Originally created 05/26/06

Ruling could aid in water quality fight



A U.S. Supreme Court ruling could strengthen the authority of South Carolina and Georgia to issue water quality guidelines for the Savannah River shoals below Augusta's Diversion Dam, according to environmental groups.

The case, decided May 15, involved S.D. Warren Co. in Maine, which owns five small dams that state regulators contend have altered water flow and blocked routes fish and eels use to migrate along the streams.

The city of Augusta, which is involved in a protracted relicensing process with the Federal Energy Regulatory Commission for its canal and diversion dam, faces a similar situation involving disagreements over how much water can be diverted into the canal at the expense of river flow.

In the Supreme Court case, Maine officials contended dams in their state are subject to the U.S. Clean Water Act, which authorizes affected states to issue "water quality certifications" in which minimum flows and other guidelines can be imposed.

The Warren Co. had argued its dams were not subject to those rules, but the Supreme Court disagreed, writing that "changes in rivers like these fall within a state's legitimate legislative business and the Clean Water Act provides for a system that recognizes the States' concerns."

"It basically reaffirms that states have the authority to issue certifications for water quality," said Gerrit Jobsis, the southeast regional director for American Rivers. "If the dam owners had won, it means Georgia and South Carolina would not be able to proscribe conditions for the Augusta dam to insure that water quality standards can be met."

Augusta's lawyers - George Somerville, of Richmond, Va., and James Wall, of Augusta, were watching the case closely, too. They filed a 13-page friend of the court brief with the U.S. Supreme Court, asking justices to side with the owner of the dams in Maine.

The central issue of the Augusta dispute is the 131-year-old Diversion Dam at the canal headgates, which channel much of the river's flow into the canal.

During dry weather, flows through the rocky shoals in the nearby river often dwindle to a trickle and threaten fish and plant species that live there.

Georgia officials agreed last winter to a compromise with the city's view of how much flow would remain in the river during droughts, but South Carolina's Department of Health and Environmental Control has yet to issue its certification on the issue, Mr. Jobsis said.

Rheta Geddings, the assistant chief in DHEC's Bureau of Water, said the Supreme Court case was being watched by attorneys general in about 35 states, including South Carolina. The group filed its own friend of the court brief supporting Maine's Department of Environmental Protection.

"We have taken the position that certification is necessary and we're still working with the city of Augusta to work out the details," she said.

Reach Rob Pavey at (706) 868-1222, ext. 119, or rob.pavey@augustachronicle.com.

WHAT'S NEXT:

The Federal Energy Regulatory Commission has asked parties involved in the relicensing of the city's canal and diversion dam to try to bring the matter to a close this year.