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Georgia: Drinking water was Lanier’s
State appeals
lake case to
high court
By Harris Blackwood
FCN regional staff
Georgia asked the U.S.
Supreme Court last week to
overturn a ruling that said the
state needs congressional
approval to use more water
from Lake Lanier.
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 com¬
ing decades and is the founda¬
tion 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 stor
age.
The district court first
approved the agreement on
Feb. 10, 2004. An earlier
appeal was dismissed. The
case returned to the D.C: cir
cuit in 2007, where oral argu¬
ments took place Nov. 16.
Alabama and Florida chal¬
lenged 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
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fORSYTH COUNTY NEWS - Sunday, August 17, 2008
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Photo/Submitted
Crews work on the powerhouse site during the construction of Buford Dam on July 6, 1955. In the latest round of
legal debates over Lake Lanier, Georgia argues that it was initially built as a source for drinking water.
river flows into their states that
support smaller municipalities,
power plants, commercial fish¬
eries and industrial users like
paper mills.
The case, originally known
as Southeastern Power
Customers vs. Harvey, was
brought by utilities that pur¬
chase hydroelectric power
generated at Buford Dam. The
mediated settlement provided
compensation to power com¬
panies from water users.
The appeal involves only
I
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Photo/Scott Rogers, FCN regional staff
A shallow water marker is well above the current level of Lake Lanier on Wednesday
afternoon at Balus Creek Park.
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 sup¬
ply storage as an authorized
use of Lake Lanier.
-k The (Southeastern) Power
Customers believed that the
lake was not authorized for
water supply, and a supple¬
mental source of authority was
needed, said R. Todd
Silliman, an attorney with the
Atlanta law firm of McKenna,
Long & Aldridge, the firm rep¬
resenting 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 con¬
structed” or would “involve
major structural or operational
changes.
Alabama and Florida argue
that the 2003 agreement repre¬
sents an operational change.
Georgia, in its appeal, argues
otherwise.
A Gainesville man who
worked for the Georgia con¬
gressman who was at the fore¬
front of establishment of
Buford Dam and the lake said
drinking water was the primary
reason for building the reser¬
voir.
Abit Massey, now president
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of the Georgia Poultry
Federation, served as executive
secretary to the late U.S. Rep.
James C. Davis, who repre¬
sented 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 construc¬
tion.
Gainesville City Council¬
man 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 council¬
man, learned details of the
agreements from his predeces¬
sors.
.. 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, II
Hamrick said.
In 1957, the filling of Lake
Lanier also flooded the exist¬
ing 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 peti¬
tion. 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.