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John L. Fortuna John L. Fortuna Counsel Environmental, Health and Safety Atlanta: +1 404 572 2828 [email protected] John Fortuna represents clients in complex environmental matters in federal and state court, as well as state administrative proceedings. He has substantial experience permitting and defending water rights and water supply projects for municipal and industrial clients, and in the defense of government enforcement actions and citizen suits under both the Clean Water Act and the Clean Air Act. John also frequently litigates cases and advises clients on Endangered Species Act and National Environmental Policy Act issues. He has been recognized as a Super Lawyers “Rising Star” for his work in environmental and natural resources litigation. Representative Water and Water Rights Experience Ongoing representation of the City of Atlanta and other metropolitan Atlanta water supply providers in the “Tri-State Water Wars” litigation involving the Apalachicola-Chattahoochee- Flint (ACF) and Alabama-Coosa-Tallapoosa (ACT) River Basins. Example matters include: Georgia, Atlanta Regional Commission and Cobb County-Marietta Water Authority v. U.S. Army Corps of Engineers, No. 1:14-cv-3593 (N.D. Ga.) (granting summary judgment and ordering the Corps to address Atlanta area water supply needs at Allatoona Lake). Cobb County-Marietta Water Authority v. U.S. Army Corps of Engineers , No. 1:17-cv- 400 (N.D. Ga.) (challenging Corps practices that interfere with water rights of water supply users). In re Tri-State Water Rights Litig., 644 F.3d 1160 (11th Cir. 2011) (reversing injunction threatening metro Atlanta water supply and holding that water supply is an authorized purpose of Lake Lanier). Alabama v. U.S. Army Corps of Engineers, No. 1:17-cv-607 (D.D.C.) (defending ACF Master Water Control Manual and Corps’ decision to meet Atlanta area’s long-term water supply needs). National Wildlife Foundation v. U.S. Army Corps of Engineers, No. 1:17-cv-772 (D.D.C.) (defending ACF Master Water Control Manual and Corps’ decision to meet Atlanta area’s long-term water supply needs). Alabama & Alabama Power v. U.S. Army Corps of Engineers , No. 1:15-cv-696 (D.D.C.) (defending existing water supply uses at Allatoona Lake). Florida v. U.S. Fish & Wildlife Service, No. 4:06-cv-410 (N.D. Fla.) (obtained summary judgment on claims that Corps operations jeopardized endangered and 1 www.kslaw.com 1 threatened species in the Apalachicola River in Florida). Representing the State of Georgia in original action before the United States Supreme Court on matters related to the reasonableness of municipal and industrial water supply use in the ACF River Basin. Florida v. Georgia, Orig. No. 142 (U.S.). Advising national alliance of water providers on matters related to federal water supply policy. Representing a coalition of users in connection with an ongoing water supply reallocation study at J. Percy Priest Reservoir near Nashville, TN. Representing a Texas water provider in connection with changes to the authorization for a Corps reservoir and its request for permanent rights to storage. Preparing comments on behalf of the City of Atlanta and other water providers regarding the U.S. Army Corps of Engineers’ proposed Water Supply Rule to its water supply program. Representing Atlanta area water providers in relicensing proceedings before the Federal Energy Regulatory Commission. Preparing comments on behalf of business and industry groups regarding the scope of Clean Water Act jurisdiction. Preparing comments on behalf of water providers regarding the designation of critical habitat for protected mussel species under the Endangered Species Act. Successfully represented a coalition of environmental groups pro bono in a case challenging the EPA’s decision to “veto” the “Yazoo Pumps,” a large and controversial flood control project in the Mississippi Delta, under Clean Water Act § 404(c). Citizen-Suit and Enforcement Defense Negotiated favorable resolution of an enforcement action by the California Air Resources Board against a major aftermarket automotive parts distributor. Represented a major aftermarket automotive parts distributor in connection with US EPA Section 208 Information Request, resulting in decision to decline enforcement. Ongoing representation of Washington port facility in a Clean Water Act citizen suit concerning stormwater discharges from a terminal facility. Successfully defended a major pulp and fiber facility in a Clean Water Act citizen suit involving discharges of color, odor and turbidity, obtaining summary judgment on all claims. Successfully defended a Tennessee city against a Clean Water Act citizen suit involving discharges from the city’s sanitary sewer system, resulting in complete dismissal of the citizen’s claims. Represented