HCWSA receives further legal confirmation for Tussahaw Reservoir construction

The Henry Country Water & Sewerage Authority (HCWSA) has won yet another legal victory in its lengthy journey to secure the necessary drinking water resources for customers in one of the nation's fastest growing communities.

U.S. District Court releases findings of fact and conclusions of law explaining its ruling

McDonough, GA, August 25, 2003 -- The Henry Country Water & Sewerage Authority (HCWSA) has won yet another legal victory in its lengthy journey to secure the necessary drinking water resources for customers in one of the nation's fastest growing communities. The Authority's latest legal confirmation of the need and importance of the reservoir came last week in federal court.

U.S. District Judge Jack T. Camp has ruled against plaintiffs from the Georgia River Network and Altamaha Riverkeeper, who were opposing the HCWSA's permit for constructing the Tussahaw Reservoir. This was the fourth trip by these environmental activists into court as plaintiffs, says A.J. "Buddy" Welch, legal counsel for the HCWSA. Three cases have been tried in state court, while this latest has come in federal court.

"The Authority has won each time based on the soundness of its permit application, as well as the facts of the case and the relevant case law," says Welch. "This latest decision provides further confirmation that the Tussahaw Reservoir project has the public's best interest in mind."

This latest civil action by the Georgia River Network and Altamaha Riverkeeper groups included three motions for (1) a preliminary injunction, (2) a temporary restraining order, and (3) a summary judgment, regarding the permit issued by the U.S. Army Corps of Engineers to HCWSA for construction of the Tussahaw Reservoir. Last Thursday, Judge Camp denied all three of these motions by the plaintiffs.

"We hope we'll have no further unnecessary litigation related to this project, since Henry County citizens have suffered enough from the expenses and scheduled changes associated with our legal defense," says Lindy Farmer, general manager of the HCWSA. "I don't know how many more court decisions we need before our detractors can see we're acting as good stewards in the public's interest. So, we' re moving ahead, once again, on construction of the dam and other details of the project, hopefully without any more challenges."

The Court ruling upheld the position of the Corps, who noted during the lengthy permitting process that the environmental consequences of the proposed reservoir are not sufficiently significant to require an Environmental Impact Statement (EIS). In the case of the Tussahaw permit, the thorough Environmental Assessment (EA) conducted by the Corps and HCWSA would suffice.

As required by the National Environmental Policy Act (NEP A), the defendants in this case had conducted an EA, to determine whether the environmental impacts of the reservoir would be significant. If significant, NEPA requires a more in-depth EIS. If not, the Corps may then issue a Finding of No Significant Impact (FONSI), and nothing further would be required under the guidelines set forth by NEPA.

Indeed, after completing its EA, the Corps found no significant environmental impact from the Tussahaw project and issued its FONSI prior to granting the 404 permit to HCWSA for constructing the reservoir. The plaintiffs had contended that an Environmental Impact Statement should have been required. Judge Camp, basing his decision on both the facts and relevant laws pertaining to this case, ruled otherwise, in favor of the Corps and the HCWSA.

At the heart of the U .S. District Court ruling in favor of the Tussahaw project was its trust in the permit review process, as well as the work and judgment of the federal agencies involved, primarily the U.S. Army Corps of Engineers.

"The court cannot substitute its judgment for that of the agency's when considering highly technical data that become the basis of a permit award," says the Court's ruling. "Where the issues involved require a high level of technical expertise, they are properly left to the agency's informed discretion."

Also critical to the U .S. District Court decision is the potential harm that might come from further delays of reservoir construction, or worse, should the Court deny the permit altogether .

According to the concluding remarks of the Court Order, since there is no evidence of any direct significant environmental harm, "the defendant (the HCWSA) will suffer irreparable harm from enjoining the permit."

More in Drinking Water