Ruling changes politics of southern water dispute

June 29, 2011 - 4:59 PM

ATLANTA (AP) — Metro Atlanta started the week under the threat of a court order that could have shut off its main water source for 3 million people, making Georgia the needy neighbor in legal negotiations with neighboring Alabama and Florida.

It ends the week holding some of the best cards at the table.

A ruling Wednesday from a three-judge panel on the 11th U.S. Circuit Court of Appeals struck down an lower court order that would have severely curtailed Atlanta's access to water from Lake Lanier on the Chattahoochee River starting in July 2012 unless the three states struck a deal.

Then the appeals court went even further, saying that Georgia has a legal right to water from the lake.

Those involved in the dispute say the ruling fundamentally strengthens Georgia's hand in the long-running fight with its neighbors over how much water metro Atlanta can take from a watershed serving all three states. Georgia officials have been negotiating under the gun for the last two years because of the looming water cutoff.

"We're in a better position because the court has now removed the 2012 deadline," said Georgia Gov. Nathan Deal, who said he still wants to negotiate a final agreement. Alabama has already said it will appeal the ruling to the full court, while Florida Gov. Rick Scott's office was still reviewing it Wednesday.

"It takes a lot of the pressure off Georgia to come to the table, I think," said Dan Tonsmiere of the Apalachicola, Fla., Riverkeeper.

Florida officials and environmental organization including the Apalachicola Riverkeeper blame a shortage of water for killing wildlife and damaging valuable fisheries. "From my perspective, I would much like to see the pressure kept up so we can try to resolve the thing rather than have it interminably be appealed through the courts."

The ruling Wednesday was the latest twist in a legal dispute that began in 1990 and centers on how much water Georgia can withdraw from the Chattahoochee River, which skirts the western edge of Atlanta, then flows south along the border of Georgia and Alabama. It merges with the Flint River to become the Apalachicola River, which cuts south across the Florida Panhandle and empties into the Gulf of Mexico.

Alabama and Florida say Georgia has little legal right to tap water from Lake Lanier on the Chattahoochee River. The neighboring states say Atlanta never contributed to the cost of building the mid-century dam. They have argued that Atlanta's rampant use of water hurts downstream water quality and threatens endangered wildlife.

It remains unclear whether settlement talks will quickly resume. As a practical matter, the three governors have not held negotiations over the Chattahoochee River watershed since they took office this year. That could change.

"Everybody has sort of been waiting to see what the directions from the court may be," Deal said.

Deal and key legal advisers met earlier this month with Alabama's governor for negotiations over a separate lawsuit over the watershed formed by the Alabama, Coosa and Tallapoosa rivers. Lawyers in that case must update a federal judge Thursday on the status of the talks.

Despite the recent legal win, Georgia attorney Todd Silliman said the state still had a motive to negotiate rather than continue fighting out lawsuits. An agreement would give states more power over setting water use levels.

"If you go to the courts, there's no guarantee that all three states will come out of it happy," Silliman said.

The ruling does leave several issues unresolved.

While the appeals court said Atlanta has a right to water from Lake Lanier, the judges left it to the U.S. Army Corps of Engineers, which operates the dam, to decide how much water can be spared. Army officials will have to take downstream environmental and economic concerns into account when conducting their review.

Phenix City, Ala., takes water from the Chattahoochee River for the use of roughly 55,000 people. The municipal utility director, Stephen Smith, said a potential deal must limit how much water Atlanta withdraws and require the city to discharge cleaner wastewater for those downstream. Right now, Smith said his water plant must heavily chlorinate and filter water it takes in because of upstream contamination.

Smith said north Georgia communities must also end the practice of taking water from one watershed and discharging it in another, meaning the water never returns to river it was taken from. While the original ruling putting a stick deadline on Atlanta's water supply helped the bargaining position of communities like Phenix City, Smith thought it was too extreme.

"We don't want to say, 'Atlanta, you can't take any water out of this river.' That's unreasonable," Smith said. "But Atlanta needs to take into consideration that there are people who live south of Atlanta."

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Ray Henry can be reached at http://www.twitter.com/rhenryAP