Apalachicola Sub-Basin Caucus
Apalachicola-Chattahoochee-Flint
(ACF) Stakeholders
January 9,
2012
Honorable
Bill Montford
Florida Senate
208 Senate
Office Building
404 S. Monroe St.
Tallahassee, FL 32399
Dear
Senator Montford:
At your
request we have prepared the attached report identifying the current management
issues on the Apalachicola River and Bay. We are also providing a request for the
support of the Florida Legislature in dealing with water flows and uses within
the Apalachicola-Chattahoochee- Flint (ACF) River
System.
As you
know, the flows of the River at the Florida State line have been reduced to a
dangerously low volume threatening the productivity and the natural system
balance of our River, Floodplain and Bay.
Our entire Florida system is approaching a point at
which our resources cannot be sustained; moreover, we are not aware of any
comprehensive Florida initiative to ensure an equitable
distribution of the waters of the ACF Basin. This has special concern for the 6
Florida riparian counties bordering on and
sustained by the Apalachicola River and Bay – Jackson, Gadsden, Liberty, Calhoun, Gulf and Franklin Counties.
Senator
Montford, this letter, with copies to our House of Representative members in
the Basin, is a request for the Florida Legislature to evaluate the State of Florida’s position on the ACF basin. If appropriate, we would request that the
legislature undertake a special legislative study of the situation, accompanied
with recommended needs for legislative action. This could be done perhaps next session. Our State needs to put its best team on the
field to deal with the growing upstream water demands.
Thanks you
for your lifelong interest in the Apalachicola River and Bay System.
Sincerely,
Dave
McLain, ACFS Apalachicola Caucus Coordinator
For: Apalachicola
Sub-Basin Caucus Stakeholders, ACF Stakeholders
Bill
McCartney, PhD., ACFS Executive Committee
Dan
Tonsmeire, ACFS Executive Committee
Betty Webb,
City of Apalachicola stakeholder
Chad
Taylor, Jackson County stakeholder
Jeremy
Branch, Jackson County stakeholder
Homer Hirt,
Jackson County stakeholder
Joe Brown,
Liberty County stakeholder
Tom Waits,
Lake Seminole stakeholder
Charles McClellan,
Gadsden County stakeholder
Breanne
White, Calhoun County stakeholder
Bill
Williams, Gulf County stakeholder
Shannon
Hartsfield – Commercial seafood stakeholder
Lee Garner
– City of Chattahoochee stakeholder
CC:
Apalachicola Basin House of Representatives Members
Representative
Patronis
Representative
Coley
Representative
Drake
Representative
Bembry
Representative
Williams
Riparian County Stakeholder Coalition (RCSC) Representatives
Florida Department of Environmental Protection
Florida Department of Agriculture and Consumer Services
Northwest Florida Water Management District
Senator Bill Montford Apalachicola River
and Bay Package
Overview
I.
Florida
Action Plan for Apalachicola-Chattahoochee-Flint River Basin: Objectives 1-5 (1/4/2012)
II.
Matrix
of Players in ACF Management (FL, AL, GA, COE, TVA, Georgia Farm Irrigators,
Atlanta Regional Commission, etc.)
III.
Status
of Law Suit and Issues
IV.
Major
Florida Issues by the Apalachicola Basin Stateholders
V.
ACFS
Coordinated Program of Equitable Sharing of Interstate waters (Sustainable
Water Management Plan and Instream Flow and Lake Level Assessment for ACF Basin)
I. Florida
Action Plan for Apalachicola-Chattahoochee-Flint River Basin: Objectives 1-5 (1/4/2012)
Purpose – This memorandum outlines actions
by State government recommended to ensure an equitable allocation of the
freshwater flows in the Apalachicola River and Bay. Such flows are necessary to sustain the economies,
health and productivity of the Apalachicola and the communities those waters
nurture and support.
Scope – This memo specifies goals and
objectives and the necessary actions to accomplish each. In most cases the recommended actions will be
joint actions involving potentially more than one State agency or Departmental
office. These goals and objectives begin
with priority, scheduled committee hearings in the State legislature.
