Maj. Brad CarverHall Booth Smith & Slover, P.C.1180 W. Peachtree Street, Suite 900Atlanta, Georgia 30309Email: BCarver@hbss.net Phone: 404-954-6967

Water for GeorgiaBriefing for 2010 ACCG Annual Meeting: County Attorneys Breakfast

Hall Booth Smith & Slover, P.C.

MNGWPD Projections 2030Population 4 M to 8 M

NW GA in Four River Basins

Water Supply Watersheds

–Tennessee

(6% of Upper Tn River in GA)

- Coosa

- Tallapoosa

- Chattahoochee

NW GA to Double in 20 Years

548,220

697,410

923,778

1,266,578

1,727,127

2,121,350

2,585,805

0

500,000

1,000,000

1,500,000

2,000,000

2,500,000

3,000,000

1980 1990 2000 2010 2020 2030 2040 2050 2060Year

Po

pu

lati

on

What’s Beyond 2020 or 2030?

• Options in Consideration:– Savannah River (Local opposition)– Desal. in Savannah, Pump to Atlanta

• Sea Level to EL 1000, 200+ miles?

– Streamline Reservoir Implementation

• A Major Additional Source– Tennessee River at Nickajack Reservoir

• Pool EL 634+/-, <100 miles

Tennessee River at Nickajack

Prior Voluntary Access Attempts Unsuccessful• ARC approached TAWC Chattanooga to

purchase water from TN River

• Tennessee responded with Inter-Basin Water Transfer Act of 2000– Prohibited IBT w/o TDEC Permit– Expressly in direct opposition to Metro Atlanta

growth

Originally Riparian to the Tennessee River – North Border “35th Parallel”

Jedediah Morse Map 1796

35o

1835 Map of AL and MS Territory

35o

• Cession of Western Land April 24, 1802• 35th Parallel Clearly Indicated Border• Expressly Intersects Tennessee River

– “then in a direct line to Nickajack on the Tennessee River, then crossing the said last-mentioned river, and thence running up the said Tennessee River and along the Western bank thereof to the southern boundary of the State of Tennessee…”

GA Ceded Mississippi Territory to the United States in 1802

Faulty Survey of 1818

• Border Commission est. by TN and GA

• Mistakenly located 35th Parallel

• Georgia has never accepted current border – still refer to 35th Parallel

• Multiple attempts since by GA to resolve refused or ignored by TN

• State of Tennessee established after GA• U.S. Constitution, Article IV, Section 3

– New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

• No such Consent ever granted

Current Border Unconstitutional

GA Has Original Sovereign Riparian Rights and/or Federal Reserved Rights in TN River• Sovereign Riparian rights not lost by nonuse nor

subject to regulation by adjacent states (VA vs. MD, US Supreme Court, 2003)

• TVA has duty to implement federal promise to GA in Cession Agreement, using its own riparian rights if needed, analogous to federal reserved water rights doctrine

• FRWR supersede prior appropriation, riparian, and other rights (Laitos, 1985)

FERC Order Granted GA Authority

• 1981 FERC decision confirmed 1974 agreement with TN that GA has sole jurisdiction over gas utility in the disputed strip

• TN PSC expressly stated GA border still in dispute

In Re Atlanta Gas Light Company, Docket No. CP71-221, 15 FERC P 61240.

GA Duty to Augment

Equitable apportionment doctrine imposes “affirmative duty to take reasonable steps to conserve and augment the water supply of an interstate stream."

Colorado v. New Mexico, 459 US 176, 183, 185 (1982) (emphasis supplied).

TVA Marginal Strip

TVASystemMap

Current Marked Border

35th Parallel Intersects TN River

US Army COE Navigation Chart No. 63

Aerial Photo 1999 USGS

TN

GA

Current Borders Approximate

AL

Cole City Creek

Access Considerations

• Marginal Strip can be used for supply

• Appendix D-9, Final Reservoir Operations EIS (Feb, 2004):– Sensitivity analysis assumed 264 mgd (<1 % of flow) for

Metro Atlanta, concluded “IBTs not likely to substantially affect future reservoir elevations…” “no effects on mainstream reservoirs…”

Topographical Map 1982 USGS

35o

Approx.1 mile

View of Nickajack from Dade Co

Questions / Discussion

Regional Water Council Planning Update

Dargan “Scott” ColeHall Booth Smith & Slover, P.C.191 Peachtree Street, Suite 2900

Atlanta, Georgia 30303Email: DSCole@hbss.net Phone: 404-954-6924

Background2004: The Comprehensive State-wide Water Management Planning Act mandates the development of a state-wide water plan that supports a far-reaching vision for water resource management:

"Georgia manages water resources in a sustainable manner to support the state’s economy, to protect public health and natural systems, and to enhance the quality of life for all citizens" (O.C.G.A. 12-5-522(a)).

2008: General Assembly Adopts the GeorgiaComprehensive State-wide Water Management Plan(State Water Plan) and solicits nominations toRegional Planning Councils.

2009: Georgia Environmental Protection Division(GA EPD) of the Department of Natural Resourcesinitiates the Regional Water Planning Process.

