Florida DEP Nov. 8 Letter, p. 1.

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CRS-10
The information in the Corps BA, as amended, is insufficient to understand how
the Corps would operate the ACF for its multiple purposes under the EDO. For
example, the Corps BA does not set out how the Corps would make operational
decisions under the EDO for meeting the water supply demands of Metropolitan
North Georgia.29 A principal question is whether the volume of water retained in
storage as the result of the lower minimum flow is banked specifically for ensuring
future minimum flows for protected species, or if the water retained would be
allocated among multiple ACF water uses. The Corps BA does not specify how the
water accounting under the EDO would be maintained. The expectation may be that
the governors’ proposal for a drought management plan for the Corps (expected in
February 2008) could be the basis for water allocation under the EDO.
Generally, significant changes to operations of a federal facility require analysis
of environmental impacts under the federal National Environmental Policy Act
(NEPA; 42 U.S.C. §§4321-4347) and often consultation with other federal agencies
under ESA. Information on how the reservoir might be managed for multiple
purposes and the potential economic and social impacts of alternative management
regimes would normally be included in the agency’s environmental analysis (either
in an environmental assessment or environmental impact statement). To date, the
Corps has not released new environmental documentation on the EDO. Thus, how
the Corps’ proposal may ultimately affect other uses is difficult to assess. (See
Appendix B.)
Each of the next three sections discusses how the drought is affecting a different
water use — municipal water supply, electric power generation, and species and
ecosystems — and the potential impacts of the Corps’ proposal. Maintaining more
water in storage now would benefit Atlanta because more water would be available
in Lake Lanier and for release to the Chattahoochee River next year. How significant
the benefit of maintaining more water in storage may be for Atlanta and other
municipalities depends on the protocol used to allocate the stored water among the
multiple purposes of its ACF operations. The Corps’ proposal does not appear to
cause significant immediate harm to electricity generation or grid reliability. The
effects on the three species protected under the ESA are still to be determined.

Municipal Water Supply Issues
M&I Water Supply
Municipal and industrial water supplies are withdrawn from the ACF rivers and
tributaries, the federal reservoirs on those rivers, locally-owned surface storage, and
aquifers. A significant portion of the water is returned to the river or groundwater.
Depletion or inability to access municipal drinking water sources can represent a
29 The Corps has indicated that it is currently releasing 2,600 cfs from Lake Lanier and that
a minimum release of 1,500 cfs would be needed to meet upper basin municipal
withdrawals, but not all industrial needs would be met. (Army Corps of Engineers, ACF
Drought Conditions and Lake Lanier Water Storage for Water Supply (Mobile, AL: Oct. 19,
2007). It is unknown if 1,500 cfs is the anticipated Lake Lanier release rate under the EDO.

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CRS-11
significant public health threat. The vast majority of surface water withdrawn for
municipal and industrial use (excluding withdrawals for powerplants because these
withdrawals are typically for cooling purposes and are returned to the water source)
in the ACF is in Georgia. Alabama’s share of M&I withdrawals (excluding
powerplants) from the Chattahoochee River is considerably less than Georgia’s, at
approximately 24 million gallons per day (mgd), about 37 cfs.30 Florida has no
municipal withdrawals from the Apalachicola River.
Atlanta/North Georgia Water Supply. The 10-county metropolitan Atlanta
area, referred to as Metropolitan North Georgia, gets more than 99% of its 652 mgd
(1,011 cfs) of M&I water from surface water supplies.31 Lake Lanier and the
Chattahoochee River supply 72% of that water.32 Metropolitan North Georgia’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. A significant amount of the water withdrawn for M&I use is not
consumed; it returns to the ACF rivers. The return flows represent a significant
percentage of the upper Chattahoochee River’s flow.
Metropolitan North Georgia’s second largest source is the Corps-operated Lake
Allatoona reservoir on the Etowah River, which is a tributary of the Alabama-Coosa-
Tallapoosa river basin immediately west of the ACF, which also is affected by the
current drought.33 The Etowah basin provides 12% of Metropolitan North Georgia’s
water supply.34 On November 5, 2007, the Corps notified one of Metropolitan North
Georgia’s water authorities that it had exceeded its authorized storage allocation in
Lake Allatoona. Almost all of Metropolitan North Georgia’s other supplies are
surface water supplies from other basins.
Groundwater makes up less than 1% of Metropolitan North Georgia supply.
Although Atlanta at the end of the 19th century was highly dependent on groundwater,
the city shifted to surface water supplies as the demands surpassed the aquifers’ yield.
The groundwater aquifers are relatively small, so that no one well would provide
significant yields as a long-term water source. The possibility of diversifying by
30 Data derived from information provided to CRS by the Alabama Department of Economic
and Community Affairs. In the United States, mgd is the standard unit for municipal water
supplies, whereas cfs is the standard unit for streamflow. A flow of 1.55 cfs is approximately
1 mgd.
31 Metropolitan North Georgia Water Planning District, Water Supply and Water
Conservation Management Plan, (Atlanta, GA: September 2003), p. 3-1. Hereafter referred
to as MNG Water Supply Plan.
32 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].
33 In early November, Lake Allatoona maintained 56% of its conservation storage, which is
less than the historical average of 93% for the month. The lake, however, remains
significantly above record low levels. (Personal communication between Nicole Carter and
Army Corps of Engineers Mobile District Water Management Office, Nov. 8, 2007).
34 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].

