11th Circuit Opinion "Dam" Good
The opinion rendered this week by the 11th Circuit is the most positive news Georgia has ever gotten in the Water Wars. Some are calling it a complete victory regarding water supply, and I would concur. But yes, an appeal is possible and already promised.I expect Alabama to petition for a rehearing en banc (before the full 11th Circuit bench). The opinion the court just issued was rendered by a 3-judge panel, and a party has the right to request that the full court rehear the case. But by rule, such a rehearing is granted only to secure or maintain uniformity of the court's decisions or if the proceeding involves a question of exceptional importance. I would not speculate as to whether the 11th Circuit would grant an en banc rehearing in this case. But if it does, I would be extremely disappointed if the decision were changed, as it is exceptionally thorough, well-reasoned, and well-written - as well as being almost completely in line with what we have argued since Day One.
Assuming the decision stands as written, the Corps has one year to give Georgia a decision on whether it will grant Georgia's water supply request. The Court has made it crystal-clear that the original 1946 legislation (the River and Harbor Act, or RHA) authorized Lanier to be used for water supply. Over the years, the Corps has waffled on how much water it can supply under the RHA without having to rely on authority under a later statute, the Water Supply Act of 1958 (WSA). But the Court not only ruled that the RHA authorized water supply, it ruled that water supply is not inferior to hydropower as an authorized purpose. By doing so, the Court laid the foundation for the Corps to reconsider what, if any, practical limit exists to the RHA authorization and how that limit is augmented by the WSA authorization.
You may also be wondering about how Gwinnett County, Buford, Cumming, and Gainesville have fared in all this. These water suppliers are in a somewhat distinct posture from Atlanta and the counties south of Buford Dam because their water is taken directly out of the lake, rather than out of the river downstream of the dam. As I read the opinion, they all have the same rights as the entities that take downstream of Buford Dam, plus whatever they were granted in compensation for losing their original river intakes when the lake was built (or, in the case of Gwinnett, an additional 10mgd authorized by a 1956 statute).
This is a great victory for LLA members and Georgia as well. We all need water to drink, and the 11th Circuit seems firmly convinced that we have the right to get that water from Lake Lanier. But Phase 2 is still pending, which deals with Florida's Endangered Species Act claims. Florida is putting pressure on the Corps to send 20% more water than it does now to protect the mussels. If it is successful, that will translate into significantly lower lake levels, especially in droughts. Considering the fact that south Georgia is in an "exceptional" drought, we would already be seeing much lower lake levels. So, Phase 2 is still critical for us, and demands our full attention going forward.
