By:ClydeMorris, Attorney for the Association

On September 16, the 11^th Circuit denied the petition by FL and AL for an en banc rehearing of the decision in Phase 1 of the Water Wars.  FL and AL have reportedly decided to appeal the 11th Circuit’s decision to the U. S. Supreme Court.  The mechanism for doing this is called a petition for a writ of certiorari.  The important thing to know about such petitions is that the Supreme Court receives about 9,000 petitions a year, and grants only about 90 of them, or about 1%.  If your case is one of the lucky 90, you still have to convince the Supreme Court that the Court of Appeals was wrong, which is an uphill battle in itself. 

If you do the math, you can readily see that FL and AL’s chances of overturning the 11th Circuit decision are not enviable.  The 11th Circuit’s decision was unanimous, with no dissenting opinions, and the petition for en banc rehearing did not get a single request from any judge in the Circuit even to poll the others regarding their interest in rehearing the case.  There is no other Circuit Court opinion at odds with this decision, so the Supreme Court has no need of resolving a conflict among Circuit courts, which is typically the type of situation that compels the Supreme Court to take a case.  So, the challenge is great for FL and AL to succeed in getting this case heard by the Supreme Court.  But if they do, the Association will be there to defend its position on behalf of all our members.

The Shore Sweep event  on Lake Lanierwill take place from 8 a.m. until 1 p.m., and volunteers may pick up trash bags to collect trash from the shoreline at the locations on the lake listed below. Trash may be taken to these locations with the exception of Lake Lanier Islands where volunteers may enter at no charge through the main gate to collect trash.

Advance registration for the event is NOT required, but it does help us in scheduling shoreline coverage. If you would like to notify us of your plans to participate, please send an email to lakeinfo@lakelanier.org.

• Dawson County
  • War Hill Park
• Forsyth County
  • Bald Ridge Marina
  • Habersham Marina
  • Port Royale Marina
• Gwinnett
  • Lanier Harbor Marina
• Hall County
  • Aqualand Marina
  • Clarks Bridge Park
  • Gainesville Marina
  • Hideaway Bay Marina
  • Holiday Marina
  • Lake Lanier Islands
  • Lazy Days Marina
  • Sunrise Cove Marina

For Shore Sweep this year, in addition to our day-of-event locations–all marinas, Lake Lanier Islands, Clarks Bridge, and War Hill Parks–we also have eight advance drop off locations around the lake. The advance locations are open now through Friday evening. You can go ahead and bring bagged trash or large items and leave them at one of these locations. We have barges scheduled to pick up at all these locations on Saturday morning for removal. Especially if you are not available to help with Shore Sweep next Saturday, bringing items to the advance locations during the week is a great way to contribute to this event even if your schedule won’t allow you to be there on that day.

For the advance locations, THEY ONLY ACCEPT TRASH WHILE THE SHORE SWEEP SIGNS ARE IN PLACE. Please DO NOT bring trash to these locations other times of the year. Below is the list of advance locations. If you bring trash to any of these locations, please look for the signs posted and leave the debris close to the signs.

The lake map coordinates are from the Atlantic Mapping Recreation and Fishing Guide for Lake Lanier.

1. Map coordinate J-12, buoy marker 1SM, beach at Shady Grove Park
2. Map coordinate H-7, Beaver Ruin Road shoreline area
3. Map coordinate N-4, Lanier Harbor Marina
4. Map coordinate N-9, buoy 14, Gaines Ferry Islands
5. Map coordinate L-18, buoy 33, Keith’s Bridge Island
6. Map coordinate M-24, Old Dawsonville Highway road bed near DNR regional office and Martin Docks
7. Map coordinate M-28, buoy 2WC, unnamed island
8. Map coordinate D-21, buoy 21C, Nix Island

Shore Sweep itself takes place Saturday, September 24th starting at 8:00AM and ending at 1:00PM. We’ve got a lot of exposed shoreline this year so we hope to get a significant amount of debris out of the lake!

