Two reservoir projects have generated a good bit of local criticism and media attention over the last few months. One project—the Grady County Fishing Lake—is currently under construction. The second—Newton County’s proposed Bear Creek water supply reservoir—has been in the permitting process for years. If there were two issues residents of both communities share, it would be frustration over the projects’ mounting debt and the questionable need for the reservoirs. Both communities also share another common trait: they have contracted the reservoir consulting services of Covington attorney William Thomas Craig.
For background on the proposed Bear Creek reservoir, please start here.
In September of 2014, the US Army Corps of Engineers released a Public Notice announcing Newton County’s plans to move the dam site for the proposed Bear Creek reservoir. It’s worth noting that the dam’s original location was identified in the first permit application in 2000, and again identified in a third version of the permit application submitted in 2008. Why did it take fourteen years to determine the dam had to be moved? Newton County wishes to relocate the dam upstream from the original location “based on a revised survey of the project site” and better modeling tools.
This request to relocate the dam raised additional concerns at the local level. A vocal group of concerned tax payers seeking more transparency in government operations began asking the county attorney and commission members about the project’s management. More than 100 people packed the county’s chambers for one meeting, and have repeatedly asked for scrutiny of Newton County’s current water supply capacities and future demands, of projected population data, and of the project’s cost and management by the county attorney—who also doubles as the county’s water supply consultant.
The most recent development should be of particular interest to folks tracking reservoir projects. A previously misplaced, lost, or misdirected copy of a water supply “yield analysis” produced in 2009 was presented to the county commission in late 2014. The document eliminated the need for the county to spend an additional $86,000 on a study that had already been completed. Furthermore, the document “appears to contradict” the county water consultant’s claim on how much water was available from one of the county’s water sources during the 2007 drought.
Additionally, the draft Newton County Water Supply Master Plan, which was generated by another consultant at a cost of $240,000, was independently reviewed by the Newton County Water and Sewer Authority (NCWSA). The NCWSA is Newton County’s primary wholesale customer and would ultimately purchase water from the county’s proposed Bear Creek reservoir. Because of this relationship, the NCWSA’s rate payers are on the hook to pay for the county’s reservoir. The NCWSA’s January 21, 2015 “Technical Memorandum” reviewed the draft water master plan and concluded:
- “There is no urgency to build the Bear Creek Reservoir now.” According to the reviewers, the draft master plan relied upon faulty population projections to justify the Bear Creek proposal, and did not consider the recession’s effects on population and water consumption dynamics.
- “If Bear Creek Reservoir is built, water rates will double making the Authority one of the highest charging water utilities in the State of Georgia.”
- “The wiser use of money is to repair/upgrade Newton County’s current treatment facilities at a fraction of the cost to build the Bear Creek Reservoir, Water Treatment Plant & Transmission Mains.”
- “There are several deficiencies reported by Krebs at the two water treatment plants that should be immediately verified and if found to be correct should be immediately acted upon.”
- “There are several flaws within the report itself that deserve close scrutiny.”
When combined, the community’s own third-party evaluation of existing infrastructure, needs, and the Bear Creek proposal all cast doubt on the accuracy and exactitude of Newton County’s Section 404 application. As one local journalist reported, in Newton County’s water supply situation, the “problem lies in water management, not supply.”
We hope this development will encourage the Corps of Engineers to request the Georgia Environmental Protection Division to re-evaluate the 401 water quality certification and water withdraw permitting process in light of the NCWSA’s recent review of Newton County’s needs analysis.
In south Georgia, local folks are frustrated with the Grady County commission’s recent decision to float a $10,000,000 bond to pay for a fishing lake. You can read more about the Grady County fishing lake in the Georgia Water Coalition’s 2012 Dirty Dozen. How will they pay for a total of $25,000,000 in bond debt?
One commissioner suggested, “We have got to tighten our belts on a lot of things, and” expenses related to Tired Creek’s consulting services might be a target. This prompted a Thomasville Times-Enterprise online commentator to retort, “Well, when you have already lost your pants, it is kind of hard to tighten a belt.”
Another more plausible option to pay off the debt: Sell lake-side or water front lots.
In 2005, Grady County’s first application to the Corps of Engineers for a Section 404 permit indicated plans for a large planned community and development around an amenity lake. That application was subsequently revised and the amenity lake was transformed into a fishing lake. The permit was issued in 2010 with an “environmentally sensitive” master plan that did not include any significant property development—aside from a handful of pavilions, roads, and public access point—in the lake’s 100-foot buffer and the approximately 2,000 surrounding acres. In other words, the official Corps of Engineers approved plan does not include water front lots.
However, in 2013, the Georgia General Assembly passed legislation (HB 201) to create the Grady County Lake Authority. The authority has the power to condemn private property, to acquire and sell property, and to assume debt via issuance of bonds.
Then, in the fall of 2014, the Grady County commissioners, staff and lake authority members began openly discussing plans to sell surplus property around the fishing lake now under construction. While they claim to have no formal plans, the county commissioners, county attorney, and lake authority members are openly discussing the prospect of planning for the sale and/or development of surplus land around the lake. They have clearly been planning unofficially to plan formally.
