Comments of the TriState Conservation Coalition on the draft Alabama-Coosa-Tallapoosa (ACT) Allocation Formula dated May 2003

TRISTATE CONSERVATION COALITION
The Bradford Building  · 2027 2^nd Avenue North · Suite A
Birmingham  · Alabama, 35203
(205) 322-6395 · fax (205) 322-6397 

July 3, 2003

Onis “Trey” Glenn, III
Division Director
Office of Water Resources
Alabama Department of Economic and Community Affairs
401 Adams Avenue, Suite 434
Montgomery, Alabama 36104

Harold Reheis, Secretary
ACT River Basin Commission
Georgia Department of Natural Resources
Floyd Towers East, Suite 1252
2 Martin Luther King Drive
Atlanta, Georgia 30334

Dear Mr. Glenn and Mr. Reheis:

Enclosed you will find the comments of the TriState Conservation Coalition (member list attached) regarding the May 1, 2003 Draft Initial Water Allocation Formula for the ACT River Basin Compact.  These comments revise and extend those made on behalf of the Coalition at the Public Hearings held in Montgomery, Alabama and Cartersville, Georgia on June 10 and June 12, 2003, respectively. 

There is no doubt that equitably apportioning the waters of the ACT Basin between the States of Alabama and Georgia, while protecting and restoring its aquatic ecosystems and all of the values they sustain, is indeed a challenging task.  After five and one-half years of formal negotiations to derive an allocation formula according to the guidelines of the ACT Compact, our stakeholder groups had high expectations that necessary improvements would have been incorporated into the July 6, 2001 draft proposal.  Stakeholders also expected that such changes would be appropriately vetted through ACT Committee meetings and technical meetings involving State and Federal agency representation as well as stakeholder participation by non-governmental organizations and individuals, as was done with previous proposals.  Such was not the case with the version at hand. 

In our view, the major substantive changes revealed in this Draft coupled with the total absence of any scheduled ACT Committee or technical meetings involving public participation since the Draft was issued, raise serious questions about not only the efficacy of the allocation provisions proffered, but also the extent to which the Governors are committed to ‘get it right’ and not just to “get it over with” for political expediency.  The future economic prosperity and quality of life in both States depends on getting it right.  Unfortunately, both substantively and procedurally, we believe this latest offering is neither right nor headed in the right direction. 

To that end, the Coalition believes that sufficient time must be taken by the Commission to assess the adequacy of the substantive provisions of this Draft and to answer questions that have been raised by our group and other stakeholders during the public comment period.  As done with prior drafts, we believe the public deserves the benefit of analyses by appropriate State and Federal agencies as well as independent expert scrutiny.  Accordingly, we urge the ACT Commission to extend the public comment period at least an additional 180 days.  During this period we request that ACT Committee and technical meetings be held with full public participation to address the current proposal’s merits and apparent shortfalls, again, as has been done with past proposals.  These meetings should also include state and federal agency presentations of their perspectives regarding the Draft.           

From our preliminary assessment of the Draft, the enclosed comments convey what we believe are important questions that must be answered and shortfalls that require resolution before this offering rightfully complies with the general intent and specific mandates of the ACT Compact.  We respectfully request a response prior to the final approval of the Draft by the governors. 

Until these concerns are addressed sufficiently, the Coalition concludes that the pending agreement neither equitably apportions the Basin’s surface waters nor provides for the protection of the Basin’s water quality, ecology and biodiversity as mandated by the ACT Compact.  Moreover, the current Draft fails to address the inadequacy of the reasonable use standard as a ‘top-side’ protection measure--the efficacy of which has been rebuked in legal analyses as well as by Mr. Jim Campbell (then Alabama’s Alternate ACT Commissioner) after the July 6, 2001 draft was released for review and comment. 

Great progress has been made over the years understanding the complexity of issues surrounding basin-wide management of the ACT Basin’s surface waters.  We must work together to further our understanding and strengthen the procedural means to resolve contentious issues.  Time is on our side to do it right.  Hopefully, the Commission will take the time to do so.  