Clyde Morris, the attorney representing the Lake Lanier Association in the Tri-State Water Wars litigation, has written an opinion piece for our membership about what the recent federal court ruling for Phase I of the litigation means to LLA members. See below for Clyde’s comments on the 11th Circuit opinion:

11^th Circuit Opinion “Dam” Good, by Clyde Morris,  Attorney for the Lake Lanier Association

The opinion rendered this week by the 11^th Circuit is the most positive news Georgia has ever gotten in the Water Wars.  Some are calling it a complete victory regarding water supply, and I would concur.  But yes, an appeal is possible and already promised.

I expect Alabama to petition for a rehearing en banc (before the full 11th Circuit bench).  The opinion the court just issued was rendered by a 3-judge panel, and a party has the right to request that the full court rehear the case.  But by rule, such a rehearing is granted only to secure or maintain uniformity of the court’s decisions or if the proceeding involves a question of exceptional importance.  I would not speculate as to whether the 11th Circuit would grant an en bancrehearing in this case.  But if it does, I would be extremely disappointed if the decision were changed, as it is exceptionally thorough, well-reasoned, and well-written – as well as being almost completely in line with what we have argued since Day One.

Assuming the decision stands as written, the Corps has one year to give Georgia a decision on whether it will grant Georgia’s water supply request.  The Court has made it crystal-clear that the original 1946 legislation (the River and Harbor Act, or RHA) authorized Lanier to be used for water supply.  Over the years, the Corps has waffled on how much water it can supply under the RHA without having to rely on authority under a later statute, the Water Supply Act of 1958 (WSA). But the Court not only ruled that the RHA authorized water supply, it ruled that water supply is not inferior to hydropower as an authorized purpose.  By doing so, the Court laid the foundation for the Corps to reconsider what, if any, practical limit exists to the RHA authorization and how that limit is augmented by the WSA authorization.

You may also be wondering about how Gwinnett County, Buford, Cumming, and Gainesville have fared in all this.  These water suppliers are in a somewhat distinct posture from Atlanta and the counties south of Buford Dam because their water is taken directly out of the lake, rather than out of the river downstream of the dam.  As I read the opinion, they all have the same rights as the entities that take downstream of Buford Dam, plus whatever they were granted in compensation for losing their original river intakes when the lake was built (or, in the case of Gwinnett, an additional 10mgd authorized by a 1956 statute).

This is a great victory for LLA members and Georgia as well.  We all need water to drink, and the 11^th Circuit seems firmly convinced that we have the right to get that water from Lake Lanier. But Phase 2 is still pending, which deals with Florida’s Endangered Species Act claims.  Florida is putting pressure on the Corps to send 20% more water than it does now to protect the mussels. If it is successful, that will translate into significantly lower lake levels, especially in droughts. Considering the fact that south Georgia is in an “exceptional” drought, we would already be seeing much lower lake levels.  So, Phase 2 is still critical for us, and demands our full attention going forward.

By Ashley Fielding, Gainesville Times

An appellate court has overturned a 2-year-old decision that would have severely limited how Hall County, and much of metro Atlanta, could withdraw water from Lake Lanier.

A three-judge panel from the 11th Circuit Court of Appeals directed the U.S. Army Corps of Engineers on Tuesday to reconsider giving Georgia permanent access to the lake’s water.

Georgia stakeholders in the state’s ongoing litigation with Alabama and Florida over rights to the water in the Apalachicola-Chattahoochee-Flint river basin praised Tuesday’s decision as a “great victory” for Georgia.

Lake Lanier is the northernmost and largest reservoir located on the 550-mile river system. It is responsible for providing water to more than 3 million Georgians.

The ruling reverses a 2009 decision by U.S. District Court Judge Paul Magnuson that stated Georgia had few rights to the water in Lake Lanier.

The appellate decision instead states that Congress always intended for the lake to be used as a source of drinking water for the Atlanta area.

