On June 17, a federal judge from Minnesota – Paul Magnuson – ordered the U.S. Army Corps of Engineers to stop permitting the Atlanta area to draw water from Lake Lanier needed to meet the needs of the area’s six million residents. Let’s take a moment to let that sink in.
A non-elected official from a state far, far away, has issued what may very well turn out to be a fatal blow to our area’s survival. While some folks may shrug and dismiss the impact of the judge’s order – believing perhaps that something so draconian would never be implemented anyway – the judge’s order is real, and raises troubling questions.
First of all, Georgians should ask how we reached the point at which a non-elected judge is deciding what should be a political question determined by the citizens and their elected representatives. That question should best be put to the former governors of Georgia, Florida and Alabama who, for nearly 10 years were unable or unwilling to agree on a water-sharing agreement for the two water basins shared by the three states (but located predominately in Georgia).
Congress in 1997 even passed legislation to make the three governors’ job easier. I authored this “Tri-State Water Compact,” which was necessary because without it the U.S. Constitution prohibited states from making such arrangements.
So, what happened when the talks broke down in 2004? Exactly what I and others predicted more than a decade ago – the dispute has devolved to a relentless and costly legal battle among the three states and the Corps.
It is the Corps that manages the dams and reservoirs along the rivers in the shared water basins; most importantly, Buford Dam, which was constructed in the mid-1950s and created Lake Sidney Lanier. It is, of course, Lanier that supplies almost all of the water needs of our area (along with Lake Allatoona).
Unfortunately for those of us living in the Atlanta area, the federal legislation establishing the project did not include an exhaustive list of every conceivable use for the water that would be collected. Still, common sense and the basic legislation providing for the many Corps of Engineers water projects undertaken after World War II (of which Buford Dam was one), made clear that water supply was a primary purpose for the projects. For the past half century, everyone involved, including the Corps, clearly understood this and operated on that basis.
But this was not sufficient for the tunnel vision and policy views of Judge Magnuson. He chastised the Corps for permitting water withdrawals for a purpose and in amounts not expressly written into the legislation. The judge also waxed eloquent about how local governments permit “unchecked growth” because they don’t “plan” properly. The judge might as well have added this to his policy opinion: “Since Atlanta’s political leaders have failed to enact proper planned growth policies, I am going to force them to do so by cutting off their water supply.”
The judge magnanimously has given us three years within which to convince the Congress to pass a new law explicitly authorizing the Corps to do what it has been doing for over 50 years – allow citizens of the greater Atlanta area to use water from the reservoir they paid for. Of course, given that Alabama and Florida now have a federal court order as a negotiating chip, such a goal will be difficult to achieve; at least on any terms reasonably meeting our area’s water needs.
Appeals are certainly available; and a higher court may reverse Magnuson, using the history, common sense and clear legislative intent he ignored. And, Congress might surprise us and do the right thing. Still, we may want to keep in reserve (at least quietly) the views of an early U.S. president, Andrew Jackson, who successfully challenged the federal courts to try and “enforce” its decision if it could. Perhaps it’s time once again to consider challenging federal judges when they overstep their bounds.