One of the core issues of the 18-year-old water dispute between Georgia, Florida and Alabama is whether water supply is an authorized use of Lake Lanier.
Alabama and Florida contend it was not an original use and are challenging Georgia's agreement with the U.S. Army Corps of Engineers on water storage based on a law passed a year after Lanier was completed.
Though the 1958 law was not raised by the two states when the case was heard in U.S. District Court in Washington, an appeals court said the storage agreement would require congressional approval. The state of Georgia is currently appealing that decision to the U.S. Supreme Court.
However, early documents proposing the reservoir that were obtained by The Times give credence to Georgia's position on drinking water supply.
The first reference to a dam on the upper Chattahoochee is contained in a April 20, 1939, report from Maj. Gen. J.L. Schley, chief of the U.S. Army Corps of Engineers.
The original plan called for a dam to be built at Roswell, 16 miles north of Atlanta. Those plans were put on hold by World War II. When the war was over, an ambitious list of postwar civil projects was approved by Congress.
In a report sent to Capitol Hill on May 14, 1947, Secretary of War Robert P. Patterson sent the recommendations for development of the Appalachicola and Chattahoochee rivers to Columbus.
The report includes a telegram from Georgia Gov. Ellis Arnall endorsing the project, along with telegrams from the governors of Alabama and Florida.
For the first time, the report recommends building the dam at Buford, instead of Roswell. "A study of the three approved storage reservoirs and other possible sites above Columbus has convinced the division engineer that a multiple-purpose storage reservoir at the Buford site, 28.9 miles above the Roswell site, will best combine with existing downstream plants and those proposed herein," the report stated.
The report also mentions Atlanta's need for water supply. "The city of Atlanta and other local interests have strongly urged that the Roswell development, 16 miles upstream of Atlanta, or one or more of the other reservoirs above Atlanta, be provided first in order to meet a threatened shortage of water during low-flow periods for municipal and industrial purposes," the report stated.
Also included is the first reference to recreation, another purpose of Lake Lanier that has been disputed. No estimate was given then of the economic value of recreation on the lake, which is currently believed to be about $1 billion annually.
The current case that is on appeal to the U.S. Supreme Court didn't start off being about water storage but concerned electrical power generated at Buford Dam.
Customers of the Elberton-based Southeastern Power Administration, a federal agency that sells electricity generated at Corps of Engineers dams, filed suit in 2000.
The suit alleges that drawing water out of Lanier for drinking reduces the amount available to generate cheap hydropower. Therefore, the suit alleges the corps of engineers should increase the fees it charges municipalities for drawing out drinking water to compensate for the extra cost power companies incur in buying more expensive electricity elsewhere.
After more than a year of negotiations, a settlement was reached and the corps agreed to credit the increased revenues against hydroelectric rates.
Florida and Alabama challenged the agreement in U.S. District Court. The appeal filed last week said the two states knew about the mediation but made no effort to participate.
The 10-year agreement, which would expire in 2013, is set to have a "nearly imperceptible" impact on flows at the Florida state line. Florida is currently challenging an interim plan by the corps based on water volume coming into the Appalachicola, which is formed at the state line by the convergence of the Chattahoochee and the Flint rivers at Lake Seminole.
Alabama draws little municipal water supply from the Chattahoochee, but has some industrial users that draw directly from the river. The largest use of the river in Alabama is to provide water for the Joseph M. Farley nuclear power plant near Dothan, Ala.
The lower court rejected Alabama and Florida's challenge to the settlement. The two states appealed to the U.S. District Court in Washington, which heard arguments in November.
In a ruling handed down in February, the appeals panel reversed the lower court ruling and upheld Alabama and Florida on the basis of the Water Supply Act of 1958, a bill that authorized the corps, without additional congressional action, to modify a previously authorized project to include water supply storage unless the storage would "seriously affect the purposes for which the project was authorized, surveyed, planned or constructed" or would "involve major structural or operational changes."
Alabama and Florida argue that the 2003 agreement represents an operational change. Georgia in its appeal argues otherwise. The state believes that the original legislation in 1946 and 1947 makes water supply an authorized purpose for Lanier, even before the passage of the 1958 bill.
Georgia's appeal contends that the court of appeals created a "de novo" or completely new argument that was not raised in the district court.
The petition said the court "departed from the accepted role of a court of appeals" in its ruling.
The attorneys for Georgia wrote that the court did not use any of the available computer modeling that has been developed for use by the corps.
Calling the move "ad hoc appellate fact-finding," the Georgia lawyers said the numbers were "just wrong."
The states of Alabama and Florida have 30 days from the filing to respond. Georgia is then given an opportunity for rebuttal before the nine-member court decides whether to hear the state's appeal. An attorney predicted a decision would come in October.