May 11 2010


U.S. Senator Richard Shelby (R-Ala.), today led the Alabama and Florida Senators in sending a letter to the Assistant Secretary of the Army for Civil Works, Jo-Ellen Darcy, to remind her of her previous unequivocal commitment to adhere to the current state of the law when updating the Apalachicola-Chattahoochee-Flint (ACF) River Basin water control plans and manuals.  A recent report by the Corps sets forth actions that contradict Darcy’s earlier commitment and conflict with the law.

The full text of the letter is below.

May 11, 2010


Honorable Jo-Ellen Darcy
Office of the Assistant Secretary (Civil Works)
Department of the Army
108 Army Pentagon
Washington, D.C. 20310-0108

Dear Secretary Darcy,

We are writing concerning the March 2010 Updated Scoping Report issued by the U.S. Army Corps of Engineers as part of the ongoing update of the water control manuals for the Apalachicola-Chattahoochee-Flint (ACF) River Basin.

In response to a letter that we wrote to you last August, your reply on September 11, 2009, recognized that Judge Magnuson’s July 17, 2009, decision in In re Tri-State Water Rights Litigation had found that the Corps had exceeded its authority in its operation of the Buford Dam and Lake Lanier project.  In light of Judge Magnuson’s ruling, you confirmed that “the Army is not in a position to reallocate water in Lake Lanier for water supply, absent Congressional action.”  Accordingly, you “unequivocally commit[ted] to [us] that the Army’s updating of the ACF water control plans and manuals will reflect the current state of the law” and that “[t]he Army will not use the process for updating the water control plans and manuals to propose or study any potential reallocation of water inconsistent with the court’s ruling.”

Unfortunately, there are statements contained in the Corps’ March 2010 Updated Scoping Report that cannot be reconciled with your unequivocal commitment.  Although the Updated Scoping Report recognizes, as you did, that Judge Magnuson found current water supply operations to be illegal, the report goes on to state that the “current operations provide an environmental baseline as the no-action alternative under NEPA.”  Similarly, the report recounts the Corps’ plans to “evaluate present circumstances” and states that the updating process “will provide a way to capture the Corps’ current operating environment.”

These statements by the Corps are inconsistent with your commitment that the updating of the ACF water control plans and manuals “will reflect the current state of the law.”  The Corps should not be labeling operations that have been found to be illegal as the no-action alternative.  The no-action alternative would be the operations that would remain in place if the Corps did not implement its proposed action.  In the present circumstances, the proposed action is the updated ACF water control plans and manuals.  If for any reason the Corps failed to update those plans and manuals that would not give the Corps the authority to continue an illegal set of operations.

The fact that Judge Magnuson’s decision included a provision that allowed the Corps to maintain current operations for three years from the date of his opinion should not be used to justify the Corps’ statement of its intent to evaluate illegal water supply operations as a baseline, no-action alternative.  The Corps is not updating its plans and manuals to operate between now and July 17, 2012.  Instead, the Corps is updating its plans and manuals for long-term operations in the ACF River Basin, operations that must be consistent with the law.

Only Congress can authorize a reallocation of storage at Lake Lanier for water supply.  Yet, without any such authorization, the Corps’ Updated Scoping Report indicates that the Corps has chosen to evaluate the very water supply operations that Judge Magnuson has found to be illegal. Labeling an operations alternative that has been rendered illegal as the “no-action” alternative is inconsistent with your commitment that the process would “reflect the current state of the law.”

We are concerned that the Corps is repeating its pattern of showing favoritism toward Georgia through its operation of the reservoirs in the ACF Basin.  Doing so can only serve to disrupt the efforts by the three States to negotiate a permanent resolution of the controversy.  The Corps does not appear to be abiding by your commitments, and we request that you take steps to see that it does.

We look forward to your prompt response.



Richard Shelby                                                                                  Bill Nelson


Jeff Sessions                                                                                   George LeMieux