On June 28 the 11^th circuit Court of Appeals reversed Judge Magnuson’s July 17, 2009 ruling declaring that the waters of Lake Lanier were off-limits for water supply purposes. In doing so the 11^th Circuit restores what Georgians knew all along, that Lake Lanier was intended to be a primary source of water.

Summarizing the decision, the Court of Appeals determined:

1.     The District Court erred in finding that it had jurisdiction to hear the lower court cases because the US Army Corps of Engineers (“Corps”) had not taken final agency action, and those cases must be remanded to the Corps in order for it to take such action.

2.     The District Court and the Corps erred in concluding that water supply was not an authorized purpose of Lake Lanier under the Rivers and Harbors Act (“RHA”).

3.     The Corps’ denial of Georgia’s 2000 water supply request is not entitled to deference, and the request must be remanded to the Corps for reconsideration.

4.     The Court provided certain instructions to the Corps on remand; and

5.     Directed that the Corps shall have one year to make final determinations of the issues, including its authority to operate Lake Lanier under the RHA and the Water Supply Act (“WSA”).

Going into further detail, first, after analyzing the history of litigation and of the various request to the Corps for determinations, the Court determined that the Corps had not made final decisions on those claims and requests, and therefore the district court did not have jurisdiction to review the claims and decisions. The Court vacated the prior ruling and remanded those requests back to the Corps for it to make a final determination pertaining to its current policy for water supply storage allocation.

Next, the Court determined the RHA clearly indicates that water supply was an authorized purpose of Lake Lanier.   The Court relied heavily on the language of the Newman Report which expressly contemplates providing minimum flows in the Chattahoochee River at Atlanta at the expense of maximizing power generation and recognizes that the initial minimum release may have to be increased somewhat as the area develops.   The Court discounts the single reference to water supply as an “incidental benefit” and other rationale relied upon in the lower court ‘s decision.

In concluding its discussion in this section, the Court notes:

“Before the dam was built, or even planned, the Chattahoochee provided almost all of the City of Atlanta’s water supply. The building of the dam could have been a potential threat to the city’s ability to withdraw water from the river because the court had an incentive — optimal power generation — to shut off all water flow in the river for long stretches of time. Congress responded to this concern by establishing a minimum flow requirement and noting that this requirement might have to be increased over time.  If water supply had been deemed a subordinate purpose by Congress, the [Lake Lanier] would have been detrimental, rather than beneficial, to the Atlanta area’s water supply needs. That is to say, if the only water being supplied was to be a subordinate byproduct of power generation, then the city of Atlanta would have eventually found itself able to withdrawal less water from the river than it would have been had no dam been built at all. In light of the repeated references in the authorizing legislation to safeguarding and ensuring an adequate water supply for Atlanta, Congress very clearly did not intend the dam to harm the city’s water supply.”

In light of clear authorization of water supply from Lake Lanier in the RHA and the additional authority provided by the WSA, the Court directs the Corps to:

·        Examine the extent of its authority under the RHA and then the WSA to provide water supply from Lake Lanier;

·        Determine the optimal methodology for measuring its authority over water supply allocations (i.e. storage v. withdrawals);

·        Determine how to address return flows to the lake and return flows to the river downstream of the lake;

·        Determine the proper balance between water supply and power generation;

·        Determine the amount of storage required for water supply;

·        Analyze whether compensation is a factor in determining the extent of the Corps authority under the RHA;

·        Whether under the WSA a reallocation of storage is a operational change, and whether such change is major; and, in light of its findings above, to

·        Reexamine Georgia’s request for water supply from Lake Lanier and for releases from lake Lanier for water supply uses downstream of the dam.

Next, addressing the Corps’ future deference to the various courts’ decisions in prior matters addressed in the litigation between the parties, the Court determined that the Corps is not bound by those prior decisions in making the requested determinations and should make its decision on the basis of its own reasoned analysis.

Finally, the Court recognized that this controversy has lasted a very long time. And, given the importance of the case, the length of time it has been bouncing around the federal courts, and the amount of the resources the parties and the courts have already expended, the Court concluded 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, the Court expects the Corps to have arrived at a well reasoned, definitive, and a final judgment as to its authority under the RHA and the WSA.