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CRS-12
expanding groundwater use (e.g., to augment surface water supplies during drought)
has received some attention. Groundwater, however, is not anticipated to provide
a significant long-term supply for the area.

In 2003, Metropolitan North Georgia’s total drinking water demands averaged
625 mgd. The average available yield of existing sources is 933 mgd. The
population served was four million in 2000; under some projections, it may grow to
8 million by 2030.35 Given population growth trends and under different levels of
water conservation, Atlanta’s average annual demand would exceed its available
supplies between 2013 and 2020.36 The Metropolitan North Georgia Water Planning
District’s Water Supply and Water Conservation Management Plan 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. Contracts for the
reallocated supply are considered “essential to guarantee water supply for the district
for the next 30 years and beyond.”37 The District is also proceeding with efforts to
complete the permitting process of new nonfederal reservoirs and options for indirect
potable reuse. A major concern for lower basin ACF stakeholders and environmental
groups is that increased municipal water withdrawals will markedly decrease lower
basin low flows, particularly in the Apalachicola River. The management plan also
calls for water conservation measures; these measures have the potential to reduce
demand by 11%, thus extending existing supplies to 2020.38
What the EDO may mean for those drawing their water supplies from federal
reservoirs and the Chattahoochee River is unclear. If implemented, the EDO is
anticipated to result in lower releases from Lake Lanier, thereby reducing the
drawdown rate. Maintaining more water in storage now is anticipated to benefit
Atlanta. That is, more water would be available in Lake Lanier and for release to the
Chattahoochee River next year; because a significant amount of Metropolitan North
Georgia’s water withdrawals return to the ACF as return flows, the upper basin
municipal and industrial users could withdrawal the water in the upper basin and
have a portion be returned to meet the Apalachicola River’s minimum flow
requirement. The Corps BA does not set out how the Corps would operate to meet
its multiple purposes under the EDO. That is, the Corps BA, because it is an ESA
document and not an operating plan for the ACF basin, does not provide sufficient
information to determine how much water Metropolitan North Georgia would be able
to withdrawal from Lake Lanier and the Chattahoochee River under the EDO.
Electric Power Generation and Issues
Electric generation capacity along the ACF system was constructed to provide
electric power to the region while taking advantage of the rivers’ water supply.
Power generation includes hydroelectric facilities operated by the Corps and Georgia
35 MNG Water Supply Plan, p. ES-8.
36 Estimated using data in MNG Water Supply Plan, p. ES-9.
37 MNG Water Supply Plan, p. ED-10.
38 MNG Water Supply Plan, p. ED-9 and ES-12.

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CRS-13
Power 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, hydroelectric plants operating along the ACF have been used to
provide power primarily during peak demand. At issue is whether the decreased
flows along the river would result in the inability of turbines to operate. This would
occur when water levels drop below the water intake conduit for the power plant.
Currently, water levels are sufficient to generate peaking power for the region. At
the Buford Dam below Lake Lanier, water levels were 1055 feet on November 6,
2007 and the plant generated 665 megawatt-hours (Mwh) of electricity, the largest
generation of any of the Corps-operated dams on this river system. (See Figure 1.)
According to the Corps, the two main units at Buford Dam can generate as long as
water levels do not fall below 1035 feet. At current rates of water level decline in
Lake Lanier, the two main units at Buford are projected to be operational at least until
summer 2008.39 Other dams are closer to critical water levels. Downstream from
Buford, the W.F. George dam can generate power if water elevation is at least 184
feet. On November 6, 2007, water levels were at 185.25 feet, and the plant generated
411 Mwh of electricity.40
The Southeastern Power Administration (SEPA) markets the power generated
at Corps-operated dams to its customers in the Southeast.41 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.42
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.43
39 Corps BA, p. 51.
40 Daily and historical operational data can be found at [http://water.sam.usace.army.mil/
acfframe.htm].
41 Southeastern Power Administration. Annual Report 2005. Available at [http://www.sepa.
doe.gov/files/2005%20SEPA%20Annual%20Report%205-3.pdf].
42 Personal communication between Amy Abel and Douglas Spencer, Southeastern Power
Administration, Nov. 5, 2007.
43 Personal communication between Stan Kaplan and Carter Edge, Director, Reliability
(continued...)

