Army Corps asks panel to let it tear down Georgia lock and dam system

RICHMOND, Va. (CN) — The U.S. Army Corps of Engineers argued before a Fourth Circuit panel Friday for the reversal of an injunction blocking the removal and replacement of the aging Savannah Bluff Lock and Dam near the Georgia-South Carolina border.

The Corps is appealing U.S. District Judge Richard Mark Gergel’s November 2020 order in hopes that it can move forward with a plan to mitigate the environmental impact of the Savannah Harbor Expansion Project, known as SHEP.

Following a required assessment of the project's adverse environmental consequences, the National Marine Fisheries Service in 2011 ordered the Corps to mitigate the anticipated adverse impacts on sturgeon, which are protected by the Endangered Species Act.

The Corps’ plan, referred to in court documents as Alternative 2-6d, involves the construction of a fixed crest weir with a rock ramp in place of the current lock and dam that would allow passage of the endangered sturgeon to historic spawning grounds.

The state of South Carolina and city of Augusta, Georgia, are seeking to block the plan due to concerns about the impact it would have on a “pool” comprised of three federal reservoirs that is used for recreational and water supply purposes.

Gergel, a Barack Obama appointee, blocked the Corps from constructing the rock weir after finding it would violate the federal Water Infrastructure Improvements for the Nation, or WIIN Act, because it would lower the water level behind the existing lock and dam system.

Enacted in December 2016, the WIIN Act allowed the Corps to demolish the aging lock and dam as long as it was replaced with a new structure that is “able to maintain the pool for water supply and recreational activities, as in existence on the date of enactment” of the law.

Gergel said the Corps cannot implement Alternative 2-6d and any other plan involving the removal of the lock and dam if the proposal does not “maintain the pool" that was “in existence on the date of the Act’s enactment, which was 114.76 feet."

While both the Corps and the state agreed the weir would lower the water level by at least 3 feet, arguments on Friday centered largely on each side's interpretations of Gergel’s ruling an the WIIN act.

Corps attorney Michael Gray told the Fourth Circuit judges that Gergel’s ruling unfairly required it to maintain the pool at a static and specific level of 114.76 feet at all times.

"It's an impossible task for the Corps to do," Gray said. “When Congress wants specific levels, it says so specifically.”

Gray said the WIIN Act does not say anything about water levels and only requires the new structure to maintain an elevation that would allow for the same type of functions that the pool currently supports.

The case should be sent back to district court with the correct interpretation, he argued.

Representing South Carolina, attorney Chad Johnston of Burr & Forman said the lower court's order does not require the pool to be maintained at a “static” and precise level at all times. The reference to 114.76 feet was an average level that was only intended to be a “design threshold,” Johnston said.

He said the reference to a specific day and not a moment supported the state’s argument, since the level of the pool would change through the day.

“That's how South Carolina knows it was an average,” Johnston said.

U.S. Circuit Judge Paul Niemeyer, a Ronald Reagan appointee, indicated he agreed with the state that the order does not require the structure to maintain the pool at a specific elevation. He said that he was "sympathetic" with the Corps because the order suggested the pool would have to be maintained at the 114.76 feet level, but he considered the inclusion of the specific elevation an "observation."

"The court didn't conclude that as a matter of law,” the judge said. “It said it has to be able to do so.”

In addition to Niemeyer, the panel consisted of U.S. Circuit Judges Robert B. King, appointed by Bill Clinton, and Albert Diaz, an Obama appointee. The judges did not indicate when a decision would be issued.

In a statement after the hearing, Tonya Bonitatibus, executive director of environmental group Savannah Riverkeeper, said the elevation of the pool is very important and the Corps should come up with a better mitigation plan.

“We believe the rock weir in its current form does have risks to the upstream community that should be mitigated, however retaining the lock and dam with a smaller passage does not meet the basic criteria of fish passage and would leave the sturgeon at even greater risk of harm," Bonitatibus said. “There is a middle ground solution developed by the nation's leading sturgeon expert that passes fish and provides an asset to the community as well as protects the elevation range desired upstream.”

Johnston declined to provide additional comment on behalf of South Carolina. Representatives for the Corps and the Georgia Ports Authority did not respond to requests for comment by press time.

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