Conservation and Natural Resources Water Resources

• Citation: Vol. 27 No. 1
• Publication year: 2010

Georgia State University Law Review‌‌‌

Volume 27

Issue 1 Fall 2010 Article 10

9-1-2010

CONSERVATION AND NATURAL

RESOURCES Water Resources

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Recommended Citation

(2010) "CONSERVATION AND NATURAL RESOURCES Water Resources," Georgia State University Law Review: Vol. 27: Iss. 1, Article 10.

Available at: http://digitalarchive.gsu.edu/gsulr/vol27/iss1/10

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CONSERVATION AND NATURAL RESOURCES

Water Resources: Enact and Revise Provisions of Law Relating to Water Supply and Water Conservation; State Legislative Findings; Amend Chapter 5 of Title 12 of the Official Code of Georgia Annotated, Relating to Water Resources, so as to Require the Georgia Department of Natural Resources, Including Its Environmental Protection Division, the Georgia Environmental Facilities Authority, the Georgia Department of Community Affairs, the Georgia Forestry Commission, the Georgia Department of Community Health, Including Its Division of Public Health, the Georgia Department of Agriculture, and the Georgia Soil and Water Conservation Commission to Examine Their Practices, Programs, Policies, Rules, and Regulations in Order to Develop Programs and Incentives for Voluntary Water Conservation and to Make Regular Reports of Measurable Progress to the Governor, Lieutenant Governor, Speaker of the House, and General Assembly; Require the Establishment of Best Management Practices by Public Water Systems; Change Provisions Relating to State and Local Watering Restrictions; Provide for the Classification and Continuation or Discontinuation of Certain Farm Use Water Withdrawal Permits; Provide for Measuring and Separate Charging of Water to Units in Certain New Construction; Amend Article 1 of Chapter 2 of Title 8 of the Official Code of Georgia Annotated, Relating to Buildings in General, so as to Require High-Efficiency Toilets, Shower Heads, and Faucets; Require High-Efficiency Cooling Towers; Create the Joint Committee on Water Supply; Provide for Related Matters; Provide for an Effective Date; Repeal Conflicting Laws; and for Other Purposes.

CODE SECTION: O.C.G.A. §§ 12-5-4, -4.1 (new); 12-5-

7, -31, -105, -180.1 (amended); 8-2-3,

-23 (amended)

BILL NUMBER: SB 370

ACT NUMBER: 542

GEORGIA LAWS: 2010 Ga. Laws 732

185

186 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 27:1

SUMMARY: The Act encourages state departments to examine their water conservation practices; standardizes leak reporting by public water utilities; requires sub- metering of multifamily, commercial, and industrial construction beginning July 1, 2012; requires high efficiency toilets, urinals, and fixtures in new construction beginning July 1, 2012; provides for the tracking of unused water withdrawal permits for agriculture purposes and establishes a process for those permits to revert back to the state; and restricts outdoor watering to between the hours of 4 p.m. and 10 p.m. so as to avoid evaporative loss and waste during the hottest hours of the day.

EFFECTIVE DATE: June 10, 2010

History

For twenty years, Georgia has been engaged in a water war with Florida and Alabama over Lake Lanier and the Apalachicola- Chattahoochee-Flint River Basin (ACF River Basin).1 Although Lake Sidney Lanier is located in Northeast Georgia, the lake is owned by the federal government, rather than by the state.2 However, as the population of Atlanta, the largest major city not built on a large body

1. For a detailed history of the conflict and resulting litigation, see generally Alyssa S. Lathrop, A Tale of Three States: Equitable Apportionment of the Apalachicola-Chattahoochee-Flint River Basin, 36 FLA. ST. U.L. REV. 865, 867–78 (2009). The ongoing litigation has spurred much media coverage and a plethora of legal articles. For a partial list of legal articles, see Robert Haskell Abrams, Water Federalism and the Army Corps of Engineers’ Role in Eastern States Water Allocation, 31 U. ARK. LITTLE ROCK L. REV. 395, 408, n.62 (2009). For links to media articles, see WaterWebster, Florida, Alabama, Georgia Water Sharing, http://waterwebster.org/FloridaAlabamaGeorgia.htm.

2. Claire McClintic, A River Runs Through It: What States Along the Missouri River Can Learn

   About Water Allocation From the Conflict in the ACF River Basin, 16 MO. ENVTL. L. & POL’Y REV. 201, 202 (2009).