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CRS-14
Plant Farley requires a minimum water flow of 2,000 cfs to operate at full load
under its current water permit.44 At lower flow, water discharges from the plant may
have thermal or other impacts on the Chattahoochee River that could trigger
regulatory action. As of October and November 2007, actual maximum daily flows
at the upstream dam closest to Farley (the Walter F. George dam) were about 2,700
to 2,800 cfs.45 This suggests that with implementation of the proposed 16%
reduction in reservoir release, the flow to Farley might drop to about 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 1,048 cfs on November 3, 2007).46 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.47
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.48
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
43 (...continued)
Services, SERC Reliability Corp., Nov. 6, 2007. SERC is the regional industry organization
responsible for monitoring power grid reliability in the southeastern states.
44 E-mail and attachment from Jerry L. Stewart, Southern Company, to Stan Kaplan, Nov.
7, 2007.
45 Daily discharge data for the George and other dams is posted by the Corps of Engineers
at [http://water.sam.usace.army.mil/acfframe.htm].
46 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.]
47 E-mail and attachment from Jerry L. Stewart, Southern Company, to Stan Kaplan, Nov.
7, 2007.
48 Personal communication between Stan Kaplan and Carter Edge, Director, Reliability
Services, SERC Reliability Corp., Nov. 6, 2007.

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CRS-15
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.
Although several large coal and gas-fired plants are located along the ACF
system, 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.49
According to Southern Company affiliate Gulf Power, the plant’s owner, the
plant can operate with flows at 5,000 cfs. With the proposed reduction to 4,200 cfs,
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 2008.50
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. Southern Company estimates that if all generation from both plants were lost,
the incremental cost would be $1.5 million per day.51 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.
Species and Ecosystem Issues
While the three species listed under the ESA have received the most attention,
other species and economic interests depend on the ACF and on its supply of water
to the Gulf. This section first briefly describes these wider interests and then details
the issues under the ESA.
49 E-mail and attachment from Jerry L. Stewart, Southern Company, to Stan Kaplan, Nov.
7, 2007.
50 Personal communication between Amy Abel and John Hutchinson, spokesperson for Gulf
Power, Nov. 5, 2007.
51 E-mail and attachment from Jerry L. Stewart, Southern Company, to Stan Kaplan, Nov.
7, 2007.

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CRS-16
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.52
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
parts per thousand, on three types of shallow bars formed by different geologic
processes.53 Any decrease in freshwater inflow into the Bay from the Apalachicola
River may result in increased salinity in the Bay. The potential effects of such
increased salinity on oysters in the Bay would depend upon several factors, including
how fresh 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 salinities exceeding their tolerance). Although some studies have found
that Gulf coast oyster landings generally are inversely related to freshwater inflow —
i.e., oyster landings increase when freshwater inflow decreases,54 the Florida
Department of Environmental Protection has raised concerns that a the minimum
flows proposed under the EDO could “precipitate a catastrophic collapse of the oyster
industry in Apalachicola Bay.”55
Apalachicola Bay is also 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 life 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.56 Changes
in Apalachicola Bay salinity could affect the suitability of this habitat for forage and
nursery use. In contrast to oysters, a decline in some coastal fisheries with overall
harm to biota is generally associated with reductions in freshwater flow.57
52 Apalachicola Bay Chamber of Commerce, at [http://www.apalachicolabay.org/
eastpointhome.php].
53 D. Twichell, “Habitat Mapping to Assess Health of Oyster Fishery in Apalachicola Bay,
Florida,” Sound Waves (USGS, June 2005).
54 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.
55 Florida DEP Nov. 8 Letter, p. 2.
56 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].
57 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,
(continued...)

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CRS-17
River Management and the Three ESA Species
Of the three species (Gulf sturgeon and two mussels), concern has been greatest
for the two mussels. According to FWS, not only is flow rate, per se, important to
the two mussels, but so are the effects of flow rates on other aspects of the species’
biology. For example, as flow rates decrease, temperature tends to go up, and the
oxygen content of the water goes down. The damaging effect of such a change is
well-known for such species as trout, but may also be important to other aquatic
species. Referring to the fat threeridge mussel, FWS states:
Water quantity is becoming more of a concern in maintaining mussel habitat in
the Apalachicolan Region. The potential impacts to mussels, their host fishes,
and their respective habitats from ground water withdrawal may be profound.
Within the Flint River basin, decreases in flow velocity and dissolved oxygen
were highly correlated to mussel mortality (Johnson et al. 2001). Low DO
[dissolved oxygen] conditions in stagnating stream pools due to drought
conditions are having a disastrous effect on these mussels. Mussel mortality
increases dramatically as DO decreases below 5 mg/L.58
The groundwater losses referred to and the reduction in flow from natural
springs (due not only to groundwater withdrawal but also to the drought) have
exacerbated the problem of excessive water temperature (and hence decreased
oxygen supply) since the springs generally supply cooler water that would help to
reduce in-stream water temperatures. The storage capacity of the system’s reservoirs
— the bulk of which are controlled by the Corps — are the linchpin for the three
listed species, since the flow rate of the system is limited by the storage capacity.
The Three Species Under the Corps’ Proposal:
Consultation under § 7 of ESA
On November 1, 2007, the Corps requested a new formal consultation to FWS,
and submitted a new Biological Assessment (BA) concerning the proposed the
Exceptional Drought Operations (EDO, amending the IOP) for the Jim Woodruff
Dam. (For a brief description of earlier consultations, see Appendix D.) In it, the
Corps proposed to reduce flows from the Jim Woodruff Dam still further:
! Minimum flow: 4,150 cfs (down from 5,000 cfs, and from the 6,500
cfs considered “desirable” in the current IOP);
57 (...continued)
no. 2 (1994), pp. 135-151.
58 FWS, “Species Profile: Fat three-ridge (mussel) (Amblema neislerii),” available at
[http://ecos.fws.gov/docs/life_histories/F032.html] (citing Johnson et al., “Effects of drought
on freshwater mussels and instream habitat in coastal plain tributaries of the Flint River,
southwest Georgia (July-October, 2000),” final report to The Nature Conservancy, 2001).
An identical paragraph is found in the species profile for the purple bank climber mussel,
available at [http://ecos.fws.gov/docs/life_histories/F02E.html]. The recovery plan for Gulf
sturgeon also cites the importance of cool water temperatures. (See p. 27 of Recovery Plan
at [http://ecos.fws.gov/docs/ recovery_plan/950922.pdf].)

