A big legal win for Georgia in water wars

Let’s see…Monday we got a federal ruling on Georgia’s new illegal-immigration law…Tuesday we got the appellate court’s ruling on the water wars…maybe today we’ll hear from the 11th Circuit on Obamacare? (If so, I’ll be telling fortunes at Thursday night’s Mashable Atlanta social media meet-up.)

But seriously, yesterday’s water ruling by the 11th U.S. Circuit Court of Appeals is, as Joe Biden might say, a big, er, fishing deal:

The court threw out a 2009 ruling by Senior U.S. District Judge Paul Magnuson, who had found it was illegal for the Corps of Engineers to draw water from Lake Lanier to meet the needs of 3 million metro residents. In its decision Tuesday, the 11th U.S. Circuit Court of Appeals found that one of the purposes of the man-made reservoir about 45 miles upstream of Atlanta was to supply water to the metro region.

Alabama will appeal the ruling to the full Circuit Court.

Magnuson had also set a doomsday clock ticking for Georgia, Alabama and Florida to arrive at a water-sharing agreement. If the states could not reach a settlement by July 2012, Magnuson said, metro Atlanta would only be allowed to take the same amount of water it received in the mid-1970s — when the population was less than one-third its current size.

That deadline is no longer in effect.

Instead, the 11th U.S. Circuit Court of Appeals set a new deadline. It gave the corps one year to make a final determination over water allocation from Lake Lanier. And the court reminded the corps that the water litigation has already been going on for more than two decades.

Magnuson’s order was wise in that it set a deadline for agreement, but unwise in that it neutered one state (Georgia) and thus empowered the others (Alabama and Florida). We’ll see if it holds up on appeal to the full court, and whether it ends up at the Supreme Court, but people in metro Atlanta can breathe — er, sip — a little easier today.

– By Kyle Wingfield

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60 comments Add your comment

saywhat?

June 29th, 2011
9:35 am

Call it like it is

June 29th, 2011
9:43 am

This is no win at all. You have 3 states that need that water. All 3 need to get together to work it out. Georgia should be talking to Tenn about tapping into their system for the future. There is a lot of small towns that count on the hooch, If you ever take a trip to the Fla panhandle and watch the oystermen, you will understand. They need that fresh water for their livelyhood. The problem will only get worse, if our officials dont come together and come up with a plan. Georgia just cant say its all mine and tell the others to pound sand.

Mitch

June 29th, 2011
10:01 am

Call, not that I expect anyone responding to a blog to know what they are talking about, but you couldnt be more wrong. This has nothing to do with Georgia saying the water is all ours. Did you know that we use less than 3 percent of the water we send downstream to Alabama and Florida? Does that sound like we are saying “its all mine” and telling them “to pound sand.” The water wars are about one thing and one thing only — economic development. Our neighboring states are very jealous of Georgia’s success and want to keep this fight going so they can tell businesses that we are running out of water.

ByteMe

June 29th, 2011
10:12 am

Since Lanier was a resource created and maintained by the Feds, the solution should have come from them instead of through negotiations between three parties with no real interest in compromising. Only way to a compromise is if all parties want something from the other; in this case, all three states want nothing from the other states except the water… the resource that none of them control. It’s not like Florida was going to trade oysters for water.

Our senators should each make their case to the Corp of Engineers and let the Corp make the final allocation decisions based on need.

Bill

June 29th, 2011
10:23 am

Kyle,

What a pleasant surprise that you can write on a subject other than partisian politics. Keep up the good work!!

Regards,

that's goofy

June 29th, 2011
10:23 am

Mitch: Alabama and Florida of jealous of Georgia’s success? What success are you referring to?

Intown

June 29th, 2011
10:27 am

A victory for sound legal reasoning. A defeat for Alabama’s, Florida’s, and the power customers’ obstinance and greed.

Seth Waxman, former solicitor general under BILL CLINTON and the No. 2 ranked private practice lawyer in Washington DC was worth every dang penny Georgia and the Metro Atlanta water utilities paid him.