Respectfully Submitted

Adam R. Snyder

Chairman for the ACT Basin, TriState Conservation Coalition
Executive Director, Alabama Rivers Alliance  

Attachment: TriState Conservation Coalition Member List

Enclosure:  TriState Conservation Coalition Comments Regarding the May 1, 2003 Draft  ACT Allocation Formula Agreement for the Alabama-Coosa-Tallapoosa River Basin

TriState Conservation Coalition Comments on the May 1, 2003 Draft Initial Water Allocation Formula for the ACT River Basin Compact 

TriState Conservation Coalition Comments

July 3, 2003 

Over the past five years, the TriState Conservation Coalition has represented a network of 46 local, state and national conservation organizations with interests in the ACT and ACF Basins. The Coalition is committed to the protection of both Basins’ surface water quality, ecology, biodiversity, and related recreation resources.  Throughout the allocation negotiations our group has encouraged active stakeholder participation to ensure Compact mandates are fulfilled.  

The time allotted for public analysis has been short, and in many regards, insufficient.  As of the writing of this letter we have not yet had the benefit of any analysis from the federal agencies.  We eagerly await their comments and hope that you will give their concerns the utmost consideration.  

Our comments regarding the draft ACT Allocation Formula Agreement focus on whether or not the provisions in the current Draft answer the following questions: 

·        Does the May 1, 2003 draft ACT Allocation Agreement equitably apportion the Basin’s water resources and provide adequate, objective measures to ensure compliance with the allocation, especially during dry cycles (seasonal and drought)? 

·        Does the draft Agreement protect the Basin’s surface water quality, aquatic ecosystems, and recreation resources? 

·        Have unresolved issues and questions raised during the public review process been addressed sufficiently? 

Our preliminary analysis indicates that, under this Draft Formula, flows in the Basin will be consistently lower, which will lead to negative impacts on the water quality, ecology and biodiversity of the Basin.  Such a significant departure from historic flow regimes may well lead to the demise of particular endangered species.   Further, the continual low flows endorsed in the Draft will undoubtedly contribute to lowering the water quality currently existent in the rivers of the Basin, unless significant revisions are made to all NPDES Permits issued in the Upper ACT Basin. 

The TriState Conservation Coalition submits the following assessment of the 1 May 2003 Draft Allocation Formula Alabama-Coosa-Tallapoosa (ACT) Basin (“Draft” or “Formula”).  In order for the Formula to meet the Compact’s stated purpose to protect the water quality, ecology and biodiversity of the basin (Article VII), provisions must be made for maximum depletions, low flow protection, public involvement, monitoring, strong adaptive management, and federal agency involvement in drought planning.  Without improvement in these areas we are concerned that the Formula will not surpass the requirement of being better than no agreement at all.  

Our comments are discussed under the following five topics:

1. Top-Side Protection

2. Minimum Flow Scenarios

3. Monitoring and Reporting

4. Public Involvement

5. Drought Plan

[NOTE:  The shortfalls listed below describe aspects of the current draft proposal we deem unacceptable and our comments include supporting rationale based on preliminary analyses done within the time afforded.  For each issue, we provide specific recommendations or conceptual suggestions to assist you in developing a proposal that we can support.  The Coalition continues to endorse the management philosophy and recommendations offered in our May 30, 2002 Comment letter regarding the July 6, 2001 proposal with exceptions as noted below pertaining to changes made in the May 1, 2003 Draft.[1]]

Shortfalls and Recommended Remedies 

1.      ‘Top-side protection’ against flow depletion is neither equitable nor adequate.    

Without any requirement for maximum depletions, the Draft robs the State of Alabama and other downstream interests of any protection against net depletion of the interstate resource due to future unlimited consumption levels.  A stream’s hydrologic regime functions as a critical, “master” variable that controls factors such as biological diversity and species distribution.  As stated by the Federal Agencies on their Concept Document of April 8, 2003: “The frequency and duration of low flow events, which affect water quality, threatened  and endangered species, inter-jurisdictional fisheries, and other water dependent resources protected by federal law, are strongly influenced by depletions.” 

Therefore, it is imperative that any formula adopted contain some limit on upstream consumption.  Whether based on an approach as suggested by the federal agencies for the ACF basin, or a hard cap on consumption, some type of limit is necessary to ensure adequate flows for the protection of aquatic ecosystems and downstream water users.  

