Don't leave tri-state water woes to a court decision

Published on: 08/14/08

The sense of drought-driven panic that gripped North Georgia a year ago and made headlines around the country has eased considerably. The drought itself has eased as well, with only the northeast corner of Georgia still experiencing a D4, or exceptional drought, the highest level of the federal government's drought scale.

But that doesn't mean the drought has ended. Rainfall levels have improved a little but continue to be well below normal — most of the state is still experiencing moderate to severe drought. And as that prolonged drought drags on month after month, our predicament has gotten more dire in important ways.

JAY BOOKMAN
MY OPINION

Jay Bookman
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A year ago, state officials were ringing the alarm bells to draw attention to the fact that Lake Lanier had fallen to eight feet below full pool. Today, more quietly, the lake is 17 feet below full pool, nine feet lower than the levels that caused such concern in 2007.

In fact, the inflow from rivers and streams into the lake is so low that water levels would be dropping even if the Corps of Engineers didn't release a drop out of Buford Dam for Atlanta, Florida and other downstream users.

Things may be coming to a head legally as well. U.S. District Judge Paul A. Magnuson has been brought in from Minnesota to hear the collection of suits and countersuits filed by Georgia, Alabama, Florida and other parties over allocation of water in Lake Lanier. This week, Magnuson issued an order that should greatly accelerate a decision on the most critical issue regarding metro Atlanta's reliance on Lake Lanier.

Metro Atlanta has the right to draw water from the Chattahoochee River. Nobody questions that. The courts are being asked to answer a different but related question: Is the U.S. Army Corps of Engineers authorized by Congress to store water for Atlanta's future use behind Buford Dam?

In times of plenty, the answer to that question doesn't matter, because there's water enough for everybody. But in times of drought, such as these, it matters a great deal.

If metro Atlanta has the legal right to store water behind Buford Dam, it can use that storage space to hold water upstream to be tapped as necessary, giving it a much-needed cushion and allowing it to continue to grow if it uses water responsibly.

On the other hand, if metro Atlanta does not have that right and cannot acquire that right through Congress, it has arguably grown beyond its resource limits already and faces some very difficult decisions and challenges. In other words, the core of the dispute is about the use of Buford Dam, a federal facility, and less about the use of the water itself.

As a matter of common sense — as a matter of practicality — metro Atlanta of course ought to be able to use Buford Dam to store water. But practicality and legality represent two different dimensions, and it is the legal dimension that matters at the moment.

Georgia's lawyers, including private attorneys from King & Spalding, insist the state has a strong case, that the record proves that Congress authorized use of the dam to meet the region's water needs. Florida and Alabama argue the opposite.

A U.S. circuit court has already ruled that under one important federal law, Georgia does not have authority to use Buford Dam for water storage. In his order this week, Magnuson noted that "the issues addressed in that decision will undoubtedly affect" the case in his own court, which sounds ominous.

Georgia's attorneys argue that the state's authorization is found in other federal laws, and metro Atlanta has an awful lot riding on whether they're right.

If Florida and Alabama lose this particular battle, they don't lose much at all. But if Georgia loses — and we may have a decision from Magnuson on that question early next year — its situation becomes precarious.

The better solution for Georgia and everyone else is to reach a negotiated settlement outside the courts, where a full range of concerns can be addressed. Leaving it to judges, in a setting in which only narrow legal arguments are supposed to matter, is a dangerous course of action.

Jay Bookman is the deputy editorial page editor. His column appears Thursdays and Mondays.

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