Aquagirl

June 29th, 2011
10:27 am

The farmers in South Georgia and Columbus aren’t happy with the N. Georgia gimme-gimme-gimme approach. Are they not part of Georgia?

The only winners here are people thinking piggish greed is an American value.

Darwin

June 29th, 2011
10:29 am

Oh goody. Now we can hoard the water. Typical right wing “let them eat cake” rhetoric.

ragnar danneskjold

June 29th, 2011
10:39 am

Good morning all. Unfortunately our society is so hostile to capitalism that the obvious solution to the allocation problem – the “market” solution – is ignored by all parties. The water belongs to the US government. Sell it all to the highest bidder, or set a price for users high enough to mete out the good.

Jefferson Jackson

June 29th, 2011
10:40 am

Come on Darwin, you can do better than that! That’s just name calling.

Darwin

June 29th, 2011
10:44 am

Jefferson – No name calling. Just callin’ it like it is.

Kyle Wingfield

June 29th, 2011
11:00 am

Call It and Darwin: The key sentence in my post was this one: “Magnuson’s order was wise in that it set a deadline for agreement, but unwise in that it neutered one state (Georgia) and thus empowered the others (Alabama and Florida).”

It’s not about telling the others to pound sand or hoarding anything. In fact, it’s the *opposite* of that, because from Magnuson’s order until yesterday, that’s exactly what Alabama and Florida were in the position to do. This levels the negotiating field while keeping a sense of urgency — via the Corps of Engineers (on which ByteMe makes a good point).

Aquagirl: No doubt, the needs of metro Atlanta differ from those of Middle and South Georgia on this issue. But again, putting South Georgia on the same side of this issue (and, importantly, of Magnuson’s deadline) opposite metro Atlanta did nothing to help Georgia as a whole come to a good solution here.

Real Athens

June 29th, 2011
11:05 am

Now if the city of Atlanta could upgrade their infrastructure so as not to poison everything between the city and West Point Lake.

Carlosgvv

June 29th, 2011
11:16 am

When water use in a Georgia lake can be decided by a Minnesota judge, you know something is very wrong with our legal system. This is Georgia water in a Georgia lake filled mostly with Georgia rainfall. Gov. Deal needs to stand tall on this and tell other states and Judges in other states this is OUR water and you will not get your hands on it. Of course, the odds this will actually happen are about zero. Our Govt. is supposed to be a balance between Federal and State’s rights. This has become an all Federal rights and no State’s rights thing.

Van Jones

June 29th, 2011
11:21 am

Amen Carlos! “This is Georgia water in a Georgia lake filled mostly with Georgia rainfall.” And Georgia streams and creeks…

Road Scholar

June 29th, 2011
11:28 am

The Feds/Corps set precedent by letting Georgia use the water and Atlanta using it as drinking water. No ceiling/peak usage was set when they allowed it. It has increased over time w/o notice of a limit.

Aquagirl: I haven’t heard the farmers crying; it is the rest of the streams that are in low flow because of the drought. The issue is providing enough water to ensure the endangered mussels downstream are kept alive.

ByteMe

June 29th, 2011
11:29 am

Carlos, although the lake resides within the boundaries of our state, the lake was bought and paid for by the Feds. It’s their lake and the rights to the water in it are governed by Federal law. This has nothing to do with State’s rights… it’s more about property rights. Magnuson’s ruling made it a problem to be resolved directly by the states, when in reality, it’s not their problem to resolve directly. It’s a Corp of Engineers problem to be resolved within Federal law. Congress won’t change the law without the governors agreeing to it first. So we’ve been locked into this battle for 20 years. And the battle is not just our problem; Colorado is having the same issue with the water coming out of the Rockies and flowing to other states.

Shannon, M.Div.

June 29th, 2011
11:30 am

@Bill: “What a pleasant surprise that you can write on a subject other than partisan politics.”