- November 12, 2014: “Commissioners met with members of the lake authority…to set priorities for the amenities proposed, as well as the possibility of selling the county-owned land that is not needed by the county for the project.” (Cairo Messenger)
- December 4, 2014: “Norton said the Lake Authority is currently working on a grant to put in sewage and water lines to prepare for potential housing development in the future.” (WALB News 10)
- January 21, 2015: “Bryan said the authority would want to solicit consultants to do a market survey and provide information in the type of development needs in this area as well as a calculation on absorption of the surplus property. ‘The plan we have presented, we believe, lends itself well to getting the surplus property back on the tax rolls. The sooner we can do that the sooner the county will benefit from the investment it has made in this project,’ Bryan said.” (Cairo Messenger)
- January 28, 2015: “Commissioner Norton admitted the goal is to eventually sell the surplus property and the county could then begin to recover some of the investment it has made in the lake. Attorney Cauley noted that not only would the county benefit from the sale of the property but even more so by the development on the property for years to come.” (Cairo Messenger)
If it quacks like a duck, walks like a duck—it’s a duck
Local reservoir proponents in multiple locales—like Hall County (Glades Reservoir) and South Fulton County (Bear Creek)—have repeatedly asserted that proposed water supply reservoirs will not become amenity lakes. Maybe most water supply reservoirs do not become amenity lakes, but it would be inaccurate to say that houses have not popped up around municipal reservoirs and caused management problems, or that reservoirs will enhance value of undeveloped property in the reservoir’s vicinity. Bear Creek reservoir in Jackson County is an example.
Perhaps a clear sign the proposed Paulding County’s Richland Creek reservoir will not become an amenity lake is a recent report about a fence intended to surround the 305-acre reservoir. If this report is true (which it may not be), one local correctly stated: “If I’m in the fencing business, I would not want to miss that” bid request.
We have long argued that communities should stop throwing good money after the bad on reservoir projects – particularly amenity lakes disguised as reservoirs. Furthermore, the lack of transparency surrounding reservoir projects does not inspire trust among those responsible for footing the bill. In short: reservoirs for any purpose should be the option of last resort for forward thinking local leaders who are accountable to voters, taxpayers and utility rate payers.
For a decade between 1999 and 2009, the General Assembly repeatedly banned Aquifer Storage and Recovery (ASR)—the practice of injecting chemically treated wastewater, surface water or groundwater down into an aquifer with the intent to withdraw it later—in Georgia’s coastal region to protect drinking water.
In January 2014, Senator William Ligon sponsored SB 306 to permanently extend that moratorium. Unfortunately, the Senate Natural Resources and Environment committee did not vote on SB 306. The moratorium expired on July 1, 2014.
Over the past month, the Brantley, Bryan and Camden County commissions plus the Liberty Regional Water Resources Council have passed four independent resolutions opposing ASR and the injection of chemically treated water into the Floridan aquifer.
SB 36 and HB 116 must pass this legislative session in order to protect and preserve precious drinking water in the Floridan Aquifer.
What is ASR?
Aquifer Storage and Recovery (ASR) is a technology where chemically treated surface water – or ground water from one aquifer – is pumped into another underground aquifer for storage. In theory, the water may be recovered later during periods of low-flow or high drinking water demand.
ASR is risky for Georgia.
The best available science and data indicate pumping chemically-treated water underground presents threats to all of Georgia’s aquifers, and can lead to increased levels of arsenic that exceed drinking water quality standards.
Pumping wastewater underground can introduce bacteria, pathogens and disinfection byproducts into Georgia’s aquifers that hundreds of thousands of Georgians rely on for drinking. Many of Georgia’s drinking-water aquifers—like the Floridan—are pristine, and we should not risk contaminating those resources, which nature has taken thousands of years to create.
Are there any ASR proposals or operations in Georgia?
ASR was recently proposed as a stream flow augmentation tool for the Chattahoochee, Flint, Coosa and other major river basins.
In 2006, ASR was considered as a waste management tool in Liberty County.
A 2012 proposal for a large southwest Georgia ASR well-field included a $1.2 billion price tag.
An ASR stream flow augmentation project is under development in Baker County and has been discussed for other parts of the lower Flint River Basin.
It is also worth pointing out that six regional water councils specifically addressed ASR. All six councils recommended first conducting research, completing studies and proper evaluation of “the best available science and data” before pursuing ASR.
ASR is prone to failure.
According to the Environmental Protection Division, a northwest Georgia ASR experiment failed because the true extent of the geology and hydrology for the area was unknown.
A 2013 nationwide survey of 204 ASR sites found 26 percent of the sites have been “functionally abandoned” or are inactive. Only 37 percent of the surveyed sites were actually operational. (The remaining 37% are in testing and study phases.)
In Florida, only 22 of 54 ASR sites are active. Only 40 percent of Florida’s ASR sites are fully functional. To date, a total of 43 wells have been abandoned or operations suspended for reasons including arsenic mobilization, excessive operational costs, or the inability to recover the “stored” or ‘banked’ water.
In South Carolina, ASR projects have developed problems including well-clogging and bacterial growth.
In North Carolina, ASR projects have been delayed by water quality, water recovery and disinfection byproduct issues.
