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Bruce Jackson

Water is being fought over in Georgia and around the Southeast, and new laws in Georgia are changing the water-law landscape. Georgia’s General Assembly mandated in 2005 the creation of a comprehensive statewide water management plan. The plan, approved last year, is naturally Georgia-centric in terms of its policies toward water management. However, most major drainage basins are not confined to Georgia’s borders. The result of these water wars could have wide-ranging implications regarding commercial real estate development and the renovation of existing buildings.

Georgia is in litigation with Florida and Alabama over the Apalachicola-Chattahoochee-Flint (ACF) basin and with Alabama over the Alabama-Coosa-Tallapoosa (ACT) basin. Tennessee is restless as Georgia eyes the Tennessee basin, a healthy amount of which is in Georgia. With South Carolina, Georgia shares the Chattooga, Savannah, Tugaloo and Seneca basins. Then there is the Floridian Aquifer, which lies under an area of more than 100,000 square miles below South Carolina, Georgia, Alabama and Florida. The interplay between the surface water above the aquifer and the aquifer itself is not well understood. The point of the geographic scope of these water basins and the aquifer is that other states have co-existing claims to virtually every inch of Georgia when it comes to allocating water resources, surface and sub-surface.

The ACF litigation has set off alarm bells in Georgia. The court held that water use is not among the federally authorized uses of Lake Lanier and thus that the Corps of Engineers exceeded its authority in allowing so much Lake Lanier water to be allocated to metro Atlanta water authorities.

The judge has given Georgia, Florida and Alabama 3 years to agree on water allocation or else the court said it will revert water allocations to mid-1970s levels. This would be an unthinkable result for metro Atlanta, which clearly has the most to lose. The ACT case, actually involving by volume more water than the Chattahoochee basin north of Atlanta, is on hold while the states talk.

On Oct. 7, Governor Sonny Purdue convened a Water Contingency Planning Task Force to focus on what can be done if Congress does not re-authorize Lake Lanier for water use and/or the states do not reach an agreement. Both the task force and the state’s Water Management Plan contemplate concepts never before seen in Georgia. These controversial topics include reallocation of water rights, transfers of water rights and interbasin water transfers. The task force will work on these concepts and others, including reviewing conservation measures such as mandatory retrofits using water conserving appliances in residential and commercial structures and “augmenting” existing reservoirs by building their dams higher and dredging their sediments, both of which are difficult to accomplish in the existing regulatory environment.

In the immediate future, there will be a focus on capturing available water and controlling water use by including new regulatory and statutory measures. Each of these ideas will present legal issues, legal challenges and the need for legal changes (permitting and statutory), all of which will demand “lawyers and money.”

— Bruce Jackson is a partner at Arnall Golden Gregory, where he is co-team leader of the firm’s Water Resources Practice Team.

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