February 2008

U.S. Water News Online

WASHINGTON — A federal appeals court has thrown out an agreement that Georgia reached with the Army Corps of Engineers for water rights to a major federal reservoir outside Atlanta, handing Alabama and Florida a major victory in the states' years-long water wars.

The 2003 agreement with the Corps would give Georgia about a quarter of Lake Lanier's capacity over the coming decades and is the foundation of Georgia's long-term plans for supplying drinking water to the rapidly growing Atlanta region.

Alabama and Florida challenged the pact, arguing that Georgia doesn't have any legal right to the federal reservoir, which was initially built for hydropower. The withdrawals would dry up river flows into their states that support smaller municipalities, power plants, commercial fisheries and industrial users like paper mills.

A district court earlier ruled in Georgia's favor, but the U.S. Court of Appeals in Washington overturned that decision, saying that the agreement constituted a major operational change at the reservoir that requires congressional approval.

"This is the most consequential legal ruling in the 18-year history of the water war, and one of the most important in the history of the State of Alabama," said Alabama Gov. Bob Riley. "It establishes that the decades-old practice of Atlanta taking more and more water from the federal reservoirs in the Coosa and Chattahoochee rivers without any legal authority to do so will not stand."

The ruling comes amid tense negotiations among the states' governors over water sharing during a record drought. The talks have been brokered by Interior Secretary Dirk Kempthorne but so far have not yielded tangible results.

Although the ruling raises questions about Georgia's rights to the water it already is using in Lake Lanier, Bert Brantley, a spokesman for Georgia Gov. Sonny Perdue, said it would not harm the state's negotiating position.

"Our goal and our focus has always been on reaching an agreement with our neighbors and to work this out at the negotiating table rather than in a courtroom," Brantley said. "There's a good bit of momentum built up right now for making progress."

He said the state had not ruled out appealing the case to the Supreme Court.

"We always keep the legal options open," he said.

Florida's Gov. Charlie Crist applauded the court for "recognizing the importance of maintaining Florida's water flow," he said in an e-mail statement.

"Their decision today moves us one step closer to providing essential protection for a significant amount of Florida's natural resources, seafood industry and economy," the statement said.

Michael Sole, secretary of Florida's environmental protection department, called the ruling a victory for the ecosystem around the state's Apalachicola Bay, which Florida officials have argued would be harmed by low river flows.

"It clearly supports Florida's position that the (Corps) and Georgia cannot agree to reallocate storage in the Lake Lanier reservoir, to provide more water for Atlanta for instance, without congressional approval," he said.