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Judge files order against Corps of Engineers in lock and dam case

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x Oct. 16 Lock and Dam tour 07.JPG (copy)

The New Savannah Bluff Lock and Dam is the subject of a lawsuit filed by the state of South Carolina against the U.S. Army Corps of Engineers. 

The judge in the court case related to the future of the New Savannah Bluff Lock and Dam has ordered an injunction against the U.S. Army Corps of Engineers, declaring the Corps plan fails to follow requirements in a 2016 congressional act.

The order in the case states that the federal defendants – primarily the Corps and its representatives – are permanently enjoined from “implementing Alternative 2-6d and any other plan involving the removal of the Savannah Bluff Lock and Dam if the proposal does not ‘maintain the pool’ that was in existence” on the date of enactment of the Water Infrastructure Improvements for the Nation Act.

The order, signed by U.S. District Judge Richard Gergel, recounts that the Corps has formally adopted Alternative 2-6d, a plan that would remove the lock and dam structure and replace it with a rock weir, but states the plan does not maintain the pool level that existed on Dec. 16, 2016, when the act was enacted.

The pool level on that date was 114.76 feet above sea level, as explained in a footnote in the order.

”I am convinced the water level in the Savannah River is important to the economic success of both North Augusta and Augusta. Government officials of North Augusta, Aiken County and Augusta have emphasized that point constantly,” said North Augusta Mayor Bob Pettit.

A release from S.C. Attorney General Alan Wilson states the order requires the Corps’ Savannah District to “develop a mitigation plan that maintains the water levels to avoid impacts on water supply and recreation.”

“Today’s order is a victory for protecting State’s natural resources,” a statement from the attorney general reads. “This is an important decision that protects and preserves the water supply and recreation in the Savannah River.”

The Corps of Engineers has been tasked as part of the Savannah Harbor Expansion Project to provide a fish passage so sturgeon can migrate to historic spawning grounds upstream.

The issue is one that local representatives and municipalities have been engaged in for years.

The order mentions a simulated drawdown the Corps conducted in Feb. 2019 “to determine the impact of the potential reduction in the water depth of the pool,” and recalls the drawdown had to be stopped six days after it began following riverbank instability and boat docks that were “left in mud flats.”

The Corps announced its decision to go forward with the rock weir in late October of last year.

The lawsuit was filed soon after November 2019 by the state of South Carolina, the South Carolina Department of Health and Environmental Control and the Savannah River Maritime Commission. Augusta, Georgia later joined as a plaintiff.

“Our goal has been to preserve South Carolina’s riverfront and the river’s pool as we know it, and this court decision is a victory for our side in achieving those goals,” said S.C. Senator Tom Young of Aiken.

Young said three possible developments that could come next include an appeal by the Corps, a long-term legislative solution, or the Corps could develop a different alternative for consideration.

Pettit said it is likely the ruling will be appealed.

“The key outcome at this time is it will delay work to construct the rock which was scheduled to begin in January 2021,” Pettit said of the ruling.

“The task ahead of the Corps will be to maintain the pool of the river at 114.5+ feet, while not affecting the 100 year flood plain upstream of the Lock and Dam. That will be an interesting challenge.”

He said the effort to craft a legislative solution continues and that he would ultimately like to see the lock and dam be reauthorized by Congress.

“That is necessary to enable the Corps of Engineers to, at least, include the lock and dam on the list to obtain funding for repair and upkeep. The legislative effort may include funding to repair the lock and dam, which has badly deteriorated under the Corps' management,” Pettit said.

S.C., Georgia congressmen 'encouraged' after lock and dam visit

Much of the fight is over wording in the WIIN Act.

“Federal Defendants read the statutory language to mean that the Army Corps’ only obligation is that the new structure is ‘able to maintain the pool (sufficient) for water supply and recreational activities,’” the order reads, adding the defendants contend they meet the obligation by maintaining the functionality of the pool.

“The difficulty with this argument is that Federal Defendants have read into the statute the word ‘sufficient’ that is not provided and a concept of functionality that is likewise missing,” the order reads.

The language in the Act “unambiguously” requires the agency to construct a structure at a very precise level, the order reads.

There is “no dispute,” the order later says, that Alternative 2-6d fails to maintain the pool existing on the date of the enactment of the WIIN Act.

“I am very pleased with Judge Gergel's decision that the language in the WINN Act of 2016 meant the pool elevation, not functionality of the pool,” said Pettit.

“I’ve been making that precise point at every opportunity and in a variety of forums for more than three years. I was also pleased Judge Gergel ruled Augusta's park at the Lock and Dam will not be impacted.”

An additional order was filed Monday as well, denying the federal defendants’ motions to dismiss.

“It is great to see that the Army Corps is now permanently enjoined from entering into any plan that would not ‘maintain the pool’ that was in existence on the date of enactment of the 2016 'Water Infrastructure Improvements for the Nation Act,’ states Rep. Joe Wilson in a news release.

“I and my colleagues in Congress have continued to fight against the Corps' actions, maintaining that the Corps has acted against the clear intent of the language of the WIIN Act, requiring that the pool be maintained at 114.5 feet.”

“I appreciate the tireless work of Governor Henry McMaster, Attorney General Alan Wilson, Senators Lindsey Graham, Tim Scott, David Perdue, and Kelly Loeffler, Congressman Rick Allen, North Augusta Mayor Bob Pettit, S.C. Representative Bill Hixon, Senator Tom Young, and many other state and local officials who have been working together diligently on this issue for many years.”

Follow Lindsey on Twitter at @LindseyNHodges.