By Trent Moore
The Cullman Times
CULLMAN —
Cullman County’s application to draw water from Smith Lake has been put on indefinite hold.
Lake operator Alabama Power cited pending litigation over the establishment of a new county water board and cooperative as the reason for the stoppage.
An Alabama Power official said an injunction issued last month effectively resetting the Cullman County Water Department to it’s original status — and a pending lawsuit contesting the establishment of the South Cumberland Cooperative District (SCCD) and its oversight board, the Governmental Utility Services Corporation of Cullman County (GUSC) — has “significantly complicated” the permit request.
“Alabama Power is suspending review and processing of the county’s application for a Smith Lake water withdrawal,” Alabama Power vice-president of environmental affairs Matthew Bowden wrote. “Further, Alabama Power will not process any new application that might be submitted by the South Cumberland Cooperative District for withdrawal from Smith Lake.”
The SCCD and GUSC were established by associate county commissioners Doug Williams and Wayne Willingham in late April, and have been vehemently opposed by commission chairman James Graves. Graves was even among the original seven plaintiffs challenging the legality of the boards.
The Smith Lake permit request was also filed by Williams and Willingham in January, reportedly without Graves’ knowledge.
Graves said he hopes the recent statement from Alabama Power will lead to a quick resolution for the issue.
“Needless to say, I was tremendously pleased with this,” he said. “I think this brings it to an end and shows that Smith Lake is no longer a viable option to build a water plant and draw water from ... I hope everyone involved will just dissolve the co-op and board so we can move on.”
SCCD board member Ron Stone said, as far as he knows, there are no plans to dissolve the board at it’s next regularly scheduled meeting on June 14.
“We’ll only be able to call executive session to discuss litigation,” he said. “But personally, I don’t see me changing my mind [about the board’s existence], but we haven’t discussed [dissolving the board].”
Stone added the board is considering a variety of water source options, in addition to Smith Lake.
“Wayne [Willingham] and Doug [Williams] applied for that while they were running the water department,” he said. “Any comment I made right now would be premature, but I will say we are still working to gather the figures on Duck River [alternate water source plan], Smith Lake and the Tennessee River [potential pipeline] options.”
SCCD board member Dennis Haynes said he was not surprised the litigation has caused problems with the permit request.
“I know with the history of conflict between the city government and county government, reluctance of other agencies from being involved in that conflict is not surprising. I’d also speculate their decision to put that on hold would be a result of the inability of county government and city government to work together.”
Associate county commissioner Doug Williams — who left for China Friday on an economic development trip — had not read the letter and declined to comment for this story. Associate county commissioner Wayne Willingham did not return messages left seeking comment by deadline of this article.
All of the questions and uncertainty swirling around the issue led Alabama Power to suspend the permit request, Bowden said.
“Based on numerous reports in the local news media, there is an increasingly high level of contention and disagreement with respect to water supply needs in Cullman County and the best option to serve those needs,” Bowden wrote. “Alabama Power has known for many months that Cullman County and the City of Cullman were not in agreement on a coordinated long-term water supply strategy. Nevertheless, Alabama Power began processing the county’s application with the hope that the county, the city, and other stakeholders would be able to agree on a single plan for meeting the region’s water supply needs.”
Pending litigation concerning the boards would significantly delay the permit’s potential consideration, Bowden said.
“Unfortunately, there has been no resolution of these water supply issues and the conflict among the county, City of Cullman, other municipalities and customers of the county system grows more contentious by the day,” he wrote. “Based on our understanding of the situation, the continuing conflict now involves significant legal, contractual and political issues that would likely complicate, if not indefinitely delay, [the Federal Energy Regulatory Commission’s] consideration of the Smith Lake withdrawal should the application ever reach that phase of the process. Moreover, the lawsuit filed recently challenging the newly-created South Cumberland Cooperative District adds more uncertainty to Alabama Power’s consideration of the county’s water withdrawal application.”
In light of Alabama Power’s stance, Graves said he hopes Cullman County will finally be able to sign on with the City of Cullman to go forward with an alternate water source plan to establish a 640-acre reservoir in the Duck River watershed. The project, which has been in the works for about 20 years, is estimated to cost approximately $64 million. Every major wholesale city water customer except Cullman County has signed on.
With both Williams and Willingham losing in the recent primary election, Graves said he hopes the county can sign on to the project as soon as the two new associate commissioners take office.