Reasonable Use

The reference to ‘reasonable use’ as a mechanism for protecting downstream interests in Section 2.4.A of the Draft is hollow at best.  It is not defined, nor enforceable, and should be stricken from the Draft.  We view the ‘reasonable use’ standard, as do others, as a woefully inadequate provision to ensure apportionment equity.[2]  Notwithstanding the fact that reasonable use is the status quo legal basis for claims by a downstream riparian of harm done as a result of excessive upstream consumption, the standard is a vague, subjective criterion lacking any measure of certainty.  It clearly favors the upstream riparian and relegates an inequitable burden upon the downstream riparian for any remedy that may be sought. There would be no need for interstate water compacts if this standard were a sufficient means to ensure equity. 

A major pitfall with this standard is the latitude exclusively granted to Georgia to define the legal terms of reference for what is reasonable.  Georgia has the ability to define its own standard for reasonable use through its statutory water-permitting program.  It could legally permit the withdrawal, storage or consumption of any remaining available yield in the Georgia portion of the basin above the prescribed minimum flow thresholds.  Moreover, Georgia could simply amend its state laws to redefine reasonable use to the limits permitted by other provisions of the draft agreement.  

            Basin Yield Depletion

The current Draft affirms the allocation of substantial amounts of water from the Coosa River Basin for intra-basin and inter-basin municipal and industrial water used in Georgia, especially from the Coosa Basin federal reservoirs – Allatoona and Carters.  The proposal allows for more than a 500% increase in authorized water supply usage of these reservoirs allocating 280 million gallons per day (mgd) to water supply uses from them.[3]  This amount represents 40% and 18% of the safe yields for Lakes Allatoona and Carters, respectively.  

Average annual consumption (net demand) of Georgia’s Coosa Basins surface waters is projected to increase 37% from the current level of consumption of  215 mgd to 513 mgd by the year 2030.  Figure 1 depicts the seasonal impact of peak consumption during the annual dry cycle.  According to the proposed inter-basin transfer provisions, approximately 35% of the Basin’s peak-season net demand can be transferred out of the Basin to satisfy consumption requirements in the Chattahoochee River Basin (the Atlanta metropolitan area, in particular).  This could amount to 125 mgd (193 cfs), which is 125% of the 100 mgd annual average inter-basin transfer cap. 

Nowhere in the Draft Formula are the aforementioned demand amounts or any other consumption levels enumerated to codify the magnitude of depletion allowed within the Basin, or even the likely depletion during the timeframe of the Compact.  Therefore, as suggested by the model output flow duration curves (see Figure 2), over 85% of the time Georgia could withhold (owing to existing and new on-stream and off-stream storage) and consume any amount of the Coosa basin’s yield above the minimum flow requirement at Rome, GA.  For a typical year (median flow), that amount could be 60% of the Coosa Basin yield within Georgia, equivalent to an amount 4 times greater than the net demand modeled. 

In addition to the forecasted growth in consumption within Georgia’s Coosa Basin, interbasin transfers from the Coosa to the Chattahoochee River Basin are permitted to increase over 250% over the next twenty years from 38 mgd to 100 mgd average annual and 125 mgd monthly average peak limit.  Yet, the provisions of Section 2.4.B.1 of the Draft, referring to interbasin transfer limitations, do not explicitly address limitations for “surface waters” from the ACT (i.e. Coosa Basin) to the ACF (i.e. Chattahoochee Basin) or any other basin for that matter as Section 2.4.B.2 does for transfers between the Coosa and the Tallapoosa.  

Therefore, one can only conclude that there is no limit on the gross amount of surface water that can be transferred between the Coosa and Chattahoochee Basins as long as returned water, whether transferred by surface flows or piped, does not result in a net transfer that exceeds the prescribed limits.  Conceivably, after 2020, this Draft could allow the transfer of an annual average of 300 mgd of surface water from the Coosa Basin to the Chattahoochee Basin as long as 200 mgd was returned (piped or otherwise) to either the Coosa or the Tallapoosa Basins or both Basins as long as Georgia permitted such use.   In other words, the current Draft offers neither explicit control over gross interbasin transfer amounts nor guarantees as to whether return flows (if any) must end up in the Basin of origin.   

            Recommendations

In view of the above mentioned top-side protection concerns, our Coalition recommends the Draft be amended to:  

a.      Add specific criteria for maximum water depletion (in lieu of the “reasonable use” standard) that equitably addresses demand management and inter-basin transfers for both States, similar to the concept offered by the Federal Commissioner for the ACF Basin.[4]

b.      Incorporate depletion criteria in the Drought Plan Section 5.3.B.1 and Interim Drought Plan, Section 5.3.B.2.

c.       Terminate outbound inter-basin transfers of water when state-line flows fall below monthly 7Q10 thresholds for those basins. 