A U.S. Geological Survey study demonstrates ASR is not always successful. Cycle-testing measures how much water can be pumped/injected underground and recovered at the surface. Of 15 sites in Florida subjected to cycle-testing, 6 were considered “Low Performance” (0-20% recovery), 6 were considered “Medium Performance” (20-40%), and 3 were considered “High Performance” (40% or more). What constitutes “High Performance” recovery? If, for example, you pump 100 gallons of water underground and you recover at least 40 gallons, you have a high “High Performance” well.
The Georgia General Assembly must ban the practice of ASR in our drinking-water aquifers, and support SB 36 and HB 116.
Why should Georgia citizens be concerned about the impacts of global climate change? The National Climate Assessment reports that global climate change is responsible for changes in precipitation patterns, rising sea levels, more acidic oceans, and increased frequency of extreme “weather whiplash.” In Georgia, changes in precipitation patterns are leading to decreased river flows, and rising sea levels are causing accelerated intrusion of saltwater into freshwater wetlands, streams and rivers. Moreover, stream and river temperatures are increasing in Georgia.
Climate change is affecting precipitation patterns that directly affect Georgia’s rivers. According to Aris Georgakakos, director of the Georgia Water Resources Institute at Georgia Tech, river flows in Georgia are decreasing as a result of changing rainfall patterns. Specifically, Georgia is seeing short periods of heavy rain and long periods of drought. Since big flows from heavy rains occur infrequently and dissipate quickly, Georgia’s rivers are left thirsty most of the time with low flows. The National Climate Assessment indicates that this pattern of lower flows under drought conditions and higher flows during floods can worsen water quality.
Professor Georgakakos’s study of the Oconee River indicates that the amount of water flowing down the Oconee River has declined approximately 50 percent over the last half-century. University of Georgia professor Todd Rasmussen and colleagues analyzed river flow statistics for the Middle Oconee River. They found that approximately 90 percent of the river’s record low flows have been recorded in the last 10 years. Moreover, U.S. Geological Survey statistics indicate that annual river flow in the Oconee River was the lowest ever recorded in 2012.
In addition to changing precipitation patterns, rising sea levels pose significant risk to Georgia’s freshwater resources with respect to drinking water supply, ecosystem habitat, and agriculture. According to the National Climate Assessment, higher sea levels along the East coast “will accelerate saltwater intrusion into freshwater supplies from rivers, streams, and groundwater sources near the coast.” The U.S. Environmental Protection Agency (EPA) points out that the intrusion of saltwater into freshwater areas may increase the need for desalination for coastal freshwater aquifers that supply drinking water. In addition to affecting drinking water supply, the intrusion of saltwater into freshwater areas “can physiologically stress microorganisms, plants, and animals and alter metabolic pathways, rates of activity, and abundance,” according to research conducted by the Department of Marine Sciences at the University of Georgia. Moreover, as the National Climate Assessment notes, sea level rise may lead to changes in salinity and water levels at such a fast rate that local vegetation is unable to adapt quickly enough and these areas become open water.
Saltwater intrusion, in response to sea level rise, not only affects drinking water supply and ecosystem habitat, but it also affects the agriculture sector. The National Climate Assessment points out that the intrusion of saltwater into freshwater resources may “reduce the availability of fresh surface and groundwater for irrigation, thereby limiting crop production in some areas.”
Research published by the Ecological Society of America (ESA) indicates that Georgia’s rivers are getting warmer. The ESA specifically found a significant increase in water temperature in the Coosa River and Conasauga River. According to the EPA, increased river temperatures can harm aquatic organisms that live in cold-water habitats, leading to the extinction of local species. Additionally, warmer water in rivers can facilitate the invasion of non-native species, which often prey on and out-compete the native species for food, leading the native species population to suffer.
What can Georgia do to adapt to changing precipitation patterns and rising sea levels? Scientific research indicates that Georgia’s rivers and streams are suffering from changing precipitating patterns and warming water temperatures. Moreover, rising sea levels raise concerns that saltwater will intrude into freshwater streams and rivers near the coast. Unfortunately, many federal policies do not require adaptive planning for sea level rise and coastal flooding. So, what can state and local governments do to better adapt to these significant changes?
Local governments, like the City of Tybee Island, are beginning to prepare for the changes in precipitation patterns and rising sea levels by adopting methods of adaptation. A report recently published by the Union of Concerned Scientists (UCS), entitled “Encroaching Tides,” discusses methods for adapting to climate change along Georgia’s coast. In its report, UCS mentions measures being adopted by the City of Tybee Island to address the effects of climate change. Tybee Island is Georgia’s most densely developed barrier island and a popular tourist destination that faces erosion and coastal flooding as sea level rises. For example, the Island has suffered severe sewer backups when rain and high tide occur simultaneously. To prevent sea water from flowing into the City’s sewer system during future rain/high tide events, Tybee Island has installed large diameter pipes with tide gates. See the UCS’s full report for more information.