Objectives -
Objective #1 - The initial objective is a clear
understanding of what Florida has at stake in this equitable allocation of
these freshwater flows from the Tri-State Basin that is the
Apalachicola-Chattahoochee-Flint (ACF) River Basin.
Required Actions – Identify the Florida Senate and House
committee(s) having primary jurisdiction over the issue, seek concurrence and
priority scheduling by the Chairman/ Staff Director of those committees. Establish a list of State witnesses to be
called, to include Secretaries of DEP and Agriculture, Director of the
Northwest Florida Water Management District, Director Florida Fish and Wildlife
Conservation, and the Florida Attorney General, plus a representative
identified by the Office of the Governor as his personal representative on this
issue. With the potential exception of
the Governor, principals should be sought to testify in all cases.
Objective #2 – As necessary consequence of the legislative
hearings, seek creation of a special Florida Task Force to be established and
funded to pursue the feasibility of a non-litigation approach to equitable
allocation.
Required Actions – Reconvene the hearing to get testimony
from Apalachicola Basin stakeholders on what would constitute “success” from
their perspective. An associated work-product will be ways to measure
freshwater flows that correspond to health and productivity of the Apalachicola
Basin. Likewise call members of the ACF
Stakeholders organization to describe efforts underway to create a “Sustainable
Water Management Plan”, an “In-stream Flow Assessment” of the Basin’s water
needs, and a University Collaborative (FL, GA, AL) assessment of extant models
for “Regional Management of Shared, Interstate Waters”.
Objective #3 – Seek appropriate funding for specified Task
Force recommendations as supportive of job retention and/or job creation
derived from a healthy and productive Apalachicola Basin (for example, funds
for oyster relay and shelling to renew the productivity of the Apalachicola
Estuary).
Required Actions – Convene an interagency workshop including
public participation to identify sources of public/private funding for priority
projects. Identify those that will
document and validate scientifically the quantities and quality of freshwater
flows necessary to sustain the health and productivity of the Apalachicola
Basin. But most particularly, identify
funding for the Florida share of an ACFS “Sustainable Water Management Plan”, an”In-stream
Flows Assessment” and the “University Collaborative Assessment of Regional
Management of the Waters of the ACF”. Identify line items in the State budget
to support priority projects and seek matching Federal grants as well.
Objective #4 – Identify and document the interactive
relationship between the State’s on-going investment in litigation and this
stakeholder-proposed, grassroots-sponsored program, since both seek to achieve
the common objective of an equitable allocation of the freshwater flows of the
Apalachicola in the ACF Basin.
Required Actions – The key is coordinated action between
litigation and this Stakeholder sponsored initiative. Opportunities must be established to ensure
actions on one initiative re-enforce actions on the other, and not the
reverse. The value and advantage of a
coordinated way ahead must be accepted by State decision-makers at all
levels. A legislative element to oversee
effective, on-going coordination must be identified.
Objective #5 – Florida needs to welcome and exploit Federal
interest in and support for an equitable allocation of the interstate, shared
waters of the ACF Basin. Most
specifically, the State needs to focus on the US Army Corps of Engineers
(USACE) requirement to update the Water Control Manual (WCM).
Required actions - As
a matter of deliberate inclusion, State agencies responsible for commenting on
Corps proposals for an updated WCM must reach out to Stakeholders for
assistance in formulating a State response to USACE proposals. In addition the State of Florida should
pro-actively seek opportunities for cooperation and joint sponsorship,
including funding opportunities and enlisting elected representatives and
Federal agencies in the equitable allocation of the freshwater flows of the
Apalachicola Basin.
Next Steps – Begin the process outlined above
by formal presentation of this Action Plan to Senator Bill Montford. Get his advice on necessary challenges to
this draft and develop and execute an effective way ahead.
