The U.S. Army Corps of Engineers has determined it has the authority to grant Georgia's request to draw enough water out of Lake Lanier and the Chattahoochee River to meet the state's needs.
But the Corps, in a filing Tuesday with the federal appeals court in Atlanta, said this does not mean it will automatically grant it.
Still, the Corps' opinion, submitted one day after Georgia won a legal victory in the long-simmering feud before the U.S. Supreme Court, is more good news for the state. When Georgia first submitted its request to Corps in 2000, the Corps rejected it, saying it had no legal authority to do so.
"The Corps' decision is great news for Georgia," state Attorney General Sam Olens said. "It clears the way for real predictability and certainty for Georgia's water resources."
About 3 million metro Atlanta residents get drinking water from Lake Lanier. The ability to continue to tap the lake is critical to economic development across the state and growth of the metro region.
Before making a determination on how much water can be drawn from Lanier and the Chattahoochee, the Corps said, it "must complete a thorough review, including public participation, of the environmental impacts, as well as the impacts of other reasonable alternatives."
Corps spokesman Pat Robbins estimated that this process, required under the National Energy Policy Act, could take two to three years. And once the Corps makes its final decision to grant Georgia's request in whole or in part, that could spawn more litigation in a tri-state water dispute that has been in courts for decades.
Gov. Nathan Deal said the Corps' decision "will help set the parameters for discussions regarding a resolution with our neighboring states."
Robert Bentley, a spokesman for Alabama Gov. Robert Bentey, noted the Corps has yet to approve additional water usage for Georgia. "There will be a full administrative review with participation of all affected parties prior to any final decisions being made," he said. "Alabama will be a full participant in that review in order to ensure that vital downstream interests are protected."
A spokesman for Florida Gov. Rick Scott could not be reached for comment.
In 2000, the state asked the Corps to accommodate Georgia's water needs through 2030 — allowing it to withdraw up to 297 million gallons of water a day out of the lake and 408 million gallons of water a day out of the river.
The state currently draws about 400 million gallons of water a day from the lake and the river, Atlanta lawyer Todd Silliman, who represents the state in the litigation, said, citing state environmental data.
On Monday, the U.S. Supreme Court announced it would not hear appeals of a ruling by the 11th U.S. Circuit Court Appeals in Atlanta which had overturned a decision that could have had catastrophic consequences for the metro area.
In 2009, a judge overseeing the water dispute ruled it was illegal for the Corps to draw water from Lake Lanier. But the 11th Circuit determined otherwise, finding that one of the purposes of the man-made reservoir about 45 miles upstream of Atlanta was to supply water to the metro area.
The 11th Circuit also sent Georgia's water supply request back to the Corps, instructing it to use the correct legal analysis. On Tuesday, a year later, the Corps said it does have authority to grant the state's request.
But the Corps also made it clear it is not ready to give Georgia all the water it wants.
Even though the Corps can grant the request, this "does not lead to the conclusion that the Corps must, should or will exercise its discretion to operate the [Buford Dam] project in that manner," Chief Counsel Earl Stockdale said in an accompanying legal opinion. "In evaluating its authority to entertain Georgia's request, the Corps makes no representations as to the validity of the needs expressed in the request."
Silliman and Bruce Brown, from the McKenna Long & Aldridge firm which has represented Georgia in the case since 1999, helped draft the state's initial water request.
The Corps' decision this week, Brown said, "is a great milestone for the state and a terrific outcome." Moreover, he said, as the Corps conducts its studies, "we have every expectation that, in the meantime, the region will continue to have its water needs met."
Gil Rogers, a lawyer with the Southern Environmental Law Center in Atlanta, said the Corps should take a hard look again at Georgia's initial request and make sure enough water continues to flow downstream to meet the needs of interests south of Atlanta.
"Given the population trends, the growth here and the water conservation measures that are going into place, that request may no longer be accurate," he said. "I think the Corps needs to look again at what the water needs of this region are."
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