WATER WARS, CONTINUED

Georgia Loses Federal Case in a Dispute

By BRENDA GOODMAN

Published: February 6, 2008

ATLANTA — Georgia lost a major court fight in the Southern battle over water rights on Tuesday when a federal appellate-court panel said the state could not withdraw as much water as it had planned from an Atlanta-area reservoir.

The victory went to Alabama and Florida, which had contended that Georgia’s plan would siphon off water that should flow downstream to their consumers. The two states had brought the appellate suit to undo an agreement between Georgia and the Army Corps of Engineers that would have given Georgia rights to use nearly a quarter of the water in Lake Sidney Lanier, which supplies drinking water to much of northern Georgia.

In the ruling, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit said the agreement was void because the two parties had not first obtained Congressional approval. Under federal law, the corps must obtain such approval before making “major structural or operational” changes to the management of its federal reservoirs.

“I simply do not see how we can conclude this is not a major change,” Judge Judith W. Rogers wrote for the panel.

Under the 2003 pact with the Army Corps, Georgia was allowed to increase its share of the reservoir allocated for water storage to 22.9 percent from 13.9 percent.

Florida and Alabama have been in contentious negotiations with Georgia over the right to use water from Lake Lanier for almost two decades.

Governors from the three states have been in water-sharing talks brokered by Dirk Kempthorne, the interior secretary, and had pledged to reach an agreement by Feb. 15.

Now experts say those talks will almost certainly be prolonged or postponed.

“Right now, the states of Florida and Alabama have certainly drawn a pair of aces to their pair of jacks and they’re holding a pretty strong hand,” said Mark Crisp, an engineering consultant for several power companies that had originally brought the suit against the corps.

Gov. Bob Riley of Alabama hailed the decision as “the most consequential legal ruling in the 18-year history of the water war, and one of the most important in the history of the State of Alabama.”

He said the ruling “invalidates the massive water grab that Georgia tried to pull off.”

Alabama and Florida, which depend on water from Lake Lanier for power generation, industry, recreation and commercial fishing, argued Georgia had no legal right to the reservoir, which was originally built for hydropower.

It was unclear late Tuesday whether Georgia would appeal the ruling to the United States Supreme Court. Calls to Gov. Sonny Perdue’s office seeking comment were not immediately returned.

Though the fast-growing Atlanta area relies on the reservoir, the other states have argued that Georgia has done little water planning over the decades and has not tied growth and development to water resources.

On Wednesday, Mr. Perdue is scheduled to sign into law Georgia’s first comprehensive water management plan, which was hastily approved by both houses of the General Assembly last month in the opening days of the 2008 legislative session. Environmental groups have already criticized the plan as ineffectual in the face of a record drought, which could threaten the drinking water for four million people.

Gil Rogers, a staff lawyer for the Southern Center for Environmental Law in Atlanta, said that the ruling could force lawmakers to consider tougher water restrictions for the state.

“It’s certainly going to make Atlanta justify how it’s using the water now,” Mr. Rogers said. “It’s going to raise the bar as far as what Atlanta is doing with what it already has.”