The Water War

Inside the tri-state battle over Buford Dam and Lake Lanier

When I was young, every winter was a race between supply and demand for water on my grandfather’s farm. From the fall freeze until the spring thaw, we lived on water in the cistern. The family practiced dry-land agriculture, without irrigation. Water was never taken for granted.

James Bross

James Bross

Twenty-five years ago, the Army Corps of Engineers managed Buford Dam and Lake Lanier to meet the authorized purposes of flood control, navigation and power generation. Power generation dominated with large releases in every summer afternoon to meet peak demand for power to operate air conditioning. The water for cities and counties below the dam roared past for a few hours at the end of the day – not the best flow to meet municipal water demands.

The Corps’ proposal to build another dam below Buford Dam to capture the power releases and allow gradual discharge for water supply fell victim to a coalition of environmental interests and conservative deficit hawks. Without construction money, the Corps fell back on a strategy used on the Roanoke River to enhance supply for Virginia Beach, Va. On the Roanoke, the Corps reallocated water from one authorized purpose to another authorized purpose. On the Apalachicola-Chattahoochee-Flint, however, the Corps reallocated water from an authorized purpose (power generation) to an unauthorized purpose (water supply). Alabama and Florida sued.

All litigation was stayed when then-Speaker of the House Newt Gingrich pushed interstate compacts covering the two river systems through Congress. Unlike previous compacts that contained formulas to allocate water from the disputed systems, the two new compacts were agreements to negotiate. If a compact could be settled, the allocation of amounts and purposes of river water would have the force of federal law, trumping the limited provisions of the original Buford Dam law.

Only the Supreme Court, Congress, or a compact can allocate interstate waters. For now, municipal water supply is not a permitted purpose for the water in Lake Lanier.

BU 306 Gen Holles Inspection Party 1

Twenty years of talks among the three states produced nothing. The compact ended when Florida refused to continue negotiations. Litigation resumed, and all cases were consolidated before a neutral federal judge, Senior Judge Paul Magnuson from Minnesota.

Following hearings and arguments, Judge Magnuson ruled in July 2009 that municipal water supply was not a permitted purpose for Buford Dam. He delayed enforcement of his ruling for three years to allow Florida, Georgia and Alabama to restart negotiations for another compact, this time with substantive provisions on water allocation. Georgia’s position is unenviable. Florida and Alabama have the three-year clock as leverage.

It is important to understand precisely what Judge Magnuson’s order covers. It does not allocate the waters of the various river systems. Only the Supreme Court, Congress, or a compact can allocate interstate waters. The order relates solely to management of Buford Dam and the water behind it in Lake Lanier. The Corps is entitled to sufficient water to fulfill the purposes of the dam, but no more than that.

In the absence of a new compact, the biggest loser is clearly Gwinnett County, which had been drawing water directly from the dam under an expired congressional authorization. Cities downstream of the dam are serving increased populations with the rules from 25 years ago. In further cyclical droughts, all users will be in thrall to the higher claims for Lake Lanier’s express purposes. Water storage and conservation have become of much greater importance for everyone.

James Bross is a professor of law.