Water Litigation Overview
WATER LITIGATION OVERVIEW:
KEY ISSUES AND CONCEPTS
Douglas A. Henderson Ph.D., Esq.
TROUTMAN SANDERS LLP
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Water Litigation Overview
What kinds of
lawsuits can address
these conditions?
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Water Litigation Overview
Key Questions
Question
Facts
1. Who is the plaintiff?
USA, State, regulatory agency, local government, nongovernmental entity, private party?
2. Who is the defendant?
USA, State, regulatory agency, local government, nongovernmental entity, private party?
2. What type of water?
Surface water, groundwater, river, wastewater, harbor,
reservoir, coastal?
3. What kind of issue?
Water quantity, water quality, or both?
4. Does it involve a permit?
NPDES, NPDES construction stormwater, surface water
withdrawal, groundwater withdrawal?
5. Is it a “Citizen Suit?”
CWA or RCRA?
6. Does it involve criminal
behavior?
Federal or State?
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Water Litigation Overview
Example Water Litigation #1:
State (Florida) v. State (Georgia)
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Four Legal Issues in Water Wars:
Water Litigation Overview
1. Whether purpose of Corps of Engineers’ reservoirs (e.g.,
Lake Lanier, etc.) is for “flood control” or for “water
supply;”
2. Whether the Corps’ revisions of its Water Control
Manual (the Corps’ procedure for operating its
reservoirs) adequately permits needed river flows
downstream;
3. Whether Georgia is consuming too much water in
relation to Alabama and Florida, and
4. Whether decreased flows from Georgia are damaging
the environment in Florida.
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Tri-State Water Wars: Reference
1989
Water Litigation Overview
2013
2014
After several droughts, Corps considers increase in storage at Carters Lake, Lake Alatoona, and Lake Lanier so
local governments can withdraw more water
Georgia filed 404 permit to construct West Georgia Regional Reservoir
Alabama filed lawsuit to stop Corps plans to increase water withdrawals
Numerous similar lawsuits by other parties
States enter into ACF and ACT Compacts to allocate water among parties
Southeast Federal Power Customers (SeFPC) sues Corps claiming decreased flow reduced hydropower available
to Customers
Georgia files suit to force Corps to reallocate water to local governments
Alabama and Georgia agree on draft allocation, but deadline passes and ACT and ACF Compacts terminated
Florida intervenes in lawsuits and injects Endangered Species Act issues into litigation
DC Circuit rejects settlement among SEFPC, Corps, State, and Water Providers, holding that Congress must
approve “major operational changes”
All lawsuits transferred to Judge Manguson who decided Corps could not use Lanier for drinking water and
issued injunction stopping further use of Lanier
Georgia Water Stewardship (conservation) enacted
Eleventh Circuit reverses Judge Mangunson—Corps can allocate water in favor of “water supply” and court
instructs Corps to consider water supply requests
Florida sues Georgia, seeking “equitable allocation” of water to protect mussels
Flint River Drought Protection Act enacted in Georgia
2014
2014
2015
2015
2015
2015
Supreme Court agrees to hear Florida case alleging impact to mussels/appoints Special Master
Georgia sues Corps to force quicker action on final revisions to Water Control Manual for ACF and ACT
Corps issues its revised Water Control Manual for Lake Allatoona
State of Alabama challenges Corps to dispute Water Control Manual as being “arbitrary and capricious”
Alabama Power sues Corps to dispute WCM
Georgia files amended lawsuit to dispute Corps release of WCM for Lake Allatoona
1990
1990
1990-2000
1994-1997
2000
2001
2003-2004
2003
2008
2007-2009
2009
2011
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U.S. Supreme Court: Florida v. Georgia
Water Litigation Overview
 2013: State of Florida sues State of Georgia in the U.S. Supreme Court.
 Florida alleges Georgia is using too much water.
 Florida alleges decreased flows in Chattahoochee River are harming
mussels in Appalachicola Bay.
 Case now moving through legal process before Special Master.
 Litigation ongoing with focus being river flows and reservoir construction
 Recently, Georgia alleged case should be dismissed because the Corps was
not a party, and the Special Master found the relief sought by State of
Florida, a limit on consumption in Georgia, could be granted without
involving the Corps—if Florida sought minimum flows in the
Chattahoochee, then the Corps would be involved.