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CRS-18
! Maintenance of the 0.25 ft/day maximum fall rate, until 4,200 cfs is
achieved.
According to the Corps BA, “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.”59 Among the issues mentioned in the rationale for adopting
EDO and its lower minimum flows is 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.”60 In
essence, the proposal is that the three species would face a reduced water flow this
year to reduce risks in later years, if the drought continues.61 The Corps requested a
Biological Opinion (BO) from FWS on an expedited basis, and both agencies had
agreed to a goal of November 15, 2007, for a BO and the associated Incidental Take
Statement from FWS.
A comparison of the consultation request with other requests and normal
procedures is useful. Commonly, when other agencies (e.g., Forest Service,
Environmental Protection Agency) request formal consultation with FWS, the BA
may provide considerable information not only about their own project, but also
about the range, food, known distribution, laboratory studies, etc., of the species in
question, and that information is site-specific. While the Corps BA includes
relatively little new information about the three listed species (e.g., distribution
changes of the three species since implementation of the IOP in Fall 2006), it does
provide data concerning the effects to date on water quality. Among other things, the
Corps BA62 states that under the current IOP:
impairments [due to point and non-point source pollution] identified include
turbidity, coliforms, totals suspended solids, dissolved oxygen (DO), biology,
and unionized ammonia.... We lack sufficient information to determine if
implementation of the IOP has altered the baseline water quality of the action
area. However, we recognize that the extraordinary drought conditions ... have
resulted in salinity changes in Apalachicola Bay and increased temperatures and
associated localized dissolved oxygen changes due to extended periods of low
flow (approximately 5,000 cfs).
And, after acknowledging that the Corps does not have data on water temperature or
dissolved oxygen levels, the Corps BA further notes:
59 Ibid, p. 6.
60 Ibid, p. 6.
61 While this tradeoff in time — some risk now, to lower a species’ risk later — is not
especially common in the 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
three ACF species is not a tradeoff per se, but the degree to which the current clear harm is
balanced by potential future benefits.
62 Corps BA, p. 21.

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CRS-19
However, observations made by USFWS field personnel this summer, indicate
that mussels found in isolated pools or shallow slack water habitats are showing
signs of stress or mortality likely due to high temperatures and low DO
[dissolved oxygen]. Significant reductions in river flow below 5,000 cfs would
likely exacerbate the temperature and DO conditions observed this year; as well
as substantially increase the risk of stranding aquatic organisms.63
With this gloomy picture (not essentially contradicted by the rest of Corps BA), and
putting the question only in terms of an ESA decision, the FWS decision concerning
jeopardy would appear to turn on whether to trade rather likely immediate harm to
the three species (and especially the mussels) to avoid a risk of still greater future
harm. Given that, what choices are open to FWS?
First, one choice is not open: FWS does not require an agency to take action
outside of the action agency’s current authorities. Thus, while some might argue that
reasonable and prudent measures (RPMs; see Appendix C) that may be prescribed
by the FWS in the ACF Basin could (or should) include water conservation measures
(e.g., restricting outdoor watering, changing commercial or residential building codes
to improve water conservation, increasing water rates to fund municipal water
conservation projects, etc.), FWS does not require that the Corps undertake these
tasks because the Corps has no authority to implement them.64 Only those choices
legally open to the Corps are considered.
FWS does have several options in responding to the Corps. First, it can ask for
more information, either on the proposal itself or on effects on the species. Second,
if it concludes that the proposed EDO would not jeopardize any of the three species,
nor adversely modify critical habitat, it may issue a “no jeopardy” opinion, which
would allow the Corps to adopt the EDO immediately.65 Given the need for action
to be quick if it is to be effective, and for the concern already voiced over the effects
of the current IOP, neither of these options seems particularly likely. Third, FWS
could agree that, as a tradeoff, the action would not jeopardize the three species, but
that the Corps should carry out one or more RPMs to reduce the risk still further.
Fourth, FWS might conclude that there is no way to carry out the change without
jeopardizing the species or adversely modifying critical habitat. Such decisions are
extremely rare (and often referred to as the “nuclear option”), and would leave the
63 Ibid, p. 22.
64 However, the Corps would not have been prevented from volunteering such an option, if
it had found partners willing to cooperate in the effort. In the Platte River Recovery Plan,
for example, the Bureau of Reclamation consulted with FWS about a project; its partners
— Colorado, Wyoming, and Nebraska — pledged to fund (with cash or payments in kind)
a program of habitat improvement (including purchase of land from willing sellers),
improved water flow, and adaptive management. The program provides $317 million over
13 years, with the Bureau responsible for half. FWS could not have required the states to
participate, but took their efforts into account in issuing a finding of no jeopardy. (Personal
communication between Lynne Corn and Mark Butler, FWS Denver Regional Office, Nov.
6, 2007.)
65 For illustration purposes, this analysis ignores the possibility that FWS might come to a
different conclusion for one of the species compared to the other two, although nothing in
the law would preclude that outcome.

