Judge throws down water gauntlet

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.

98 comments Add your comment

Mr. Contrarian

July 27th, 2009
12:59 pm

There is next to no chance that the governors of Alabama and Florida will negotiate. Why should they? They won. Three years is not much time for Congress to act and one never knows what will result if they do. Nor can we be certain what the Supreme Court will rule. In the end, Mr. Barr is right. Let the judge enforce his order. Direct action is the final option. The Governor has at least two resources available to him to keep the water flowing.

Disgusted

July 27th, 2009
1:04 pm

I’m all for building a new reservoir. I believe that either Gwinnett or Cobb County would be a great location–preferably both, and the more area the better. Drowning a few million arch-conservatives would do wonders for the fortunes of this state.

Dr. R

July 27th, 2009
1:09 pm

I wish race weren’t a factor, either, but you have to be realistic. Here’s an anecdote that shows how many feel about Atlanta: A friend of mine had his parents driving through Atlanta once (they were from up north, incidentally) en route to Florida. Though they had no plans to stop or even exit the interstate, they told him they would make sure to lock their doors as they drove down. He was incredulous; “What do you think they do,” he asked? “Run alongside your car and rob you?” That’s how many view Atlanta, particularly those from small towns who are generally distrusting of city life. It’s not that Atlanta has more crime or problems than other cities its size. It’s that it is a major city plopped in the middle of the rural South and offers a more extreme contrast than what you find elsewhere.

As for building more reservoirs, it’s complicated. There are numerous environmental permits that need to be secured first. If a breed of rare salamander is going to be inconvenienced by a new lake, then accommodations need to be made, and that slows the whole thing down.

bob

July 27th, 2009
1:17 pm

What if we channel all of the metro’s air conditioning condensate down the storm drains, I bet if you could add them all up it is alot of water per day

Mike "Hussein" Smith

July 27th, 2009
1:27 pm

think inside your brain, common sense

jms

July 27th, 2009
1:30 pm

We should work out a deal with Florida that for every University of Florida graduate they send to metro Atlanta, we get to withdraw more water. Either that or they can keep their graduates.

Roekest

July 27th, 2009
2:01 pm

I support the judge’s decision. Look at what unchecked growth has done to the capital. Many projects now sit unattended to because many people locally didn’t have the forethought to see a recession that many economists were predicting 3, 4, 5 years ago. Maybe this city does need an outside entity to choke off the growth so that we can fix those things that currently exist.

My family and I had to move further away into the country in order to get some peace and quiet because Atlanta and its influence was invading my once sleepy town of Peachtree City (read: crime).

Atlanta isn’t everything its leaders and former state politicians crack it up to be. I wouldn’t live there if you paid me…..

Wyld Byll Hyltnyr

July 27th, 2009
2:07 pm

Bob, here’s what I do not understand. Congress did not establish drawing water for metro Atlanta as an expressly enunciated use for the dam project; however, there has been a departure from the enunciated purpose from almost the day since the dam was completed. In that the downstream parties did not react to this situation at or near its inception means that the water use by Atlanta represents a mutual departure, effectively endorsed by the downstream parties’ course of dealing, from the enunciated purpose for dam. Since the downstream parties did not attempt to correct the mutual departure until substantial development and reliance upon the water source had been developed in good faith by metro Atlanta, how can the downstream parties claim, in equity, that Atlanta’s water use should return to levels that predate development that occurred under the mutual departure from the enunciated purpose for the dam when the resident’s of metro Atlanta acted in good faith while relying on the water that was available under the mutual departure?

Craig S

July 27th, 2009
2:30 pm

What about that HUGE body of water over to the right. Desalinization anyone ? I learned an interesting thought from my ex many years ago. We pay and pay our water bills with the honest expectation that it pays for water, and the infrastructure to get it here, and the security of it in the future. We have paid our bills, where has all the “future” of it gone ?? Whose pockets has it lined. We don’t get to ask our bosses for a raise because we forgot to save up for a new roof, we have to work on the finances and maintenane in advance. Atlanta’s future should have been thought of all along by the responsible people.

I’ve been trying to rebuild this, my first home and yard, spending quite a bit of money on grass and landscaping. I’d like to be able to water it. I’ve paid my bills ontime, why can’t I wash my car when I need to. I know we can now, finally, but last year we all suffered.

