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Tri-state water wars fought on many fronts

POSTED: December 8, 2008 5:00 a.m.

The 18-year-old dispute over water between Georgia, Florida and Alabama is a tangled web that includes seven federal lawsuits in three different court systems and a plethora of plaintiffs.

There are six suits that have been moved to the Middle District of Florida, where a federal judge from Minnesota, Paul Magnuson, will preside over the cases.

One case, involving the Alabama-Coosa-Tallapoosa river basin, remains in the Northern District of Alabama and involves a dispute only between Georgia and Alabama. Issues involving the Apalachicola-Chattahoochee-Flint river basin, though part of the same lawsuit brought by Alabama against the U.S. Army Corps of Engineers, have been transferred to the Middle District of Florida.

Another case has been heard in the U.S. Court of Appeals for the District of Columbia, and the state of Georgia is asking the U.S Supreme Court to review that ruling, which involved storage capacity in Lake Lanier.

Last week, the U.S. Justice Department filed a brief in the Supreme Court saying that while the decision of the court of appeals is incorrect, Georgia’s petition for a review by the high court should be denied.

The case, which names Secretary of the Army Pete Geren as a defendant, was filed in Washington in 1999. The plaintiff, Southeastern Federal Power Customers, is a trade group representing the electrical cooperatives that purchase hydropower generated at Buford Dam. The suit challenged the contracts between the corps and Georgia water providers.

In 2003, the parties reached a settlement involving water storage contracts in Lanier. The water supply providers agreed to compensate the power customers for any lost generating capacity.

The agreement was signed by all parties, but Florida and Alabama intervened in 2003 to protest the agreement. The U.S District Court for the District of Columbia overruled the objections and declared the settlement to be "valid and approved."

That ruling was reversed on Feb. 5 by the Court of Appeals.

Lewis B. Jones, an attorney for King & Spalding who is representing the water supply providers, including the city of Gainesville, said the case is twofold.

"We argue first, that water supply is among the authorized purposes of Buford Dam and second, that if not, water supply storage can be added under the supplemental authority of the Water Supply Act of 1958," Jones said in a explanation prepared for The Times.

He said the appeals court did not rule on and expressly avoided any questions involving the authorized purposes of Buford Dam.

Georgia’s petition to the Supreme Court, known as a "certiorari petition" has a success rate of about 4 percent. Attorneys predict that if Georgia’s petition is denied, Alabama and Florida will play it as a major defeat for Georgia.

The next major legal phase for the water dispute will take place in federal court in Jacksonville, likely in February.

All parties in the six cases involving the Apalachicola-Chattahoochee-Flint basin have agreed that the litigation should be divided into two phases. Phase 1 includes the endangered species issues and challenges to the corps’ interim operation plan for Lake Lanier.

Phase 2 centers on the corps’ authority to operate and other operational issues, including water supply.

Alabama and Florida filed motions seeking to "flip" the phases. Magnuson agreed and the second phase will be heard first, likely in February.

"Georgia and the water supply providers opposed the motion solely because we think it makes more sense to take the immediate issues concerned the endangered species and the interim operations plan first," Jones said, adding that the order of the issues makes no difference.

The ACF suits, which have direct bearing on Lanier, primarily involve issues between Georgia and Florida. Alabama draws very little water from the Chattahoochee; its greatest use of the river is for cooling a Southern Co. nuclear power plant near Dothan, Ala.

Gov. Sonny Perdue told a Republican Governor’s Conference in Florida earlier this month that Florida is using environmental arguments to mask the real issue in the water war.

In Georgia, "you have a ... pristine, undeveloped coastline with marshes there that people love to look out on," he said. "And then I come to Florida, and I see the developed coastline all the way around from Jacksonville all the way up to Tallahassee. I really wonder how we can be preached at as Georgians over environmentalism and water."

Perdue also said Florida should just say what there argument is really all about: answering to the area’s commercial fishing industry.

"Utilizing the endangered species act as a weapon in this battle is somewhat disingenuous. We know what this is about, we know its about the bay and the quality of the bay and the oysters and that very powerful, very loud political constituency," Perdue said. "Let’s don’t try to make it about a federal law that really it’s not all about, about mussels or about sturgeons."



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