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CRS-20
Corps (a) facing a citizen suit if it proceeded anyway, (b) choosing not to carry out
the modification, or (c) considering asking for a formal exemption under §7 (16
U.S.C. §1536(e)-(p); see below for description).
Other Options for Reducing Minimum Flows
Options Under the ESA
Without changing current law, the ESA offers three options to manage the
conflict in the ACF basin: (1) additional consultation by the Corps under § 7(b) (16
U.S.C. §1536(b)) to determine if taking or adverse modification would result from
changing management of the basin in this time of drought; (2) an attempt to invoke
§ 7(p) (16 U.S.C. §1536(p)), involving exemptions in presidentially declared disaster
areas; and (3) an exemption for management of the basin under § 7(e)-(p) (16 U.S.C.
§1536 (e)-(p)). The first option, discussed above, is currently being pursued by the
federal agencies. The other two options are outlined below, since they may be
considered at some later time.

Dim Prospects Under the Disaster Provision. In § 7(p) (16 U.S.C.
§1536(p)), the ESA allows the President to make the determinations necessary for an
exemption to be granted, in a presidentially declared major disaster area. However,
the President’s authority extends only to
the repair or replacement of a public facility substantially as it existed prior to the
disaster ... which the President determines (1) is necessary to prevent the
recurrence of such a natural disaster and to reduce the potential loss of human
life, and (2) to involve an emergency situation which does not allow the ordinary
procedures of this section to be followed.
This provision could be used for quick repair of a levee after a flood, for example.
Since, on several factual grounds, these features are not present in the ACF basin, this
provision offers apparently no solution in the ESA context. No such presidential
declaration has occurred.
On October 20, 2007, the governor of Georgia requested a presidential drought
disaster declaration. The likelihood of a presidential drought disaster declaration is
unclear: the last presidential disaster declarations for a drought in the continental
United States was in New Jersey in 1980.66 Instead, accessing federal resources for
drought disasters largely has been limited to agricultural assistance made available
by disaster declarations by the Secretary of Agriculture. Because of the ongoing
drought conditions and the severe April freeze, the U.S. Secretary of Agriculture
already has declared every county in Georgia a disaster area this year, making the
66 See [http://www.fema.gov/femaNews/disasterSearch.do], viewed on Nov. 9, 2007. There
have been more recent declarations for droughts in U.S. territories in the Pacific.

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CRS-21
entire state currently eligible for U.S. Department of Agriculture Farm Service
Agency emergency disaster loans.67
An Outright Exemption: The Long Road. The most straightforward
avenue, were FWS to issue a jeopardy opinion in its consultation, would be for the
Corps, or a governor, to ask for an exemption for the modified IOP. Under § 7 (16
U.S.C. §1536(e)-(p)), a seven-member Endangered Species Committee (usually
called the “God Squad”) chaired by the Secretary of the Interior is empowered to
pronounce on an activity of regional or national significance. This panel has been
convened only three times in the history of the act. In part because of the time
involved, and the fact that the requestor must both demonstrate that a variety of other
options have been justifiably rejected, and pay for mitigation to balance the effects
of the proposed action, this option has fallen out of favor, and has not been used in
the past 15 years. (For more on this option, see CRS Report RL31654, The
Endangered Species Act: A Primer.) It appears to be a somewhat unlikely option,
and appears not to have been mentioned in the current debate.
Changing Current Law and Questions Raised
Another option would be simply to change current law. In the 110th Congress,
identical bills, H.R. 3847 and S. 2165, have been introduced to address conflicts with
the ESA arising from operation of the Corps’ dams during the ACF drought. These
bills would suspend the entire ESA for both federal and state agencies managing a
federal river basin if either the Corps or the 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. As introduced, these
bills raise several issues and questions about both operation of ESA in the ACF basin
and the effects of the proposal in other situations, including the following.
Issues:
! Agencies other than the Corps, notably the Bureau of Reclamation,
would not have authority to trigger the suspension provision but
presumably would have to request that Corps or the governor act for
the federal agency to trigger suspension do so on their behalf.
! As written, the bills may 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.
! Because ESA is the implementing legislation for such international
treaties as the Convention on International Trade in Endangered
Species, it is unclear whether there could be enforcement in such
67 For more information on this program, see CRS Report RS21212, Agricultural Disaster
Assistance.