Fred

July 27th, 2009
2:40 pm

many people locally didn’t have the forethought to see a recession that many economists were predicting 3, 4, 5 years ago. – LIKE WHO?

STFU! Peter Schiff, Ron Paul and a few other outside the “maintream” observers sounded alarms. And they were literally laughed at or ignored. “Many economists”, including the criminal Federal Reserve cheered this whole mess on. What do you think Barney Frank saw when his hairy butt was bent over? An effin housing meltdown? No, his carpet ya dummazz. The economic illiteracy of this country is suicidal.

Daniel

July 27th, 2009
4:05 pm

Absolutely amazing! Last week, you were ranting and raving about your fear that judge Sotomayor would make law rather than follow the law from the (unelected) Supreme Court. And now you do an about face, ranting and raving because a judge does follow the letter of the law as Congress wrote it. As usual, like your fellow ultra conservatives, you talk out of both mouths and expect no one to notice when your breath is foul.

Charley del Pizzo

July 27th, 2009
4:12 pm

Mr. Barr seems to have forgotten he’s a Republican. He states the Judge failed to use “common sense” in his ruling. But isn’t using common sense and not enforcing the existing law just what Republicans hate most: legislating from the bench? Mr. Barr also appears not to have read a recent AJC article about Mayor Heartsfield and the damn that stated Atlanta did not contribute or pay for the damn in any way, other than that portion of Federal Taxes, collected from the 1950 population, allocated to fund the project. Additionally it appears Mr. Barr’s 1997 legislation was completely ineffective. Why didn’t Mr. Barr write an effective law when he was in congress, when he could have actually helped, instead of criticizing the Judge for stating and enforcing the existing law?

Jim

July 27th, 2009
4:16 pm

So which is it? On Sunday the AJC ran a featured article outlining the history of the Buford dam in which it stated a source of water for the city of Atlanta was never one of its intended purposes. The article went on to say the city of Atlanta didn’t pay a single dime toward construction of the dam. Bob’s oped piece contradicts both of these findings.

the evil rich

July 27th, 2009
4:54 pm

Maybe the bigger picture is why do we have to get the federal government involved? Nannyland 2008.

R.D.Mercer

July 27th, 2009
6:02 pm

Why can’t we just move them there mussel’s to the GA Aquarium & keep our water?

booger

July 27th, 2009
6:56 pm

Jim,

I just reread the article. Not once does he say Atlanta paid Anthing toward building Buford Dam.

Chris Salzmann

July 27th, 2009
6:58 pm

the evil rich July 27th, 2009 4:54 pm SAID: Maybe the bigger picture is why do we have to get the federal government involved? Nannyland 2008.

CHRIS SAYS: Because its a FEDERAL RESERVOIR built by the FEDERAL GOVERNMENT, administered by the Army Corps of Engineers (a FEDERAL Agency) and which is ALSO why a FEDERAL judge has the jurisdiction to decide on this case.

Don’t feel too bad. Bob Barr has the same misconception as you (I think that by now he wishes he could take all this back). That’s why it makes sense to do a little research before expounding on your two cents :-)

Chris Salzmann

July 27th, 2009
7:10 pm

From the Army Corps of Engineer’s Website regarding Lake Lanier:

“”Congress authorized Buford Dam for construction in 1946 as part of the overall development of the nation’s waterways after the Second World War. The river and harbor legislation that came out of Congress during this time period was targeted at developing the nation’s rivers systems for national defense, flood control, power production, navigation and water supplies.”"

Atlanta and the state of GA didn’t pay a cent for it. Hence the term FEDERAL Reservoir. A federal judge from Minnesota was chosen as an arbiter from a NEUTRAL location.

jt

July 27th, 2009
7:16 pm

I would have loved to have seen some bottom-feeding federal lawyer with a penchant for women clothes tell Lester Maddox we couldn’t get water from the Hooch. Or even Zell.

Those mussells must be bigger than any of our local boys’ testes.

Stand by for another 100 million in legal fees.

Puss’.

jt

July 27th, 2009
7:21 pm

Chris Salzman posted-

“My understanding is that it was paid for by the Federal government,”

jt replies-

That is all you need to know about the thinking process of Chris Salzman. WE didn’t pay for it. The FEDERAL GOVERMENT did.

Riiiight.

