1 The Alabama Florida Georgia Tri State Water War: Towards A Resolution In the 1950s, as the Army Corps of Engineers was constructing Buford Dam to create Lake Lanier, Atlanta Mayor William Hartsfield wrote Congress telling them that Atlanta had maintenance costs of Lake Lanier 1 Almost fifty years later, it looks like Mayor Hartsfield and the city of Atlanta could regret that letter. Since the 1990s, Alabama, Georgia and Florida have been engaged in litigation and gubernatorial negotiations over the rights to the water contained within the Apalachicola Chattahoochee Flint water basin (ACF basin), of which Lake Lanier is crucial to flow levels. Alabama and Florida contend t hat metro Atlanta (and by association, the state of Georgia) 2 This paper will begin by examining how the conflict started and reached the status quo. From there I w Phase I (2009) and Phase II (2010) rulings on the future of the tri state water war. it is first necessary to examine the historical background of the tri the late 1940s to 1956 when Lake Lanier began filling and Buford Dam was officially completed by the Army Corps of Engineers, Atlanta took a contradictory approach to the project. In 1951, the House Committee on Appropriations denied further funding to the infant project. In response, Atlanta Mayor William Hartsfield flew up to Washington DC on several occasions to ensure funding was restored. 3 On both of Mayor Harts his lobbying efforts 4 Yet when asked to contribute local funding to the project, Hartsfield 5
2 Although Mayor Hartsfield contended that the construction of Lake Lanier would provide crucial drinking water for metropolitan Atlanta, at the time there was no such need. In fact, in 1938, Colonel R. Park of the Army Corps of Engineers wrote that apparently no immediate necessity for increased water supply in this area though the prospect 6 This is particularly important due to the fact that the Park Report was the operational precursor to the construct ion of Lake Lanier and Buford Dam 7 In fact, the actual Congressional authorization to create Buford Dam and Lake Lanier came via the 1945 and 1946 Rivers and Harbors Acts (RHAs), which contained another report by General Newman of the Corps. 8 This report assigned economic value to each of the assigning zero economic benefit to water supply. As previously noted, the project was completed in 1956. Although litigation and negotiations regarding water allocation along the ACF basin (and by proxy, Lake Lanier) did not start until June of 1990, in 1958 Congress passed the Water Supply Act (WSA), which would turn out to have a substantial impact on the future of Lake Lanie r and the status quo. The WSA required that 9 The implications of this are spelled out further i n section 301 of the WSA : Modifica tions of a reservoir project heretofore authorized, surveyed, planned, or constructed to include storage [for water supply] which would seriously affect the purposes for which the project was authorized, surveyed, planned, or constructed, or which would in volve major structural or operational changes shall be made only upon the approval of Congress 10 Functionally, if the Corps wished at any would have to seek prior and explicit Congressional approval.
3 After the flurry of litigation and construction that marked the 1940s and 1950s for the ACF basin, water issues fell to the backburner until the 1970s. At this point, conflict arose regarding the availability o f the federal navigation channel with upstream users complaining of economic hindrance and Florida refusing to allow Corps modifications to its riparian areas 11 Although navigation issues are outside the purview of this essay, they provide an important bac kdrop for future water quantity and quality conflicts by ingraining a querulous nature into negotiations 12 in that both sides traded lawsuits and public comments rather than truly coming to the negotiating table. The turning point for the tri state water conflict was 1990 for two reasons. In 1960, the beginning of the Lake Lanier project, metro Atlanta was home to just over one million people 13 By 1990, that figure had exploded to just below three million water consuming citizens 14 In response to this pop Lanier. These agreements became null on the first of January, 1990, yet the local providers continued withdrawals becau se they had no other satisfactory water alternative 15 So, in June Congressional approval) primary usage of Lake Lanier from hydropower to drinking water supply 16 As the ba ttle lines were drawn, with Florida about to join Alabama and Georgia prepared to side with the Corps, an agreement was reached by all parties to stay the legal battle and work out a water allocation deal 17 Eight years and about $20 million later, the Corp s completed its ACF Comprehensive Water Resources Study, creating the Appalachia Chattahoochee Flint River Basin Compact 18 The Compact was intended to create an enforceable water allocation regime between the three state parties, but it was wrought with fu rther conflict and disagreement. It was officially dissolved in June of 2003 via a
4 Memorandum of Understanding (MOU), negotiated between the governors of Florida, Georgia and Alabama 19 After the collapse of the Compact and the signing of the MOU, the tri state water conflict devolved into a series of competing lawsuits and negotiations 20 until Judge Paul Magnuson, brought in from Minnesota as a neutral arbiter 21 ru led that the three parties must come to an agreeme nt within three years (2012) or of the mid 22 Judge Magnuson specifically ruled t hat shifting a primary usage of Lake Lanier from hydropower to drinking water withdrawal, without Congressional authorization violated the WSA 23 The court found that taken together the relevant statutes and legis lative history point to only one conclusion: water supply, in the form of withdrawals from Lake Lanier and large scale withdrawals from the Chattahoochee River, was not an authorized purpose of the Buford project. The Georgia nation of authorities allows the water supply withdrawals is 24 contention that several endangered species are at risk because of lower flow levels due to me Alabama, arguing that the Gulf sturgeon, fat threeridge mussel and the purple bankclimber mussel are not harmed more substantively by the current water allocation regime 25 Although Maguson ruled against Florida and Alabama in Phase II, it in no way invalidates his ruling in Phase I, as the parties still have until summer of 2012 to negotiate a water allocation agreement.