Lacking any other water depletion criteria until the final Drought Plan is completed, we also recommend that consumption be capped at current authorized levels as an interim measure.  Additional studies should be conducted at the direction of the Commission and state and federal agencies to develop an adequate consumption cap that will provide sufficient protection of downstream water users. 

2.      Minimum flow criteria are of questionable efficacy and may degrade water quality and aquatic ecosystems. 

As the discussions have moved forward over the years, it has become clear that the “minimum flows” are very likely to become targets rather than actual worst case scenarios.  Indeed, Harold Reheis recently referred to the “minimum flow” numbers as “targets” at a June 3^rd meeting in Acworth, Georgia. 

The inclusion of a 1000 cfs minimum daily flow limit for Rome, GA is a much needed and welcomed bottom-side protection measure.  And, the adoption of a monthly 7Q10 minimum flow criterion appears to be a step in the right direction to provide bottom side protection consistent with seasonal flow regimes.  But this measure may not be a big enough step to protect ecosystems during the driest period of the cycle when consumption and pollutant loadings are usually the highest.  Likewise, the newly proposed 1,500 cfs weekly minimum flow limit for Rome, GA appears to be a big a step in the wrong direction. Our preliminary analysis suggests the following. 

a.   Rome 1,500 cfs weekly minimum flow – quantity and quality consequences. 

Quantity

The 1,500 cfs weekly minimum threshold and the intermediate guide curve specifications for Lake Allatoona that largely control its effect during dry cycles, appear to be a step back from the weekly minimum criteria and associated guide curves in the July 6, 2001 offering.  The prescribed intermediate guide curve level affords the Corps of Engineers little operational flexibility for needed flow augmentation during the summer-fall period.  

According to the State Line Flow Requirements and COE Operations per Section 2.1 of the draft, a 1500 cfs weekly minimum flow threshold would increase the frequency of lower flows entering Alabama not only during drought periods but also during the typical annual dry-cycle corresponding with the peak-demand season.  On average, yield depletion would increase most notably during annual dry cycles and drought periods.  Figure 2 shows the T050103A model output flow duration curves illustrating the Draft Formula flow impact compared to historical flows at Rome, GA.[5] For both so-called “conservative” and “aggressive” scenarios, Alabama would realize a substantial inflow benefit during severe drought periods because of the 1500 cfs weekly average daily minimum flow criterion which is 300 cfs above the 1200 cfs threshold previously proposed.  But because of the operational restrictions regarding the storage management of Allatoona and Carters by the COE, not only does the frequency of occurrence of lower flows increase, the duration of minimum flow levels is longer and the amount of reduction is proportionally greater than found in previous proposal scenarios. 

The model output graphics provided in the Appendix illustrate how the flow duration regime resulting from the 1500 cfs minimum flow criterion and upstream reservoir release constraints (related to the higher intermediate guide curve) would become a ‘flat-line’ target for most of the summer-fall season, even in normal years.[6]  A higher minimum flow threshold for when yield is available (i.e. similar to the 1,800 cfs weekly minimum flow threshold specified in the July 6, 2001 draft) could reduce the duration of lowest,‘flat-line’ minimum flows during these cycles.  Fluctuating flows above the minimum limits are required to sustain a healthy river system. 

Available T050103A and B model output also indicates the apparent inequity of storage management during drought years.  Figure 3 illustrates how the pool level in Allatoona was kept considerably higher during the summer peak-demand season than observed during 1986, while a nearly ‘flat-line’ minimum flow results at Rome, GA as early as May and continues into November.  Similarly, a comparison of the pool level regimes for Lakes Allatoona and Weiss for 1986 as shown in Figure 4 reveals the storage benefit accrued to Allatoona compared to the storage depletion that results in Weiss Lake during the peak-demand period.  The above examples not only suggest that provisions of the Draft contribute to what appears to be a disproportionate sharing of the Basin’s waters, but also raises questions as to the related water quality impacts on downstream reservoirs, particularly with regard to plankton algae production.  A reduction of flow levels could hinder States’ efforts to improve currently impaired waters (303d listed) and protect current uses. 