Frank

July 27th, 2009
7:28 pm

Everyone, including Mr. Barr, is overreacting to this ruling. This Federal judge is simply adding a time schedule to get the ball rolling so Congress will enact the law(s) required to guide the new uses. Yes, compared to 1957 or so, some of these are newer uses which have not been accounted for in the ‘old’ legislation. It’s been up to the politicians for over a decade through terrible drought and zero, NOTHING, has been accomplished. Bet you something gets done now , eh?
What I can’t believe is that in 2009, there is a huge metropolitan area like Atlanta that relies on a lake they don’t even own for most of their drinking water! Are you kidding me? Why didn’t they build their own reservoirs for the city say like 60 years ago? Oh yeah, this is Georgia. Never mind.

Chris Salzmann

July 27th, 2009
7:37 pm

jt July 27th, 2009 7:21 pm SAID: Chris Salzman posted-

“My understanding is that it was paid for by the Federal government,”

jt replies- That is all you need to know about the thinking process of Chris Salzman. WE didn’t pay for it. The FEDERAL GOVERMENT did. Riiiight.

CHRIS SAYS: When in hole, stop digging dude. Or as Mark Twain once said “Better to keep your mouth shut and be thought stupid than open it and remove all doubt”. Thanks for the confirmation.

Bottom line: The US CONGRESS authorized funding for this project. FEDERAL tax dollars were used for the FEDERAL RESERVOIR system. That’s why a FEDERAL judge had jurisdiction to decide this case. So what don’t you understand about the BASIC CONCEPT of STATE and FEDERAL jurisdictions? Is this the result of home schooling?

The libertarian movement is really heading for the thrash heap of history when they have people like you trying to fight their ideological battles. Don’t tell them because they might issue a cease and desist order to stop you from making them look like a bunch of retarded idiots.

jt

July 27th, 2009
7:44 pm

Chris post-

” funding for this project. FEDERAL tax dollars were used for the FEDERAL RESERVOIR ”

jt replies-

Your paternalistic craving for Obama renders logic moot. ALL “federal tax dollars” are first seized from citizens.

The thought processes of Obama-bots are interesting in a macabre way.

The

Stan Dansby

July 27th, 2009
8:10 pm

What do you expect? This guy is from the same state that just stole a senatorial election. So the joke is on us.

Hillbilly Deluxe

July 27th, 2009
9:14 pm

Four decades of anything goes growth with no planning and now it’s coming home to roost.

And Lake Lanier was originally built for navigation, flood control, and hydroelectric power. It’s understandable that Mr. Barr wouldn’t know that though, he didn’t live here at the time.

Allen Anderson

July 27th, 2009
11:48 pm

booger writes, “The real puzzle to me is that Georgia seems to take a back seat to Fla. and Ala. when the majority of the water falls and is collected by rivers which originate in Georgia. The same is true with the Tennessee river. 90% of the water in the Tennessee originates in Ga. The Little Tennessee river starts in Rabun Cos. Wolfork valley. The Haiwassee river, Nottely river, and Toccoa river, among others all feed the Tennessee. It seems absurd on the surface that Ga. should have no claim to this water.”

What total nonsense about the water in the Tennessee. Nowhere near 90% of the water in the Tennessee originates in GA. Fact is the Tennessee is formed by the merging of the South Holston River (which starts in VA’s Shenandoah Valley) and the French Broad River (which starts in North Carolina). The next major river is the Little Tennessee River (originates in GA but is a very minor tributary until joined by other streams originating in NC) followed by the Clinch River (originates in TN).

GA has about a zero percent likelihood of being able to tap into the Tennessee River. Although the boundary was improperly set, it was set by a surveyor for the state of Georgia and GA has only half-heartedly tried to get it reset the last 200+ years, so precedent is set. Even if the border was moved to where it should have been, current environmental laws prohibit water being drawn from one watershed to be released into another one. The NRC would stand in opposition to any such attempts owing to the fact the water is needed as coolant for five nuclear units downstream from Chattanooga; if the water is too warm due to it being drawn down, it can’t be used to cool those reactors or any of TVA’s coal-fired steam plants. Similarly, the Coast Guard and Corps of Engineers would also stand in opposition as the Tennessee is used to transport goods by barge all the way upstream to downtown Knoxville.

Of course, if GA wishes to take on TN, AL, MS, and KY (since water would be denied those other three states as well) as well as the Corps of Engineers, the Coast Guard, the NRC and the EPA, I hope they have fun and some seriously-deep pockets.

