Noel Schweers, General Counsel for Morris Communications Co. LLC, the previous owner of The Augusta Chronicle, posted this very articulate and sound argument for the legal case against the Corp, as well as bringing to light concerns related to the legality of The Riverkeeper’s use of government funds and lobbying efforts, which are non-compliant with their non-profit status.
AUGUSTA, GA - December 15, 2019
Augusta’s Access to the Sea Must be Protected By J. Noel Schweers III Guest Columnist Posted Dec 14, 2019 at 6:31 PM Augusta’s joining with the state of South Carolina in its lawsuit against the U.S. Army Corps of Engineers is a very positive development. Hopefully, this united front will encourage the Corps to reconsider its plan to remove the New Savannah Bluff Lock and Dam and replace it with a big pile of rocks. When I penned a column Feb. 24 describing the legal history of the battle (“Was Augusta’s river input thwarted intentionally?”), I naively believed that the Corps, the Georgia Ports Authority (GPA) and our elected officials would change course once the deceptive back-room maneuverings involved in getting the 2016 Water Infrastructure Improvements for the Nation Act (the WIIN Act) became public. Clearly, that was not to be. The Corps’ resolve remains undeterred by such things as public outcry, clear technical errors, shame, common sense or the plain language of the new law. They apparently intend to ignore any facts that do not support their position. For example, I wrote the Corps in October to point out that the commencement of final dredging in the Savannah Harbor, without simultaneously commencing construction of an out-of-channel fish passage, violated the court-approved agreement to comply with the 2011 National Marine Fisheries Service Biological Opinion. The only response was what appeared to be a form letter, thanking me for my interest. Therefore, when I discovered another overlooked or ignored problem, I decided to raise my concerns in this forum, in the hope that public disclosure will encourage the Corps to comply with the law. While this column may not deter the Corps, it will at least alert them that we are aware of their erroneous actions. As is now well-known, the protections then-U.S. Rep. Charlie Norwood obtained for the Lock and Dam from Congress in 2000 were reversed through the clandestine efforts of the Savannah Riverkeeper, the GPA and the Corps. The objective they sought, and achieved in the WIIN Act, was the “deauthorization” of the Lock and Dam. The impact of this ambiguous legal term must be understood to appreciate our current plight. When Congress determines that a civil works project is worthy of federal support, it “authorizes” the project to be eligible for federal funding. Deauthorization involves revoking this approval, and normally follows a regimented two-year public evaluation of the merits of the project called a disposition study, which requires public comment. After deauthorization, the project is ineligible to receive federal funds or protection. The calculated actions taken to get the WIIN Act provision enacted intentionally deprived us of our ability to object. In fact, the parties working on the law did not even notify the congressional representatives for the impacted areas, Rick Allen and Joe Wilson, until the Senate had it quietly added to large infrastructure bill destined for passage. people opposing the Lock and Dam, the loudest of which has been Riverkeeper Tonya Bonitatibus, lecture us that the deauthorization is a done deal and we need to get over it. Unfortunately, they may be correct, at least as to the deauthorization. The deauthorization, the self-proclaimed legal and scientific experts claim, means that we must either choose Option A (accept a rock weir that results in a lower river level), or Option B (pony up $27 million to fund a higher weir, which will cause increased flooding, but still not maintain the pool). Fortunately, they are wrong. While the Lock and Dam deauthorization has occurred, there remains an authorized project that should block the anti-Lock-and-Dammers’ scheme. In 1736, Gen. James Oglethorpe sent a detachment of soldiers from Savannah to establish Fort Augusta at the river’s navigable limits. At the time, the river was subject to significant unpredictable fluctuations. These fluctuations caused flooding during the rainy season and very shallow areas during dry spells. This made year-round navigation difficult. Over the next 200-plus years, many improvements were made at great expense to remedy these problems. One such improvement was made when the Lock and Dam was built. Congress authorized certain dredging to create a 6-foot-deep channel from Savannah to Augusta to accommodate the vessels in use at the time. This project was dubbed Savannah River Below Augusta, or SRBA. In 1950, Congress modified the SRBA authorization to require the Corps to create and maintain a 9-foot deep, 90-foot wide navigation channel from downtown Augusta to Savannah, to support a renewed interest in commercial river traffic. As part of these improvements, the channel was straightened to overcome some of the river’s most meandering sections. This shortened the route between the two cities by about 30 miles. Not surprisingly, the Corps ceased maintaining the channel based upon its opinion that commercial traffic had declined to an extent that they should be freed from this burden. Despite this, the channel is still a congressionally authorized and a reliable mode of transportation. In fact, the GPA’s top man, Executive Director Griff Lynch, extolled the river’s virtues in a June 11, 2016, article (“Barge delivers first cargo up Savannah River in 40 years”) in the Savannah Morning News. In the article, which reported the successful barge transport of a 700,000-pound piece of equipment to PSC Nitrogen’s Augusta plant, Mr. Lynch boasted how the trip “demonstrates Savannah’s ability to move super-sized cargo inland via river barge.” He went on to describe the River as “a useful option when a cargo’s size and weight complicate overland transit.” The SRBA’s channel is important today because it uses the still-repairable lock to permit navigation from Savannah to Augusta upstream of the 13th Street Bridge. This is the same route taken by Oglethorpe’s soldiers 243 years ago. In an apparent violation of its core mission of ensuring rivers remain navigable, the Corps plans to permanently block any navigation on the congressionally-mandated channel with an ill-conceived rock weir. While it is possible that this issue is unknown to the Corps, the facts suggest otherwise. Just last year, two years after the deauthorization law, the Corps approved the Savannah Riverkeeper as the sole sponsor of a little-known study to determine the feasibility of returning the river to its original, circuitous route. The Corps is likely to rely on this study as a justification for the commencement of the two-year-long Disposition Study, which they evaded on the Lock and Dam. It is important to know that, as the nonfederal sponsor, the Riverkeeper is required to pay 50% of the cost of the approximately $3 million study. The balance of the cost is to be funded by the Corps. The Riverkeeper has apparently convinced governmental officials in Augusta, Savannah and Columbia County to fund, or commit to fund, at least a substantial portion of her $1.5 million share of the project. So far, the city of Savannah has paid $360,000. Columbia County has paid $120,000 and committed to pay another $60,000 next year. The amount of Augusta’s commitment is currently unavailable. However, the city’s website discloses multiple payments made to the Riverkeeper for unknown reasons totaling $92,702.26 over the years. Giving large amounts of public funds money to a private, nonprofit corporation - which is not subject to regulation or public scrutiny - should not be done. Allowing the Riverkeeper to control public funds is especially troubling considering that, at least as to the WIIN Act, the organization has engaged in direct lobbying activities. This is despite the fact that tax-exempt organizations are prohibited from engaging in such activities, if a substantial part of its activities. However, a determination of the scope of the Riverkeeper’s lobbying activities cannot be made because the required disclosure details were not included in its annual tax filings. It is clear that the Corps must not block the channel, nor take any actions to jeopardize its 9-foot minimum depth, as long as it remains officially authorized. We must do everything possible to halt the proposed deauthorization of the channel. This includes informing our federal officials that another deauthorization is unacceptable, and demanding our local officials cease funding the Riverkeeper’s feasibility study. The actions to date may not be completely reversible, but we can stop those who wish to alter our river, without regard to the communities’ wishes.