To address sewage backup and other issues associated with sea level rise, the City of Tybee Island has collaborated with Georgia Sea Grant and the Carl Vinson Institute of Government to develop a Sea Level Rise Adaptation Plan (the “Plan”). In August 2012, the Tybee Island City Council held townhall meetings to identify adaptation actions for the Plan. The City’s adaptation actions include retrofitting the stormwater sewage system, elevating well pumps, considering innovative methods to deal with Repetitive Loss Properties, working with Georgia Department of Transportation on potential options for elevating U.S. Highway 80 several feet above its current grade, increasing nourishment of the beach, and discussing novel approaches for stabilizing shorelines. Following identification of these adaptation actions, Georgia Sea Grant and the Carl Vinson Institute of Government conducted a cost-benefit analysis that weighs these actions over a 50-year planning horizon.
Georgia’s rivers are already being impacted by climate change, but Georgia has the opportunity to make smarter choices when it comes to energy production and coastal resiliency. These choices will reduce the impacts that climate change will have on the state’s rivers going forward. The science clearly demonstrates that the release of carbon dioxide and other greenhouse gases, the majority of which come from the burning of fossil fuels, into the atmosphere is causing temperatures to rise. In recent years, Georgia has begun retiring dirty coal-fired power plants to reduce its emissions of greenhouse gases into the atmosphere. Georgia should take advantage of these retirement efforts by increasing the use of solar power to satisfy energy production. By relying less on the burning of fossil fuels to produce energy and focusing more on producing energy through solar power, Georgia can reduce its contribution of greenhouse gases into the atmosphere. In doing so, Georgia can help arrest climate change and reduce the threat of future impacts on the state’s rivers.
In the early 1990s, the U.S. Army discovered that hazardous chemicals dumped at Fort Gillem were seeping into residential drinking water wells in the neighboring city of Forest Park, Georgia. Fort Gillem was established in 1941 as a Quartmaster Depot during World War II responsible for shipping supplies to army personnel around the world. The military base became a dumping ground for a variety of substances, including engine oil, solvents, rubber, and a German mustard gas bomb.
Over time, volatile organic compounds from these substances migrated from the military base to nearby neighborhoods. The Georgia Environmental Protection Division (EPD) responded to the discovery of these compounds in nearby neighborhoods by issuing an order calling for the Army to resolve water contamination issues at Fort Gillem. The Army responded to Georgia EPD’s concerns in 1994 by passing out bottled water to residents and shifting many Forest Park residents from private wells to Clayton County’s municipal water system.
Twenty years have passed and the base has been closed, yet known and suspected carcinogens continue to migrate from groundwater into surface water. The Army has taken some steps to remove pollutants from the base.
For example, in 2009, the Army installed two pump-and-treat systems to extract toxins from the groundwater before they migrated off the base. However, Georgia EPD was concerned that the Army was not acting efficiently enough to contain the contamination and prevent it from reaching residents’ homes. Furthermore, Georgia EPD was not convinced that the Army had sufficiently warned residents of the dangers posed by the contamination.
In June 2013, Georgia EPD’s frustration with the Army’s failure to clean up Fort Gillem resulted in a letter to Region IV of the U.S. Environmental Protection Agency (EPA). In its letter, Georgia EPD recommended that Fort Gillem be placed on the federal list of Superfund sites unless a legally binding cleanup plan was in place by the end of that year. To date, Fort Gillem has not been listed as a Superfund site.
In 2014, the Army began conducting a vapor intrusion study approved by the Georgia EPD to evaluate whether the air in residential properties contains hazardous contaminants. However, Georgia EPD and EPA were unhappy with the Army’s failure to implement efficient mitigation measures that are set forth in the approved study. In response to the Army’s significant deviation from its approved study work plan to clean up contaminants at Fort Gillem, EPA issued an Order on September 24, 2014 under Section 7003 of the Resource Conservation and Recovery Act (RCRA), ordering the Army to take corrective measures at Fort Gillem. EPA issued the Order under RCRA because it believed that an Order was necessary to protect the health of the community and the environment surrounding Fort Gillem.
According to the Order, the Army must conduct a survey of all water wells and springs within the area designated in the Order within 21 days. Within fifteen days of submitting the survey, the Order mandates the Army to sample and analyze the water from the wells for volatile organic compounds. Results of the sampling and analysis must be submitted to EPA within 45 days of submitting the well survey. In addition to surveying and sampling wells at Fort Gillem, EPA’s order requires the Army to connect any resident to the city’s water supply who is not already connected to the city’s water supply if the Army finds contaminants in the resident’s well that exceed the maximum contaminant levels (MCLs) of the Safe Drinking Water Act. For more information on EPA’s Order, read EPA’s press release regarding the Order.
Since the EPA’s Order was issued, the Army has hosted an information forum to get information out to residents of Forest Park regarding contamination from activities at Fort Gillem. Furthermore, and only with prodding from state and federal regulators, the Army has conducted vapor intrusion tests on roughly 68 homes and 1 daycare center. More testing will follow.
Georgia EPD and the EPA must hold the Army fully accountable for contamination at Fort Gillem and the surrounding community. Georgia EPD and the EPA must protect individuals’ health and private property values from the Army’s irresponsible behavior. Hopefully, Georgia EPD will continue this enforcement approach to groundwater contamination in Waycross and Brunswick as detailed in the Georgia Water Coalition’s 2014 Dirty Dozen report.