II. Matrix of Players in ACF Management
Federal
Agencies
·
US
Army Corps of Engineers:
·
US
Dept. of Agriculture (USDA, NRCS)
·
Tennessee
Valley Authority (TVA)
·
US
EPA
·
USGS
·
NOAA
·
US
Department of Interior (DOI)
o
US
Fish and Wildlife Service (FWS)
·
US
Department of Energy (DOE)
State
Agencies
·
ALABAMA
o
Alabama
Department of Environmental Management
o
Soil
and Water Conservation District (SWCD)
·
FLORIDA
o
FDEP
o
FDACS
o
NWFWMD
o
Soil
and Water Conservation District (SWCD)
o
County
Commissions of the 6 Florida Riparian Counties – Jackson, Gadsden, Liberty,
Calhoun, Gulf and Franklin Counties.
·
GEORGIA
o
Georgia
Department of Natural Resources (GDNR)
§
Georgia
Environmental Protection Division (GEPD)
§
REGIONAL
WATER COUNCILS
·
North
Georgia Metropolitan Planning District
·
Upper
and Lower Chattahoochee River Planning District
·
Lower
Flint River Water Planning District
o
Soil
and Water Conservation District (SWCD)
Overview
of Major Authorities
FEDERAL
US Army
Corp of Engineers (South Atlantic Division): Authorized by Congress to:
·
Manage
5 major reservoirs in the ACF Basin (4 of which control water on the
Chattahoochee River and 1 on the Chattahoochee and Flint River at Jim Woodruff
Dam) (Mobile District)
·
Maintain
authorized navigation waterways and facilities on the ACF Rivers (Mobile
District)
·
Permit
private and public reservoirs on ACF River Basin thru Section 404 permitting
process (Savannah District)
The Corps
is currently revising its Water Control Manual (WCM) which dictates how it
manages the reservoirs in the ACF Basin.
This revision is the first since 1958 and requires an Environmental
Impact Statement (EIS) which is the document the current 3-state litigation was
started over.
US Dept. of
Agriculture (USDA, NRCS) – Implements national and state agriculture and silviculture
policy and programs.
Tennessee
Valley Authority (TVA) – Authorized by Congress to develop and manage water in
the Tennessee River Valley which includes Tennessee and much of north Georgia
and Alabama.
US Environmental
Protection Agency (EPA) – Authorized by Congress to protect environmental
resources and delegated Section 404 permitting process to USACOE. EPA is allowed to override the Corps in the Section
404 permitting process.
US
Department of Interior (DOI)
US Fish and Wildlife Service (FWS) – Manages national
program to protect fish and wildlife, particularly endangered species under Endangered
Species Act (ESA). USACOE is required to
consult with USFWS if there is potential impact under ESA.
US
Department of Energy (DOE) – Implements national energy programs and policy.
STATES
Alabama Dept
of Environmental Management (ADEM): Responsible for protection of environmental
resources statewide
Florida
Dept of Environmental Protection (FDEP): Responsible for protection of
environmental resources statewide
Florida
Dept of Agriculture and Consumer Services (FDACS) Division of Aquaculture: Manages oyster harvesting in Apalachicola
Bay
Northwest
Florida Water Management District (NWFWMD): Regional Special District under
Chapter 373 F.S. tasked with management of water resources within the 16 county
area of NW Florida.
Georgia Department
of Natural Resources (GDNR) - Environmental Protection Division (GEPD): Responsible for developing the State of
Georgia Water Plan statewide
Georgia Regional Water Councils: Established by GA State
Legislature to represent local areas of the state for water planning
purposes. Members appointed.
·
North
Georgia Metropolitan Planning District
·
Upper
and Lower Chattahoochee River Planning District
·
Lower
Flint River Water Planning District
III. Status of Law Suit and Issues
The ACF
litigation was initiated as a National Environmental Policy Act challenge in
1989 by the State of Alabama against the USACOE. The case basically claimed that the Corps
reallocated water in Lake Lanier from hydropower to water supply without doing
a proper Environmental Impact Statement (EIS).
Florida intervened on the side of Alabama. Georgia intervened on the side of the
USACOE. Over 22 years later we appear to
be no closer than we were at the beginning of the suits even though a
tremendous amount of information has been put together by all sides in their
defense. More importantly the State of
Georgia has allocated more and more water from within the ACF system for
various uses and continues to do so to this day.
