In February, a federal appeals court in Washington threw out an agreement that Georgia reached with the U.S. Army Corps of Engineers for water rights to Lake Lanier.
The 2003 agreement with the corps 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.
The agreement at the center of the dispute was a 10-year contract that also compensated hydropower users for any lost generation due to water storage.
The district court first approved the agreement on Feb. 10, 2004. An earlier appeal was dismissed. The case returned to the D.C. circuit in 2007, where oral arguments took place Nov. 16.
Alabama and Florida challenged the pact, arguing that Georgia doesn’t have any legal right to the federal reservoir, which they contend initially was built for hydropower. The two states contend that withdrawals would dry up river flows into their states that support smaller municipalities, power plants, commercial fisheries and industrial users like paper mills.
The case, originally known as Southeastern Power Customers vs. Harvey, was brought by utilities that purchase hydroelectric power generated at Buford Dam. The mediated settlement provided compensation to power companies from water users.
The appeal involves only the states of Georgia, Alabama and Florida.
In its appeal, Georgia cites both the Rivers and Harbors Acts of 1945 and 1946, as well as the Water Supply Act of 1958 as evidence of water supply storage as an authorized use of Lake Lanier.
"The (Southeastern) Power Customers believed that the lake was not authorized for water supply, and a supplemental source of authority was needed," said R. Todd Silliman, an attorney with the Atlanta law firm of McKenna, Long & Aldridge, the firm representing Georgia in the tri-state water wars. "They felt the Water Supply Act (of 1958) was the appropriate statute providing that authority. The corps takes the view that there is some degree of authorization in the 1945 and ’46 acts. Georgia takes the position that there was authority in the original act."
The Water Supply Act 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.
A Gainesville man who worked for the Georgia congressman who was at the forefront of establishment of Buford Dam and the lake said drinking water was the primary reason for building the reservoir.
Abit Massey, now president of the Georgia Poultry Federation, served as executive secretary to the late U.S. Rep. James C. Davis, who represented Fulton, DeKalb and Rockdale counties in Congress from 1947 to 1963.
"One of Judge Davis’ main interests was funding for Buford Dam," Massey said. "In speeches and news releases, he often repeated that the dam was built for flood control and water supply for Atlanta. He and Sen. (Richard B.) Russell worked together on this."
Massey recalled driving Davis, a former superior court judge, to the Buford Dam site while it was under construction.
Gainesville City Councilman Bob Hamrick said water supply was a part of the corps negotiations with the city of Gainesville when the lake was being proposed. Hamrick, the longest serving city councilman, learned details of the agreements from his predecessors.
"Part of the agreement was that we would get 8 million gallons a day, and if we returned 6 million gallons, we could draw 14 million gallons," Hamrick said.
In 1957, the filling of Lake Lanier also flooded the existing city water works and a new facility was built at the expense of the federal government.
Alabama and Florida have 30 days to respond to the petition. Silliman said a decision on whether the Supreme Court will hear the case likely will come in October.
Former Georgia Attorney General Michael Bowers said getting the Supreme Court to hear a case is difficult. "It’s very tough," Bowers said. "Out of 3,000 or 4,000 applications every year, about 150 cases are heard. That doesn’t mean you win."