U.S. Water News Online
WASHINGTON -- If the Georgia-Alabama-Florida water wars
were a poker match, Georgia's high card might be an agreement it
secured in 2003 for rights to about a quarter of the water in Lake
Lanier, a huge federal reservoir outside Atlanta.
The agreement with the U.S. Army Corps of Engineers -- which
Alabama and Florida claim is illegal -- is the foundation of
Georgia's long-term water plans, giving the Atlanta region the water
it needs to continue growing as one of the nation's major cities. As
a signed pact with the federal government, the deal also puts Georgia
in a strong negotiating position with its neighbors.
But with the governors of the three states meeting soon for White
House-backed mediation, Georgia is in danger of losing its ace in the
A federal appeals court is expected to issue a decision in the
coming months that could invalidate the state's rights under the
agreement. The ruling could dramatically change the dynamic in the
state's decades-long water wars, and observers say the governors
talks might not get very far with such a crucial decision looming.
"It is pivotal," said Mark Crisp, an Atlanta water consultant with
C.H. Guernsey & Company who has testified as an expert witness in
the case. "This (water allocation) is one thing that we do have
finality on. If it suddenly goes away, it's all back into a big pot
No one argues that Atlanta shouldn't get any water from Lake
Lanier, which provides most of the metro area's drinking water. The
Atlanta metro area's population is about 5 million.
But even Georgia supporters acknowledge that the state's case to
get nearly one-fourth of the lake's capacity did not fare well during
oral arguments last month before the federal appeals court's
Washington, D.C., circuit.
A three-judge panel sharply questioned whether the Corps had the
authority to grant Georgia the allocation given that federal law says
only Congress can sign off on significant changes to water
allocations from reservoirs.
A Justice Department attorney representing the Corps struggled to
explain the legal rationale, and he acknowledged that the Lanier
agreement marks the largest operational change at a federal reservoir
that the agency has sought without first going to Congress.
"Without congressional approval, the problem you're having here
... is trying to explain why this isn't a major operational change,"
Judge Laurence Silberman said.
Georgia currently uses about 10 to 15 percent of the capacity in
Lake Lanier for drinking water, Crisp said.
As Atlanta has exploded with growth, Georgia and the Corps say it
makes sense to shift the lake's use toward drinking water and away
from its original purpose of producing hydropower. The deal they
reached in 2003 would give Georgia about 23 percent of lake's
capacity to meet future demand.
But Alabama and Florida counter that Georgia has no legal right to
the Lanier water it's already using, much less to take almost a
quarter of the lake over the coming decades. Atlanta's withdrawals,
they argue, would dry up river flows into their states that support
smaller municipalities, power plants, commercial fisheries and
industrial users like paper mills.
With a record drought gripping much of Georgia and Alabama, the
White House recently brokered a temporary arrangement under which the
Corps would hold more water in Lanier while governors Sonny Perdue of
Georgia, Bob Riley of Alabama and Charlie Crist of Florida try to
hash out a longer-term agreement. The governors are slated to meet
Dec. 12 in Tallahassee.
The court's decision -- expected by early next year -- could fuel
a new round of legal activity, or it could prod the governors into
more intense negotiations.
"If the court reverses, it does not mean that Georgia's water
supply will be cut off. It simply means that the longer-term
contracts for the water supply will have to wait another day," said
Bruce Brown, an attorney representing Georgia.
Regardless of the ruling, he said, as the dispute moves forward
"it's a very difficult position for Florida and Alabama to say that
Lanier shouldn't be used for water supply. It's like saying that I-95
shouldn't be used for trucks."
Georgia already is arguing in a separate case that drinking water
has always been an intended purpose of Lanier. Crisp said Georgia's
first step if it gets an unfavorable decision from the Washington
appeals court would likely be to pursue that case.
But it would have to do so in the context of several other
lawsuits that have been bundled in a U.S. District Court in Florida.
And without any clear legal contract for Lanier water, its standing
would grow much more uncertain.
"It would certainly change the relationship," said Parker Thomson,
an attorney representing Florida. "It certainly would put everyone
back where they were."
The case also could have national implications over how the Corps
allocates water reservoirs, Thomson said.
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