Judge seems startled at lack of progress in water-war talks

On July 17, 2009, U.S. District Judge Paul Magnuson gave Georgia three years to reach agreement with its neighbors or lose access to Lake Lanier as a source of drinking water.

It is now more than a year later — less than two years from the deadline — and no progress of any sort is discernible. Sure, Gov. Sonny Perdue continues to talk a good game in public, expressing optimism that he can still cut a deal before the end of the year, when he and his counterparts in Alabama and Florida leave office.

But the days fly by, and nothing happens.

In fact, you have to wonder whether Magnuson himself is getting nervous. He may have been right in 2009 about the law: Congress probably never did explicitly approve the use of Lake Lanier, a federal project, as a water supply for metro Atlanta. But when he issued his deadline, I don’t think Magnuson ever imagined that state and federal officials might stand by and actually force him to carry it out.

Of course, that’s not going to happen. As a practical matter, Magnuson simply cannot turn off the spigot two years from now and leave hundreds of thousands of people in Gwinnett County and elsewhere high and dry. And he knows that. He also probably realizes now that while his deadline gave Georgia a great incentive to reach a deal, it put no pressure whatsoever on Alabama and Florida.

As a result, they have nothing to lose and everything to gain by doing nothing.

Last week, Magnuson did take a small step toward rectifying that problem. In another aspect of the complex legal case, Florida has been claiming that under the Endangered Species Act, it was entitled to additional fresh water from Georgia to protect two mussel species and the threatened Gulf sturgeon. That claim was a big part of Florida’s excuse for refusing to cut a deal with Georgia.

In a decision July 21, Magnuson rejected Florida’s claim outright, ruling that “the ESA claims are without merit and must be dismissed.” In effect, the decision leaves Florida with little legitimate reason to continue to reject a settlement. If it continues to do so, it is acting in bad faith. As Perdue put it afterward, “We always felt the use of the Endangered Species Act was just a ruse to try and wring more water out of Georgia,” and Magnuson’s decision strips that ruse naked.

In his ruling, Magnuson also had harsh words for the U.S. Army Corps of Engineers, which operates Lake Lanier and other dams in the Chattahoochee/Apalachicola basin. For example, he wrote that he was troubled “by the Corps’ refusal to take responsibility for its utter failure to conduct any sort of environmental analysis whatsoever” on its existing plan for operating the dams.

But here’s the critical part. The Corps is now drafting a new plan for how to operate Lake Lanier and its other projects, and this time it is also preparing an environmental impact statement. In his ruling, Magnuson strongly suggested that the EIS include the potential impact of water withdrawals from Lake Lanier.

“An EIS that does not at least consider the effects of current and future water supply withdrawals from Lake Lanier as well as other points in the ACF system is, for all intents and purposes, a useless document,” he told the Corps. Clearly, he understands that water withdrawals of some level from Lake Lanier will be a necessity.

Back in June, during oral arguments, Magnuson’s frustration was even more clear. The judicial system is going to do its job of interpreting current law, he told attorneys for all three states and the federal government, “and that’s all I’m going to do, and somebody better figure that out.”

“There are two other branches of government that are involved in this subject,” he said. The executive and legislative branches “are sitting here kicking a football back and forth for 30-plus years. Now, it’s got to come to a conclusion. It’s got to be resolved. The issues that are involved in this case carry such significance to so many people in so many ways that nobody is going to have a complete solution to anything. But there is only one way to resolve it, and that is a resolution as it relates to the legislative side and it relates to the executive side.”

Fine words. Meanwhile, the days continue to fly by.