 Special Master concluded not legally critical to involve Alabama in the ACF
lawsuit by Florida v. Georgia
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Water Litigation Overview
Background: How Interstate Water Disputes Can be Decided
1.
2.
3.
4.
5.
Congress can enact laws to allocate water (hasn’t happened to date for ACT/ACF);
States can agree to voluntary solutions (e.g., compacts) (failed for ACT/ACF);
Private parties can force decisions (e.g., stop harm to mussels) (no real action);
Corps of Engineers decides as administrative matter (e.g., set water control) (still pending);
Supreme Court decides if dispute between states (e.g., “equitable allocation”) (current action)
U.S. Supreme Court Approach to Water Disputes
1. Supreme Court hears case based on its “original” jursidiction—between states it will “equitably
allocate” water. Georgia-Florida dispute is only #148 in US history for original jurisdication
2. Supreme Court will act as a trial court to consider facts and rule on law
3. Supreme Court appointed “Special Master” who will be key decision maker
4. Special Master will make recommendations to Supreme Court.
5. Court can accept or reject Special Master recommendations
6. Supreme Court will equitably allocate water
Equitable Allocation Considerations
1.
2.
Florida must prove “by clear and convincing evidence of some real and substantial injury or damage”
In equitably allocating water, Court will consider numerous issues
 Harm by Current Allocations
 Beneficial Use of Water
 Future Uses of Water
 Balance of Benefits and Harms
 Conservation efforts undertaken in respective States
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Water Litigation Overview
Example Water Litigation #2:
State (Georgia & Alabama) v. Agency (Corps)
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Water Litigation Overview
Corps’ Authority to Manage Federal Reservoirs
 1952: Corps developed WCM ACT Basin,
periodically updated
 For the last decade, Corps updating its
Water Control Manual for ACT Basin.
 Corps completed detailed environmental
studies and undertook detailed analysis of
water.
 May 4, 2015: Corps issues “final” Revised
Water Control Manual for ACT Basin.
 Essentially, kept flows and reservoir levels
in Allatoona at same levels.
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Water Litigation Overview
State of Alabama Sues Corps of Engineers
May 7, 2015: State of Alabama files lawsuit against Corps in Federal
District Court for the District of Columbia
General Allegations
 Flows permitted by Corps are insufficient for the needs of the State of
Alabama.
 Corps relied on 2008 data to model 2030 demand and “understates
foreseeable water demand.”
 Corps “failed to consider a proper analysis of the environmental effects of
diminution in River Flows” if the Corps operates Lake Allatoona to
produce the minimum hydropower generation authorized under the
Corps Water Control Manual.
 An “accurate cumulative-effects analysis” would have shown that the
Corps Water Control Manual “are substantially greater than the Corps’
assessment in its Final Environmental Impact Assessment.”
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Water Litigation Overview
State of Alabama’s Four Legal Claims
Count I: Corps’ final revised Water Control Manual “unlawfully
abandoned and reordered” the “project purpose” of Lake
Allatoona
Count II: Corps’ final revised Water Control Manual “violates the Clean
Water Act” by not protecting “water quality standards”
downstream
Count III: Corps violated the National Environmental Policy Act (“NEPA”)
by failing to identify and evaluate critical environmental
impacts associated with the Corps’ final revised Water Control
Manual
Count IV: Corps violated Administrative Procedure Act by taking action
that was “arbitrary and capricious” and “not in accordance with
law”
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Water Litigation Overview
State of Georgia/ARC/Cobb County Renew Lawsuits
Against Corps of Engineers
 November 7, 2014: State of Georgia and ARC/Cobb County filed
lawsuits requesting Corps take action to finalize Water Control
Manual revisions for ACT Basin.
 May 4, 2015: The day the Corps issued its “final” Revised Water
Control Manual, the State of Georgia filed an “amended complaint”
against the Corps.
 Georgia alleges Corps is not holding back enough water.
 Georgia’s position directly contrary to State of Alabama’s complaint.
 Georgia also alleges Corps failed to account for Hickory Log Creek
reservoir completed in Cobb County in setting standards for flow and
reservoir levels in NW Georgia.
