Water Log 29.3, November, 2009

Court Rules in Tri-State Water Dispute

In re Tri-State Water Rights Litigation, —- F. Supp. 2d —-, 2009 WL 2371506 (M.D.Fla. Jul. 17, 2009).

Jonathan Proctor, 2010 J.D. Candidate, University of Mississippi School of Law

In the ongoing tri-state dispute over water withdrawals from Lake Lanier, a Florida district court ruled that the U.S. Army Corps of Engineers violated the Water Supply Act (WSA) by allocating roughly 19% of the reservoir for water supply without first seeking congressional authorization. These withdrawals, primarily for the metro Atlanta region, strain the water supply for downstream areas in Alabama and Florida. The Corps and municipalities have three years to obtain congressional approval for these withdrawals; without such approval, the unauthorized water withdrawals must cease.

Background
The Rivers and Harbors Acts of 1945 and 1946 authorized the Corps to construct a dam and reservoir north of Atlanta, Georgia. Located on the Chattahoochee River, these projects became Buford Dam and Lake Lanier.1 Initial reports on the construction’s viability focused on the anticipated hydroelectric power, navigational, and flood control benefits, while also allowing for some incidental water supply benefits for metro Atlanta.2
      The court reviewed at length various Corps reports, congressional testimony, and other sources regarding the purpose and scope of the Buford Dam project. Throughout planning and construction, the water supply benefits for Atlanta and the surrounding areas were best understood to be incidental: by more effectively managing the Chattahoochee River’s flow, Atlanta would have a more constant supply of water. At the time, Atlanta’s supply was affected by droughts. What began as an indirect supply of water via flood control, however, became a direct one through the city’s withdrawals from Lake Lanier.3
      Over the years, Atlanta’s population grew precipitously, increasing the city’s water needs beyond those envisioned during Buford Dam’s planning and construction (a problem compounded by the city’s failure to expand its waste treatment facilities to accommodate the growing population).4 Of the project’s initial $55 million cost, more than $44 million was provided for the purposes of hydropower; significantly, no funds were allocated to the project explicitly for water supply. The states of Georgia, Florida, and Alabama (along with cities and organizations located therein) eventually found themselves embroiled in a lawsuit primarily questioning whether the Corps violated § 301 of the WSA with regards to the water supply allocations from Lake Lanier. The court found that, under the WSA, “the Corps may set aside storage for water supply in a previously constructed reservoir as long as (1) the beneficiaries of that storage pay a proportionate share of the costs of the project, and (2) the modification does not seriously affect the project’s purposes or constitute a major structural or operational change.”5

Authorized Purpose
Relying on the previously discussed legislative history and other evidence, the court found it obvious that during the planning and construction phases of the Buford Dam, its primary purposes were flood control, navigation, and hydropower.6 Though both Congress and the Corps discussed incidental water supply benefits in the project’s planning stages, they were not specifically authorized by Congress. Accordingly, since the project’s completion (and until at least 2002) the Corps has consistently recognized the need for congressional approval for water supply withdrawals. The court “[came] to the inescapable conclusion that water supply, at least in the form of withdrawals from Lake Lanier, is not an authorized purpose of the Buford project.”7 If unauthorized by Congress, water supply withdrawals that constitute a major change to or seriously affect the authorized purposes are in violation of the WSA.

Major Operational Change
Since 1990, the Corps has allowed municipalities near Lake Lanier to withdraw large amounts of water without proper congressional authorization. These withdrawals, examined in terms of gallons drawn per day and other scientific considerations, clearly constitute a “major operational change,” according to the court. In fact, binding previous proceedings in this case held that “a reallocation of 22% of Lake Lanier’s conservation storage was a major operational change ‘on its face.’”8 Whether following the Corps’s recommended calculations or those employed by previous courts in this case, the effects remain significant. The WSA requires congressional approval for any major changes to a project’s stated purposes; the Corps failed to obtain this approval, rendering these withdrawals illegal.

Seriously Affect Project Purposes
The project’s initial purposes of hydropower and navigation, according to the Corps, would not be significantly affected by the accommodation of existing water supply needs, ultimately causing “only a one percent reduction in hydropower generation.”9 Not only did the court refuse to accept the Corps’s calculations in this regard, but disagreed with its general premise; a decrease in hydropower by 1% may seem insignificant, but the area’s demand for water is only expected to increase, making the cumulative loss of hydropower much greater.
      Additionally, the court considered evidence that water supply withdrawals have significantly affected the amount of hydropower generated by Buford Dam, placing particular emphasis on the $59 million difference between the dam’s estimated and actual production.10 Disagreeing with the Corps’s reasoning for allowing these withdrawals and in light of evidence demonstrating the actual effects of water supply allocations, the court determined that “[t]he Corps’s decision to support water supply has seriously affected the purposes for which the Buford project was originally authorized. The Corps is therefore in violation of the WSA.”11

Conclusion
Recognizing the inherent dangers of immediately cutting off a region’s water supply, the court stayed the matter for three years. During this time, the parties may petition Congress to approve the previously discussed water supply withdrawals from Lake Lanier or seek some other resolution of the matter. However, Georgia parties are appealing the decision.12 Plans are already underway for an alternate reservoir near Atlanta, but Alabama officials fear that the proposed reservoir will only compound the problem by draining water from another river, the Coosa.13 Without another viable solution to the region’s water supply, Georgia, Alabama, and Florida may find themselves again embroiled in a similar dispute.

Endnotes
1.   In re Tri-State Water Rights Litigation, —- F. Supp. 2d —-, 2009 WL 2371506, at *1 (M.D.Fla. Jul. 17, 2009).
2.   Id. at *3-*4.
3.   Id. at *14.
4.   Id.
5.  Id. at *36.
6.   Id. at *37.
7.   Id. at *39.
8.   Id. at *42.
9.   Id. at *43.
10. Id. at *44.
11. Id. at *45.
12. Order, In re Tri-State Water Rights Litigation, No. 3:07-252 (M.D.Fla. Oct. 5, 2009).
13. Mary Orndorff, Georgia proposal churns up water wars; Reservoir plan might tap Coosa too much, The Birmingham News (Alabama), Sept. 29, 2009, at 1A.

Recommended citation: Jonathan Proctor, Court Rules in Tri-State Water Dispute, 29:3 WATER LOG 6 (2009).