Water ruling strengthens Georgia’s hand in water talks
By Bill Rankin, The Atlanta Journal-Constitution, 6:26 p.m. Wednesday, June 29, 2011
While Tuesday’s federal appeals court decision didn’t end Georgia’s water wars with Alabama and Florida, it strengthened the state’s hand in future negotiations with its two neighbors. Previously the state was facing a looming July 2012 deadline to arrive at a water-sharing agreement over rights to Lake Lanier or risk losing the main water supply for 3 million metro residents.
But Tuesday’s decision by the 11th U.S. Circuit Court of Appeals threw out that deadline, giving the metro area a sweeping victory.
Gov. Nathan Deal, through a spokesman, said Wednesday he remains committed to reaching a settlement.
In its ruling, a three-judge 11th Circuit panel sent the case back to the Corps of Engineers, giving the agency one year to make a final decision as to how much water the metro area can receive from Lake Lanier. The corps must weigh Atlanta’s needs with those downstream, including endangered shellfish in Florida, farmers in southwest Georgia and municipal, industrial and agricultural interests in Alabama.
Most importantly for Atlanta, the court found that the legislation authorizing the 1950s construction of Buford Dam, which forms Lake Lanier, anticipated the metro area would need greater withdrawals from the lake over time. The court roundly rejected findings by Senior U.S. District Judge Paul Magnuson, who had determined it was illegal for the corps to draw water from Lake Lanier to meet the metro area’s needs.
“The ruling is great news for Georgians because it removes the 2012 deadline and spells out that drinking water is an intended purpose of Lake Lanier,” Deal’s spokesman, Brian Robinson, said Wednesday. “The governor will continue to negotiate in good faith with our neighbors. This ruling is important because it means those negotiations won’t have a destructive outcome for any of the states.”
State Attorney General Sam Olens also welcomed the ruling. “Now is the time for the three governors to resolve this matter critically important to all of our citizens,” he said.
Alabama Gov. Robert Bentley said he will ask the entire 11th Circuit court to reconsider Tuesday’s decision by the three-judge panel. “We recognize that it is only one step on the long road of litigation of these disputes,” he said.
A spokesman said Florida Gov. Rick Scott was studying the ruling.
The 11th Circuit currently has 10 active judges — four from Florida, three from Georgia and three from Alabama — and two vacant seats. A majority — in this case six judges — must vote to grant a request for a new hearing. Losing parties must file their requests within three weeks after Tuesday’s ruling, and the court could take months before issuing a decision.
Only one active 11th Circuit judge — Stanley Marcus from Miami — was a member of the panel that issued the ruling. Senior Judge R. Lanier Anderson III of Macon and visiting Judge Richard Mills also joined the unsigned, unanimous opinion. Using senior and visiting judges on a panel is not uncommon for the shorthanded court.
If the full 11th Circuit does not decide to reconsider the panel’s decision, the losing party also can appeal to the U.S. Supreme Court.
If the three-judge panel’s decision stands, it will be interesting to see what the corps ultimately decides, because the court did not elaborate as to how much water the metro area is entitled to, said Gil Rogers, a lawyer with the Southeastern Environmental Law Center in Atlanta.
If the corps does issue a decision a year from now, it likely will spawn more litigation from an unsatisfied party.
“This is not the last chapter by any stretch,” Rogers said. “It means the three states have to keep working on a settlement, and Tuesday’s ruling should not be interpreted as relieving metro Atlanta’s obligations to our neighbors or being a good steward of the river system.”