Previous decisions that said otherwise, including Magnuson’s ruling, were based on “a clear error of law,” Tuesday’s ruling stated.

“This is very good. This is good for the whole state of Georgia,” said Patricia Barmeyer, an attorney with King and Spalding, who represents a number of municipal water utilities in the Atlanta area, including Gainesville.

“This is good for the public interest. This is good for the metro Atlanta region. This is good for Gainesville and Hall County.”

The ruling, at the least, buys Georgia some time to nail down a viable source of drinking water for its largest metropolitan area.

But its recognition that water supply was likely the original intent of the congressional planners who authorized the construction of Lanier more than 50 years ago was encouraging to Georgia, which faced a stark alternative without the ruling.

Magnuson’s decision imposed a three-year deadline for Georgia to find another source of water, have Congress reauthorize Lanier as a specially designated source of drinking water or negotiate a water-sharing agreement with Florida and Alabama.

Nearly two years after that court-ordered ultimatum, none of that has happened.

Tuesday’s decision gave corps officials a year to determine the organization’s authority under the Rivers and Harbors Act and the Water Supply Act.

It also charged the corps to make final decisions on how much water should be stored in Lake Lanier for water supply.

In their 95-page opinion, the appellate judges encourage the corps to determine its authority in delegating water resources from Lake Lanier “as swift as possible without sacrificing thoroughness and thoughtfulness.”

“The stakes are extremely high, and all parties are entitled to a prompt resolution,” the ruling read.

A spokesman for Gov. Nathan Deal praised the ruling, and said the governor would continue to work with Alabama and Florida toward a water-sharing agreement in the river basin.

The Associated Press reported Tuesday that Deal met with Alabama Gov. Robert Bentley for about two hours June 15 in an unpublicized meeting to talk over the water issue.

A gag order prevents the governors from discussing the details of that meeting, Deal’s spokesman, Brian Robinson, said.

Attorney General Sam Olens said the ruling affirms the state’s long-held belief that the lake was authorized as a source of drinking water.

“This is a great day in Georgia,” Olens said in a statement.

Yet Bentley said he was disappointed by the panel’s decision and would appeal to the full court.

“We recognize that it is only one step on the long road of litigation of these disputes,” he said in a statement.

Florida Gov. Rick Scott’s legal team was still reviewing the decision late Tuesday. Eric Draper, executive director for Audubon of Florida, said he hoped Scott would appeal.

“This is one time when Gov. Scott is going to need to stand up for Florida’s environment. This is the place that Gov. Scott can connect the dots between Florida’s economy and the environment because Florida’s economy relies on that water.”

Draper said Georgia needs to develop plans to conserve water so less comes out of Lake Lanier.

The ruling also had significant local impact, according to Barmeyer, who represents Gainesville’s interests in water litigation.

Gainesville’s Public Utilities Department now is entirely reliant on Lake Lanier to provide its more than 46,000 customers with water.

Though the Magnuson’s ruling left Gainesville with some access to the water in Lanier, it would have limited the department’s withdrawals to 10 million gallons per day.

On average, the city withdraws about 18 million gallons of water from the lake per day to meet Hall County’s current demand.

Tuesday’s ruling will also allow the corps to evaluate whether municipal water providers like Gainesville can, in calculating water use, receive credit for the amount of cleaned-up water they return to the reservoir.

Gainesville officials have long argued that their withdrawals should be offset by the amount of treated wastewater they put back in the lake daily.

Magnuson’s ruling said water providers could not be credited for returned water. Tuesday’s ruling put that decision back in the corps’ hands.

Gainesville’s Public Utilities Director Kelly Randall could not be reached for comment Tuesday on the impact of the ruling on the city’s future water supply.

Though Hall County Board of Commissioners Chairman Tom Oliver praised the ruling, he said the court’s decision Tuesday would have little effect on the county’s plans to build an 856-acre reservoir in North Hall.

“I think it’s an excellent ruling. We somewhat anticipated this,” said Oliver. “However, I think we are a ways off from controlling our water destiny.”