   
   

   2010] LEGISLATIVE REVIEW 187

   
   

   of water,3 has exploded in recent years,4 Georgia has looked to Lake Lanier as Atlanta’s primary source of water. The Army Corps of Engineers, the managers of the lake, have allowed Georgia to enter into five-year renewable contracts, which permit the storage and withdrawal of local drinking water from Lake Lanier.5 As Georgia’s demands for water have surged, the state has increasingly sought

   reallocation of the lake’s water to supply the growing state’s thirst. In response, Florida and Alabama, who also rely on the water from Lake Lanier, have filed multiple suits over the last twenty years seeking to enjoin this reallocation.6

   In 2006, the already strained water situation was worsened by “one of the worst droughts on record,” which caused Lake Lanier to fall fifteen feet below the normal level.7 The drought soon “prompted a three-state fight that has simmered for years to erupt into testy exchanges over which [state] has the right to the lake’s dwindling water supply and which [state] is or is not doing its share to conserve it.”8 Whereas Alabama’s concerns centered on the effects of reduced water supplies to its hydropower plants, which provide power for much of the state,9 Florida sought to protect its ACF River Basin,10 which brings in over $130 million in revenue per year from its shrimp

   
   

   
   

3. Press Release, Shirley Franklin, Mayor of Atlanta, Stakeholder Letter on Water Conservation (Nov. 11, 2007), available at http://www.atlantaga.gov/media/wcstakeholderletter_110707.aspx.

4. Georgia grew twenty-six percent between 1990 and 2000, and experts predict that the state’s population will increase an additional thirty-four percent between 2000 and 2015. GEORGIA IN PERSPECTIVE 2009, GOVERNOR’S OFFICE OF BUDGET AND PLANNING 9 (2009), available at

   http://www.opb.state.ga.us/media/10681/georgia_in_perspective-2009.pdf.

5. McClintic, supra 2, at 202.

6. Id.

7. Peter Whoriskey, 3 States Compete for Water From Shrinking Lake Lanier, WASH. POST, Oct. 27, 2007, at A01. For a more in-depth discussion of the drought, watering restrictions, and legislation passed in Georgia to protect the green industry and swimming pool industry during this period, see Alexis Fairweather & Andrew Jones, Review of Selected 2008 Georgia Legislation, 25 GA. ST. U. L. REV. 117 (2008).

8. Whoriskey, supra note 7.

9. Id. In the disputes, Alabama has argued that reallocation of water supplies to meet Georgia’s growing need for water would cause higher hydropower costs, reduce dilution of water pollution, and negatively impact the state’s ability to attract industry. Josh Clemons, Interstate Water Disputes: A Road Map for States, 12 SE. ENVTL. L.J. 115, 136 (2004).

10. Lathrop, supra note 1, at 868. The Chattahoochee and Flint Rivers join together to form the Apalachicola River, which deposits billions of gallons of nutrient-rich freshwater into the Apalachicola Bay on a daily basis. Id.

    
    

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    and oyster harvest.11 With the Apalachicola Bay housing several federally-protected species, including the Clipola slabshell mussel, the purple bankclimber mussel, the fat treeridge mussel, and the Gulf Sturgeon,12 Florida filed a motion for a preliminary injunction

    arguing that a proposed reallocation would result in the unlawful taking of the endangered species under the Endangered Species Act.13 Although the court in that case found that the modifications in the mussels’ habitats by the decreased flows were causing them to “[die] in the hundreds,”14 it also held that the Army Corps of Engineers could not be held “responsible for the absence of rain” due to the severe drought.15 Based on the court’s holding denying the order,16 Florida filed suit against the U.S. Fish and Wildlife Service.17

    Four pending cases in the on-going water wars litigation, including the

    U.S. Fish and Wildlife Service case, were then consolidated into In re Tri-State Water Rights Litigation (In re Tri-State).18 Georgia officials soon characterized the debate as “man versus mussel,”19 and Georgia officials criticized Florida for using the Endangered Species Act as a tool to protect its lucrative oyster industry.20 However, the presiding judge in the case, Judge Magnuson, held the “fundamental question” of the case was whether the Corps had used the lake for purposes outside Congress’s original authorization.21 Georgia argued that water supply was among the authorized purposes of the Buford Dam project and, furthermore, that water supply storage could be added under the supplemental authority of

    
    

    
    

11. Id. at 869 (“The Apalachicola Bay produces a shrimp harvest of six million pounds per year and supplies ninety percent of Florida’s oysters and ten percent of all oysters consumed in the United States.”).

12. Alabama v. U.S. Army Corps of Eng’rs, 441 F. Supp. 2d 1123, 1125 (11th Cir. 2005). 13. Id. at 1130.

1. Id. at 1132.

2. Id. at 1134.

3. Id. at 1138.

4. Lanthrop, supra note 1, at 872 (citing Florida v. U.S. Fish & Wildlife Serv., No. 4:06-cv-410

   (N.D. Fla. 2006)).

5. In re Tri-State Water Rights Litigation, 639 F. Supp. 2d 1308, 1337 (M.D. Fla. 2009).

6. Whoriskey, supra note 7.

7. Governor Perdue reacted to Florida’s use of the Endangered Species Act in this litigation by saying, “Utilizing the endangered species act [sic] as a weapon in this battle is somewhat disingenuous. We know what this is about, we know its [sic] about the bay and the...