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States reject water study secrecy pact

Alabama and Florida’s denial could let water-sharing document go public

POSTED: January 3, 2014 12:20 a.m.

Florida and Alabama have rejected a tri-state agreement that would have bound them to confidentiality concerning the results of a water-sharing study being done by a private group, the Apalachicola-Chattahoochee-Flint Stakeholders.

John P. Heekin, assistant general counsel to Florida Gov. Rick Scott, sent a Dec. 12 letter, and David B. Byrne Jr., chief legal adviser to Alabama Gov. Robert Bentley, a Dec. 16 letter, to the organization rejecting a “memorandum of understanding.”

Heekin said Florida’s denial comes “as we pursue our claims against Georgia in the U.S. Supreme Court and elsewhere.”

Alabama’s letter doesn’t cite why it won’t sign the agreement.

“It is disappointing that Florida and Alabama are categorically declining to sign the MOU,” said Jud Turner, director of the Georgia Environmental Protection Division.

“We had not completed a full legal review of the (document), but Gov. (Nathan) Deal was open to the concept of a MOU as a way to allow the states to continue to support the ACF Stakeholders work during any litigation. Without the governors signing the MOU, the future of the ACF Stakeholder group is called into question during the litigation between the states.”

The stakeholders group, comprising people interested in water flows through the basin that straddles the three states, has tried to clamp down on information as part of an ongoing water study conducted by Georgia Tech’s Georgia Water Resources Institute.

It had been concerned about information leaks since Florida filed suit Oct. 1 against Georgia in the U.S. Supreme Court, alleging increased water consumption had limited flows into Apalachicola Bay and wrecked the oyster industry.

The group voted in early December in a meeting at Lake Blackshear near Cordele “to adopt (certain) procedures to keep our information confidential until we release it as part of an overall plan,” said James N. McClatchey, chairman of the ACF Stakeholders’ governing board, at the time.

“I think there was a strong, maybe almost unshakable, commitment that we were going to get to a sustainable water management plan, and that’s still the objective, I think, of the whole group.”

ACF Stakeholders sent a Nov. 15 letter to the governors of the three states appealing for them to sign a mutual agreement.

“We find that we are at a critical juncture in our Sustainable Water Management Plan process,” said then-Chairman Billy G. Turner, referring to the study. “For our process to work, the stakeholders must be able to communicate openly and candidly without fear that ACFS information will be used in a manner that is adverse to their interests.”

The letter says the group is “asking that the three governors also agree they will not use ACF Stakeholders reports or data for any purpose, including litigation, until such reports or data have been approved for release” by the group.

In reacting Thursday to the rejection by Florida and Alabama, McClatchey said, “This is not what we wanted, but we’re continuing to work on the (issue). We think it would help our process to have those (agreements) in place.”
“It’s our goal to stay out of the legal process as much as possible,” added McClatchey, who represents the Upper Chattahoochee subbasin as part of the ACF Stakeholders. “The (agreements) would have been a big help, but we haven’t completely given up on (a mutual agreement). We’re proceeding ahead whether we have them or not.”

The Supreme Court action draws out what has been a 20-year water-sharing conflict between Georgia, Alabama and Florida, often referred to as “water wars.” Much of the debate has focused on Lake Lanier, which serves as the main drinking water source for metro Atlanta.

Florida and Alabama appeared to gain the upper hand in July 2009, when U.S. District Court Judge Paul Magnuson issued a strict ruling against Georgia.

He imposed a three-year deadline for Georgia to either find another source of water, have Congress reauthorize Lake Lanier as a specially designated source of drinking water or successfully negotiate a water-sharing agreement with Florida and Alabama.

Georgia successfully appealed the decision in the 11th U.S. Circuit Court of Appeals in Atlanta, then gained further leverage in June 2012 when the U.S. Supreme Court rejected an appeal of the 11th Circuit ruling by Florida and Alabama.

Both Alabama and Florida jabbed Georgia in their letters rejecting the mutual agreement.

Florida said, “Equitably apportioning the waters of the ACF Basin is vitally important to the families, businesses, and plant and animal species that depend upon historical flows into the Apalachicola River and bay, but which are now threatened by unmitigated and unsustainable upstream withdrawals.”

Alabama used similar language in its letter, saying “the withdrawals caused by Georgia’s upstream consumption and storage represent a significant danger to the state of Alabama.”

The ACF Stakeholders was officially formed in 2009, “recognizing that litigation and politics have been unable to resolve the issues,” according to the group’s website.

The group “has made significant progress at establishing a better technical understanding of how the ACF Basin water is used and managed,” the letter to the governors states. “We believe this is pivotal to the eventual establishment of improved water usage by all parties in the basin.”

It has raised more than $1.5 million to help pay for the cost of the study.

The hope has been to produce water-sharing recommendations that ACF Stakeholders could present to the U.S. Army Corps of Engineers, which governs Lake Lanier, and the three states.

“My optimistic time frame is that we may have something by the summer,” McClatchey has said. “I think that what we have found is when we’re dealing with data and science, we usually move pretty quickly. It’s when we’re discussing process and so on that we move slower.”

The corps, meanwhile, is working on a water control manual update for the basin. The manual is set to be implemented in 2015.


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