Regional Water Planning Councils

The Regional Water Planning Councils are charged with developing a recommended Water Development and Conservation Plan for their Region for submittal to EPD by January 31, 2011.

Water Development and Conservation Plan

Elements1. Introduction

2. The XYZ Water Planning Region

3. Water Resources of the XYZ Planning Region

4. Forecasting Future Water Resource Needs

5. Comparison of Available Water Resource Capabilities and Future Needs

6. Addressing Water Needs and Regional Goals

7. Implementing Water Management Practices

8. Monitoring and Reporting

Responsibilities:• EPD and its contractors will:

– Compile a set of water resource assessments which define the capabilities of the region’s water resources in terms of water supply and capacity to assimilate pollution,

– Assist the Regional Water Planning Councils to forecast the needs for water supply and assimilative capacity within each region, and

– Participate with the Regional Water Planning Councils in developing a Water Development and Conservation Plan for each region.

Responsibilities:• The Regional Water Planning Councils will:

– Assist EPD and its contractors to forecast the needs for water supply and assimilative capacity within each region,

– Identify management practices to be employed to ensure that the forecasted regional water and wastewater needs can be met without exceeding capabilities, and

– Participate with EPD and its contractors in developing a Water Development and Conservation Plan for each region.

What does this mean for my County?

• Once adopted the Regional Water Development and Conservation Plans:

– Will be implemented by the water users in the water planning region, and

– EPD will make water permitting decisions based upon the plans.

Progress to Date: Water Demand Forecast

• Water Demand Forecasts (water and wastewater)– Population Projections updated March 12, 2010– Draft water demands for municipal, industrial, and agriculture

uses have been developed– Presented at council meeting #5– Energy water use forecasts are still in preparation– Based on feedback, planning contractors will finalize the

forecastsBase

Year Per Capita Water

Demand

Future Populatio

n

Future Water Need

Region Specifi

c Factor

s

Progress to Date: Water Resource Assessments

• Resource Assessments completed for “existing” conditions– Surface Water Quantity– Groundwater Quantity– Surface Water Quality

• Draft synopsis reports are available on the State Water Planning web site: www.georgiawaterplanning.com

Progress to Date: Water Resource Assessments

• Resource Assessments for “existing” conditions:

– Surface Water Quantity: Water demand (off stream needs) and Flow Regime (instream needs) can be fully met by available water resources.

– Groundwater: The sustainable yield of the Upper Floridan, Cretaceous, and Crystalline rock Aquifers are greater than existing withdrawals. However, it may be difficult to get sustainable yields from the Crystalline Rock in the Piedmont.

Progress to Date: Water Resource Assessments

Water Quality:

Most streams have additional assimilative capacity available, however, there are streams with limitations.

Nutrient loadings to the lakes will need to be addressed.

Identification of Gaps(Related to groundwater availability, surface water availability, and assimilative capacity.)

Management Practices

To “close” the gaps, region-specific Management Practices will be selected by the Regional Water Planning Councils for implementation by the water users in the region and for use by EPD in water permitting decisions.

Examples of Water Supply Measures:

• Public Education• Conservation (a priority management practice)• Reservoir• Desalination• Interconnection• Reuse• Return flows• Growth Strategies/Ordinance

Note: for illustrative purposes only, not a complete list.

Examples of Water Quality Measures:

•Point Source Examples –– Wastewater Treatment Facilities– Septic systems– Secondary Treatment Technologies

and Land Application– Advanced Treatment Technologies– Reuse

Note: For illustrative purposes only, not a complete list.

Examples of Water Quality Measures:

• Non-point Source Examples -• Watershed Protection and Monitoring• Growth Strategies• Stream Protection Program• River Corridor Protection• Conservation Zoning• Septic Tank Maintenance • Erosion and Sedimentation Control• Livestock Access Limitations• Public Education

Regional Water Planning: Work Flow

CM3Vision

Synthesis2050 Planning Horizon

Next Steps

1. Finalize Water Demand Forecasts

2. Complete Resource Assessments for Future Conditions

3. Identify Management Practices to Meet Demands

4. Develop Regional Water Development and Conservation Plan

We are here.

Planning Schedule

How can you participate? GA EPD is accepting public comments on the Draft Resource Assessments through mid-May: http://www.georgiawaterplanning.org/news/ DraftWaterResourceAssessmentsforReviewandComment.php

Encourage your elected officials and water professionals to review the resource assessments and communicate with the Regional Water Council members regarding the adoption of Management Practices.

If you know of a local government, utility or non-profit water resource plan that would help inform the development of the WDCP, forward them to your Regional Council. Examples would include:

• Water Supply or Wastewater Master Plans• Rate Studies• Watershed Management or Protection Plans• Stormwater Management Plans (MS4 SWMPs)

Questions & Answers

Dargan “Scott” ColeHall Booth Smith & Slover, P.C.191 Peachtree Street, Suite 2900

Atlanta, Georgia 30303Email: DSCole@hbss.net Phone: 404-954-6924