ACT Litigation and Updated Water Control Manual

Posted in: Natural Resources

The Cobb County-Marietta Water Authority (CCMWA) and others rely on water stored in Allatoona Lake to meet their municipal and industrial water supply needs. CCMWA withdraws water stored in Allatoona Lake under a storage contract that it signed in 1963, which authorizes CCMWA to store up to 13,140 acre-feet of water in the reservoir. (An acre-foot is the volume of water required to cover one acre in water one foot deep, or about 325,851 gallons.)

In 1981, CCMWA requested to purchase additional storage in Allatoona Lake, asking the Corps to proceed “as rapidly as possible” on the request. The Corps completed its review of CCMWA’s request in 1989. At that time, the Corps proposed to “reallocate” 34,864 acre-feet of storage in Allatoona Lake so that it could be used by CCMWA and others for water supply storage. The Corps’ recommendation was based on the findings of its study report and its determination that there would “be no significant environmental impacts” as a result.

Alabama sued the Corps in 1990 to block it from finalizing the recommendation. Like the ACF litigation filed by Alabama, Florida, and others, Alabama’s claims in the ACT Basin were ultimately dismissed in 2012. However, there has been no action by the Corps on CCMWA’s request since it was submitted in 1981.

In the intervening years, CCMWA and its retail customers have invested heavily in projects designed to reduce water supply needs through conservation, and to increase the amount of water CCMWA can store in Allatoona Lake. These projects minimize environmental impacts and maximize the use of existing infrastructure by augmenting the amount of water flowing into CCMWA’s storage space in the reservoir.

For example, each day about 17 million gallons of highly treated, reclaimed water is collected and returned to Allatoona Lake for reuse. Likewise, CCMWA has constructed the Hickory Log Creek Reservoir upstream of Allatoona Lake. This project will release water for withdrawal by CCMWA to supplement its Allatoona Lake supplies. However, CCMWA needs action from the Corps before these measures can be fully implemented.

In November 2014, the Corps released an updated master water control manual and Environmental Impact Statement (EIS) for the ACT Basin. Unfortunately, the updated manual and EIS fail to address CCMWA’s request for additional storage and many other issues related to water supply.

As the Corps has recognized, populations and the demand for water resources in the ACT Basin have changed substantially in the years since the federal reservoirs were authorized and constructed. Thus, the Corps is required to update its master water control manual for the ACT Basin to take into account changes in demands due to years of growth and development. However, despite the Corps’ acknowledgement that separate action on these water supply issues is needed, the Corps formally adopted the updated manual in May 2015 without correcting these deficiencies.

Recent Lawsuit Win: In November 2014, the State of Georgia, the Atlanta Regional Commission, and CCMWA filed suit in federal court in Georgia against the Corps to compel the Corps to act on water supply issues at Allatoona Lake. Oral argument was heard in August of 2017. In September 2017, the district court ruled in the Georgia Parties’ favor, finding that the Corps unlawfully failed to respond to the Georgia Parties’ water supply requests at Allatoona Lake. The district court then ordered the Corps to respond to the water supply requests by March 2021. The next step is for the Corps to conduct a reallocation study and decide on the water supply requests. The case (the “Failure to Act Lawsuit”) was State of Georgia v. U.S. Army Corps of Engineers, Civil Action No. 1:14-cv-3593 (N.D. Ga. filed Nov. 7, 2014).

The Corps has completed working through a reallocation study to evaluate the water supply requests. In November 2020, the Final Feasibility Report and Integrated Supplemental EIS for the Allatoona Lake Water Supply Storage Reallocation Study and Updates to the Weiss and Logan Martin Reservoirs Project Water Control Manuals in the ACT River Basin was released. This Final EIS includes granting Georgia’s Water Supply Request for additional storage to serve CCMWA and the City of Cartersville. The next step is for the Corps to address final comments and then issue a Record of Decision.