However, he *can’t* write on any subject (apparently) without at least mentioning them. The dig at Biden was unnecessary and compels me to mention Dick Cheney’s employment of the F-word in the senate, 2004. And unlike Biden’s, Cheney’s was pretty dang mean-spirited.

“Oh, lighten up. Kyle was just making a joke.” At the other party’s expense, and with a certain amount of hypocrisy.

Kyle Wingfield

June 29th, 2011
11:32 am

Shannon: Seriously. Lighten up.

Ivan

June 29th, 2011
11:37 am

“Oh, lighten up. Kyle was just making a joke.” At the other party’s expense, and with a certain amount of hypocrisy.”

A joke that has a pun at someone’s expense? Call security!!

Aquagirl

June 29th, 2011
11:38 am

filled mostly with Georgia rainfall

Now what the [bleep] is that?

Kyle, maybe I need another cup ‘o coffee but I don’t really get your reply. It doesn’t matter though, since my fairly minor point was a headline of “Atlanta wins big” would not likely have the same reception among your readership.

I’m glad you like your activist judge, who overruled a clearly written contract. If the contract is outdated, it’s up to the parties involved to re-negotiate that contract, not look for a judge to throw it out. But then I believe in the rule of law.

contrarian

June 29th, 2011
11:40 am

The Biden comment wasn’t ‘just a joke’, it was inserted with only one purpose: a gratuitous jab a someone whom Wingfield disagrees with politcally.

Imagine the pages upon pages of conservative comments Mr. Bookman would get for making the same comment about a Republican.

It’s just another shining example of how overwhelmingly ‘librul’ everyone at the AJC is.

Ivan

June 29th, 2011
11:57 am

“The Biden comment wasn’t ‘just a joke’, it was inserted with only one purpose: a gratuitous jab a someone whom Wingfield disagrees with politcally.”

Did the entire left wake up on the wrong side of the bed this morning? If the Biden jab really offended you, stay away from Dave Chappelle or Daniel Tosh.

Carlosgvv

June 29th, 2011
12:06 pm

ByteMe, Aqua Girl

If you are willing to roll over and play dead when the Federal Govt. stomps all over your rights, that’s your decision and your problem. Fortunately, some of us are made of sterner stuff and will not kneel down as easily as you.

Wrong Side Of The Bed

June 29th, 2011
12:07 pm

Why do I always get blamed for crabby people? I’m hiring a lawyer and PR firm.

rooster

June 29th, 2011
12:10 pm

Mitch is right. This has never been about water, but about economic development and a desire to handicap Atlanta. Alabama and Florida found themselves losing the game, so they tried to get the rules changed in the seventh inning.
The Chattahoochee originates as a spring on a mountaintop in north Georgia. The are no tributaries to it which originate outside Georgia until it reaches West Point-Lanett, well below the Atlanta area. And by far the largest volume of input south of Atlanta is from the Flint, which also originates in, and has no tributaries originating outside of, Georgia.
The total consumptive use of water by Greater Atlanta – that is, water which is not returned immediately to the river – is less than 2% of flow at Apalachicola Bay. Consumptive use is greater per acre in farming areas downstream than in Atlanta.
About 2 years ago, Jay Bookman wrote of his conversation with a hydrologist at Auburn University (in the Chattahoochee valley downstream of Atlanta). Bookman asked what the condition of the lower river would be if there were no Atlanta at all. The professor’s answer was that the river would be in worse shape. Without the impervious surfaces in Atlanta shedding rainwater back into the river system, the volume of water downstream would be less. If this were the primeval forest instead of a big city, rainwater would be absorbed into the soil, pumped into the crowns of the trees, evaporated, and blown toward South Carolina by the prevailing wind. As it is, a significant percentage of rainwater finds its way into the river almost immediately. Another large volume of water is returned to the river by local treatment plants. And, the water released by any municipal or county treatment plant is far cleaner than water running off farm land, which carries phosphates, pig poop, and no telling what else into the river.
Should Atlanta and Georgia endeavor to use water more conservatively? Well of course – and we are already doing that. We have reduced our use of water in the metro area by a significant percentage in the last three years, and we know we can do more. For example, I would not oppose an outright ban on all discretionary irrigation. The state’s farms need irrigation. Lawns do not. It wouldn’t bother me if households and businesses were told they could water potted plants and gardens to their hearts’ delight, but couldn’t water lawns unless they were on fire. But we should conserve out of a desire to be good stewards of our resources, not because of threats from our jealous neighboring states.
@that’s goofy – What successes? Atlanta is the nation’s fourth largest concentration of Fortune 500 HQ’s, the nation’s second largest air hub (accounting for multiple airports in other cities), and by far the leading business center in the southeast. Georgia is one of two states that have had more people migrating from Florida than to Florida over the last decade (the other is Texas).
Darwin – You shouldn’t interrupt grown folks’ conversations unless you can offer something besides an irrelevant partisan squawk.