Georgia’s leading water coalition named its “Dirty Dozen” for 2014, highlighting 12 of the worst offenses to Georgia’s waters. The Georgia Water Coalition’s annual Dirty Dozen shines a spotlight on threats to Georgia’s water resources as well as the polluters and state policies or failures that ultimately harm—or could harm—Georgia property owners, downstream communities, fish and wildlife, hunters and anglers, and boaters and swimmers.
The Dirty Dozen is not a list of the most polluted water bodies in Georgia, nor are they ranked in any particular order. The list of problems exemplify the results of inadequate funding for Georgia’s Environmental Protection Division (EPD), a lack of political will to enforce existing environmental protections, and ultimately misguided water planning and spending priorities that flow from the very top of Georgia’s leadership. Previous reports can be found here.
All of Georgia’s waters are effected by policy established by state leaders at State Capitol and in state agencies. Lately, that policy has been as foul as some of the water flowing off Atlanta’s streets, parking lots and dumpster pads after summer thunderstorms.
For example, hundreds of millions in state funds have been funneled into the Governor’s Water Supply Program for dams, reservoirs and other projects of questionable need while state funding for water efficiency has languished. While a total of $213 million in tax dollars has flowed from the Governor’s Water Supply Program since 2012, funding for water efficiency and conservation has been anemic. From 2010 through early 2013, the state spent $10.7 million to fund water efficiency projects, and thus far in 2014, $7.8 million has been awarded to communities for projects ranging from replacing leaking water lines to installing more accurate water meters.
Where else could state funds be used effectively? On the Chattahoochee River, a tip from an east Atlanta resident who observed a black, oil-like substance flowing from an industrial facility near the Chattahoochee River, revealed American Sealcoat Manufacturing, LLC, was discharging oily asphalt material into a stream just 300 yards from the river. The company is just one particularly egregious example of hundreds of industrial facilities across the state that operate without safeguards to keep pollution out of nearby neighborhoods and our state’s waters. Georgia law requires these safeguards, but Georgia’s Environmental Protection Division has only two staff members dedicated to keeping tabs on thousands of facilities statewide.
The Sabal Trail pipeline is one example of a potential threat to surface and ground water supplies found in the Dirty Dozen. The Sabal Trail pipeline’s path across southwest Georgia would require boring underground pipelines beneath the Withlacoochee, Flint and Chattahoochee rivers as well as numerous smaller streams, and will course underground above the Floridan aquifer. While the Sabal Trail pipeline’s parent companies would have residents believe their 3-foot-diameter pipe is a benign neighbor, the history of gas pipeline accidents and environmental ills in Georgia and elsewhere paints a different picture.
The Georgia Water Coalition publishes this annual list as a call to action for our state’s leaders and its citizens to come together to correct pollution problems, eliminate the wasteful use of our tax dollars and restore our streams, rivers, lakes and coastal wetlands.
The Coalition’s full report details the history of each site or example, and provides solutions to correct these ongoing problems and eliminate the listed threats. A short list can be found below. The full report—including updates from previous Dirty Dozen reports—is available online.
- Georgia’s Water: State Water Policy Threatens Streams, Aggravates Water Wars, Wastes Tax Dollars
- Georgia’s Coastal & Freshwater Wetlands: EPD Refuses to Enforce Clean Water Laws
- Floridan Aquifer: State Leaders Drop Well Water Protections to Experiment With Risky Water Injection Schemes
- Chattahoochee River: Weakened State Agency Allows Industries to Foul River
- Coosa River: Long Delayed State Clean Up Plan Allows Power Company to Continue Polluting
- Flint River: Textile Manufacturer’s Pollution, State Water Policy Create Conundrum
- Savannah River: Pollutants, Nuclear Reactors Suck Water and Life out of Savannah
- Georgia’s Small Streams and Wetlands: National Rule To Protect Georgia’s Streams and Wetland Treasures Under Attack
- Withlacoochee River & Floridan Aquifer: Gas Pipeline Threatens Southwest Georgia Water, Way of Life
- Turtle River: Toxic Legacy Poisons Dolphins, Drinking Water
- Satilla River: Toxic Legacies Threaten Waycross Residents
- Little Satilla Creek & Penholloway Creek: Titanium Mine Threatens Wetlands, Well Water
The nation’s rivers, lakes and other waters are generally cleaner today than they were forty years ago thanks to the Clean Water Act (1972). The Clean Water Act (CWA), after all, was designed to fix problems identified in the 1950s and 1960s like sewage treatment, point-source pollution discharges and a legacy of burning rivers. Because of the CWA, many – but not all – “waters of the United States” (a.k.a. WOTUS) are more swimmable, fishable and drinkable.
Why is everyone talking about WOTUS? Right now the U.S. Environmental Protection Agency (EPA) is working on a rule making to clarify the definition of “waters of the U.S.”
Under existing regulations, the CWA protects “navigable waters,” which the CWA defines as “the waters of the United States, including the territorial seas.” However, the CWA does not clearly define “waters of the U.S.” This means the CWA has given federal agencies latitude to interpret what “waters of the U.S.” means. As one might imagine, this has led to confusion regarding what water bodies are and are not protected under the CWA. The level of confusion has also been compounded by two Supreme Court rulings in 2001 and 2006 that questioned the regulatory scope of the CWA. The Supreme Court created uncertainty about the jurisdiction of “other waters” that do not fall under the category of waters susceptible to interstate commerce, interstate waters, the territorial seas, tributaries or adjacent waters.