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CRS-22
areas as ports and airports in the affected basin, or against activities
that would normally be considered criminal under the ESA.
! Any state grants under § 6 of ESA to be used within the basin appear
to be suspended.
Questions:
! 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?
! Water basins and species’ habitats commonly cross state lines. If
governors of affected states do not agree on the need for emergency
drought measures, would a governor’s declaration in one state
suspend the provisions of the ESA in a neighboring state?
! Because the ESA would remain in force outside of the affected river
basin, would the burden of conserving the listed species fall that
much more heavily on areas outside the basin? Or within the basin
itself, once the drought was determined to be over?
! What is the definition of “Federal river basin”?
! What would happen if the Corps and the governor(s) do not agree on
the drought determination?
! Is the Corps the best federal agency to determine if drought
conditions are present?
ACF in the Federal Water Policy Context:
Conclusions
Although the administrative and legislative proposals for managing ACF water
resources during the current drought are focused on reducing minimum flows, the
broader debate regarding how to manage municipal and other demands will continue
to shape ACF management as the three states negotiate water allocations.
How the federal government responds to the current ACF drought may set
precedents for the long-term management of not only the ACF basin but also other
basins with intense competition over water resources. 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.).

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CRS-23
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. These changes have manifested themselves in law
(e.g., ESA) and in 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 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 extremes and
change. The ACF is not unique and the controversy over river management is not
limited to drought conditions.68 Actions by federal agencies remain controversial on
the Middle Rio Grande, San Joaquin, Colorado, Klamath, Columbia, Snake,
Mississippi, and Missouri Rivers; and like the ACF, federal actions and facility
operations on these rivers frequently are challenged in the courts.
68 However, other droughts have not resulted in proposals to suspend the ESA basin-wide.

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CRS-24
Appendix A. ACF Compact and Lawsuits
The apportionment of water rights in the ACF, and in many cases reduction in
using those rights, is often disputed, as has occurred among Alabama, Florida, and
Georgia. Each water from the three rivers to suit its varying needs. The use of water
in Lake Lanier and the operation of its dam have been a source of contention for
years among Alabama, Florida, and Georgia. In the early 1970s, Georgia officials
became concerned with drought conditions and the amount of water available to the
growing population of the Atlanta region. In 1989, the Corps agreed to provide
Metropolitan North Georgia (including Atlanta) with twice as much water by
reallocating Lake Lanier storage water from hydropower to water supply.69
In 1990, Alabama and Florida filed suit against the Corps to stop the larger
withdrawals, 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).70 The parties suspended the proceeding 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.”71 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 Compact expired on August 31, 2003. Since then, litigation has
resurfaced as the states attempt to secure their water rights.
There are three major cases arising from the controversy over the ACF River
Basin, filed in three different federal district courts.72 The first, Alabama v. U.S.
Corps of Engineers (the Alabama case),73 was the original case that led to the ACF
Compact; it was revived after the ACF Compact expired. The second, Southeastern
Federal Power Customers, Inc. v. U.S. Army Corps of Engineers (the DC case),74
was filed in the District Court for the District of Columbia in December 2000. The
69 J. W. Hull, The War Over Water, Southern Legislative Conference (Oct. 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].
70 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.
71 P.L. 105-104.
72 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.
73 Alabama v. U.S. Corps of Engineers, No. CV-90-H-01331-E (N.D. Ala., Eastern Division,
filed June 29, 1990).
74 Southeastern Federal Power Customers, Inc. v. U.S. Army Corps of Engineers, No.
1:OOCV02975 (D.D.C., filed on December 12, 2000).

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CRS-25
DC case involved a dispute brought by Southeastern Federal Power Customers
(SeFPC), a non-profit corporate consortium of rural electric cooperatives and
municipal electric systems. The suit was a result of the 1989 agreements between the
Corps and Georgia that increased withdrawals from Lake Lanier and 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.75 The
third case, Georgia v. U.S. Army Corps of Engineers (the Georgia case),76 was filed
in a Georgia federal district court in February 2001. In this case, Georgia sued the
Corps to increase its water supply.
The proceedings of the three 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 DC case was filed. In January 2003, the parties in the DC case,
including Georgia and the Corps, reached a settlement agreement and requested the
court’s approval. Because the parties to the DC 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 DC 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 DC case.77 In 2004, the
district court in the DC case approved the settlement agreement, but required that the
injunction entered in the Alabama case be dissolved before the agreement could be
implemented.78 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.79
While the Alabama and DC cases were being litigated, Florida and SeFPC filed
motions to intervene in the Georgia case, but the motions were denied by the district
75 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.
76 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).
77 See Alabama v. United States Army Corps of Engineers, No. CV 90-BE-1332, Preliminary
Injunction (N.D. Ala. entered October 15, 2003).
78 301 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).
79 Alabama and Florida v. United States Army Corps of Engineers, 424 F.3d 1117, 1133
(11th Cir. 2005).