            Quality

Our initial assessment of the current proposal indicates that reservoir water retention times (volume/discharge) contributing to phytoplankton algae production and resulting algal biomass accumulation may be impacted significantly during the April-October growing season.  Changes in reservoir retention times and algae production as measured by the concentration of Chlorophyll a, are of key concern for Alabama reservoirs in the Coosa system that have relatively short retention times.  Here, the linkage between water quantity and water quality is most evident.   Assessments of the impacts on Weiss Lake according to the July 6, 2001 proposal were done by J. E. Edinger Associates, Inc.[7] and Drs. Maceina and Bayne at Auburn University.[8]   Maceina and Bayne determined that the lower flows in the Coosa River (the primary tributary of Weiss Lake), as predicted by the HEC5 model, would result in longer retention times during the phytoplankton growing season for average to below average flow periods (exceedances from 50 to 90%).  Their study concluded that if retention should increase 10 days during the growing season, Chlorophyll a would increase 20 to 30% under a “worse case” scenario.  Both studies of the July 6, 2001 proposal’s model scenario showed average Chlorophyll a concentrations that exceeded Alabama’s newly established Chlorophyll a standard for Weiss Lake (20 μg/L).  

Table 2 shows the computed retention times for Weiss Lake according to the T050103A scenario.  As expected, the effect of the 1,500 cfs minimum flow ‘target’ at Rome is seen in the frequency of occurrence of longer retention times. These retention times are longer due to the 8 – 15% lower discharge level from Weiss related to the reduction of flow levels at Rome, GA at the 50% to 85% flow exceedance levels.  Compared to the historic median retention (27.7 days) for Weiss Lake,[9] the median retention for the current scenario was 38% higher (38.3 days).  Retention times increase to over 100 days even in severe droughts even with the 1,500 cfs minimum flow above at Rome, GA.  Drs. Maceina and  Bayne cautioned that if retention times in Weiss Lake were to increase substantially by more than 15-20 days and the true relation between Chlorophyll a and retention is linear up to 60 days as suggested by Soballe and Kimmel, then higher algae concentrations and a greater frequency of hypereutrophic conditions will likely occur unless existing nutrient loads are reduced dramatically.[10]  

Controlling for other factors, the higher retention times resulting from the current proposed formula indicate that the State’s newly established Chlorophyll a standard for Lake Weiss (to comply with the Federal CWA as per Article VII of the Compact) may not be met unless nutrient loads were reduced dramatically as Maceina and Bayne suggest.   Unfortunately, reduced nutrient loads from both point and nonpoint sources for the out-years of this Compact are not likely according to the COE’s draft EIS water quality assessment.[11]  This apparent shortfall clearly indicates that further analyses are warranted at this juncture to better understand the effects on lake trophic states for impacted reservoirs.  This is particularly important for reservoirs in the Coosa basin that have relatively short retention times and, therefore, are more susceptible to hypereutrophic effects with only modest increases in retention times. 

b.      Monthly 7Q10 minimum flow criterion 

Adoption of a monthly 7Q10 minimum flow policy for the Basin may be a step in the right direction for Alabama, since it will be a move toward implementing a state-wide instream flow policy that is long over due.  But we believe this may be a significant step back in terms of its ability to protect aquatic ecosystems compared to the advantages of the higher thresholds in previous proposals.  What’s more, official (USGS) data is needed for Alabama gages together with appropriate computation criteria for controlled and uncontrolled rivers.  Benchmarks to control future depletion effects also need to be established, otherwise thresholds will likely fall to lower levels over time.  Further clarification is needed in the Formula to specify the actual method of controlling flows below this threshold. In our view, instantaneous daily flows should not be allowed to drop below this level.  The threshold would be violated if a daily or monthly average is used to determine compliance. 

Figures 5, 6, and 7, illustrate how summer-fall historical monthly 7Q10 minimum flow thresholds approach annual 7Q10 minimum flow levels.  These monthly levels are far too low to protect affected aquatic ecosystems in the dry-cycle months of the year.  As shown in Figure 5 for Rome, GA the 1,500 weekly minimum flow target will reduce flows to this level with much greater frequency and for a longer period of time.  Figures 6 and 7 reveal that unless adequate flow augmentation is available from upstream sources, minimum flows during severe droughts will not only be lower than historic low flows, they will fall well below the proposed bottom-side protection threshold of the respective monthly 7Q10 values unless the instantaneous limit is strictly enforced. 