Given the uncertainty about the regulatory scope of the CWA, Congress and the Supreme Court urged EPA to clarify regulations on the definition of “waters of the U.S.” In response, the EPA and the U.S. Army Corps of Engineers (Corps) proposed a two-page rule on March 25, 2014 to clarify protection under the CWA for streams and wetlands across the U.S. The proposed rule will apply to all CWA programs – for example, the National Pollutant Discharge Elimination System (NPDES) and Section 404 discharge of dredge and/or fill permitting – and reflects the Supreme Court’s more narrow reading of CWA jurisdiction.
What the Proposed Rule Will Do: Primarily, the proposed rule will reduce confusion surrounding protection under the CWA by establishing two simple categories: (1) for waters that are “waters of the United States” and (2) for waters that are not “waters of the U.S.” Waters that are deemed “waters of the U.S.” are subject to multiple regulatory requirements under the CWA, like meeting specific water quality standards, requiring discharge limitations, meeting permit requirements, and are subject to enforcement action. Waters that are not “waters of the U.S.” are not subject to those regulatory requirements under the CWA. By reducing confusion regarding CWA protection, the proposed rule will save time and money that would otherwise be necessary to determine if a water body is protected.
Additionally, the proposed rule clarifies that most seasonal and rain dependent streams are protected as well as wetlands near streams and rivers. Moreover, federal clarification of what is and is not covered under the CWA will help states protect their waters, especially those states that have legal limitations on the ability to protect waters that are not currently covered by the CWA. Georgia does not have legal limitations on the ability to protect non-CWA waters. When the rule is finalized, it will provide more benefits than costs to the public. According to EPA’s social cost and benefit analysis, the benefits are approximately twice as much as the costs.
No Changes for Agriculture: All existing exemptions and exclusions for agricultural activities will be preserved under the proposed rule. Moreover, EPA and the Corps coordinated with the U.S. Department of Agriculture to develop an interpretive rule, effective immediately, which ensures that 56 conservation practices that protect or improve water quality are exempt from Section 404 dredge and/or fill permitting requirements under the CWA. Agricultural practices that qualify for this exemption include habitat restoration and establishment of riparian forest buffers.
What the proposed rule will not do: Although the proposed rule indicates the specific water bodies that will be protected under the CWA, the proposed rule does not protect any new types of waters that have not been historically covered under the CWA. Specifically, the proposed rule does not regulate groundwater nor does it expand the regulation of ditches. Thus, if a water body has not been previously covered under the CWA, that water body will not be covered under the CWA based on this proposed rule. Moreover, the proposed rule will not remove any exemption currently in the statute or regulations.
Why is the proposed rule beneficial for Georgia? The lack of clarity under current regulations has made it difficult to provide protection for water bodies throughout the country and in Georgia. According to EPA (see 15:03 mark), the lack of clarity hindered enforcement efforts in Lake Blackshear’s tributaries to protect water quality standards for recreation. Specifically, unhealthy levels of viruses and bacteria were found in the lake downstream of multiple concentrated animal feeding operations (CAFOs). In 2008, EPA determined two diary operations were violating the terms of their National Pollutant Discharge Elimination System (NPDES) permits, and issued enforcement orders and levied fines. Despite putting human health at risk, the CAFOs could not be held fully accountable because it was too complex to prove that the tributaries were protected under the CWA. The proposed rule defines tributary by establishing characteristics a water must have in order to be considered a tributary. By providing greater clarity for what is considered a tributary under the CWA, the proposed rule will make it easier to determine if an entity that discharges pollutants into tributaries that feed into a water body in Georgia is responsible for polluting “waters of the U.S.”
No Link Between WOTUS and Georgia’s stream buffers: Recent concerns have been raised over whether the proposed rule will expand stream buffer requirements for waters in Georgia. These buffers are a creature of state law, not the federal Clean Water Act. The stream buffer requirements set forth in the Georgia Erosion & Sedimentation Control Act (E&S Act) apply specifically to “state waters,” not to “waters of the U.S.” The E&S Act requires a 25-foot buffer for all state waters. State waters are defined by the E&S Act as “any and all rivers, streams, creeks, branches, lakes, reservoirs, ponds, drainage systems, springs, wells, and all other bodies of surface or subsurface water, natural or artificial, lying within or forming a part of the boundaries of the state which are not entirely confined and retained completely upon the property of a single individual, partnership, or corporation.” Hence, the proposed rule will not affect Georgia’s application of stream buffer requirements to “state waters.”
Furthermore, EPA has clarified that “waters of the U.S.” and “state waters” are separately defined. Because federal waters and state waters are separately defined, the proposed rule will not affect state water laws. The proposed rule preserves this federal-state partnership that was established under the CWA and, thus, will not affect state water laws.
For more information on mis-information spread by opponents to EPA’s proposal rule for WOTUS, visit: River Network’s blog; EPA’s “Ditch The Myth” portal; and this NRDC blog post and “tweet report card.”
The deadline for submitting public comments is October 20, 2014.