Over the
course of the past 22 years some 9 different cases were filed in the state and
federal courts. In 2007, these cases
were consolidated into one federal court in the Middle Florida District Court
in Jacksonville, Florida under Federal Judge Paul Magnuson. He split the cases into two phases, which
dealt with different aspects of the arguments.
·
Phase
1 – Corps authority to allocate water in Lake Lanier
·
Phase
2- Environmental Harm and Endangered Species claims
In 2009 he
ruled on Phase 1 that the Corps had exceeded its legal authority and could not
reallocate water (provide water supply) without authorization from U.S.
Congress. This decision was appealed to
the 11th Circuit Federal District Court in Atlanta. In 2011, the panel of three judges reversed
Judge Magnuson’s decision and gave the USACOE one year to determine the maximum
amount of water it could allocate for water supplies from Lake Lanier. The Corps is currently working on the EIS for
the WCM revision. The ruling
substantially changes how they may manage the federal reservoirs and the
releases.
The State
of Alabama has stated that it will appeal the 11th Circuit decision
to the U.S. Supreme Court and requested an extension of time from the Supreme
Court to file its appeal. An extension
was granted until February 2012. The State
of Florida has not stated publically whether it will join the Appeal.
It is
important to understand that the resolution of these current cases does not
resolve the management of the basin waters, but only deals with the limited
amounts in Lake Lanier. Barring a
Tri-state agreement for an equitable allocation of the waters of the ACF, an
original action filed in the U.S. Supreme Court by one state suing another over
the use of the interstate waters is required to resolve the overall management
and use of water in the basin. It has
been speculated by some attorneys that the resolution of the current and
subsequent original action may require more than a decade to run its course
thru the U. S. Supreme Court.
IV. Major Florida Issues by the Apalachicola Basin
Stakeholders
A.
Flows
(spring and early summer) at Florida State line (Jim Woodruff Dam) are currently
30-38% lower than pre-dam flows during the dry and drought years. This can be 1,500 – 3000 cfs lower than
normal. Current flows for December 2011 are
5000 CFS as compared to the annual median flow of approximately 12,000 CFS.
B.
Low
Flows in the Apalachicola River are resulting in:
1.
Lower
flows do not provide nutrient to support productivity in Bay
2.
Much
higher salinities in the lower River and Bay
3.
Drying
up of River sloughs, wetlands, floodplain resulting in loss of hundreds of
miles of fish habitat in the floodplain
4.
Loss
of 4 million trees in the Apalachicola Floodplain
5.
Depletion
of shell fish and many finfish species that require a more dependable saltwater/freshwater
relationship to support estuarine production and avoid destructive infestations
of Red Tide algae blooms such as have closed Texas oyster beds.
6.
Reduction
in productivity of Tupelo honey industry.
C.
Georgia
irrigation demands are basically unregulated.
Currently there are over 30,000 center pivot systems across the state
line and greatly impact flows on the spring-fed Flint River
D.
The
ACF system is currently in an extended drought situation. Droughts are a recurring natural event but
their frequency and duration are directly attributable to human actions or
failures to act.
E.
There
is no water allocation/budget for the river system accepted by the 3 States.
F.
There
are 18 dams on the ACF System. Five (5) form
large lake-reservoirs (Sidney Lanier, West Point, Walter F. George, George
Andrews, Seminole) managed by the USACOE.
Local communities are actively seeking that the Corps maintain high reservoir
levels for water use, recreation, and property values, all of which translate understandably
to economic advantage in Georgia and Alabama. Some dams are not in the USCOE
system. Power companies also have
critical interest in sustainable reservoir levels and river flows.
G. Alabama and Georgia have no
comparable water management structure to Florida. Although the NWFWMD has not recently been a significant
proponent for defending the Apalachicola River needs against ever-increasing
upstream diversions.
H.
Florida
needs a flow regime that is comparable to the predam flows in its timing, and
variability. A minimum of 6,500 – 8,000 CFS
at the state line during low flow conditions (July – November) has been
requested by the Florida Fish and Wildlife Conservation Commission. A scientifically sound “Instream Flow
Assessment” is needed to establish sustainable minimum flows and levels on the
Apalachicola River.