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Water Litigation Overview
Example Water Litigation #3:
Environmental Organization v. Industry
CWA Citizen Suits
Any citizen may commence a civil action against any
person who is alleged to be in violation of an effluent
standard or limitation under the CWA. 33 USC 1365
Translation: Discharging a pollutant without a permit or
discharging a pollutant in violation of a permit
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Water Litigation Overview
CWA Citizen Suit Notice Procedures
 Plaintiff must give 60-days prior notice to the EPA,
the state where alleged violation occurred and to
the alleged violator. 33 USC 1365(b)

Notice must include “sufficient information to permit
the recipient” to identify:
 the specific standard, limitation, or order allegedly
violated;
 the activity constituting a violation;
 the person(s) responsible for the violation;
 the location of the violation;
 the date(s) of such violation;
 the full name, address and phone number of the
person giving notice.
40 CFR 135.3(a)
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Water Litigation Overview
Common Defenses to CWA Citizen Suits
1. “Diligent prosecution”—has the government
stepped up?
2. “On going violations”—is the problem
continuing?
3. “Permit shield”—were the “pollutants”
disclosed and considered by agency?
4. “Not a navigable water”—is “discharge” to
“groundwater” covered by CWA?
5. “Time limits”—how long do you have?
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Water Litigation Overview
Remedies Under CWA Citizen Suits
Injunctive Relief
• An order by the court to take action or not take action
• Research project (at UGA, Georgia Southern, etc.)
• Discretion of Court
Attorney Fees
• Awarded to the “prevailing or substantially prevailing
party, whenever the court deems such an award
appropriate”
• Must advanced the goals of the CWA
Civil Penalties
• Currently $37,500 per day per violation
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Water Litigation Overview
CWA Citizen Suit in Peachtree City
Mrosek v. Peachtree City—11th Cir.
 Property owners sued City for alleged
violation of Clean Water Act stormwater
permit requirement
 District Court found CWA citizen suit notice
was defective, dismissing the case
 Held: reversed
 Pre-suit notice identified specific limitations
alleged to have been violated, conduct
causing the violations, and listing property
individuals
 Remanded for factual determination
Mrosek v. City of Peachtree City, 539 Fed. App’x 938 (11th Cir. 2013)
Water Litigation Overview
NPDES “Contract” Interpretation
Altamaha Riverkeeper, Inc. v. Rayonier—S.D. Ga.
 Riverkeeper alleged Georgia EPD failed to properly
enforce Georgia water standards against Rayonier.
 Issue: Does Rayonier’s NPDES permit incorporate
Georgia water quality standards for color, odor, and
turbidity?
 Court analyzed the NPDES permit like a contract.
 Concluding intent of the parties unclear.
 Held: cannot assume the parties meant to
effectuate meaning of the Clean Water Act.
 Court found that the NPDES permit did not include
EPD WQS
Altamaha Riverkeeper, Inc. v. Rayonier, Inc., No. CV 214-44, 2015 U.S. Dist. LEXIS 42849 (S.D. Ga. Mar.
31, 2015)
Water Litigation Overview
Citizen Suits for Groundwater Discharges
under the Clean Water Act?
1. Direct discharges to WOTUS?
2. Groundwater discharges?
3. “Isolated groundwater” v. “hydrologically connected”
groundwater?
4. Majority rule
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Water Litigation Overview
Example Water Litigation #4:
Administrative Water Litigation
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Water Litigation Overview
Administrative Water Litigation:
1.
Agency v. Permittee (e.g., failure to
maintain BMPs, NPDES permit
exceedance, etc.)
2.
Permittee v. Agency (e.g., NPDES permit
denial, new effluent limitation, etc.)
3.
Third Party v. Agency (e.g., Sierra Club
challenges newly issued NPDES permit,
etc.)
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Water Litigation Overview
Georgia Groundwater Withdrawal Permit
1. Pre-Permit Negotiations
2. Permit Issued
3. Challenge to Permit Terms and Conditions
4. Filed at Georgia Office of State Administrative Hearings
5. Before Administrative Law Judge
6. Special Rules and Procedures
7. Need to Exhaust of Administrative Process
8. No Challenge unless “final agency action”
9. After ALJ decision, appeal available in Superior Court
10. Stay of Permit pending appeal?
11. Then to Court of Appeals
12. Time: ?
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Water Litigation Overview
Example: Agency Wrestling with Wrested Vegetation
Turner v. Georgia River Network
 In 2010, Grady County received federal approval to construct a
960-acre fishing lake, which entailed building a large dam.