Darwin

June 29th, 2011
12:11 pm

Kyle – Although you clarify that your points are not to be taken as no hoarding, no doubt the right wing has made is clear that compromise and negotiating is no longer to be tolerated. I don’t blame you for starting this mental state – but merely perpetuating it.

RGB

June 29th, 2011
12:16 pm

Statists have no sense of humor which is exemplified on this blog. And if Georgia had not won this court case the libs would have enjoyed beating up every Republican office holder in the state (Nazi!). A normal person would be glad that a metro area of 4 million people would have a little more certainty about the availability of water.

But since Georgia won the case, the leftists are now talking about greed. If you people want to show your selflessness, put your money where your mouth is and refuse to use Georgia water. Don’t bathe with it, don’t brush your teeth, and don’t drink Georgia water–not a drop, otherwise you are greedy just like those greedy corporations you talk about.

By not using Georgia water, the libs’ personal appearance and hygiene will be commensurate with their sunny disposition.

je

June 29th, 2011
12:17 pm

While a agree with the sentiments that this is substantially Georgia water, produced for the most part by rainwater falling within the state, federal water-rights law doesn’t view it that way.

According to the law, if a river flows through multiple states, each state it flows through is entitled to an equal share of the water. Personally, I have mixed feelings regarding the fairness of that.

Jefferson

June 29th, 2011
12:17 pm

Don’t confuse Atlanta with Georgia. They are not the same place.

rooster

June 29th, 2011
12:20 pm

OK, Darwin, try as you might, you cannot make this issue fit your left-right frame of reference. One of the clearest and most uncompromising statements on the matter by a Georgia politician came from Roy Barnes, who said basically that it’s our river and that he would “litigate every drop.”

Ivan

June 29th, 2011
12:23 pm

“Don’t confuse Atlanta with Georgia. They are not the same place.”

True Story.

“By not using Georgia water, the libs’ personal appearance and hygiene will be commensurate with their sunny disposition.”

This is a misleading statement because it assumes the left has hygiene.

Finally, I would like to apologize to Wrong Side of the Bed. Please don’t sue me.

Whacks Eloquent

June 29th, 2011
12:31 pm

Yay! I am glad this topic was brought up by one of our illustrious bloggers!

In a nutshell, all this ruling did was get rid of the draconian measure of halting Atlanta’s water use from the Chattahoochee one year from now. The impetus is still on the CoE to get a new water plan drafted, and for the 3 states to work something out. Hopefully those will still come to pass.

I don’t believe any of the states should be ignored here. All 3 have completely valid reasons for needing the water, and an agreement is a humanly possible expectation. For those who say that Atlanta should not have access because they did not help finance the reservoir – um, did Florida or Alabama specifically donate funds to it? No more than Georgians, as it was federally funded. In fact at the time Georgia had a larger population than Florida and Alabama combined, but that’s not all that important. The Feds built the reservoir for multiple purposes. Atlanta and surrounding communities were already drawing water from the ‘Hooch and that expectation would have remained, so Atlanta has always had a stake in the river water levels. The most drastic reason for the reservoir was flood control. Drought management was just a plus.