I.
Georgia
has not implemented comprehensive water conservation or alternative water
supply programs to mitigate water demands.
J.
With
the large number of organizations, agencies, interests in the ACF River system
each of which have their own special interests, there is a growing need for a
comprehensive – single authority approach to system management. One which can deal with five major river management
issues which are:
1.
Defining
actual water needs by type and amount
2.
Documenting
interaction between ground and surface waters
3.
Redefining
state and Federal agency responsibilities
4.
Identifying
overall water availability and potential demand reduction
5.
Balancing
human and natural system needs.
K.
Twenty
percent of water available in GA is controlled by the Tennessee Valley
Authority and is discharged to the Tennessee River to the north.
V.
ACFS Coordinated Program for an Equitable Sharing of Interstate Waters
(October 12, 2011)
Purpose – This memorandum documents the
essential components of the ACFS program for equitable allocation of the
freshwater flows of the Apalachicola-Chattahoochee-Flint (ACF) River Basin.
Scope – There are three interrelated projects
that together comprise the ACF Stakeholders (ACFS) coordinated program for
sharing the waters of the ACF Basin, an interstate waterway of concern to the 3
riparian states of Georgia, Alabama, and Florida. These projects address discrete, but inter-dependent
aspects of regional water management.
Each will be executed with separate contractor resources but funded by
the ACFS Governing Board and overseen and coordinated by the Executive
Committee of the ACFS. As approved by
the Governing Board of the ACFS, the three essential component tasks are:
·
SWMP
– (Sustainable Water Management Plan) Develop a sustainable water management
plan. Through a series of iterative
steps, tailor collaboratively developed models based on Stakeholder proposed
performance indicators/metrics of water needs.
Use the resultant automated model(s) to examine alternative options for
the management of ACF waters to meet Stakeholder needs and achieve an equitable
allocation of the shared ACF resource.
After peer review, present these options to the ACFS Governing Board for
a consensus-based approval.
·
IFLLA – (In-stream Flow and Lake Levels
Assessment) Assess In-stream Flow and
Lake Level requirements of the ACF Basin for a healthy and productive
interstate water resource. Evaluate existing IFLLA data for the entire ACF
Basin, taking inventory of existing, available information and identifying data
gaps, i.e. unavailable data necessary to develop an IFLLA. Importantly, the Apalachicola
River has been studied for years and data for the basin may be adequate to
complete a preliminary IFLLA that addresses minimum instream flow requirements
for downstream habitat, target species, vegetation communities, recreation, or
other (e.g. industry, agriculture) uses.
The resultant data compilation will lead to a critical measurement of
resource carrying capacity and will directly feed into the ACFS Governing
Board’s Sustainable Water Management options decision.
·
IOBM (Institutional Organizational Basin-wide Management) –
Document and evaluate institutional, organizational alternatives for basin-wide
water resource planning and management.
Specifically, identify and assess existing precedents for Regional
planning and management of shared, interstate water resources as they are
currently practiced in other river basins – what works, what doesn’t work, and
why. In particular, what are the
strengths of these water management organizations that might have application
in the ACF Basin, and what are the pitfalls to be avoided. Compile and present
data in support of all conclusions for ACFS Governing Board consideration in
the consensus-based water management option decision.
Funding – Each of the interrelated projects
listed above are undertaken based on the availability of necessary funding to cover
contracted costs. A separate ACFS-wide
solicitation of potential funding is underway and has been sufficiently
successful to underwrite a phase 1 approach in the first two cases. It has been projected that early return of
substantive work from phase 1 efforts will greatly assist in an expanded
funding opportunity. (NOTE: In excess of $600K of private monies has been
donated to underwrite these efforts to date)
Next Steps – Each of the 4 Sub-Basin Caucuses
that comprise the ACFS need to accept organizational and personal
responsibility for identifying potential funding for subsequent phases. A Sub-Basin Caucus-wide commitment to
publication and outreach needs to be established, including renewed initiatives
for seeking State and Federal funds for this coordinated program.
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