Regional water laws cloud water issue

By Alan J. White

I’m tired of the misinformation I read about Atlanta’s water woes. The politics are horribly uninformed, and the journalism is even worse because neither the politicians nor the journalists have bothered to enlighten themselves as to Atlanta’s legal water entitlements.

Let me begin by explaining that water law in the eastern and western United States are completely different.

Eastern water law, which includes the law of the original states, is derived from the English common law and may be characterized as a law of riparian rights. Briefly, as in the United Kingdom, it is based on waterways that flow throughout the year. Owners of land through which, and adjacent to which, water flows, have the right to use the water for virtually any purpose. But they are obligated to receive the flows from above, and are also obligated to permit the flows to continue below. But they can delay the flows by storing the water temporarily, such as we do at Lake Lanier, but, they must permit the flows to continue below. Lastly, these rights and obligations pass to subsequent owners of the land.

Western water law may be characterized as a law of prior appropriation and is generally applicable to areas that were once owned by the United States. It is derived from the fact many waterways obtain their flows from the melt of winter snows and dry up when the melt is gone. Because of federal laws in the 1800s, water rights were separated from the title to lands owned by the United States and, therefore, no water rights pass to subsequent owners of those lands.

Briefly, many years ago a person or entity would appropriate a quantity of water from a waterway for a specified purpose. The first person or entity to do so would have a right to use the first quantity of seasonal water for that purpose, the second person or entity to the second quantity, and so on. If the person or entity with a prior appropriation does not use the appropriation, or for the specified purpose, the second appropriator would become senior, at least for a given season.

Since eastern and western water law are so different from one another, and since western water rights largely reflect the land laws of the United States as such laws existed on the respective admission dates of the states, I cannot foresee that there can be a national water policy, as our governor would like.

The recent court decision ruling that Atlanta has been tapping Lake Lanier illegally is both correct and incorrect. It is correct insofar as it deprives Atlanta of the benefits of the storage at Lake Lanier because Atlanta did not contribute to the construction of the development. But it is incorrect insofar as it deprives Atlanta of the quantity of Chattahoochee water it was withdrawing when the development was being planned. Atlanta is entitled to that much water under eastern water law, and the matter of interfacing that entitlement with the existing storage benefit of Lake Lanier is properly a matter for the politicians rather than the courts.

Apparently, the judge’s rationale paralleled the western law of prior appropriation in which the appropriator of a quantity of water has the right to build a dam on the appropriator’s land to store the seasonal water until it is used for the appropriated purpose; and, because Atlanta did not contribute to the development, Atlanta is not entitled to a share of the water.

Atlanta’s pre-Lanier withdraws from the Chattahoochee are insufficient for today’s needs, and for the future. The supply provided by Lake Lanier is relatively finite, and additional local storage developments would likely be subject to the same weather conditions as Lake Lanier.

Consequently, I believe that Atlanta’s quest for water supplies to supplement its withdrawals from the Chattahoochee, and for the future, should look primarily beyond areas subject to local weather conditions. The biblical story of Joseph’s dream counseled the Pharaoh to save during the seven years of plenty for the seven years of famine, as we should be counseled to prepare immediately for Atlanta’s next period of drought.

Mayor William Hartsfield led Atlanta out of the Great Depression and unwisely, it now appears, declined to burden the taxpayers with the cost of contributing to the Lake Lanier development. We cannot afford to repeat the same error by failing to pay for our present and future water needs. The politicians obviously will have field days trying to pass the cost to others, but in the end it is we, the consumers, who will have to pay as taxpayers for the water we need.

From what I have read, the Corps of Engineers has said that the Tennessee River can provide more water than Atlanta needs now and for the future. If California can transport water from its north to its south, Georgia can do so over a shorter distance through less difficult terrain, and the consent of only the federal government would be necessary if the water is withdrawn from Lake Nickajack on the Tennessee, abutting Georgia. Otherwise, a political deal will have to be worked out to cross lands of Tennessee or Alabama, depending upon the point of withdrawal, as to which Georgia politicians might attempt to cause Tennessee and Alabama politicians to compete with one another to become our supplier.

Alan J. White of Marietta is a retired judge who worked for the Federal Energy Regulatory Commission and the Social Security Administration.