Association of American Law Schools Conference: Transcript of the Section on Natural Resources in Atlanta, Georgia, January 5, 2004

• Publication year: 2010

Association of American Law Schools Conference: Transcript of the Section on Natural Resources in Atlanta, Georgia, January 5, 2004

Barlow Burke

INTRODUCTION

At the end of August 2003, representatives of Alabama, Florida, and Georgia ceased negotiating over a water apportionment formula for an interstate compact governing the Apalachicola-Chattahoochee-Flint ("ACF") River Basin ("the Basin" or "the River Basin").[1] The negotiations began in 1998 after the states stepped back from ongoing litigation.[2] They ended with the probability of future litigation, which might involve the doctrine of equitable apportionment in federal courts and could invoke the original jurisdiction of the United States Supreme Court.[3] The negotiations were the meat of a litigation sandwich. A panel discussed the reasons for the negotiations' failure at the meeting of the Section on Natural Resources of the Association of American Law Schools ("AALS") on January 5, 2004.[4] This Article presents a profile of the Basin, reprints the transcript of the AALS panel, and concludes with a commentary by the panel's moderator.

I. Profile of the ACF Basin

The ACF River Basin System ("the System") rises in the mountains of north Georgia.[5] The Chattahoochee River begins at the outflow of Lake Lanier[6] at the Buford Dam and flows southwesterly through Atlanta, where about half of Georgia's population resides.[7] About 4.1 million of Georgia's 8.2 million residents inhabit Atlanta's 16-county metropolitan area.[8] Metro Atlanta takes about 75% of its water from the Chattahoochee and makes the greatest demand on the River's flow along its entire length.[9] In other words, the demand is highest where the flow is near its source and is relatively slight. This has unfortunate consequences for those downriver. In 1990, the Metro Atlanta region's water use was 331 million gallons per day ("mgd").[10] In 2000, it used 442 mgd.[11] A year later, conservation measures, mostly outdoor water restrictions, only reduced that number to 429 mgd.[12]

Southwest of Atlanta, the Chattahoochee River marks the Alabama-Georgia border as it flows toward Florida.[13] At the Florida border, some 400 miles from its source in north Georgia, the River debouches into the western portion of Lake Seminole.[14] There the Flint River joins the Chattahoochee at the eastern end of the Lake.[15]

The Flint River is a 349-mile-long river rising just south of Atlanta.[16] It actually rises as more of an urban drainage ditch and engorges with groundwater charges as it flows to the south.[17] There, it flows through the most productive agricultural counties in Georgia.[18] Up to the 1970s, farmers in these counties depended on rainfall for their crops.[19] For the last three decades, however, they have increasingly used groundwater to irrigate these crops.[20]

The waters of the Chattahoochee and the Flint River join in Lake Seminole to form the Apalachicola River at the outflow of the Lake.[21] This is Florida's largest river, which flows through the Florida Panhandle.[22] There, developing pulp wood forests and fast growing residential communities are in need of the fresh water that the River provides.[23] The Apalachicola then spills over the estuary of Apalachicola Bay, where shrimp, crab, and particularly oysters abound.[24] Around 90% of Florida's oysters come from that bay.[25] The System then flows onward into the Gulf of Mexico.[26] Overall, it drains some 20,000 square miles, or 12.5 million acres, in three states.[27]

In the late 1980s, drought reduced the flow in all the System's rivers, and put the System under great stress.[28] At the System's top, Atlanta imposed limits on outdoor watering.[29] At the bottom, the federal government declared Apalachicola Bay a federal disaster area in 1988 because the reduced flow devastated its oyster harvests.[30]

II. Transcript of the Panel Discussion

Barlow Burke (moderator): The people on this panel represent, in some way, the three states involved in the interstate compact negotiations for the Chattahoochee River Basin. J.B. Ruhl is going to represent the State of Florida. J.B. began law teaching at Southern Illinois University after about a decade of practice with Fulbright and Jawarski. He is now at Florida State Law School, holding a named chair. He publishes more than any two of us put together in any one year.

Next is Bob Kerr. Bob is the Director of the Pollution Division in the Department of Natural Resources for the State of Georgia. He's the Representative or Commissioner designated by Governor Barnes for these negotiations. He has worked for Georgia state government since 1991, and he's been Georgia's principal technical representative since 1997.