Ongoing Lawsuit: Separately, the State of Alabama and Alabama Power have also filed suit against the Corps in federal court in Washington, D.C. to challenge the Corps’ 2015 master manual and final EIS. These suits challenge the Corps’ compliance with NEPA, as well the operational rules adopted by the Corps. The consolidated case (the “Alabama Parties’ Lawsuit”) is Alabama et al. v. U.S. Army Corps of Engineers, Civil Action No. 1:15-cv-696 (D.D.C. filed May 7, 2015).  The cities of Montgomery and Mobile, Alabama have also intervened in this case.

  •  1981
    CMWA requests that the Corps reallocate storage in Allatoona Lake to water supply. CCMWA asks the Corps to take action “as rapidly as possible,” but the Corps fails to act on the request in response to Alabama’s lawsuit.
  • 2012
    CCMWA renews its request for action by the Corps on water supply issues at Allatoona Lake, including its request for additional storage in the reservoir.
  • January 2013
    Georgia submits a revised water supply request for the ACT Basin, seeking additional water supply storage in Allatoona Lake and other changes to water supply operations.
  • March 2013
    The Corps issues draft water control manuals for the ACT Basin and Allatoona Lake without addressing water supply needs in Georgia.
  • November 2014
    The Corps publicly releases the updated Master Water Control Manual and Final Environmental Impact Statement for the ACT Basin.The Atlanta Regional Commission, CCMWA, and the State of Georgia file the Failure to Act Lawsuit against the Corps. The suits stem from the Corps’ failure to act on water supply requests at Allatoona Lake that have been pending for more than 30 years. They seek an order from the court directing the Corps to address water supply issues at Allatoona Lake by a date certain.
  • May 2015
    The Corps formally adopts the updated Master Water Control Manual for the ACT Basin.The Atlanta Regional Commission, CCMWA, and the State of Georgia amend their complaints in the Failure to Act Lawsuit to challenge the Corps’ adoption of the new Master Water Control Manual for the ACT Basin. The amended complaints include challenges to the Corps’ failure to analyze reasonable alternatives for meeting CCMWA’s water supply needs as required by the National Environmental Policy Act.Alabama and Alabama Power also file  the Alabama Parties’ Lawsuit against the Corps in Washington, D.C., challenging the new Master Water Control Manual for the ACT Basin. The consolidated suit challenges the Corps’ compliance with National Environmental Policy Act and its operational rules for Allatoona Lake, including its decision to adjust hydropower release schedules and its alleged failure to operate the project to mitigate water quality impacts from wastewater discharges downstream in Alabama.
  • August 2016
    The Georgia Parties file a motion for summary judgment in the Failure to Act Lawsuit asking the court to order the Corps to respond to the outstanding water supply requests at Allatoona Lake. They also ask the court to vacate the 2015 Master Water Control Manual because it fails to address Georgia’s water supply needs.
  • November 2016
    The Corps files its motion for summary judgment in the Failure to Act Lawsuit.
  • February 2017
    Cobb County-Marietta Water files the Storage Accounting Lawsuit against the Corps.  The next step is for the Corps to prepare the administrative record.  Filings in the case may be downloaded from the court’s pacer system here.
  • April 2017
    Summary judgment briefing in the Failure to Act Lawsuit is completed.
  • May 2017
    Alabama files a motion for summary judgment in the Alabama Parties Lawsuit in the federal court in Washington, DC.
  • August 2017
    Oral argument is held before the federal district court for the Northern District of Georgia in the Failure to Act Lawsuit.
  • September 2017
    The district court issues a decision in the Failure to Act Lawsuit finding the Corps unlawfully failed to respond to the Georgia Parties’ water supply requests at Allatoona Lake.
  • December 2017
    Summary judgment briefing in the Alabama Parties’ Lawsuit is completed. The court is expected to schedule a hearing on the motions sometime in 2018 before issuing a decision.
  • January 2018
    The district court overseeing the Failure to Act Lawsuit orders the Corps to respond to the water supply requests at Allatoona Lake by March 2021. The next step is for the Corps to conduct a reallocation study and decide on the water supply requests.