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CRS-26
court in a decision overturned by the 11th Circuit.80 The 11th Circuit permitted the
parties to intervene in the litigation, recognizing their legally protected interests, and
returned the case to the district court for further adjudication.81 The district court,
noting the similarity of the parties and the subject matter, found the case to be
parallel to the Alabama case.82 It suspended the proceedings in the Georgia case
pending resolution of the Alabama case.
The U.S. Supreme Court has not addressed the issues raised by the ACF Basin
litigation at this time. In June 2006, the Court declined to review an 11th Circuit
decision in the Alabama case.83 The underlying 11th Circuit opinion had 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.84
In March 2007, the Alabama and Georgia cases were consolidated and
transferred to the Middle District of Florida “to serve the convenience of the parties
and witnesses and promote the just and efficient conduct of the litigation.”85 The DC
case was excluded from this centralization of proceedings because it had already
reached the appellate court, whereas the cases that were consolidated remained in
various federal district courts.86 There appears to be no further ruling in these cases
since the consolidation. Currently, the states continue to dispute the apportionment
of water.
80 See Georgia v. United States Army Corps of Engineers, 302 F.3d 1242, 1247-1250 (11th
Cir. 2002).
81 Ibid., p. 1252, 1258.
82 Georgia v. United States Army Corps of Engineers, 223 F.R.D. 691, 696-699 (N.D. Ga.
2004).
83 See Alabama and Florida v. United States Army Corps of Engineers, 126 S.Ct. 2862
(2006).
84 Alabama and Florida v. United States Army Corps of Engineers, 424 F.3d 1117, 1130
(11th Cir. 2005).
85 Tri-State Water Rights Litigation, 481 F.Supp.2d 1351, 1352 (Judicial Panel on
Multidistrict Litigation 2007).
86 Ibid.

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CRS-27
Appendix B. Is a NEPA Review Required?
Another factor in the Corps’ plan to release less water is whether an
environmental review document, such as an environmental assessment (EA) or an
environmental impact statement (EIS), is required under the National Environmental
Policy Act (NEPA) (42 U.S.C. §§4321 et seq.). NEPA requires federal agencies to
prepare an EIS when their actions constitute “major Federal actions significantly
affecting the quality of the human environment.”87 The act requires that agencies
comply “to the fullest extent possible.”88 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.”89 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. In this case, it does not
appear that the Corps prepared any NEPA document.
The National Environmental Policy Act (NEPA; 42 U.S.C. §§4321 et seq.)
applies to major federal actions. While there is no set formula for what type of action
is a major federal action under NEPA, certain guidelines are provided by the Council
on Environmental Quality (CEQ) regulations. Under those regulations, an action
includes “new or revised agency rules, regulations, plans, policies, or procedures.”
40 C.F.R. § 1508.18(a). Additionally, the regulations provide that federal actions
include adopting plans, programs, and/or projects that use federal resources. 40
C.F.R. § 1508.18(b). It seems likely that a court would find that the Corps’ plan to
reduce water flows to levels outside of its operating plan requires at the minimum,
an EA. In 2006, when the Corps decided to adjust the low flow operations of the
Woodruff Dam, it conducted a NEPA review. It prepared an EA that resulted in a
finding of no significant impact (FONSI), meaning that there were no significant
environmental impacts from its planned actions and no full-blown EIS was required.
If the change in the water flow were found to be a major federal action, the next
question would be whether it would significantly affect the human environment. The
significance of an action is determined by its context and intensity. 40 C.F.R. §
1508.27. The significance of this program would be based on the length of time of
the water reduction, which appears to be until the drought ends and the water levels
in Lake Lanier rise to a certain level, and the impact on the region, which affects
interests as diverse as those of municipal, industrial, recreational, and commercial
users of water in three states. Also, there are three endangered species that would be
adversely impacted by the water level change. These factors would dictate whether
an EA or an EIS is required. The Corps appears to have acknowledged that its
actions will impact the environment, by dint of the Biological Assessment alone.90
87 42 U.S.C. §4332(2)(C). For more details on environmental reviews, see CRS Report
RS20621, An Overview of the NEPA Process.
88 42 U.S.C. §4332.
89 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).
90 The statutory provision for a Biological Assessment contemplates that it will be used in
(continued...)