On August 26, 2014, the Georgia Environmental Finance Authority announced another round of awards from the Governor’s Water Supply Program (GWSP): $26 million in low-interest loans for three expensive reservoirs including at least one that self-identified as ‘un-needed.’ While the GWSP continues to shovel hundreds of millions of dollars into reservoir projects, the state minimizes direct investment in the most cost effective and timely solution: water conservation and efficiency. With all the money heaped on reservoirs, there is also another modest option on the table worth more study that the Governor’s office has avoided – raising Lake Lanier’s level by two-feet.
The GWSP: In January 2011, Governor Nathan Deal issued an executive order tasking the Georgia Environmental Finance Authority (GEFA) with the responsibility to develop the Governor’s Water Supply Program (GWSP). The GWSP was launched in November 2011 with the intention to disburse $300 million over four years in the form of low interest loans and state direct investment (SDI) for water supply projects to provide “an adequate supply of clean and affordable water” to communities in need of water security. [PDF page 1] GEFA was to administer the loans, and the Department of Community Affairs (DCA) was to budget for the SDI. In 2011 and 2012, and in consultation with Georgia State Financing and Investment Commission (GSFIC), all the parties agreed that SDI had to result in state ownership of a physical “definable asset with an appropriate fair market value and useful life,”  like land, a well, a water tower, or other real property. To date, the GWSP has committed over $250 million in loans and SDI to various projects.
Given the history and evolution of the GWSP detailed below, there is good reason to consider state investment in a long-talked about study to evaluate the prospect of raising Lake Lanier by two feet to add more than 25 billion gallons of supply to an existing reservoir. Combined with investment in aggressive water efficiency and conservation, it’s possible a deeper Lake Lanier could provide metro Atlanta with a significant layer of water security and meet other downstream needs.
Round I Update: In 2012, Round I of the GWSP simultaneously awarded $99,550,000 in loans and SDI. One awardee included an aquifer storage and recovery (ASR) project with a lot of baggage. Despite scoring a “zero” for need, GEFA invested $5 million in an ASR well located on the El Model Wildlife Management Area (in Baker County and Flint River basin). Now, GEFA and consultant CH2M Hill will begin drilling monitoring wells in order to extract core samples and assess geological and hydrological conditions in the Claiborne and Clayton aquifers. The core sampling analysis and results should be available in spring 2015.
Round II Update: In 2013, GEFA re-wrote the scoring criteria for Round II of the GWSP. Applicants no longer had to identify a “need;” they only had to indicate “the need is significant.” With that criteria in hand, GEFA awarded four loans totaling $38,800,000 on August 27, 2013 as a part of the Round II cycle. For the second part of the Round II cycle, GEFA decided to rewrite the scoring criteria again but only for SDI applications. Now, state direct investment awards do not have to result in state ownership of a physical asset – they can meet a vaguely defined “need of state significance.” The state now believes it can take ownership of water in the form of augmented flow or a “water supply yield” from a reservoir.
On November 6, 2013, GEFA announced an intention to award up to $40 million in SDI for three water supply reservoir projects (Carroll County/Indian Creek, Paulding County/Richland Creek and Hall County/Glades), and $5 million for a coastal water supply well and desalination demonstration project on Tybee Island. In order to determine how to disburse the $40 million for reservoirs, GEFA hired a consultant – the global firm Arcadis – to provide “overall reservoir project support consulting, validation of existing data for the projects, analyses of watershed level data associated with the projects, entitlement share support, and project cost analyses.” In other words, Arcadis will tell GEFA what type of asset the state would acquire with SDI in the Indian Creek, Richland Creek and Glades reservoirs.
Round III: In April 2014, four communities submitted applications seeking a combined $78,700,000 million from Round III of the GWSP to build new or expand old reservoirs. The GWSP Round III final awards were announced at the GEFA board meeting on August 26: $26 million will go to the three following projects.
Expansion and Stream Flow Augmentation: The Etowah Water and Sewer Authority (EWSA) was awarded a $10M GWSP loan. Beginning in 2008, EWSA started the process to obtain a U.S. Army Corps of Engineers Clean Water Act Section 404 permit for the Russell Creek Reservoir expansion project (Click here to read more about the 404 permit process and for a map including seven proposed reservoirs in Georgia). The EWSA initially asked for a $25,500,000 loan from the GWSP to expand a seventy-plus year-old Soil Conservation Service (now known as the Natural Resources and Conservation Service) reservoir originally built for flood control purposes. As described in the GWSP application, the existing eleven acre reservoir – located in the upper reaches of the Alabama-Coosa-Tallapoosa River Basin – would be expanded into a 137-acre pump-storage reservoir with an 11.5 MGD yield and the ability to “augment flow” downstream:
“The confluence of Russell Creek with the Etowah River is approximately 1.7-miles upstream of the Authority’s Hightower Water Treatment Facility [Etowah River intake]. The Russell Creek Reservoir will be used to augment flows in the Etowah River at times of low flow in the river to allow for increased withdrawal while maintain [sic] required minimum in-stream flows.” 