In contrast, Figure 7 (top) reveals the potential dry-season benefit of a higher minimum flow requirement from the proposed West Georgia Regional Reservoir on the Tallapoosa River system compared to likely low flow impacts resulting from the monthly 7Q10 yield limitation in the summer-fall months.  Regardless, natural flow variability will be less likely because of the lack of available yield in the system to provide the necessary flow augmentation to achieve such.  Moreover, the upstream riparian clearly has the advantage of first use of available yield until flows are depleted to the minimum monthly thresholds.  

We believe this criterion requires further study to better understand the aquatic and riparian ecosystem impacts.  Until this is done, we believe it ill advised to adopt monthly 7Q10 minimum values as a minimum threshold for the ACT formula.  We also believe some latitude should be given to both States to adopt a more stringent standard if so desired.  However, if the monthly 7Q10 policy is adopted, it should only be adopted as an ‘interim policy’ thereby allowing the Scientific Advisory Panel an opportunity to thoroughly assess the sufficiency of this measure as well as other alternatives. 

In Section 2.4.C for withdrawal provisions, the Formula allows for withdrawals when the in–stream flow is at least the 7Q10 flow.  The obvious problem with this provision is that when water is withdrawn from a 7Q10 flow, the downstream flow will then be LESS than the 7Q10 flow, which is a clear contradiction to what the Formula intends.  Protection should be provided to maintain a minimum flow downstream of any withdrawal.  Withdrawals should be expressly prohibited when the flows in the stream could potentially drop below the 7Q10 flow (or other prescribed minimum flow requirement) downstream of the withdrawal.  Also, the methodology for determination of compliance with 7Q10 flows (weekly, daily, instantaneous) should be clarified in the Formula. 

Recommendations

In view of the above-mentioned bottom-side protection and related water quality and ecosystem concerns, our Coalition recommends the following: 

a.      Modify the 1,500 cfs weekly minimum flow criterion (i.e. raise the minimum flow to be more representative of historical spring minimum flows during spring-early summer months) and lower Carters and Allatoona intermediate guide curve to facilitate downstream flow augmentation and improve flow variability.

b.      Adopt the monthly 7Q10 minimum flow as an interim measure; and adopt current computed values as Formula thresholds for daily instantaneous minimum flows.

c.       Provide adequate time and resources to analyze the Draft Formula’s water quality and ecosystems impacts and release findings to the public for review and comment before the Governors sign the agreement.

d.      Provide adequate protection for flows downstream of water withdrawals (Section 2.4.C)

3.      Formula Lacks Adequate Adaptive Management Plans as well as Dedicated Funding Provisions 

In the spirit of adaptive management, responses of the river basin and ecosystem to an implemented plan are supposed to be measured frequently to assess the success of the allocation formula.  Without mandatory monitoring, data synthesis and reporting, the implementation of the Draft formula will go virtually unchecked, and there is a strong possibility that the Basin will be irreparably harmed.  Quality of life and economic viability of the Basin are at stake and strong adaptive management plans are essential for that protection.  

Meaningful and required monitoring, data synthesis and reporting will allow the states, the agencies and the public to determine whether the Basin is healthy, how it is responding to the implementation of the formula, and will provide the information necessary to make determinations regarding any revisions that may need to be made to the formula over the next thirty years. It behooves both states to use a management approach that is proactive rather than reactive; to be proactive to protect this critical resource we must accurately understand the situation rather than make guesses based upon qualitative impressions.  

Recommendations

The Coalition recommends the following: 

1. The phrase “Given sufficient funding” as a condition precedent for monitoring during implementation of the formula must be struck. 

2. Dedicated funding must be committed for a comprehensive basin-wide monitoring plan specifically written for the ACT Basin in response to this formula, rather than the general language in Section 5.3.C. regarding collecting existing data from the National Weather Service, the United States Geological Survey, and the Environmental Protection Agency (EPA).   Adequate monitoring requirements to track water quality, ecology and biodiversity, and to ascertain the health of the public, the fisheries, and ecosystems must be clearly mandated. 