a California iron casting facility in a Clean Water Act citizen suit, resulting in a favorable negotiated consent decree governing future discharges from the site. Clean Air Act Permitting and Litigation Representing energy company in connection with litigation and reconsideration proceedings related to EPA’s Mercury Air Toxics Standards for new power plants. Successfully defended air quality permits authorizing construction of 850 MW coal-fired power plant. Obtained summary judgment in favor of energy company on challenges to an extension of the construction deadline in its PSD permit for a new 1,100 MW coal-fired power plant. Successfully defended air quality permits authorizing construction of 1,100 MW coal-fired power plant against administrative challenges and appeals by coalition of environmental groups. 2 www.kslaw.com 2 Preparing comments on behalf of individual energy clients and coalition groups on significant EPA rules, including EPA’s greenhouse gas standards for new fossil-fuel generating units and the Mercury Air Toxics Standards for new power plants. Mining, Minerals & International Disputes Representing an international investor in treaty arbitration against the Government of Peru involving the operation and expropriation of mining and smelting facilities in the Central Andes. Coastal Permitting Successfully represented marina developers before the Georgia Supreme Court in a challenge to a permit issued under the Georgia Coastal Marshlands Protection Act, obtaining a landmark decision limiting the ability to regulate upland areas. Successfully represented a county in litigation over permits to construct a marina to be operated through a public-private partnership. Successfully represented a community association resolving a challenge to its Georgia Coastal Marshlands Protection Act permit to construct a community dock in connection with its residential development. Advising clients on matters relating to development of coastal properties, permitting requirements and other issues. Memberships and Honors Super Lawyers Rising Star, Environmental and Natural Resources Litigation, 2014 – 2015. American Bar Association, Environment, Energy and Natural Resources Section. Editor, Water Resources Section, Year-in-Review. 2014. State Bar of Georgia, Environmental Law Section. Editor, Georgia Environmental Law Section Newsletter. 2012-present. King & Spalding Pro Bono Service Award, 2011-2015. University of Georgia Law School, Environmental Law Association Award for Excellence in Environmental Advocacy. 2005. Selected Publications & Presentations Updating Twentieth Century Water Projects to Meet Twenty-First Century Needs: Lessons Learned from the Tri-State Water Wars Litigation. Georgia State Law Review. 2013. Co-Chair – Endangered Species Act Conference. Atlanta, GA. 2013. Georgia Water Law and Regulation: Understanding Surface Water Rights in Georgia. 2012. The Hidden Costs of New Federal Air Quality Regulations: Information Collection Requests and What You Can Do About Them. The Metropolitan Corporate Counsel. 2011. State of Florida and Others Sue to Block EPA Rule Setting Numeric Nutrient Limits under the Clean Water Act. Eastern Water Law & Policy Reporter. 2011. The Litigation Alternative: Allocation of Water Resources in the Courts, North Carolina Water Conference. Raleigh, NC. 2009. U.S. Army Corps of Engineers Issues Legal Analysis Concluding It Has Authority to Meet the Water Supply Needs of Metropolitan Atlanta. Eastern Water Law & Policy Reporter. 2009. Coastal Permitting in Georgia, Southeast Water and Wetlands Conference. Atlanta, GA. 3 www.kslaw.com 3 2009. Eleventh Circuit Rules State Penalty Action Does Not Bar Citizen Suit Under Clean Water Act. Eastern Water Law & Policy Reporter. 2009. Obama's EPA: Changing The Regulatory Environment. Law360. 2009. Eleventh Circuit Affirms U.S. Fish and Wildlife Service Biological Opinion on Corps’ Everglades Operations—Rejects Habitat-Based Incidental Take Statement. Eastern Water Law & Policy Reporter. 2009. Internal US EPA Memo details Clean Water Act Enforcement Problems: Congress Asks Questions. Eastern Water Law & Policy Reporter. 2008. Water Resources in Georgia in a Time of Drought: Availability, Management, Storage and Conservation, King & Spalding Seminar Series. 2008. Army Corps of Engineers Proposes Changes to Interim Operating Plans for the Apalachicola- Chattahoochee-Flint Reservoirs. Eastern Water Law & Policy Reporter. 2008. EPA Exercises Veto Authority Under the Clean Water Act: Kills Controversial “Yazoo Pumps Project” in the Mississippi Delta. Eastern Water Law & Policy Reporter. 2008. Water Rights, Public Resources, and Private Commodities: Examining the Current and Future Law Governing the Allocation of Georgia Water. Georgia Law
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