July 31, 2008

Original Duck River Judge Reinstated: Area Officials Hopeful About Change

By David Lazenby, The Cullman Times, Ala.

Jul. 31--By David Lazenby

[email protected]

Recent action in a lawsuit that has clogged development of a planned water resource is encouraging to at least one Cullman city official.

Wells Turner, chairman of the Cullman Utilities Board, said he is pleased the lawsuit filed in 2000 against the U.S. Army Corps of Engineers regarding the Duck River project has been transferred to federal judge Karon Bowdre, who first ruled on the suit five years ago.

"We kind of look at this as a positive because this is the lady that we were under before," Turner said. "She's got all the facts."

The original lawsuit filed by The American Canoe Association concerns a plan to dam Duck River, a 20-mile long river in northeastern Cullman County where officials hope to build a 640-acre reservoir to meet the area's future water needs. Corps experts believe the river is the best supplemental water source to meet the area's growing water need. Some experts -- including members of an advisory board formed to study area water needs, the Cullman Morgan Water District, believe area residents will use about 23 million gallons of water a day by 2015.

The Cullman Morgan Water District used a portion of a $5 million grant from the Appalachian Regional Commission for a study conducted by the Nashville division of the Corps to determine future area water needs.

The suit alleged the Corps permitted the project without conducting sufficient environmental studies.

Bowdre ruled in 2003 there existed three issues she felt were insufficiently examined through environmental assessments acquired by the city as part of the project. Because of these issues, she revoked a project permit issued by the Corps.

The Utilities Board, with assistance from an engineering firm hired by the City of Cullman, CH2M Hill, responded by supplementing the original assessment to address the judge's concerns, which are:

-- Analysis of water quality in the proposed reservoir.

-- Downstream effects on the Duck River and the Mulberry Fork.

-- Analysis of the cumulative environmental effect of the proposed reservoir and other potential reservoirs.

Steve Newton with CH2M Hill, who is the overall project manager, said he is confident these matters of concern have been adequately addressed.

"There's no question that we've met the requirements," Newton said. Since then, the Corps reissued a construction permit under Section 404 of the Clean Water Act and a new lawsuit was filed in federal court by the Alabama Rivers Alliance.

The new suit lists concerns about the project which include the dam's impact on the community and the quality of life, impairment of downstream flow and loss of water necessary for some recreational activities.

Newton, like Turner, said he is encouraged by the transition made on July 14 when the case went back to Bowdre from district judge Inge P. Johnson.

"Judge Bowdre does know the case and she has been through all the previous arguments," Newton said.

Jim Noles, an attorney with Bausch & Bingham, the Birmingham law firm representing the Utilities Board, said the transport was not requested by the law firm, the plaintiffs in the case or the court.

"This was just something handled internally, so we don't really have much of an opinion as far as why it occurred or what it will mean to the case."

Dale Greer, assistant director of the Cullman Economic Development Agency, said he too is hopeful the court will have a timely determination so the project can move forward.

"It's totally in the hands of the judge," he said.

Concern about finding alternative water sources was heightened last year when the worst drought in more than 100 years sapped the area's primary water source, Lake Catoma, causing it to drop 10 feet below full pool.

Turner said the lake's level is currently about 2.75 feet below full pool.


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