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Water fight could go to US Supreme Court

Panel sides with Ala., Fla. over Lanier withdraws

POSTED: May 28, 2008 5:01 a.m.

The U.S. Court of Appeals in Washington has declined Georgia’s petition to reconsider a recent ruling that restricts the state’s authority to tap Lake Lanier for more drinking water, leaving the U.S. Supreme Court as Georgia’s only avenue for appeal.

A three-judge panel of the court in February threw out an agreement that Georgia reached with the Army Corps of Engineers. The agreement, the linchpin of Georgia’s long-term water plans, would give the state about a quarter of Lake Lanier’s capacity over the coming decades.

A spokesman for Gov. Sonny Perdue declined comment on Friday’s decision.

The court sided with Alabama and Florida; lawyers for both states argued that using even more of the lake for drinking water would constitute a major operational change that requires congressional approval.

The court denied Georgia’s request for a rehearing without comment on Thursday.

Florida’s environmental officials issued a statement praising the decision.

"We are pleased with today’s ruling by the D.C. Circuit Court of Appeals denying the State of Georgia’s petition for a rehearing on the court’s February opinion that invalidated the 2003 settlement agreement," said Sarah Williams of the Florida Department of Environmental Protection. "We will continue our ongoing efforts simultaneously in both legal and policy venues to protect and sustain the Apalachicola River and Bay ecosystem."

Under the 2003 settlement 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.

Alabama and Florida challenged the pact, arguing that Georgia doesn’t have any legal right to the federal reservoir, which was initially built for hydropower. The withdrawals, they contend, would dry up river flows into their states that support smaller municipalities, power plants, commercial fisheries and industrial users like paper mills.

In an odd twist, the state of Georgia, along with municipalities who withdraw water from Lanier, including the city of Gainesville, was on the same side with the U.S. Army Corps of Engineers in this suit, which is one of seven active suits in three different federal courts over the Apalachicola-Chattahoochee-Flint and Alabama-Coosa-Tallapoosa basins.

However, the next critical step in the tri-state dispute will be the modified interim operating plan, which is scheduled to go into effect on June 1.

The corps has submitted a draft plan to the U.S. Fish and Wildlife Service to determine any impact on endangered species in Apalachicola Bay.

The state of Florida sent a second letter on Thursday, which for the first time acknowledged a Georgia law to speed the building of new state reservoirs.

The law, which was signed in Hall County this week by Perdue, streamlines the state portion of the reservoir process.

"Additional upstream depletions are thus certain to occur and must be acknowledged during the ongoing consultation," wrote Florida’s Environmental Secretary Michael Sole, who attached a letter from Douglas Barr, executive director of the Northwest Florida Water Management District.

Barr writes that the changes in the modified interim operating plan will result in less flow into the Apalachicola River compared to the original plan.

"The original (interim operating plan) was based on the flawed determination that a 5,000 cfs (cubic feet per second) minimum release to Apalachicola River is adequate to protect federally threatened and endangered species," Barr wrote. "This misconception must be corrected to avoid permanent damage to the ecosystem and biota of Apalachicola River and Bay."

Barr goes on to say that the corps methodology for computing basin inflow into the Apalachicola comes after "100 percent of all Georgia consumptive demands in the basin have been met."

Georgia has not offered comments to the Fish and Wildlife Service on the interim operating plan, however, Perdue indicated this week that communication with the involved parties has improved.

"It (the interim operating plan) doesn’t do everything we want, it certainly doesn’t do everything Florida wants," Perdue said. "I think we’ve come a long way in our understanding of the ACF water system over the last 12 months. That was part of the problem. We didn’t think we had the attention of the people who were really in charge of this vital resource, Lake Lanier."

Perdue admits that its not easy.

"We don’t always see eye-to-eye," he said. "They’ve got a job to do and we’ve got a job to do. But I think it’s several hundred percent better than it was 12 months ago."



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