After Magnuson’s ruling in 2009, county officials withdrew a permit application to build Glades Reservoir in North Hall and revise the application to allow for a much larger reservoir that could meet the county’s daily needs.

The county submitted its most recent application on June 10 for a reservoir that would yield 80 million gallons of water per day, more than 10 times the yield of the original permit.

Oliver said Tuesday the county will continue those efforts because litigation could continue for several years.

“I think it’s more important than ever (to proceed with) the Glades Reservoir …” Oliver said. “It’s a very critical, time-sensitive issue. We might not want to pipe it or set up piping, but we should go ahead and build the lake. We have the opportunity to do that.”

And while an attorney for the Lake Lanier Association said Tuesday’s decision was gratifying, Clyde Morris said the group is also waiting to hear from the next decision in the case, which will determine if recreation should be a consideration when determining water levels in Lake Lanier.

“We think it is equally clear that recreation was also authorized by Congress as a benefit of Lake Lanier, and we look forward to working in Phase 2 to ensure that the benefit of recreation is preserved for our members and everyone who depends on the lake,” Morris said in an emailed statement.

Associated Press contributed to this report.

The federal appeals court in Atlanta on Tuesday handed Georgia an enormous victory in the tri-state water litigation, overturning rulings by a federal judge that could have had catastrophic consequences for the metro area.

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, the 11th U.S. Circuit Court of Appeals found that a purpose of the man-made reservoir was to supply water to the Atlanta region.

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.

“Progress towards a determination of the Buford Dam’s future operations is of the utmost importance to the millions of power customers and water users that are affected by the operations of the project,” the court said. “The stakes are extremely high, and all parties are entitled to a prompt resolution. Accordingly, the process for arriving at a conclusion of the bounds of the Corps’ authority should be as swift as possible without sacrificing thoroughness and thoughtfulness.”

“At first glance it appears that the state of Georgia has won a great victory,” said a statement issued by the office of Gov. Nathan Deal. “The 11th Circuit panel has ruled unanimously that Lake Lanier was built for the purpose of water supply for the metro Atlanta area. This means that the lake will continue to be available to meet Georgia’s needs.”

The 95-page ruling, issued by a three-judge panel that heard arguments over the dispute in March, was unanimous.

In their ruling, the judges made important findings. Among them: they determined Magnuson erred in concluding that water supply was not an authorized purpose of the Buford Dam project.

“It’s a very good day for the state of Georgia,” lawyer Patricia Barmeyer, who represents the Atlanta Regional Commission, said.

The ruling is “a complete victory for Georgia,” said Todd Silliman, one of the lawyers representing Georgia.

“My initial reaction is that it helps put us on a more level playing field in negotiations,” said state Rep. Buzz Brockway, R-Lawrenceville. “We definitely had the most to lose.”

Staff writer Aaron Gould Sheinin contributed to this article.

Georgia’s citizens and virtually all government entities from the state house to the local city or county administration understand and accept the need to conserve Georgia’s water resources. Georgia’s economy – in fact, the entire Southeast economy – depends on a reliable supply of fresh water for water supply, recreation, business, industry and environmental protection.

Georgia has passed a far reaching Water Stewardship Act to impose restrictions and incentives to fix leaks, to use less water and to manage water more efficiently. Cities and counties, especially in the Metro Atlanta area have imposed even more stringent requirements.

But what happens to the millions of gallons of saved water used on a daily basis?

Unless we have more ways to store it, that water flows to the Gulf of Mexico, even during times when there is excess water beyond what is needed for downstream uses. The challenge is to have programs and resources in place to store the water that is conserved so that it can be beneficially used when rainfall does not provide enough water for the users of the Apalachicola-Chattahoochee-Flint basin.