“Come November when the commissioners change, just about every candidate has said they would support me and sign on to Duck River,” he said. “We would hope to do that in the fastest time frame possible and hopefully work would start soon after that.”
No matter what happens, Bowden made it clear Alabama Power will play no part in the discussion over which water source is best for the future of Cullman County until the local debate is resolved.
“Once the county and the City of Cullman reach an agreement on a coordinated water supply strategy and litigation related to water supply issues is finally resolved, Alabama Power will resume consideration of a Smith Lake water withdrawal assuming that option remains part of the coordinated strategy,” he wrote.
Cullman Mayor Max Townson declined to comment for this story, noting the permit request is a county matter.
THE DETAILS
The following is the letter from Alabama Power:
Earlier this year, Cullman County submitted an application to Alabama Power Company for a proposed water withdrawal from Smith Lake. Since then, the company has been reviewing the application as part of the initial phase of our process for obtaining authorization from the Federal Energy Regulatory Commission (FERC) to permit a water withdrawal from the company’s federally-licensed hydro project. Because we have not completed this review, Alabama Power has not reached any conclusions or decisions on whether to proceed to the second phase of the permitting process which includes resource agency and stakeholder consultation. The third phase consists of Alabama Power’s submittal of an application to FERC requesting authorization to allow the withdrawal.
In recent weeks, several developments related to Cullman County’s proposed use of Smith Lake have arisen that have impacted our review of the county’s application. Based on numerous reports in the local news media, there is an increasingly high level of contention and disagreement with respect to water supply needs in Cullman County and the best option to serve those needs. Alabama Power has known for many months that Cullman County and the City of Cullman were not in agreement on a coordinated long-term water supply strategy. Nevertheless, Alabama Power began processing the county’s application with the hope that the county, the city, and other stakeholders would be able to agree on a single plan for meeting the region’s water supply needs.
Unfortunately, there has been no resolution of these water supply issues and the conflict among the county, city of Cullman, other municipalities and customers of the county system grows more contentious by the day. Based on our understanding of the situation, the continuing conflict now involves significant legal, contractual and political issues that would likely complicate, if not indefinitely delay, FERC’s consideration of the Smith Lake withdrawal should the application ever reach that phase of the process.
Moreover, the lawsuit filed recently challenging the newly-created South Cumberland Cooperative District adds more uncertainty to Alabama Power’s consideration of the county’s water withdrawal application. Among other things, the lawsuit challenges not only the creation of the District, but also the Commission’s transfer of the county water system assets to the District. To be clear, Alabama Power takes no position concerning the merits of the lawsuit. However, until the issues presented in that litigation are resolved, important legal questions will remain about the status of the District and the disposition of the county’s water system assets. Given our understanding that the current plan is for the District to finance, construct, maintain, and operate the water withdrawal facilities, we believe the uncertainty of this situation will significantly complicate both Alabama Power’s and FERC’s consideration of a proposed water withdrawal from Smith Lake. Until the litigation is finally resolved, we cannot be assured that the District would have either the legal authority to receive a permit from Alabama Power or the ability to meet the terms and conditions of that permit.
Recently, Alabama Power spoke with FERC staff concerning the county’s proposed water withdrawal application. We explained our concern that these issues, if not resolved, may entangle both the company and FERC in local legal and political issues, adding significant complications to both the company’s and FERC’s consideration of the county’s application. FERC staff indicated that there is a substantial likelihood any application containing significant unresolved issues would be dismissed. Staff further advised that the local issues should be resolved before Alabama Power submits an application to FERC for a Smith Lake water withdrawal.
For the reasons discussed above, Alabama Power is suspending review and processing of the county’s application for a Smith Lake water withdrawal. Further, Alabama Power will not process any new application that might be submitted by the South Cumberland Cooperative District for withdrawal from Smith Lake. Once the county and the City of Cullman reach agreement on a coordinated water supply strategy and litigation related to water supply issues is finally resolved, Alabama Power will resume consideration of a Smith Lake water withdrawal assuming that option remains part of the coordinated strategy.
Matthew W. Bowden
Vice President, Environmental Affairs
(Alabama Power)
* Trent Moore can be reached by e-mail at trentm@cullmantimes.com, or by telephone at 734-2131, ext. 225.