BTW, I lived in the south end of Buckhead on Ardmore Circle for ten years.

Intowner

July 28th, 2009
12:03 am

Is Bob Barr’s article tongue-in-cheek? The Judge relied on and stuck with the language and history of the statute. Is this the same Bob Barr who continuously decries “judicial activism?” Does Bob Barr really want a judge to look at “common sense” (whatever that means) and ignore the law. Will Bob Barr waht to use “common sense” when it comes to the Constitution and such things as gun laws? Blame the problem on the three Republican governors or blame it on the states, but don’t blame an unfortunate result on a Judge who supported the clear language of the law.

Don

July 28th, 2009
7:23 am

Help me with this one….a judge follows the law (which many conservatives say is what a judge SHOULD do) and rules on something that the Governor of Georgia says is a federal issue, and you call him an “activist”. “Richard” had it right; the original authorization did NOT list water supply as an objective of the project. Rulings in civil law are decided on a preponderance of evidence, not what a reasonable person would do.

If we assume that a reasonable person would rule that water supply is naturally part of the project…………..wait, aren’t we being activists by reading something into the law that isn’t there?

rjlockwood

July 28th, 2009
8:14 am

If you let Alabama and Florida have the water they want,then Lake Lanier will be empty and and no state will have the extra storage of Georgia’s water.propose letting each state in the river basin be allowed to take out thier percentage contribute to the entire basin

Trust me

July 28th, 2009
8:31 am

You know, it is hard to type and laugh profusely at the same time. Anyway, the jest of your dissertation is that you are disappointed that the judge, in this particular case, did not legislate from the bench. Well! If you will excuse me, I need to return to my profuse laughter. It’s hard to keep it pent up for long.

Nicole

July 28th, 2009
9:00 am

Throw down the gantlet or run the gauntlet, one or the other. Perhaps the AJC could provide you with an AP style guide? Or I might suggest Strunk and White…

Chris Broe

July 28th, 2009
11:34 am

Grading Barr: I dont think Bob Barr lets himself get thirsty enough to make a quenching point about the water wars. He barely wets his whistle on this issue. Why do I get the idea that he’s the kid in high school who threw cherry bombs in the commodes just to get out of taking a shower after gym class?

Barr’s points are often obscured by the counter-clockwise swirl of the unsalvagable flotsam and jetsam forming the wreckage of his logic. C+

bobo

July 28th, 2009
1:02 pm

this is not about mussels or oysters, this is about downstream water rights. This has been a sticky issie nationwide for at least 100 years. There is at least 1 nuke plant south of Atlanta and Ga Power wants to build another.
For those of you that suggested… the Chatt north of Buford Dam is about 10 feet wide and 4 feet deep

Bill

July 28th, 2009
1:50 pm

Kind of funny that Barr wants the judge to read language into the statutes that isn’t there. Under other circumstances, he would deride that as “legislating from the bench.”

Edgar Edgerton

July 28th, 2009
2:13 pm

Mr. Barr,

One of your former colleagues, Mr. Linder, apparently believes that the best approach is to nationalize water as we have automobiles and soon will health care. See the post below and the big announcement this evening. Just turn water policy over to the Obama White House. Natinalization is assured and Atlanta gets “nonstructural solutions.” You are correct that the best approach is the compact. What is the “nonstructural solution” for Atlanta? One shower per week and lots of bottled water?

http://awramedia.org/mainblog/2009/07/28/the-unveiling-of-the-comprehensive-integrated-water-policy-for-the-usa/

Bill

July 28th, 2009
4:05 pm

Allen Anderson writes:

“GA has about a zero percent likelihood of being able to tap into the Tennessee River. Although the boundary was improperly set, it was set by a surveyor for the state of Georgia and GA has only half-heartedly tried to get it reset the last 200+ years, so precedent is set.”

I wouldn’t be so sure. If we can look to 50-year-old legislation to determine the proper use of Lake Lanier, why can’t we look to 200-year-old legislation to determine the proper northern border of Georgia?

The REAL GodHatesTrash, Superstar

July 28th, 2009
4:05 pm

Georgia used to have plenty of water, until all the Yankees came, wanting to take baths more than onced a year, and wanting to drink water instead of ’shine.