Another question to ponder – what if Lanier had not been built at all? For one, the floods that used to plague areas, particularly downstream from ATL, would have continued to wreak havoc. Atlanta would probably have had trouble with water draws in some of the drier years as well, since only 9% of the ACF flow comes through the Upper Chattahoochee. I would guess that eventually counties and communities would have come together to make smaller local reservoirs. These would have been solely for drinking water. What recourse would Florida and Alabama had then? Because the Feds regulate Buford Dam, their interests are ensured? Without the CoE, our neighboring states would rely on our goodwill or messy multi-party lawsuits.

Incidentally, there was another lake that took up part of where Lake Lanier is now. It was called Lake Warner, and was primarily used for power generation by Georgia Power, at a site called Dunlap Dam, which was near Gainesville. The dam was breached in a major flood in the late 30’s, about 20 years before Lanier was built, but one would think that Hall County or Southern Co. could still make a case for that capacity if they wanted to.

Wrong Side Of The Bed

June 29th, 2011
12:41 pm

Ivan, @ 12:23 I have gleefully dispatched a legal process server. See you in court.

Also, we’ve sent word to the “wrong” (such a judgmental, bigoted word!) side of your mattress and bedsprings, they aren’t happy. You might want to sleep on the couch for a while. I’m just sayin’.

Kyle Wingfield

June 29th, 2011
12:49 pm

Aquagirl: Sorry, I meant to write “on the same side of this issue as Alabama and Florida.” I take your point about metro Atlanta having a different perspective on this than other parts of Georgia, but I don’t think it helped the negotiating position of any Georgians for Alabama and Florida to be given all the leverage.

Logical Dude

June 29th, 2011
1:17 pm

from the article: If the states could not reach a settlement by July 2012 . . . and then. . . It gave the corps one year to make a final determination .

Isn’t that still the SAME TIMELINE? ONE Year = JULY 2012.

Just checking. :)

Whacks Eloquent

June 29th, 2011
1:18 pm

Logical Dude – same timeline, different consequences. Not sure what the court would do to the CoE, or could do even, but no longer facing Atlanta getting the water shut off. Big break for us.

Jefferson

June 29th, 2011
1:22 pm

UGA will take the brunt of the beating of the decision, the Tide and Gators will get even….

Whacks Eloquent

June 29th, 2011
1:26 pm

Jefferson, fine by me. I’d even give up our hockey team if we could maintain access to the water.
Hey wait! Oh well – seriously some things are more important.

Dick Cheney

June 29th, 2011
1:27 pm

Finally we can stop all that horse-hockey talk about “conservation” and “low-flow” toliets. That nonsense was making naseous. I like my water with scotch anyway.

Ayn Rant

June 29th, 2011
1:49 pm

Kyle, thanks for the information and perspective on the latest court rulings. It’s worth noting that our judicial system is incapable of reaching a timely and considered decision on much of anything. Both government and the private sector need a more expeditious method of settling disputes.

Ragnar has suggested an expeditious way to handle the water dispute: since the federal government built Lake Lanier, the federal government should sell the water to the quarreling states for a competitive price. Since the federal government also built nearly all the big dams and reservoirs in the nation, the federal government should collect payment for all the water used from those reservoirs. That would bring in a few hundred billion dollars a year to reduce the federal deficit.

Perhaps the neo-cons would object since they are opposed to the government collecting revenue; probably they would denounce the scheme as a “tax increase”!

The use of the term “Obamacare” is ignorant and obnoxious. The Affordable Health Care Act is a method for paying for, not delivering medical care. Medical care is provided by the same private practitioners, hospitals, clinics, and labs we have always used when we need medical care. There is no provision for medical care by the President personally, or by any employee or appointee of the federal government.

