Arguments presented this morning; ruling could be months away

Jeff Gill – Gainesville Times

ATLANTA —The fate of Lake Lanier as the primary water source for metro Atlanta, including Gainesville, is now in the hands of the 11th Circuit U.S. Court of Appeals.

But at least one observer to a three-hour hearing on the matter Wednesday, Lake Lanier Association attorney Clyde Morris, said he feels “cautiously optimistic” the three-judge panel will rule in Georgia’s favor, based on some of its questions and banter with attorneys.

“Obviously, there’s a lot of work still to be done by the court before the decision comes out, but it was clear the judges had read the briefs (and) had examined the record in detail,” said Morris, who attended the hearing but did not present any arguments.

Georgia is asking the court to overturn a July 2009 ruling by U.S. District Judge Paul Magnuson that gave the state three years to work out an agreement with neighbors Alabama and Florida — foes in the 20-year water dispute — or face not being able to withdraw water from the North Georgia reservoir.

Only Gainesville and Buford could partake from Lanier but only at mid-1970s levels.

The appellate judges — Stanley Marcus, Lanier Anderson and Richard Mills — didn’t indicate when they would rule on the matter.

But they, especially Anderson, peppered the lawyers with questions and made comments that showed a leaning toward Georgia and the other key appellants, including the Gainesville-based Lake Lanier Association, Atlanta Regional Commission, Gwinnett County and the U.S. Army Corps of Engineers.

At one point, Anderson told Michael Gray, the corps’ lawyer, that he thought the case should be sent back to the agency so it could review the availability of water with guidance from the court saying that water supply was part of Congress’ intent for the project.
“We’re probably going to remand this case,” he told Parker D. Thomson, the lawyer representing Florida.

Also, the judges asked Gray how long it would take the corps to adjust its plans if they reversed Magnuson’s order. He said the process could take 24 to 30 months.

The corps is developing a operating manual for Lake Lanier to replace one developed more than 50 years ago on the basis that Magnuson’s ruling will stick.

The agency plans to “implement updated manuals that conform to the district court’s order when it goes into full effect in July 2012,” Jo-Ellen Darcy, assistant secretary of the Army, said in a Sept. 3 letter to several U.S. senators.

Georgia, represented by Seth Waxman, argued that congressional legislation, including the 1946 Rivers and Harbors Act, authorized water supply use for Lake Lanier.

Waxman said because there are various calculations concerning how much water is withdrawn for municipal purposes, the appeals court should allow the corps to make that final determination.

He asked for a quick ruling.

“The status quo is doing enormous harm to the Atlanta area,” he said. “We can’t recruit major industry here. … We’re saying to them they’ll be fine if they bring their own water.”

Marcus said he believed Magnuson essentially placed an injunction on Georgia through his order, failing to weigh the difficulties his order would cause. If Magnuson’s deadline were overturned, it would ease the political pressure on Georgia to cut a deal.

Magnuson acknowledged that himself in his 97-page order. He said he realized his ruling would produce a “draconian result.”

“It is, however, the only result that recognizes how far the operation of the Buford project has strayed from the original authorization,” he said.

William Droze, representing Gwinnett County, said local officials fear Magnuson’s order would cost the area $53 billion in lost economic output and 300,000 jobs.

While Gwinnett takes water directly from Lake Lanier, Droze said the lower court failed to consider that the withdrawals are offset by treated wastewater pumped back into the lake.

Clint Vince, the lawyer representing the Southeast Federation of Power Customers, talked about Lake Lanier’s limited availability of water.

“The power is equal to our fuel supply,” he said. “… Capacity is our most valuable asset.”

Droze countered later in his rebuttal argument, “If water is fuel, then the return flows (to Lanier) are essential.”

Georgia’s neighbors have argued that metro Atlanta takes too much water upstream, leaving too little for people and businesses farther south and harming shellfish beds in Florida’s Apalachicola River.

On Wednesday, Alabama and Florida lawyers said congressional approval should have been sought before major water withdrawals, which they said has created a “major operational change” at Buford Dam.

The corps “now is operating under a totally wrong construction of legal rights,” Thomson said.

Matthew Lembke, lawyer for Alabama, said, “No one has ever suggested .. that anyone contemplated the use of direct storage for direct withdrawal of water” from the lake or downstream in the Chattahoochee River.

Using federal money, he added, to provide a city’s water supply, historically a local responsibility, would have been “inconceivable,” he said.

Anderson challenged Lembke, noting that the original legislation authorizing the dam contemplated the project would assure Atlanta a supply of water.

He said early corps documents contemplated that there may be a need to release more water from the dam into the Chattahoochee to accommodate anticipated growth in Atlanta.

“The legislation is absolutely clear,” he said.
After Wednesday’s hearing, Chick Krautler, Atlanta Regional Commission director, released a statement saying “we are pleased with the court’s thoughtful and careful attention to Georgia’s appeal” of Magnuson’s ruling.

“We feel positive about the points that our counsel was able to make during the argument,” he said.

“We are confident, given the existing science, that it is possible to manage Lake Lanier to serve all users in the basin, including metro Atlanta, while ensuring in the process that people and the environment can thrive.”