Feb. 3—About nine months ago, mediation in the long-running dispute between the state of South Carolina and the city of Augusta, Georgia against the Army Corps of Engineers ground to a halt on the problem of fish passage at the New Savannah Buff Lock and Dam.

On Jan. 27, a three-judge panel at the Fourth Circuit Court of Appeals heard oral arguments in the case that arose from environmental mitigation requirements mandated by the Savannah Port expansion 125 miles south.

Pending is the court's decision on whether to reverse a lower court's judgment to vacate the injunction on the Corps of Engineers to tear down the lock and dam and build a rock weir. There is no timeline for when that decision might be made.

The hour-long, back-and-forth in Richmond, Virginia on Jan. 27 highlighted the divide for what elevation the upstream pool of water has to be to fulfill the economic and recreational needs of the region.

Central to the case, filed in November 2019, has been whether U.S. District Judge Richard Gergel interpreted a piece of 2016 legislation correctly when he enjoined the Corps of Engineers from implementing its proposal to aid in the passage of endangered Atlantic and shortnose sturgeon farther upstream.

Gergel's order enjoins the Corps from implementing not only that specific weir but any proposal that "does not 'maintain the pool' that was in existence on the date of the [Water Infrastructure Improvements for the Nation] Act's enactment, which was 114.76 feet" above sea level.

That order supports with the position of South Carolina and Augusta.

But the Corps of Engineers maintains this "post hoc rationalization" impermissibly placed "a judicial gloss" on the WIIN Act. The Corps says it must only maintain an elevation that ensures the purposes of that upstream pool: water supply and recreation.

"The statute itself doesn't include anything about water levels. It doesn't say 'an elevation.' It doesn't say 'a water level.' It does include language about purposes: water supply and recreation," said Michael Gray, attorney for the Corps of Engineers.

Gray argued that interpretion is contrary to how Congress "always legislates with these Corps projects" and that, from an engineering standpoint, to stipulate an exact elevation down to the 100th of an inch is "an impossible task for the Corps ."

"The Corps is weighing everything. How do we achieve at the lowest cost possible the best fish passage that doesn't induce new flooding and that maintains the functions of the pool? That is in the heart of what the Corps of Engineers usually does and the way that Congress instructs the Corps to act," said Gray. "Congress doesn't typically require particular water levels; and when it does, it says so, it lays it out, it says 'these are the water levels that we want in this particular place' [...] When it gives functions, it intends the Corps to serve those functions."

Fourth Circuit Judge Paul Niemeyer, who heard the argument with judges Robert King and Albert Diaz, questioned whether the weir could indeed serve the purposes . The Corps' attempt four years ago to assuage anxiety over its proposed solution instead became what respondents on the case call "an unmitigated failure."

Far from demonstrating its ability to maintain water elevations or allow adequate water supply and recreational activity — the historic uses of the upstream pool — a February 2019 draw-down test meant to simulate the Corps' proposed solution left numerous docks mired in mud. The results were so destructive that the Corps stopped the test early.

Niemeyer said that in that test, the Corps "couldn't even demonstrate the [elevation] levels they were going to achieve" with the proposed weir and, moreover, that such a weir "is not capable" of achieving them.

Niemeyer said that distinction is important as it illustrates the division between the lower court's injunction and the language of the legislation it references.

The "biggest failure" of Gergel's order, he said, was to require that the Corps maintain the elevation of the upstream pool as recorded the day of the legislation's enactment. The legislation itself requires merely that any solution "be able" to maintain this same elevation, he said.

Gray, attorney for the Corps, argued the draw-down test was "not representative" and couldn't fully portray the elevations the weir was capable of producing because the dam upstream of the test site was undergoing repairs and not managing water flows normally.

The Corps' proposed weir, if implemented, would likely maintain an upstream pool that is 4 to 5 feet below what has been maintained by the New Savannah Bluff Lock and Dam: 114 to 115 feet above sea level.

Chad Johnston, representing South Carolina, said this higher elevation is consistent with easements obtained by the state of South Carolina for the lock and dam's construction 85 years ago; with the Corps' own operational plan for the lock and dam; and with the Corps' own mitigation plan that's linked to that Savannah expansion .

"We think it's somewhat curious for the Corps to criticize South Carolina and Augusta as to our focus on specific water elevations because that's precisely what the Corps did in developing each of its project alternatives," Johnston said.

Why is the upstream pool so important?

New Savannah Bluff Lock and Dam doesn't provide hydro-electric power and commercial transport ended during the 1970s.

The lock and dam closed to the public in 2014 after it was deemed a public safety hazard and was formally deauthorized in 2016 by that same legislation being argued in the courts.

But the structure provides for adequate water supplyf for Augusta and a handful of large regional manufacturers, such as Kimberly-Clark's North Augusta plant.

U.S. Rep. Joe Wilson, R-SC, has said the structure is "critical to the economic success of both sides of the river" and that "everything should be done" to maintain the pool's elevation at historic levels.

Augusta and North Augusta, as well as Aiken County, could eventually have local control over what happens with the lock and dam. The structure was intended, through a piece of 2000 legislation, to be conveyed to these local jurisdictions for operation and maintenance but this conveyance never occurred.

Federal lawmakers in both Georgia and South Carolina have indicated a willingness to pursue this conveyance (and as recently as July 2020) should there be local buy-in to do so.

That willingness was further underlined last year when Aiken County's legislative delegation pushed hard for a portion of the state's plutonium settlement to go toward maintenance of New Savannah Bluff Lock and Dam, even though the $20 million that the city of North Augusta received for it, as approved by the General Assembly last June, can't be touched until the structure at least partially comes under the city's control.

North Augusta city administrator Jim Clifford confirmed the fundscould be solely for engineering a solution to fish passage at the lock and dam and not for handling the ongoing legal costs associated with it.