A Down-Streamers Perspective. Steve Davis August 26, 2011

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1 A Down-Streamers Perspective Steve Davis August 26, 2011

2 Agenda Historical Perspective Georgia State Water Planning Council 11 th Circuit Court of Appeals Ruling Perspective Endangered Species Act Perspective

3 Historical Perspective

4

5 Down-streamers want to retain historical ( ) flows with good quality. For Columbus: Minimum instantaneous: 800 cfs Minimum daily: 1350 cfs Minimum weekly: 1850 cfs

6 These minimum flows are needed to protect in stream aquatic life, including wastewater assimilation. Between 1975 and 2004, the average 7Q10 in Columbus is 1293 cfs. Since 1975, flows have met Columbus target of 1350 cfs 97.8% of the time. Gov. Sonny Perdue Columbus Technical College August 8, 2009 So why can t 1350 cfs be established as a flow target?

7 Down-streamers are not on the radar screen of the ACF flow controllers. Recall 2009, the wettest year of record (130 years of rainfall recorded) with 80.4 (average 46.8 ) in Columbus. Water was flowing everywhere except Columbus. Reservoirs were topping off, endangered species flows were high from Flint River. 22 days in summer of 2009, flow in Columbus was less than 1350 cfs. Currently, down-streamers are more vulnerable to man-made droughts than natural droughts The problem is more operational than resource supply

8 Georgia State Water Planning Perspective

9 What if Metro misses its mark? What magically happens in 2030 to the trend? Big Gap

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11 Protection of Status Quo? Failure to focus primary attention on measurement and management of consumptive uses. Avoidance of prioritizing water uses... Avoidance of difficult task of maximizing returns, thus reducing consumption uses... Inter-basin transfers, septic tank disposal, land application systems, power generation, irrigation improvements Must increase returns!!!

12 Eleventh Circuit Ruling Perspective

13 Down-streamers celebrate with Metro North Georgia as our family, friends, and neighbors upstream are relieved of the dire consequences of the Magnuson Ruling. However, Georgia s Regulated Riparian Rights... Land owners adjacent to waterways may withdraw water for beneficial uses, as long as, the water uses of adjacent users are not diminished. Continues to be the best protection of the sustainable water future for Georgians and downstreamers rely on its protection. Unfortunately, the hand on the flow valve is federal and has a differing and narrower focus on ACF flow management.

14 On page 52, the Court repeats Georgia s 2000 request: 4. Ensure that sufficient flow is maintained south of Buford Dam to provide the requisite environmental quality that is, assimilate discharge wastewater; This is certainly a down-streamer s goal in Columbus to achieve a minimum daily flow of 1350 cfs and attainable through a modified flow control plan by the Corps.

15 On page Finally, the Corps has not yet articulated a policy on whether to account for return flows, and if so, how to differentiate between flows returned directly to the lake and flows returned downstream from the dam. Down-streamers are encouraged that the Court and expectantly the Corps realize the sustainability value of maximizing returns. It will be interesting to see how this might develop into an operating plan item... the higher the return rates, the higher the allowable withdrawals with possibly minimal impact on storage and impact on downstream flows. It certainly has the potential to incentivize an increase in return flows for Metro North Georgia.

16 On page For instance, it may be that the flood control storage, which sometimes contains excess water that could be released to satisfy water supply needs, should be factored into the calculation. Down-streamers may not be opposed to more efficient use of flood storage, provided the risk to downstream flooding is kept low.

17 The court makes some strong statement s relative to Gwinnett County s request for due compensation associated with the Duluth water intake being inundated by Lake Lanier. It is interesting to consider these statements in regards to Florida stopping the USACE from dredging the Apalachicola for maintenance of a navigation channel. On pages 80 and The federal government possesses what is known as navigational servitude, the privilege to appropriate without compensation which attaches to exercise of the power of the government to control and regulate navigable waters in the interest of commerce. The navigational servitude is a dominant servitude, trumping all competing and conflicting rights to the waterway... The federal government does not execute a taking of riparian interests by altering rivers for navigational purposes

18 ESA Perspective

19 11 th Circuit s Ruling didn t mention maintaining flow for endangered species... (Not an authorized use under Rivers & Harbors Act (RHA): Water Supply Act (WSA). Is a show-down looming?? ESA vs. all other water needs in GA, AL, FL? Metro water supply (Lanier and Downstream) 700MGD Possible ESA spring releases 7100 MGD >=5000 and >16000 >= BI ESA spring day flow can be equivalent to 100 days of water supply for Metro, if Metro returns 50%, then it is equivalent to 200 days.

20 The 800 lb Gorilla in the room and why all Georgian s should be concerned. ESA 7 Billion gallons per day 6 Million People 1 Billion gallons per day

21 Flow Control, can USACE adapt management to mimic natural conditions?

22 Here are a few excerpts from the 1973 Endangered Species Act that may allow for some balance between interests. Section 4.b.2. The secretary shall designate critical habitat, and make revisions there to under subsection (a)(3) on the basis of the best scientific data available and after taking into consideration the economic impact and any other relevant impact of specifying and particular area as critical habitat. Section 2.e.2. It is further declared to be the policy of Congress that Federal agencies shall cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species.

23 Questions / Comments? Steve Davis, P.E. Columbus Water Works sdavis@cwwga.org