Steven Harrell

Water Wars Round Two

Jul 8, 2011 Updates

On June 28, 2011, a three judge panel of the Eleventh Circuit Court of Appeals overturned a 2009 decision by U.S. District Judge Paul Magnuson.  Magnuson’s order ruled that it was illegal for the U.S. Army Corps of Engineers to draw water from Lake Lanier for Gwinnett County, Forsyth County, and the City of Atlanta water systems.  His ruling also required Atlanta and the two counties that draw water from Lake Lanier to terminate their withdrawals from the lake by 2012.  This deadline has now been vacated by a three judge panel of the appellate court.

The 11^th Circuit went back to common sense in its legal ruling.  The City of Atlanta originally drew its water from the Chattahoochee River before the Buford Dam was built, so the court ruled that Atlanta and the two counties naturally had the right to draw water from Lake Lanier.  The court also ruled that the language of the Rivers and Harbors Act, which authorized the construction of Buford Dam “clearly indicates that water supply was an authorized purpose. . .” of the project.

The court also ruled, in a 95 page opinion, that diversion of water for municipal water service was not a “major operational change” under the Water Supply Act of 1958.  The panel also ruled that “such reallocations to water supply arguably do not actually constitute ‘change’ in operations at all. . .”

The court remanded the case back to the U.S. Army Corps of Engineers, and gave the Corps one year to determine the proper amount of water allocation from Lake Lanier.  Conditions had changed somewhat since Judge Magnuson’s draconian order of 2009.  Since the date of Judge Magnuson’s ruling, Gwinnett County has completed a new water treatment plant, which now discharges 40 million of gallons of highly treated wastewater into the bottom of Lake Lanier daily. Gwinnett County in essence replaces over 45% of the water it withdraws from the lake with highly treated wastewater.   It normally draws 40 to 70 million gallons of water per day from Lake Lanier, the only source of municipal water service for the entire county.

The governor of Alabama has indicated that his state will appeal this ruling to the full panel of the Eleventh Circuit Court of Appeals.  Florida’s governor is in the process of making the same decision.  That will be the third round in the tri-state water wars. Round two is now over.  Georgia and Atlanta and Gwinnett and Forsyth Counties appear to have won this round of the fight.

Steven Harrell has practiced law in Perry, Georgia since 1989.

He is the author of The Unionist,  A Novel of the Civil War and The Rifle Captain, A Novel of World War I. Both are available at  Amazon.com. You may email him at sharrell@comsouth.net.