The fastest and cheapest way to store that water is in Lake Lanier, already the largest reservoir on the ACF watershed and currently with 14 feet of flood storage capacity. By raising the full pool level of Lake Lanier by only two feet and adjusting the U.S. Army Corps of Engineers operating procedures for the ACF Basin, more than 26 billion gallons of additional water can be stored during times of surplus to be used during times of drought.

The economics of this approach are overwhelming. It is literally the “low hanging fruit” to achieve increased water storage for Metro Atlanta and for all users in the ACF watershed — including those in Florida and Alabama. Without Lake Lanier’s water during the drought of 2007, all downstream users would have had to live with what nature provided, which was about half of the minimum required flow into Apalachicola River. With more water stored in Lake Lanier, everyone wins.

The need to reauthorize Lanier for water supply is a given – even at its current level. So that is not a factor associated with raising the lake by two feet. It is a factor associated with using any of the water from Lanier for water supply purposes. The path toward reauthorization is going to depend on the outcome of the 11th Circuit Court of Appeals’ decision on Judge Magnuson’s ruling and final agreements among the states.

Raising the lake by two feet can occur in a very short time period. During April 2009, the lake rose by 3 feet even though there was only 2.6 inches of rain during that month, considerably below average. There have been other months where it rose very little even with more rain.

The level of Lake Lanier is determined by the rainfall below Buford Dam as much as the amount of rainfall above Buford Dam. The amount and distribution of rainfall in the entire ACF Basin, along with hydropower generation and the Corps of Engineers need to balance the downstream reservoirs, determine how much water is released from Lanier. We have seen Lanier rise extremely fast when there is ample rain fall either above or below Lanier. This recommendation would be to store more water when it is available, not to deprive downstream users of water when it is not in ample supply.

Raising Lanier by 2 feet is not presented as the solution to Atlanta’s water future. It is one part of the ultimate solution to Atlanta’s water future. While doing so, it forestalls Lanier reaching the extreme low levels that it did in a drought similar to the 2006-2008 drought. Because of the “martini glass” shape of the lake basin, if Lanier had started 2 feet higher at the beginning of that drought, it would have been 3 feet higher when the drought ended.

As documented in the Economic Impact Study produced by the 1071 Coalition, the Lanier recreation economy degrades sharply whenever the Lake drops to 1060 or 1061 elevation. Any option to postpone that occurrence is a positive factor for the North Georgia economy. This idea should not be predicated on how many additional million gallons per day of water can be used for water supply purposes. Instead, it should be viewed as a way to extend the time when is Lanier above the 1060 or 1061 elevation for the economic health of our area.

Securing an agreement with our neighboring states has to be the top priority for the three governors. But that agreement alone does not create more stored water. It will deal with how that water is used. All parties to the agreement will benefit from having more stored water.

The cost and time factors of raising Lanier by 2 feet is miniscule compared to the costs of building new reservoirs. A properly done study will tell us what the costs will be. We all should be interested in a study to determine those costs. Lanier has been above 1073 over 300 times during its history-most recently in November 2009. It has been above 1077 on numerous occasions. Unlike the inevitable unknown surprises that crop up in building a new project, we have the benefit of some experience as to what happens around the lake at those higher levels.

This is not presented as an alternative to new reservoirs or any other viable ideas that will help secure the metro Atlanta’s water future. Each idea for addressing Atlanta’s water future has to stand on its own merits. This is an idea that has rallied county commissions, recreational users, businesses, environmental groups and many other stakeholders. It is a time that has come. Along with the necessary re-authorization of Lake Lanier for water supply purposes, this change would be a major part of the solution to the Metro Atlanta and the entire SE water supply needs.

The Corps needs to initiate the necessary study to better understand the costs and benefits of this change — now.

Wilton Rooks is vice president of the Lake Lanier Association.

Jeff Gill, Gainesville Times

With levels up and summer just ahead, Lake Lanier is sitting pretty.

“I think lake levels this summer will be fine. We’re in good shape,” said state climatologist David Stooksbury, speaking in an interview last week about summer conditions.