The REAL GodHatesTrash, Superstar

July 28th, 2009
4:14 pm

Perhaps if this judge had a little “empathy”…

ROFLMAO at you knuckleheads, thankfully from a great distance…

Spoke

July 28th, 2009
4:18 pm

Seems to me that Atlanta’s northern suburbs need to suck it up and build some sewer systems, so that instead of taking water out of the lake and dumping it into septic tanks, the water can be treated and returned to the Chattahoochee river system. What? It will be expensive? Because the suburbs were sprawled randomly across our northern counties without thought of tying them together with a sewer system? Guess y’all should have thought of that earlier.

Marc

July 28th, 2009
4:24 pm

The solution is simple but we may not have the time. A new resevoir needs to be built up stream and for the primary use of drinking water. This needs to be statred today. No 5 yr studies as we have only 3 yrs if in the worse case no aggrement can be reached. On the 150th aniversery of the battle of Atlanta, we may be on the verge of the next civil war and it will be over water. This is also a case of Ga needing to step up and tell the Feds it will not be dictated how we run our state. For too long states rights have been held hostage by Federal Funding. It is time for GA. to step up and fight for its rights. 4 million people with out water will not be exceptable and political carriers will be made and others burnt to the ground. The people of the Atlanta area and all of Ga. need to speak loadly about this issue. No other isssue will have a greater impact on this state in the next 5 yrs. If we put our head in the sand, we will come out high and dry.

Michael

July 28th, 2009
4:36 pm

We should pray for rain and capture it from the sky in giant plastic sheeting before it hits the lake. Florida can have all the water from the headwaters. And I’m moving to Savannah.

Mr. KnowitAll

July 28th, 2009
5:18 pm

Just for principle and common sense, somebody ought to kick this judge’s a$$ just for the laughs.

Look, folks. The original purpose for building the dams–ALL OF THEM—along the Chattahoochee was to have water available to ensure water was deep enough for barge traffic. Of course, being a government idea—it was a JOKE and the intent was a failure (no! say it ain’t so!).

Another grand and glorious government idea called the Endangered Species Act that superseded ALL other legislation. So, if there were a choice between helping people and some waste of a species like sturgeon and some freshwater clams—humans loose. The environmental whackos believed humans should starve so these slugs could survive. The question I have always asked is—what would the sturgeon and clams do if we weren’t here to save them?

Florida mines HUGE amounts of phosphates, exports and taxes it, and makes a fortune. How is water any different. If this water is collected in Georgia, and is a commodity with value, why shouldn;t Florida and Alabama PAY FOR IT? Now you have some dip$hit

newkid

July 28th, 2009
6:30 pm

One can’t always realistically expect to visit blogs and find clear, cogent, and correct arguments in defense of a certain perspective, but Dr. R has done a fine job in this instance.

There will be only long-term losers – in each of the states involved – if we continue to pursue resolution of this matter following Mr. Barr’s counsel. Unfortunately, it’s the course our ‘leaders’ appear to have adopted. If the United States and China can agree to cooperate to resolve issues far, far broader than a silly water dispute, Georgia, Florida, and Alabama could certainly (with proper leadership) agree to cooperate to address interstate issues (including water) that, left unresolved, are certain to foreclose major future economic development opportunities for the ENTIRE interconnected economic region.

david wayne osedach

July 28th, 2009
9:23 pm

Clean water is getting scarcer, and scarcer all across the country. It is something we will be paying a lot more for in the next decade and also conserving it (a lot more.)

[...] Judge throws down water gauntlet | The Barr CodeOn 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. ….. These builders all went before our various councils and committees and asked to have lots rezoned or redrawn for their apartment complexes, condominiums, strip houses, McMansions, and strip malls. …  read more… [...]

Ga-Guy

July 31st, 2009
10:52 am

Uhm…let’s see how this works…a Federal judge makes a ruling that follows the written law on the books, without any “empathy” or “legislating from the bench.” Isn’t that what Mr. Barr and other conservatives have been asking for from judges? I guess it works differently if the “empathy” is on the other foot.

All that said, Mr. Barr’s point about tri-state water legislation he sponsored many years ago is a good one. What have our elected officials been doing all that time? The only way this will be solved is through negotiation among the stakeholders. Otherwise, you’re inviting the Feds to make the decision.

Jim

August 3rd, 2009
1:21 pm

Booger,
2nd to last paragraph: “…allow citizens of the greater Atlanta area to use water from the reservoir they paid for.”

Lunchconclude

December 6th, 2009
6:46 pm

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