Bart Abel

June 29th, 2011
1:58 pm

Speaking of legal rulings, the 6th Circuit Court of Appeals had just ruled that the health care law is constitutional. It should be noted that the 6th circuit is considered more favorable to Republicans and one of the judges who voted in favor of the law’s constitutionality was a George W. Bush appointee.

Here’s a quote from the ruling: “By regulating the practice of self-insuring for the cost of health care delivery, the minimum coverage provision is facially constitutional under the Commerce Clause for two independent reasons. First, the provision regulates economic activity that Congress had a rational basis to believe has substantial effects on interstate commerce. In addition, Congress had a rational basis to believe that the provision was essential to its larger economic scheme reforming the interstate markets in health care and health insurance.”

I suspect the media won’t put much effort into report this decision since, for some mysterious reason, they only seem to want to sensationalize any court decisions against the health care law.

Whacks Eloquent

June 29th, 2011
2:10 pm

Bart, that’s because it has passed and is/will be the law of the land unless overturned. That’s the case with any of these court cases. Cases against existing legislation come up all the time, they only get reported if they actually make the unusual decision to reverse the laws. Since this is a large national issue, it is getting a little press. Interesting to see what happens with the 11th circuit court, I don’t see this issue getting decided outside of the Supreme Court. And that could be even more interesting with only 8 judges…

Ivan

June 29th, 2011
2:27 pm

The health insurance bill won’t be settled until the Supreme Court examines it. I still wonder how much, if any, effect it has on their decisions.

contrarian

June 29th, 2011
3:08 pm

Ivan, the Biden comment itself was not worthy of comment. I have enough of a sense of humor that I can appreciate what is funny about it. It was Kyle’s feigned outrage, telling Shannon to “lighten up” as tersely as he did that I found worthy of comment. If he’d either left it alone or admitted that it was a gratuitous shot, I would’ve remained silent. Instead, he came out pretending that it was all just as innocent as a summer sprinkle.

Now that I’ve caught up on the latest in the John Stewart vs. Herman Cane Fox-created hysteria, I’m wondering if Kyle was taking yet another shot at a high-profile liberal. Not that there’s anything wrong with that.

Unless you pretend you’re not.

Intown

June 29th, 2011
3:12 pm

@Real Athens: What the heck do you think the City of Atlanta has been spending billions of dollars on for the last 12 years? ATL ain’t poisoning downstream no more. And its paining through the nose for it. Highest water and sewer rates in the nation.

Moderate Line

June 29th, 2011
3:15 pm

Carlosgvv

June 29th, 2011
11:16 am
When water use in a Georgia lake can be decided by a Minnesota judge, you know something is very wrong with our legal system. This is Georgia water in a Georgia lake filled mostly with Georgia rainfall. Gov. Deal needs to stand tall on this and tell other states and Judges in other states this is OUR water and you will not get your hands on it. Of course, the odds this will actually happen are about zero. Our Govt. is supposed to be a balance between Federal and State’s rights. This has become an all Federal rights and no State’s rights thing.
+++++
Read the constitution about navigable water ways. This is the one area which is hard to dispute is under the jurisdiction of the Federal government.

Intown

June 29th, 2011
3:15 pm

Kyle is dead on accurate today on his take on water wars with regard to the disproportionate leverage that Magnuson’s order placed on Georgia and Metro Atlanta. Not to mention it was just reckless and completely wrong on the facts and law.

Maybe we can all now figure out how to manage our water resources fairly. If done right, there is enough water for everyone. But, I’m sure our litigous sister states to the west and south will not rest.

Bart Abel

June 29th, 2011
3:21 pm

I have a different theory, Whacks Eloquent. Today’s media doesn’t cover decisions supporting the health car law for the same reason that Fox News didn’t cover New York’s legislation allowing gays to marry in that state…they don’t cover news they don’t like.

The media seeks to manipulate their audience as much by what they don’t cover or what they relegate to the back pages as they do by what they choose to highlight and spin.

Assertions that the media is liberal are a incorrect.