Georgia appeals ‘devastating' water decision

By Bill Rankin

The Atlanta Journal-Constitution

Georgia has asked an appeals court to allow metro Atlanta to use Lake Lanier for most of its water needs, warning that a contrary decision "will be devastating to 3 million residents who have no meaningful alternative source of water supply."

Separately, Gwinnett County also asked the 11th U.S. Circuit Court of Appeals in Atlanta to reverse a ruling last July that declared the region has no legal right to rely on Lake Lanier for most of its water supply.

The ruling "imposed what can only be termed the death penalty for subsistence by existing households and businesses, as well as future economic growth within Gwinnett," the county said. It noted that its approximately 800,000 residents rely on the lake as their sole source of water supply.

The almost 200 pages of legal briefs filed by Georgia parties and Gwinnett are the first salvos in a high-stakes appeal over water rights to Lake Lanier. The 11th Circuit has set a briefing schedule that ends July 26. Once all legal briefs are filed, the court is expected to schedule oral arguments in the case.

The parties are appealing a ruling issued by Senior U.S. District Judge Paul Magnuson, who found it illegal for the U.S. Army Corps of Engineers to draw water from the massive federal reservoir formed by Buford Dam to meet the water needs of most metro residents.

Magnuson stayed his ruling, giving Georgia, Alabama and Florida three years to resolve the thorny 20-year-old dispute. Otherwise, Magnuson warned, he will cut the metro area's withdrawals to levels established almost four decades ago.

The three states have begun negotiations aimed at resolving the water war dispute. Also, at the urging of Gov. Sonny Perdue, the state Legislature has passed the Water Stewardship Act of 2010 that sponsors say will create a "culture of conservation." It would curtail outdoor watering and require builders and apartment building owners to more efficiently manage water usage.

Georgia hired top lawyer Seth Waxman, a solicitor general during the Clinton administration, to head its appeal. The 110-page brief was filed this week on behalf of Georgia and the Atlanta Regional Commission, the city of Atlanta, Fulton and DeKalb counties, the Lake Lanier Association, the Cobb County-Marietta Water Authority and the city of Gainesville. Gwinnett filed its own 87-page legal brief.

Georgia's legal filing criticized Magnuson, a St. Paul, Minn., judge assigned to oversee the case. The judge overreached his authority and relied upon "scraps of non-authoritative, post-authorization history" to conclude that Congress did not authorize the Corps to operate Buford Dam to provide municipal water supply, the filing said. "The court's opinion rests on a profoundly mistaken understanding of the Corps' authority [and its own]."

When Congress authorized construction of Buford Dam in the 1946 River and Harbor Act, it intended the Corps to protect Georgia's interest in the Chattahoochee River as a source of water supply, the brief said. "In fact, Buford Dam's location was specifically selected upstream of Atlanta precisely to ‘ensure an adequate water supply for the rapidly growing Atlanta metropolitan area.' "