Unneeded Reservoir: The Carroll County Water Authority (CCWA) received a $10 million GSWP loan after returning to the trough for a third time to build a more than $110 million reservoir that even they admit is not needed. According to the applicant: “The unmet water demand for Carroll County will not be fully realized for several years.”  Regardless of the admitted lack of need, Carroll County initially asked for an $18,240,000 loan for the 640-acre pump-storage project. The Indian Creek Reservoir project will dramatically expand an old SCS/NRCS flood control reservoir.
GEFA awarded a GWSP Round II loan of $9 million to buy 1,300 acres and plan for expansion of the Indian Creek Reservoir (Little Tallapoosa/Alabama-Coosa-Tallapoosa River Basin). The applicant is also a finalist for an undetermined portion of $40 million earmarked for SDI in Round II. CCWA’s portion remains undetermined until GEFA’s consultant, Arcadis, ‘fact checks’ the project applicants’ claims, 404 permits applications and other materials to determine what the state would obtain in return for SDI. Perhaps the CCWA’s claim that the reservoir will augment flows at the state line during drought for the benefit of “interstate relations” is offered as a justification for SDI? 
A parting note of clarification for Indian Creek. While the applicant’s cover letter implied that all downstream Alabama stakeholders approve of the Indian Creek reservoir proposal , the cover letter apparently neglected to note that Alabama’s state Office of Water Resources identified significant objections, questions and issues with Carroll County’s Section 404 permit application during the public comment process in March 2010.
Serial Applicant: Paulding County asked for a $25 million loan; they got $6 million. As of 2014, the total projected cost – for the 305 acre pump-storage reservoir with an anticipated 35 MGD yield plus the 48-inch four-mile long raw water pipeline from Etowah River intake (located 8 miles downstream from Lake Allatoona) – hovers at $100 million. The county does not have any permits to build this reservoir. To date, Paulding County has received $60 million in GWSP monies, plus the Richland Creek Reservoir (Alabama-Coosa-Tallapoosa River Basin) is also a finalist for an undetermined portion of $40 million of Round II SDI monies.
Like every other proposed reservoir in Georgia that is in the Section 404 permit process, the Corps has asked Paulding County to revisit their population projections and reassess water need. Presumably in light of this re-evaluation, Paulding County’s identified water supply shortfall by 2050 has dropped by thirty-seven percent. In 2013 the county declared the 2050 shortfall would be 45 MGD, but only one year later the anticipated water supply shortfall is 28 MGD. With fewer people expected to move into the area plus an across the board per-capita reduction in water demand, the projected shortfall will continue to fall while the project’s rising costs are passed on to a limited pool of existing rate payers.
Reinvention Equals Delay: The lack of a true purpose and need for some of these proposed reservoirs is one of the dominating story lines in the GWSP’s narrative. For example, Indian Creek has been proposed as a tri-state water war mitigation tool. It’s also pitched as un-needed locally, and thus available as a larger regional supply until it is needed locally. However, selling itself now as a regional water provider with future plans to throttle back to local customers sounds like a recipe for sour intrastate relations. Indian Creek is beginning to look like another Glades: a project that continually reinvents itself.
Hall County’s current 404 Permit application for the proposed Glades Reservoir is at least the fifth version of the project proposed to state and federal agencies since 2007. During the summer of 2014, Hall County hit a speed bump when the Corps announced a delay in the release of a draft Environmental Impact Statement. One of the reasons: despite seven years and millions of dollars paid to consultants, Hall County has been unable to supply the Corps with the data necessary to complete the draft EIS process.
The Bigger Lesson: Continued state investment in projects with incomplete section 404 permit applications, or projects that cannot clearly identify critical details and provide data is a waste of taxpayer money. Furthermore, continued investment in money pits puts existing ratepayers and taxpayers on the hook for boondoggle projects.
What else might the state do with GWSP monies? During the 2011 General Assembly session (in March), the state legislature supported a budget line-item to study expansion of water supplies including the feasibility of raising Lake Lanier’s level by two feet. The study could answer the crucial question of what the cost-benefit analysis of gaining over 25 billion gallons of water storage might be. The anticipated cost of the study: a paltry $2,000,000. At the same time, the Governor’s Water Supply Program was begin designed as directed by the Governor’s January 2011 executive order. Opponents of the study – including the Governor’s office and Joe Tanner, who is a consultant for many counties proposing new reservoirs like Glades – argued that there was no state money for such a study and state money couldn’t be used to study a Corps managed project. After the session ended and less than eight months later, the Governor’s Water Supply Program was formally unveiled in November 2011.
Given GEFA’s ownership of multiple GWSP projects, the shifting definitions of what constitutes an asset, and the amount of money spent to date on non-existent reservoirs, it’s not inconceivable that the state could invest in a study of Lake Lanier’s capacity to meet the GWSP’s intention to provide “an adequate supply of clean and affordable water.” Furthermore, the Governor previously asserted that Georgia would begin dredging the Savannah Harbor with or without the U.S. Army Corps of Engineers’ help. Based on this line of thinking – and now that a state funding stream exists specifically for reservoir planning and expansion – the state should work with the Corps to initiate a Lake Lanier study to evaluate the risks and benefits of adding an additional 25 billion gallons to meet the needs of downstream communities, of lake users, and for municipal water supply. It’s certainly worth the investment to study how that particular water supply solution could benefit Georgia and its neighbors.