DEL.ICIO.USCourt rulings could settle water war
The Atlanta Journal-Constitution
Actions in two courtrooms soon could determine metro Atlanta’s ability to control its future water supply as well as its hold over the water it already has.
The outcome is as uncertain as it is important.
BEN GRAY / bgray@ajc.com
Weeds fill the gap where water once stood at a Lake Lanier dock. A drought like this could be disastrous for metro Atlanta if some of the region’s out-of state opponents have their way.
•Since 1990: Georgia, Alabama and Florida have been fighting over river water, including Lake Lanier.
• The latest: A judge wants to rule on whether metro Atlanta has a right to use Lanier as its drinking source. Also, Georgia asked the U.S. Supreme Court to validate a 2003 agreement that would guarantee metro Atlanta enough water from the lake to keep growing for two decades.
• Next: The judge could hear arguments by year's end. The high court has until late fall to decide whether to take Georgia's case.
• Photos: A shallow Lake Lanier can be hazardous
DEALING WITH THE DROUGHT:
• Can I water? Here are the rules
• 10 tips to save water
• Map: Heavy demands on our water
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The U.S. Supreme Court is expected to decide this fall whether to take a petition filed by Georgia, which could validate an agreement with the U.S. Army Corps of Engineers assuring this region’s access to water for 20 years.
In a separate case, U.S. District Court Judge Paul A. Magnuson in Florida wants by early next year to hear arguments over whether metro Atlanta has the right to use Lake Lanier, which sits on the Chattahoochee River, as its primary water supply. The right has been assumed over the years: More than 3 million people get their drinking water from the federal reservoir or the Chattahoochee just below it.
But its legal basis is contested by Alabama and Florida.
Attorneys for all three states say they can’t predict the outcome, nor can they say exactly what defeat could mean to this region. Certainly, additional reservoirs are already coming. Aggressive water conservation may also be required, even after the current drought ends.
Alabama, for one, is taking a hold-no-prisoners stance.
“At bottom, federal law governs the operation at Lake Lanier, and as much as the Atlanta area views it as its private drinking water reservoir, that is not what federal law says it was built to do,” said Matt Lembke, a Birmingham attorney for the state of Alabama. “If Georgia had spent the money to build the reservoir it would belong to Georgia, but it was the federal taxpayers who built that reservoir.”
He says metro Atlanta would still be able to draw water from the lake and the river below it when there’s enough, but drinking water would no longer dictate lake operations. That could make a drought like the one Atlanta’s experiencing a disaster.
Lembke also criticized the region for its “total failure of planning” that led to its dependence on Lanier. Metro Atlanta’s water plan counts on the region taking far more water out of the lake. There’s no plan “B.”
In the meantime, Georgia and metro Atlanta governments spent more than $7 million in legal fees from 1998 to 2007, and the bills are mounting.
Question of ownership
After 18 years of flanking maneuvers, the central question should finally be answered next year in the Florida court: Whose water is it anyway?
Alabama and Florida have contested metro Atlanta’s right to additional drinking water from Lanier since 1990, when the first of many lawsuits was filed. They say Congress didn’t authorize the reservoir to serve as metro Atlanta’s water supply when it approved Buford Dam in the 1940s. It was built in the 1950s, forming Lanier. They argue its purposes were to control floods, float barges downstream and generate hydropower.
Georgia disagrees and has compiled federal documents to prove lawmakers intended one of the lake’s purposes to be water supply for the city.
Former Atlanta Mayor William B. Hartsfield fought hard to make sure Lanier was built upstream of the city’s taps, said R. Todd Silliman, an attorney for Georgia.
Georgia wants the corps of engineers to hold enough water in Lanier to guarantee metro Atlanta enough water, even during droughts. While last year’s water crisis turned out to be overblown, the corps did drop Lanier to a historic low level in December while sending water downstream for threatened and endangered freshwater mussels in Florida.
Protecting species under the U.S. Endangered Species Act is a new demand on Lanier that surfaced in recent years. It requires the corps to send more than 3 billion gallons of water a day to Florida during the worst droughts.
Florida has turned its mussels into muscle, using the federal law to secure water primarily for its $205 million commercial fishery in the Apalachicola Bay.
For Alabama, Lembke said the main concern is floating supply barges on the lower Chattahoochee River for a nuclear power plant.
History of finger-pointing
If the Supreme Court decides to hear Georgia’s case, it will rule on the validity of a settlement agreement signed in 2003 between Georgia, local leaders, federal officials and federal hydropower customers. It would set aside up to 50 percent more water in Lanier for the region’s drinking water.
Former Gov. Roy Barnes, who signed the agreement, said this week his plan was to guarantee metro Atlanta’s water supply from Lanier for 20 years while the state built a series of reservoirs to take pressure off the lake.
At the same time, he tried to negotiate a longer-term water-sharing deal with Alabama and Florida. Barnes said Florida wouldn’t budge.
“What they would tell us off the record was that they had a very strong environmental lobby that would never allow them to settle,” the former governor said.
Alabama and Florida blame the 2003 agreement on interim water contracts for derailing five years of congressionally mandated negotiations later that year. They were left out of what they say was a side deal involving Georgia, metro Atlanta, the corps and hydropower customers.
Parker Thomson, an attorney for Florida, called the settlement agreement “the controlling event that became impossible to resolve.”
Barnes and Silliman, Georgia’s attorney, say that’s a red herring meant to divert blame. Georgia was the only state willing to extend the deadline for the public talks, Silliman said.
Fear for Georgia’s case
George William Sherk, a water law expert at the Colorado School of Mines who has advised Georgia and the city of LaGrange, predicted Georgia will lose in both courts.
“Georgia’s holding a pair of two’s and they’ve called the others states bluff,” Sherk said. “The hands that are held by Alabama and Florida will beat a pair of twos.
Charles DuMars, a top water attorney in New Mexico who has consulted with Georgia, said the courts should side with Georgia because Congress meant for Lanier to keep up with growing demands.
“The domestic use of water hasn’t changed. The quantity has changed,” he said. “But the purpose of people having water to drink, that is one constant.”
Gil Rogers, an attorney with the Southern Environmental Law Center, a non-profit legal team in Atlanta that is not directly involved in the litigation, said a defeat for Georgia would not be the worst outcome because it would “be a defeat of the current way of growing.”
Rogers said the region can either choose its current path of litigation, desperate attempts to tap into the Tennessee River and blindly planning for new reservoirs, or it can start taking conservation seriously and grow where water is available.
“Generally, we’d like to see all this money that’s been paying off lawyers for the state put into sustainable water use so Atlanta doesn’t have to worry about building more reservoirs,” Rogers said. “There are ways to protect Georgia’s interest in water without being in court.”