3. Monitoring must begin upon implementation of the formula, if not sooner.  We cannot speculate on these critical matters—the ACT Commission must be able to determine how the Basin is responding to the formula, so that changes can be made in time to correct any deficiencies. 

4. The formal reviews should be done every 5 years instead of the 10-year cycle as proposed in the Draft.

4.                  Public Involvement During Implementation is Pro Forma at Best 

The Formula does not, as required by the Compact, make substantive provisions for public involvement. By allowing affected parties to review and comment on the status of the Basin due to implementation of the formula, the states will gain a critical understanding of new technology, new information and observed changes in conditions.  Further, public participation is necessary to give affected parties the opportunity to review and comment on actions that may affect their interests.  

Recommendations

The Coalition recommends the following: 

1. Public involvement should be initiated during the formation of the Scientific Advisory Panel.  The Panel should include representatives from the National Park Service and other federal agencies charged with protecting the environment (e.g. U.S. Fish & Wildlife Service and the EPA) as well as an appointed citizen representative from each state.

2. Before a Drought Plan is adopted, there should be public review and comment on any proposals for the Drought Plan, as well as federal agency review and comment. 

3. Public reviews of the implementation of the formula should occur every five years (instead of every 10 years as recommended above), with information and data provided during technical evaluation, and comments on generated reports and findings prior to final publication and or action. 

5.      The Draft lacks provisions for federal agency review and concurrence by the Federal Commissioner of the Drought Plan. 

According to the Draft, two years are allotted after the effective data of the Allocation Formula Agreement for completion of the final Drought Plan.  Concurrence by the Federal Commissioner would have been granted for provisions of the Interim Drought Plan as part of the main Agreement.  Neither the Compact nor the Draft Agreement authorizes a role or responsibility for subsequent concurrence by the Federal Commissioner on a Plan that would be completed within the allotted two-year period.  Final approval of the Drought Plan is by voting members of the Commission, the respective State governors.  Moreover, no specific role or level of review is prescribed for federal agencies during the timeframe allotted for formulating the final Plan.  

We believe the final Drought Plan should require appropriate NEPA scrutiny and federal law compliance assurances as the ACT Compact requires of the Allocation Formula.   The Federal Commissioner (and supporting agencies) should not be left out of the final approval loop for arguably the most critical aspect of an allocation formula. 

Accordingly, we recommend the Draft Allocation Formula be amended so that approval of the final Drought Plan requires appropriate NEPA review and concurrence by the Federal Commissioner. 

Summary 

The Draft ACT Allocation Formula has many shortfalls, substantive as well as procedural, that must be resolved before it will provide adequate protection for water uses in both states.  Progress has been made in many aspects of the Formula over the past several years.  However, the key questions we posed at the beginning of our comments, in our view, remain unanswered.            

Does the Formula equitably apportion the Basin’s water resources and provide adequate, objective measures to ensure allocations, especially during dry cycles?

We do not consider this formula to be equitable. This Formula clearly benefits upstream water users.  There are no depletion caps for Georgia’s consumption of water.  The “reasonable use” criteria is inadequate for protection of flows into Alabama.  The minimum flows proposed at the state line allow for even more increased consumption from Georgia. 

Does the Draft protect the Basin’s surface water quality, ecosystems, and recreation resources? 

The Formula lacks provisions for adequate protection of water quality, ecosystems, and recreation.  Without a true cap on withdrawals, not just net withdrawals, the amount of waste water returned to the ACT Basin would increase and cause negative impacts on the water quality in the Basin.  The minimum state line flows proposed for the Coosa River are not adequate for the protection of aquatic habitat.  The proposed 7Q10 policies for new reservoirs and withdrawals is too low to adequately protect aquatic ecosystems. 

Have unresolved issues and questions been addressed sufficiently?

Several of the issues discussed in our comments have not been addressed.  Additional data should be gathered to develop a more appropriate in-stream flow policy for waters in the ACT Basin and to develop adequate consumption caps.  Public participation should be ensured for the Formula review periods and development of the drought plan.  Adaptive management measures should be clarified and strengthened.

  We urge the Commission to address the above shortfalls and fully consider the recommendations of our Coalition and others that strive to strengthen this agreement.  The public review/comment period should be extended at least 180 days to allow for the analyses needed to further investigate the implications of the current proposal and fully explore other alternatives.  There is time to get it right.  We hope there is a commitment to do so.