Court rules that Lake Lanier can be used for water supply

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.