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Lake lawsuit in federal court today

Florida, Alabama: Drinking water is not an authorized use of Lanier

POSTED: November 20, 2007 5:04 a.m.

A dispute over water withdrawals from Lake Lanier moves to the U.S. Court of Appeals for the District of Columbia today as oral arguments take place in a challenge to a 2003 agreement between Georgia, hydroelectric power customers and the U.S. Army Corps of Engineers.

Bruce Brown, a partner in the Atlanta law firm of McKenna, Long & Aldridge, will represent the state of Georgia during today’s proceedings.

The case, Southeastern Federal Power Customers v. Harvey, involves the customers of the Southeastern Power Administration, a federal agency which sells power to electric utilities. The defendant, Harvey, is former Secretary of the Army Francis J. Harvey, who resigned earlier this year.

The power customers sued the Army under the contention that withdrawing any water for municipal or industrial purposes was illegal because the water was to be used for generating power.

In an odd twist, the state of Georgia and municipalities that withdraw water from Lanier, including the city of Gainesville, are on the same side as the Corps of Engineers in the current suit. The parties had reached an agreement on water withdrawals from Lanier in 2003. The states of Alabama and Florida, who were not a part of the pact, are challenging the agreement and will argue their case in court today.

"The agreement allowed for the water supply providers to have a 10-year contract to meet their current needs, but pay for them and offset the cost of hydropower," Brown said.

Alabama and Florida contend that the corps does not have the authority to reallocate the storage in Lake Lanier from hydropower to water supply. The two states contend that drinking water supply is not one of the authorized uses for Lanier.

"Saying Lanier is not for water supply is like saying I-95 is not for trucks," Brown said.

Brown will be making the argument for the Georgia interests, which include the Atlanta Regional Commission, Gwinnett County and the city of Gainesville. Those parties all are represented by the Atlanta law firm of King and Spalding.

Kelly Randall, director of public utilities for the city of Gainesville, has closely watched the case and plans to attend the hearing today.

"The agreement showed that the state owned the water and the corps owned the reservoir," Randall said. "The only thing to negotiate is the value of the storage capacity in the reservoir that is lost."

He said that Alabama and Florida quickly responded when the deal was announced and accused the Georgia parties of negotiating an arrangement with the corps outside of the ongoing dispute between the three states over water in Lanier.

Today’s hearing will only involve oral arguments before an appeals court panel. A final ruling from the court will come at a later time.



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