Suit filed against Corps of Engineers

A legal challenge to the construction of the 960-acre Tired Creek lake was filed in federal court in Savannah Friday, but that did not prevent Grady County commissioners from closing on a $15 million bond issue on Tuesday.
With the money now in hand to construct the dam and create the fishing lake, Grady County officials are preparing to intervene in the law suit filed by the Southern Environmental Law Center on behalf of plaintiffs Georgia River Network and American Rivers against the U.S. Army Corps of Engineers and Corps officials in their capacity as officers of the Corps.
The suit was filed late Friday by William W. Sapp and Nathaniel H. Hunt, attorneys with the Southern Environmental Law Center.
It alleges the Corps used flawed studies that overestimate the number of people who would use the proposed fishing lake.
The environmental groups also claim the project would destroy over nine miles of streams and up to 518 acres of wetlands.
The U.S. Army Corps of Engineers has estimated the wetlands impacted by the Tired Creek project at just over 129 acres.
According to the suit filed late Friday, Georgia River Network and American Rivers have members in Grady County, but the members are not made public. The suit states, “one member enjoys hiking through forests and wetlands on the site of the proposed lake.”
County records of permits sold for various permitted activities at the lake site indicate only one permit has been issued for hiking and that was issued to Margaret Tyson, 805 N. Broad St., Cairo, on May 28 of this year, which is the same date the Corps of Engineers issued the 404 permit for the construction of the 960-acre lake.
In a statement issued Monday, Grady County Attorney Kevin S. Cauley said, “Grady County is already moving aggressively to assemble its litigation team and developing its strategy for dealing with this matter. The county intends to respond quickly and assertively to this legal challenge. Grady County strongly believes that the claims asserted by these plaintiffs are without merit and will ultimately have no effect on the validity of the county’s permit. We are confident that the U.S. Army Corps of Engineers shares our belief in this regard.”
Cauley points out that neither the American Rivers or the Georgia River Networks has a strong public presence in the community, but those organizations allege they have undisclosed members who are Grady County citizens.
“The only specific allegation of damages alleged by the plaintiffs in their complaint is the claim that at least one of their members would no longer be able to enjoy hiking through the forests and wetlands which will be flooded by the dam. No other specific allegations of damages are made in the complaint and Grady County is not named as a party,” Cauley stated.
The plaintiffs allege the county’s permit was the product of a flawed purpose, inaccurate wetlands delineation, and insufficient environmental analysis.
“Each of these issues was thoroughly scrutinized by the United States Army Corps of Engineers, the United States Environmental Protection Agency, the Georgia Environmental Protection Division of the Department of Natural Resources, and other reviewing agencies consistent with the Federal Clean Water Act and other applicable federal and state laws during the five-year period in which the application for the permit was pending,” Cauley says.
The county attorney also notes that the permit issued by the Corps includes “stringent conditions that ensure Grady County provides necessary environmental protections and full compliance with all applicable laws of the United States and Georgia.”
Commissioners met in a special called meeting Monday afternoon for Cauley to brief the board on the legal challenge. The county attorney had been in constant contact with Tired Creek consultant Wm. Thomas Craig, a Covington attorney, over the weekend after learning the suit had been filed late last week.
During the called meeting Monday, the board also discussed with the county attorney necessary action required to keep the closing of the bond issue on schedule.
Cauley prepared a resolution in cooperation with John Pannell, the county’s bond counsel with the Savannah law firm of Gray & Pannell, and presented it to the board for its consideration.
In the resolution, the board ratified prior resolutions and reauthorized the intergovernmental contract between the county and the South Georgia Governmental Services Authority to secure payment of the bonds issued by SGGSA on behalf of the county. The resolution approved unanimously Tuesday also makes it known to Morgan Keegan & Company, Inc., the bond underwriter, the existence of the suit filed against the Corps.
In the suit, the plaintiffs are seeking the court to enter a declaratory judgment that the Corps is in violation of the Clean Water Act, a judgment invalidating and vacating the county’s permit, reimbursement of court costs and attorneys’ fees and other relief as the court deems appropriate.
On Tuesday, the county closed on the bond issue and $14,940,000 was deposited into a Grady County bank account.
Commission Chairman Al Ball would not comment on the suit against the Corps, but he said following the bond closing that the county is proceeding with the project and the associated plans and studies that must be completed and approved by the Corps before dam construction can begin.
When contacted Tuesday, Tired Creek consultant Craig told The Cairo Messenger, “It is outrageous people who have no connection to Grady County and no connection to the property where the lake will be built take it on themselves to try and control this project. I do not understand how they would have any standing to complain about what Grady County does and does not do to provide public recreation for its citizens.”
Craig also said, “I’ve worked on over 20 water projects over the years and in that period of time I have never seen the Corps do what I thought was a more careful, thorough examination of the environmental and engineering issues of a project. They were very diligent and took a hard look at all the issues presented in the permit application. These people, who have filed this suit, have known about the content of our files for a long time and why it took this many months to begin to assert themselves is beyond me.”
Craig is planning to meet with Cauley and the board next week and discuss intervening in the law suit against the Corps.
“We need to be in a position to defend the county’s permit. The county has vested rights. We have the permit and Grady County has expended money to procure the permit. The county has spent money in reliance on it. We’ve got to be there to speak our piece. The Corps will defend themselves, but we need a seat at the table. Otherwise there could be a settlement or a ruling that we would not have the right to appeal,” Craig said.
The county’s consultant is confident in the county’s position and said he has been involved in a similar situation in federal court where his client received a favorable outcome.
“You can get wet in that lake today,” Craig commented.