5 Before examining the implications of the ruling an d analyzing where that leaves the aforementioned parties, it is important to first examine what the status quo and near future th Circuit Court of Appeals in April of 2010 26 It is functionally impossible to predict the outcome of the appeal, but it seems likely that regardless of what the 11 th Circuit rules, the US Supreme Court will leave that as the final word on the matter. In 2009, the Supreme Court refused a writ o f certiorari to another ruling relating to the tri state water war 27 It favoring Florida and Alabama, forcing Georgia into further litigation and negotiations 28 Finally Chambliss have introduced four legislative proposals to Congress aimed at reauthorizing Lake Lanier for water withdrawal purposes 29 delegation will be unable to get the necessary votes to pass any legislation over the combined Congressional forces of Florida and Alabama since Florida and Alabama have a combined 32 members of the House versus Georgia only having thirteen. This means the Congressional avenue of reconciliation is functionally closed off to Georgia. Thus, the legal avenue remains the most likely method through which the tri state water war w ill be resolved, in lieu of negotiations. Since it seems likely that it will be upheld and is the status quo, withdrawals from Lake Lanier will either revert to pre 197 0s levels or some middle ground will have to be found via the effect on future, similar legal cases regarding water utilization and rights and the impact this will ha ve on the metro Atlanta area.
6 Before continuing, two caveats must be made. First, environmental considerations will be set aside for the purpose of this paper. This is primarily because the court already ruled against the complaints lodged by Florida and Alabama that current withdrawal levels violate NEPA and the Endangered Species Act 30 However, as will be explained later in this the lens of Georgia is the fact that Georgia has the most at stake in this ruling, and as will be stated in the conclusion, the ultimate result of the water rights battle will be the result of negotiations between the three governors. This will result in withdrawal levels somewhere between t he status quo and the 1970s. It is therefore practical to focus on the impact this ruling will have on metro Atlanta. precedent it sets. This represents the first time that a federal court has ruled against a municipality for withdrawing water levels beyond initial Congressional authorization 31 Although the novelty and magnitude of this case may give the impression that other cities and/or municipalities are not in simil ar situations, several others are involved. There are 135 projects around the country where the Army Corps of Engineers sells water from via agreements similar to that of Lake Lanier 32 Further, at the request of Congress, the Corps provided a compilation of 40 reservoirs in 14 states that provide drinking water to millions of Americans but were not initially authorized for that express purpose 33 This means that the courts will have to sort out potentially dozens of future cases in the same vein as Judge Ma according to Professor George Sherk, a water law expert at Colorado School of Mines 34 35 Because this pr advocacy groups or competing cities could find their way to court 36 This also means that the
7 Corps will probably begin seeking prior Congressional authorization before sell water for profit. The result of this could be that rapidly growing cities with unmet drinking water demand will have a difficult time narrowing the water supply gap. drinking water supply. Due to the explosive growth of Atlanta discussed earlier, it would be 37 while the Atlanta Regional Commission (the intergovernmental body charged with planning and coordinating growth efforts across the 10 county metro Atlanta area) Chairman Sam Olens r for 4.5 million be implemented 38 Although the situation would not be quite as dire as Mr. Olens suggests (as noted before, only 3 million or so residents utilize Lake Lanier based drinking water, not 4.5 million), it absolutely would force Atlanta into a state of water emergency. The Georgia Environmental Protection Division issued a report indicating that the greater Atlanta area would be left with a deficit of 302 mi llion gallons of water a day (if the ruling were to take place in October of 2009) and by 2035 that number would be almost 500 million gallons a day 39 This would obviously be catastrophic for the entire metro Atlanta area in more ways than one. The entire city would be forced to make austere cuts in water consumption, from individual household rationing to closing golf courses, etc. The city does not have any contingency plans should the water of Lake Lanier become unavailable to it, so Atlanta would also have to seek another major source of drinking water. A sad consequence of geography, Atlanta has no such source available and so the next step is functionally impossible to predict.