Representing Alabama is William S. ("Buddy") Cox. He is a partner in the firm of Lightfoot, Franklin, and White in Birmingham, Alabama. He occupies a position similar to Bob's for the State of Alabama. He is a graduate of Vanderbilt and, like J.B., the University of Virginia's law school. Buddy Cox has been practicing natural resources and environmental law throughout most of the decade of the 1990s and down to the present at Lightfoot Franklin.

We'll let the non-lawyer in the group go first.

Robert (Bob) Kerr: Am I the only non-lawyer here? All right, I've got you surrounded. (Laughter). Let me begin by trying to set the stage. I said I would talk a little bit about history, how we got here, and what some of the issues are, and avoid, to a large extent, the legal issues and let the lawyers talk about that.

What we're looking at on the [on-screen] map is 42,600 square miles of real estate contained in two major river basins. Each of those basins has three rivers in it—hence its name, the Alabama, Coosa and Tallapoosa [("ACT")] River Basin—that's subject to its own compact; that's about 22,800 square miles—24% of that's in Georgia, 75% in Alabama, and 1% at its northern end, just poking into Tennessee. In the Apalachicola, Chattahoochee, and Flint Basin, there are about 19,800 square miles, mostly in Georgia. About 74% is in Georgia, 14% [is] in Alabama, and 12% [is] in Florida. In Georgia, these two basins represent about 40% of the State's landmass and contain about 60% of our population.

In the ACF Basin, in the north is Lake Lanier, [and] further down is West Point Lake, then Lake Eufala-Walter F. George, and finally Lake Seminole. These are all federal reservoirs, built with taxpayer dollars. Combined, they hold about 11% of the total average annual flow. Roughly 60% of that is in Lake Lanier. Interestingly, Lanier only drains 5.3% of the Basin, or 1040 square miles, an extremely small part of the River Basin. However, this lake provides drinking water for a great percentage of the population of Georgia and will continue to do so, I hope, in the future. Atlanta's greater metropolitan area comprises about 16 counties, and it overlaps five different river basins. This creates all sorts of interesting situations in Georgia.

So, that's the background. In the ACF, you've got a major city—Atlanta—and then you have Columbus further down and Dalton to the east. But [it contains] no major cities in Florida, only the Apalachicola River and Bay.

In the ACT, although I don't think we're going to talk much about it, you've got Birmingham on its ridge and then Montgomery, and in Georgia, [it contains] the City of Rome. One interesting aspect of this basin is that, on a population basis per-capita, Rome, or the area around Rome, has 40 times more water per capita than the metropolitan Atlanta area. So that gives you a sense of what we're faced with.

The population in the ACF is about 6.3 million. Above the fall line is the Piedmont and Mountainous Regions, including Atlanta. Below the fall-line lies the Coastal Plain and the Lower Coastal Plain [Regions]. These are two totally different topographic and geologic regions. The interesting thing is that in the upper portion of the State you have very small surface water streams because almost every stream in Georgia originates within the State. In the Blue Ridge Mountains, what you have is water in the small streams originating there but almost no ground water. In the lower part of the State, you find much larger streams and fairly significant groundwater resources.

So, we have people where the water isn't and water where the people aren't. What this does is create some very interesting water resource issues. Again, let me refer to population data. From 1960 to 2000, Georgia more than doubled in population, gaining 700,000 between 1960 and 1970, 900,000 between 1970 and 1980, a million between 1980 and 1990, and 1.7 million between 1990 and 2000. This population is expected to double our [current] population by 2030. A great part of that increase—6 to 8 million—will be in Atlanta's metropolitan area.

What does this mean? It means Georgia needs water—water to supply some 14 to 15 million gallons a day for each 100,000 new residents. This includes the capacity to supply about 9 to 10 million gallons a day for sewer purposes. This in turn indicates that we may be consuming 4 to 5 million gallons a day for each 100,000 new residents. Still more water is needed to handle some potential storm water effects: a lot of impervious cover runoff, non-point source, potential violations of water quality standards, flooding hazards because of the impervious surfaces, and so forth. With all this growth, we're seeing an accelerating use of current water sources.

One of the most emotional issues I've ever come up against, in the face of increasing consumptive uses by new residents and potential violations [of present allocation arrangements], is that we have to have in place a mechanism, policies, and legal arrangements to protect minimum stream flows to ensure habitat protection, not only in Georgia but further south.

Another of the big issues that we're looking at, and a major issue of contention with the State of Florida, is irrigation.[31] Until...