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CRS-28
Emergency Exception
It has been suggested that because the governor of Georgia declared a State of
Emergency related to the drought, NEPA could be waived. However, the statute
provides for no such unilateral waiver. NEPA emergency provisions are found
within the Council on Environmental Quality (CEQ) regulations, 40 C.F.R. §
1506.11. The provision, in its entirety, states:
Where emergency circumstances make it necessary to take an action with
significant environmental impact without observing the provisions of these
regulations, the Federal agency taking the action should consult with the Council
about alternative arrangements. Agencies and the Council will limit such
arrangements to actions necessary to control the immediate impacts of the
emergency. Other actions remain subject to NEPA review.
An agency must consult with the CEQ if it is taking action without following
NEPA; without CEQ’s authorization, the agency would be acting in violation of the
law. Waiver authorization is within the CEQ’s discretion. According to one court
that considered the issue, CEQ has the authority to “waive its own regulations ...
[and] also to interpret the provisions of NEPA to accommodate emergency
circumstances.”91 If the Corps requested a waiver from strict compliance with
NEPA, and the CEQ agreed, that decision would be given substantial deference.92

Research did not reveal many examples of Section 1506.11 being invoked by
agencies in which a court reviewed the decision. None of the actions found was
similar to the facts at hand. The cases involved waiving NEPA for an industrial
project,93 and night-time use of an Air Force base during the Desert Storm military
operation.94 In both cases where CEQ authorized the emergency provision,
alternative environmental procedures were used. Shortly after Hurricane Katrina,
CEQ issued a memorandum in which it emphasized that NEPA should continue to
be followed to “demonstrate our continuing commitment to environmental
stewardship.”95 It provided guidance on complying with Section 1506.11 as an
appendix.
90 (...continued)
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. 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.”
91 Crosby v. Young, 512 F.Supp. 1363, 1386 (D.C. Mich. 1981).
92 Andrus v. Sierra Club, 442 U.S. 347, 358 (1979).
93 Crosby v. Young, 512 F.Supp. 1363 (D.C.Mich. 1981).
94 Valley Citizens for a Safe Environment v. Vest, 1991 WL 330963 (D.Mass. May 06,
1991).
95 Memo of Sept. 8, 2005, from the Associate Director for NEPA Oversight, “Emergency
Actions and NEPA,” available at [http://www.nepa.gov/nepa/regs/Memo_to_NEPA_
Contacts_September_8_05.pdf].

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CRS-29
The Right to Sue under NEPA
NEPA litigation is almost always based on claims that an EA or an EIS was not
prepared, or was inadequately prepared. 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.96 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.97 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.98
96 5 U.S.C. §706(2)(A).
97 5 U.S.C. §702.
98 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-30
Appendix C.
How the Endangered Species Act Works
Under the ESA (16 U.S.C. §531), the taking of species listed as endangered or
threatened, is prohibited. Taking is broadly defined and includes not only obvious
actions such as killing or trapping, but also harm. (See 50 C.F.R 17.3 for a definition
of harm.) In addition, federal agencies must avoid destruction or adverse
modification of designated critical habitat.
If a federal agency plans to carry out a program or action that may incidentally
result in a taking, or in adverse habitat modification, it must consult with FWS on the
activity. (For an overview of the ESA, see CRS Report RL31654, The Endangered
Species Act: A Primer.) The action agency submits a Biological Assessment (BA)
to FWS describing its proposed action and potential effects on the species; FWS
returns with a Biological Opinion (BO) on the effects of the activity, and specifies
any reasonable and prudent measures that the agency must take to avoid harm, or
adverse modification of critical habitat. FWS issues an Incidental Take Statement
(ITS) that specifies the impact of the incidental take, the reasonable and prudent
measures, and the terms and conditions that the action agency must comply with to
implement these measures (16 U.S.C. §1536(b)(4)).

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CRS-31
Appendix D. The Corps and ACF Species
Management: A Brief History
In March 2006, the Corps requested formal consultation with FWS on operation
of the Jim Woodruff Dam. Prior to the current Corps BA for the EDO, a previous
FWS consultation had been initiated on the Interim Operating Procedure (IOP) in
March 2006. FWS responded with a Biological Opinion (BO), and included
reasonable and prudent measures (RPMs) to modify the IOP to reduce incidental take
of listed species. Among the five recommendations, one specified that the Corps
develop a set of trigger points (of the reservoir, climatic or hydrologic conditions, and
species conditions), and water management measures to take effect when drought
conditions were reached. The Corps submitted a revised BA on February 16, 2007.
FWS issued a BO and incidental take statement approving these changes to the IOP
on February 28, 2007. Among the conditions set in the current IOP to protect listed
species are these:
! Minimum flow in drought conditions: 5,000 cfs daily average, but
6,500 cfs daily average considered desirable.
! Maximum fall rate during drought conditions: 0.25 feet/day (i.e., the
height of the river to drop no more than 3 inches in the course of any
given day), but a lower rate considered desirable.
The first figure was intended to provide a certain minimum of available habitat. The
second was intended to allow the sturgeon, and the very slowly moving mussels,
some chance to re-locate to more suitable habitat before a given location dries out.

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