 EPD granted variance to disturb stream buffer affected by
project, but variance did not address wetlands.
 Issue: does Georgia state buffer protection apply to state
waters or only waters with wrested vegetation?
 Holding: Buffer law only applies to state waters with wrested
vegetation.
 So no buffer variance required for filling in wetlands under
State law.
Turner v. Ga. River Network, 2015 Ga. LEXIS 438 (Ga. June 15, 2015)
Example Water Litigation #5:
Water Litigation Overview
“Tort” Water Lawsuits
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


Trespass
Nuisance
Negligence
Strict Liability
1. After paving, increased surface
water flow floods neighbor
2. Creek stops after creation of
up-stream damn installed
without a permit
3. Dry cleaner solvent release
contaminates groundwater
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Water Litigation Overview
Groundwater Tort Litigation
 Dry Cleaner
Releases PCE
 Adjacent Property
Owner Sues for
Property
Devaluation
 What claims
typical?
 What Defenses?
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Example Water Litigation #6:
Water Litigation Overview
Water “Management” Lawsuits
 Water sharing agreement
 Allocation agreements
 Log ownership?
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Water Litigation Overview
Water Distribution Agreement
Jackson County v. Upper Oconee Water Auth.—Ga. App.
 County and Water Authority entered into a 50year agreement to construct reservoirs and treat
and transmit water to Counties.
 Issue: Does term “Established Yield” in a contract
obligate the Authority to recalculate the yield
based upon changing drought data?
 County said 58 MGD ≠ 24 MGD (with drought)
 Ruling: “[L]anguage used must be afforded its
literal meaning and plain ordinary words given
their usual significance.”
 Held: plain-meaning of term did not obligate
Authority to recalculate, so the Authority’s
refusal did not violate agreement.
Jackson Cnty. v. Upper Oconee Basin Water Auth., 330 Ga. App. 11 (2014)
Water Litigation Overview
Dam Ownership
Crabapple Lake Parc v. Circeo—Ga. App.
 HOA challenged Superior Court order finding
no access to dam
 Superior Court found 20-foot maintenance
and access easement did not authorize
general access to lake for all HOA members
 Other owners provided access to “common
areas,” which did not include dam
 Held: affirmed easement interpretation but
found question of fact on whether dam
necessary for enjoyment of maintenance and
access
Crabapple Lake Parc Cmty. Ass’n v. Circeo, 325 Ga. App. 101 (2013)
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Water Litigation Overview
Down the River Logs
Aqua Logs v. Lost Abandoned Logs
 Dispute over decades-old logs lodged in Flint River ($)
 Issue: Can Aqua Log take title of logs?
 Abandoned goods found embedded in property belong to
the owner of the property and may be GA property if meet
definitions under Submerged Cultural Resources Act.
 Court found logs not “embedded” because State could not
prove with specificity bottom sediments covered the logs.
 Salvage law does not apply because it only protects property
lost in a marine environment, and logs abandoned.
 State did not exercise constructive possession over logs
because it did not have “power, dominion, and control” over
them.
 So, Aqua could harvest logs.
Aqua Log v. Lost and Abandoned Pre-cut Logs and Rafts of Logs, 2015 U.S. Dist. LEXIS 40871 (M.D.
Ga. Mar. 31, 2015)
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Water Litigation Overview
Water Litigation Common Theme:
Experts are Critical
• Experts critical to water litigation
• Surface water flow, “pollutant” monitoring, fisheries biology,
sediment studies, hydrogeology, wetland delineation, etc.
• Generally, experts need certain qualifications and satisfy
certain known as “Daubert”
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Take Aways
Water Litigation Overview
1. Water Litigation today is #1 in Environmental
Litigation
2. Numerous requirements and procedures
3. Litigation is adversarial, expensive, and
difficult
4. Facts matter
5. Water litigation will continue to be #1
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Water Litigation Overview
Douglas A. Henderson Ph.D., Esq.
Troutman Sanders LLP
600 Peachtree Street, Suite 5200
Atlanta, Georgia 30308
404-885-3479
douglas.henderson@troutmansanders.com
This presentation does not constitute legal advice.
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