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11th Circuit reverses Magnuson’s decision

Three members of the 11th Circuit Court of Appeals in Atlanta reversed Tuesday an earlier judge’s decision that set draconian mandates and deadlines on meeting Atlanta’s water needs.

In a lengthy opinion marked heavily with historical references, the three members of the appeals court said U.S. District Court Judge Paul Magnuson erred when he ruled that Atlanta’s withdraw of waters from Lake Lanier was not within the original intent of the lake nor of Buford Dam, a U.S. Army Corps of Engineers reservoir.

The appeals court also said the July 2009 decision by Magnuson didn’t mesh with other legal research that the U.S. Army Corps of Engineers’ original authority for Lake Lanier was hydropower, navigation and flood control. Magnuson had said the increasing demand to supply Atlanta drinking water was not Lake Lanier’s original intent and that without congressional approval, the lake would return to 1970s water withdraw levels, with only the cities of Gainesville and Buford allowed to take the water.

The appeals court disagreed with Magnuson.

“In light of the foregoing statutory language, and particularly Congress’ intent that the Corps should have authority to accommodate the Atlanta area’s water supply needs at the expense of some detriment to ‘system power value,’ we cannot conclude that Congress intended for water supply to be a mere incidental benefit. By definition, one purpose that is to be accomplished to the detriment of another cannot be incidental. Thus, the language … clearly indicates that Congress intended for water supply to be an authorized, rather than incidental, use of the water stored in Lake Lanier,” the court ruled.

Under Magnuson’s ruling, metro Atlanta had until July 2012 to come up with a plan to sustain its water needs with the same amount of water it received in the mid 1970s, when the population was less than one-third its current size.

But the appeals court vacated that deadline.

Instead, the 11th Circuit is giving the Corps of Engineers one year to come up with a plan of water allocation.

“Because of other matters in this appeal must be remanded to the Corps, it is sensible and efficient for the agency to consider the overlapping issues that are common to Georgia and the other cases together as part of a comprehensive decision about the Corps’ future water supply operations,” ruling stated. “The conclusions that the Corps reaches with respect to the questions at issue in the other cases will provide it with a more complete analysis of the issues in Georgia as well.”

The ruling said as an example, the Corps determination of its authorization over current water supply withdrawals will necessitate a thorough study of the amount of storage required for water supply.

“Also, this appeal represents the first opportunity for a court to consider the Corps’ authority under both the RHA (1946 Rivers and Harbors Act) and the WSA (Water Supply Act).

The three-judge panel recounted the lengthy and litigious history among Georgia, Alabama, Florida and the U.S. Army Crops over the quality and quantity of water withdrawn from the Chattahoochee, Flint and Apalachicola rivers and their basins.

“This controversy has lasted a very long time,” the ruling stated. Since 1990, litigation related to this controversy has taken place in at least seven federal courts and now five times in the 11th Circuit.

“And various attempts at compromise have been initiated and abandoned. Progress towards a determination of the Buford Dam’s future operations is of the utmost importance to the millions of power customers and water users that are affected by the operation of the project,” the ruling stated.

“Accordingly, the process for arriving without sacrificing thoroughness and thoughtfulness. Given the importance of this case, the length of time it has been bouncing around the federal courts, and the amount of resources the parties and the courts have already expended, we believe that one year is sufficient for the Corps to complete its analysis of its water supply authority and release its conclusions. … At the end of this one-year period, we expect the Corps to have arrived at a well-reasoned, definitive and final judgment as to its authority under the RHA and the WSA,” the court ruled.Water War appeal