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Lanier lawsuit suffers setback

Justice Department says Supreme Court should not take state’s water case

POSTED: November 24, 2008 5:00 a.m.

The U.S. Department of Justice has issued a brief that recommends the Supreme Court not step into the tri-state water wars, but Gov. Sonny Perdue said he still is encouraged that the department agreed that the appeals court erred in its decision.

Though the Justice Department agrees that an appeals court erred in overturning a lower court’s ruling regarding water storage in Lake Lanier, the department has recommended that the Supreme Court not hear the case.

"Although the decision of the court of appeals is incorrect, this (Supreme) Court’s review is not warranted," the Justice Department noted in the brief, filed last week and obtained by The Times. "And given the unique factual circumstances of this case ... the precise issues presented here are very unlikely to occur."

The Justice Department also cited the court’s busy schedule.

Perdue said Thursday afternoon that he feels the case warrants being heard before the Supreme Court.

"I am encouraged that the federal government strongly agreed with Georgia that the D.C. Circuit ruling was wrong when it set aside the settlement agreement that would have resolved a large part of the tri-state water wars," Perdue said in a statement. "I find it extremely puzzling that the federal government would file a brief arguing the court ruling was wrong but yet does not want to fix the obvious mistakes. There is no question that this case is clearly important enough for the Supreme Court’s review."

"All three states agree that this case is very important, and I believe review by the Supreme Court would result in Georgia’s position being upheld and a major piece of the water negotiations resolved," Perdue said in the statement.

Throughout its brief submitted last week, the Justice Department repeatedly states that the court of appeals erred in its ruling, and stated multiple times that the petitioner, the state of Georgia, is correct in many assertions of instances where the appeals court made errors in its ruling.

However, there are also a few instances where the Justice Department brief contends that the state of Georgia is incorrect in its assertions.

The head of a newly formed advocacy group for Lake Lanier, the 1071 Coalition, said he believes the court should hear the case.

"Our position, the 1071 Coalition’s position, is we recognize the Supreme (Court) only hears so many cases, but we believe this case has significant importance for the entire Southeast, and it should be heard," said Grier Todd, president of the coalition and chief operating officer for Lake Lanier Islands resort.

The reservoir is at the heart of a nearly two-decade water feud among Georgia, Florida and Alabama.

Georgia asked the Supreme Court in August to overturn a lower court decision that invalidated a 2003 agreement between Georgia and the U.S. Army Corps of Engineers.

In February, a federal appeals court in Washington threw out an agreement that Georgia reached with the corps for water rights to Lake Lanier. The 2003 agreement would give Georgia about a quarter of Lake Lanier’s capacity in the coming decades and is the foundation of Georgia’s long-term plans for supplying drinking water to the rapidly growing Atlanta region.

Under the agreement, up to 240,858 acre-feet of Lanier would be set aside for water storage: 175,000 acre-feet for Gwinnett County, 20,675 acre-feet for the city of Gainesville and 45,183 acre-feet for the Atlanta Regional Commission.

A district court earlier ruled in Georgia’s favor, but the U.S. Court of Appeals in Washington overturned that decision in February, saying that the agreement constituted a major operational change at the reservoir, which requires congressional approval.

Val Perry, vice president of the Lake Lanier Association, said regardless of what happens with this particular lawsuit, the tri-state water war will rage on.

"The case that’s being handled in Washington, D.C., is separate from all the tri-state cases that are being heard by (U.S. District Court) Judge (Paul) Magnuson in Jacksonville," Perry said. "This one was about the Southeastern Federal Power Customers wanting more water to flush through the turbines at Buford Dam."

He said Florida and Alabama argued that the corps didn’t have the authority to make a water storage agreement with the power companies without congressional approval.

The D.C. case does not address other contentious issues between Georgia, Florida, and Alabama, such as the amount of water need to protect endangered species in the Apalachicola River.

"The only implication of this case for the tri-state issue is that Florida will have bragging rights if they win," Perry said. "It doesn’t mean that one of those other cases can’t go to the Supreme Court."

Staff writer Debbie Gilbert contributed to this report.



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