The lake’s summer full pool elevation of 1,071 feet above sea level took effect Sunday, and Lanier has hovered around that mark since early February. The last time the lake dropped below 1,070 feet — the winter full pool — was Feb. 4.

“Lanier is big enough, even though it has a small watershed, that … it doesn’t start getting into trouble into we start having multiyear droughts,” Stooksbury said. “The fact that we’re in good shape right now bodes well for the summer.”

He doesn’t have a summer forecast for North Georgia at this point, but no one should fret even if conditions turn out to be “very dry.”

In that case, “We’d see Lanier drop but not to the (level) we saw in 2007,” Stooksbury said.

In a drought that lasted from 2007 to 2009, Lanier fell to all-time low of 1,050.79 feet in December 2007. The reservoir finally hit full pool in October 2009.

Earlier this year, the Hall County area fell back into mild drought, believed to be the result of a La Niña atmospheric pattern that produces drier than normal conditions. As that ended, spring rains, some quite heavy, proved to be a drought buster for Northeast Georgia.

Drought conditions persist, however, for Middle and South Georgia, and Stooksbury doesn’t expect that to let up.

“We are much more confident in saying that drought conditions will worsen (there) over the next couple of months,” he said.

The U.S. Army Corps of Engineers’ four-week lake level forecast for Lanier, normally posted on the corps’ website, wasn’t available Sunday evening.

Lisa Coghlan, spokeswoman for the corps’ Mobile District, which includes Lake Lanier, said her agency takes a basinwide approach to managing the lakes.

“When there are drier conditions throughout the (Apalachicola-Chattahoochee-Flint River) basin, we try to hold back as much water as we possibly can at Lake Lanier,” Coghlan said.

The Lake Lanier Association has long advocated raising Lanier’s full pool level to 1,073 feet, creating a larger supply of water and providing a solution to the long water wars fight between Georgia, Alabama and Florida.

The group has stepped up efforts this year, earning endorsements from several area governments.

“Additionally, the Georgia General Assembly has recently appropriated $2 million for a study on the 1,073 concept,” said Joanna Cloud, the organization’s executive director.

“We are hopeful the (corps) will initiate that study to look at the engineering aspects of raising the lake as well as the impact on downstream users,” she added.

The group feels that raising the lake “will act as an insurance policy to downstream users, helping to ensure enough water is available during times of drought, while giving our region more of a buffer against extremely low lake levels which adversely impact boating safety and our local economy,” Cloud said.

Michele Hester, MHester@dawsonnews.com

Dawson is the latest county to sign a resolution in favor of raising the water level of Lake Lanier.

Forsyth, Gwinnett and Hall counties have approved similar measures to raise the lake’s level by 2 feet, to 1,073 feet above sea level.

The Dawson County commission on Thursday unanimously approved the resolution, which will be sent to state lawmakers. The Lake Lanier Association has been advocating for the increase since 2007, when the lake reached record lows due to the drought.

Increasing the lake’s full pool elevation by 2 feet would increase available water supply by more than 25 billion gallons, according to the resolution.

According to the resolution, raising the water level is also a viable alternative to building costly reservoirs.

“The construction of additional reservoirs may create additional supply, but no feasible location in Georgia permits building a new reservoir with a volume equivalent to Lake Lanier,” the resolution reads.

While Dawson County does not have a permit to withdraw water from Lanier, Pichon said it is imperative to support the project for “our neighbors.”

“We don’t have a dog in this fight, but our prosperity, future and well-being is tied to our neighbors’ well-being,” he said.

Referring to the July 2009 court ruling by U.S. District Judge Paul Magnuson that Lanier is not an authorized source for drinking water, Pichon said, “it is monumentally dumb and wrong to take away water from people who come to depend on it.”

Magnuson gave Georgia three years to resolve the situation with Alabama and Florida or face not being able to use Lanier as a water source.

Alyssa LaRenzie of the DCN regional staff contributed to this report.

http://www.dawsonnews.com/section/4/article/6527/

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