8 It is because of the fact that Atlanta would suffer so severely that the b est possible resolution will be via negotiated settlement. Governor Deal of Georgia has suggested he is willing to engage in good faith negotiations with Alabama and Florida and Judge because of the potential aforementioned water demand emergency. Although the 11 th Circuit Court of Appeals has agreed to hear the appeal, there is way to project which way the court will rule. Regardless, it is unlikely that the Supreme Court will elect to hear any further appeal, as noted previously. Congressional authorization is unlikely to be a winning option for Governor Deal because of the combined force of the Florida and Alabama Congressional delegations. It has been suggested that Georgia could att empt to marshal other states using Army Corps of Engineers run (and unauthorized by Congress) reservoirs to their aid 40 but the state has already tried this tactic to no avail 41 This set of facts leads to only one conclusion a negotiated settlement. Water policy advisers to Governor Deal should unequivocally advise him to enter into good faith negotiations with counterparts from Florida and Alabama. As noted above, all other options have been exhausted functionally leaving two options: continued legal batt les or negotiation. Continued legal battles will only serve to delay the inevitable re 11 th Circuit Court of Appeals. Negotiation gives the best chance for Georgia to create a long term, sustainable plan for water consumption and continued population expansion in the underscore the economic and development al necessity of reaching a sustainable water management agreement with Florida and Alabama. Although it would exceedingly difficult, if not impossible, to speculate on what this agreement would look like, it is likely the parameters would fall somewhere b etween the
9 Alabama know this. Thus it is possible that Georgia would be granted a withdrawal grace period in order to give it time to sort out alternative sources of water and ease into water rationing/usage reduction. It is unthinkable that any court or decision making body would allow the city to go thirsty. On the other hand, Atlanta will have to make tough choices regardless of the specific way the tri state water conflict is resolved. These issues range from finding alternative sources of water supply to rebuilding relations with Florida and Alabama. growth and development ensure future battles over scare water resources. No solution is ideal, but it is the better than the alternatives. If one thing is certain, it is that this conflict is not an isolated one. It is instead a likely harbinger of water rights battles that wi ll prove to be eerily similar. One can only hope that they are dissolved with more cooperation, fewer lawyers and an eye to the future of water management. 1 Ass ociated Press, March 5, 2010. 2 Chattahoochee Flint Basin: Tri State Negotiations of a Water Allocation Adaptive Governance and Water Conflict (London, UK: RFF Press, 2005), 76. 3 Harold Martin, William Berry Hartsfield: Mayor of Atlanta (Athens, Georgia: University of Georgia Press, 1978, 2010), 85 88. 4 Martin, 111. 5 6 United States District Court, Middle District of Florid a, In re Tri State Water Rights Litigation July 17, 2009, 6. 7 In re Tri State Water Rights Litigation, 5 6. 8 In re Tri State Water Rights Litigation, 8 9. 9 United States Congress, The 1958 Water Supply Act, 1958, 301(b), 72 Stat at 319. 10 In re Tri Sta te Water Rights Litigation, 3, 24. 11 Leitman, 77. 12 Richard Hamann (UF Levin College of Law Associate Professor and water law expert), Interview, April 8, 2010 13 The Economist, September 1 8 th 2010 14 The Counselor Fall 2009, 6. 15 The Economist, September 18 th 2010. 16 The Economist, September 18 th 2010 17 Leitman, 77 78. 18 Leitman, 78 79. 19 Leitman, 87 88. 20 Hamann, Interview
10 21 War Role Puts Allatoona in Spotlight; Reservoir in Georgia Part of Tri State The Atlanta Journal Const itution, August 16 th 2009. 22 In re Tri State Water Rights Litigation, 93 94. 23 In re Tri State Water Rights Litigation, 92. 24 In re Tri State Water Rights Litigation, 92 93. 25 United States Middle District Court, Middle District of Florida, In re Tri Stat e Water Rights Litigation Phase II July 17 th 2010 26 The Gainesville (Georgia) Times, April 1, 2010. 27 The St. Petersburg Times January 13 th 2009. 28 Office of the Governor of Alabama, U.S. Supreme Court Hands Major Victory to Alabama in Water War Litigation January 12 th 2009. 29 Gwinnett (Georgia) Daily Post October 6 th 2010, http://www.gwinnettdailypost.com/localnews/headlines/POLITICAL_NOTEBOOK_Georgia_senators_tackle_w ater_wars_104457094.html 30 In re Tri State Water Rights Litigation 31 Hamann, Interview 32 33 34 35 Leitman, 70 80 36 Hamann, Interview 37 In re Tri State Water Rights Litigation, 93 94 38 San Diego Union Tribune (via The Associated Press), July 21 st 2009, http://www.signonsandiego.com/news/2009/jul/21/us water wars 072109/ 39 State Water Wars; Federal Lawmakers Say States Must Negotiate; Perd The Atlanta Journal Constitution, October 30 th 2009. 40 Hamann, Interview 41
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