Sharing Water Through Interbasin Transfer and Basin of Origin Protection in Georgia: Issues for Evaluation in Comprehensive State Water Planning for Georgia's Surface Water Rivers and Groundwater Aquifers

• Publication year: 2010

Sharing Water Through Interbasin Transfer and Basin of Origin Protection in Georgia: Issues for Evaluation in Comprehensive State Water Planning for Georgia's Surface Water Rivers and Groundwater Aquifers

Stephen E. Draper

Introduction

Economic prosperity and quality of life in 21st century Georgia will, in large part, depend upon how Georgia manages its surface water rivers and groundwater aquifers. Georgia can meet the challenge by drafting an effective statewide comprehensive water management plan. Of the eleven essential elements of Georgia's Statewide Water Management Plan ("GSWM Plan" or "Plan"), no issue is more important than interbasin transfer of water and basin of origin protection.[1]

Georgia's fourteen surface water river basins and six groundwater aquifers must ensure adequate supplies of quality water to meet critical requirements of municipalities, business and industry, agribusiness, water-based recreation, public health, aquatic ecosystems, and a sustainable environment.[2] Fortunately, Georgia has an abundance of source water, with the most plentiful supplies in Middle Georgia. Significant source water exists in the agricultural regions of Southwest Georgia, although state response to a recent drought has limited permits for irrigation withdrawals. Available source water in the industrial regions and coastal communities of Southeast Georgia is considerable, although excessive groundwater use has caused saltwater intrusion in several areas. The headwaters regions of North Georgia have the least plentiful supplies.[3]

The geographic location of Georgia's rivers and aquifers present a significant source-water challenge. Georgia's largest and most densely populated region is in North Georgia's headwaters region where the State has the least amount of source water. The consequence of 50 years of recent urban growth in this region presents the challenge of how that growth can continue without augmenting the region's source water supply. Potential solutions include improving water efficiency and constructing additional dams and water supply reservoirs.[4] Another option is to use a method commonly used in the western United States, the practice of interbasin transfer of water from regions outside of the greater Metropolitan Atlanta Region.[5]

Proposals for interbasin transfer of water, however, present a series of critical questions about how extensively the practice should be used. Who decides when an interbasin transfer of water is necessary? Will water sharing through interbasin transfers occur only between nearby cities and counties; between adjacent river basins; between distant river basins within the state; with adjacent states; with distant states? Will the basin of origin from which a water transfer is made have a voice equal to that of the receiving basin to which the water is transferred? Will interbasin transfers without safeguards lead to for-profit private sales of bulk water to distant states and foreign countries? These compelling questions can only be answered with the application of a multi-disciplined approach that considers the fields of science, engineering, economics, social science, and law.[6]

Interbasin water transfer involves the withdrawal, diversion, or pumping of surface water or groundwater from one river basin (the "basin of origin") and the release of all, or any part of, the water into another river basin (the "receiving basin").[7] An interbasin transfer provides the receiving basin with an additional water source to continue its economic growth and to support an expanding population. However, the loss of water from the basin of origin, caused by the interbasin transfer, could harm the long-term economic prosperity and quality of life of the basin of origin as well as its water quality and public health.[8] The degree of harm to the basin of origin depends largely on the magnitude of water loss.

These potential harms to the basin of origin have caused most interbasin transfer proposals in Georgia to be very controversial, pitting the Metropolitan Atlanta Region against other areas of the State. Concerned citizens fear that Metropolitan Atlanta will take water from other regions in Georgia, harming other parts of the State while helping itself.[9] Proposals to transport water over a greater distance, perhaps even out of the State, cause further concern.[10] Throughout the State, citizens, stakeholders, and some officials fear interbasin transfer to the Atlanta area.[11] The interbasin water transfer controversy has been so intense that the Georgia Legislature decided that water planning for the metro Atlanta area "shall neither study nor include in any plan any interbasin transfer of water from outside the district area."[12] Others, however, have urged a cautionary approach, suggesting that "[i]nterbasin transfers should be scrutinized and minimized based on options available, but [that] they cannot be eliminated."[13]

Georgia already uses interbasin water transfers and will continue to do so. But whether interbasin transfer should be used as a first or last resort remains an issue. Consequently, three major challenges exist. The first challenge is to determine what, if any, restrictions the State should impose on interbasin transfers. The second challenge is to determine how the basin of origin can be protected from serious, perhaps irretrievable, harm that may result from loss of its water. The third challenge is to structure Georgia law to provide an efficient, effective, and equitable interbasin regulatory scheme that meets the needs of potential receiving basins while protecting basins of origin.

Part I of this Article discusses the history of and future issues facing the interbasin transfer of water in Georgia. Part II examines the nature of interbasin transfers of source water, focusing on water as a unique natural resource, and the justification for interbasin transfers in Georgia. Part III provides an overview of water law generally, Georgia water law, interbasin transfer law in states adjacent to Georgia, and expert proposals for future interbasin transfer law. Finally, Part IV provides recommendations for the creation of efficient, effective, and equitable interbasin water transfer law in Georgia.

I. Interbasin Transfers of Water in Georgia

A. History of Interbasin Transfers in Georgia

Despite controversy and political efforts to deny interbasin transfers as a viable option to solve the Metropolitan Atlanta Region's future water scarcity problems, interbasin water transfers currently exist in Georgia and have existed since the early 1900s.[14] Georgia uses this water management technique extensively in the Metropolitan Atlanta area, "where there is a large population (almost 4 million people) in about 20 counties, with five river basins either passing through or starting their headwaters in those counties."[15]

The need for interbasin water transfers is in the hydrogeography of North Georgia, where almost 54% of the population lives.[16] The river basins within the Metropolitan Atlanta Region are long and narrow and, consequently, many of the cities in the region extend over more than one basin.[17] Local governments withdraw "raw" water from a specific river to meet their needs, treat the water to potable standards, and distribute the "treated" water for use in residences, commerce, agribusiness, and industry.[18] Local governments treat the wastewater after use and discharge this wastewater into the watercourse nearest the treatment facility. The treatment facility may be in another river basin, resulting in an interbasin transfer of water.[19] In contrast, Middle, Southwest and Southeast Georgia have significant source water rivers and aquifers and interbasin transfer is rare.

The vast majority of the interbasin transfers in Georgia have been for municipal use, largely between the cities and counties within the Atlanta area.[20] To continue growing, the metropolitan area requires more water, but the available sources cannot meet future demand.[21] Some argue that we should first exhaust conservation practices, but such practices cannot meet the expected future demands. Consequently, interbasin transfers of treated or raw water within and into the Metropolitan Atlanta Region will likely increase in quantity and scope, thus extending their geographical reach.[22] Although the current concern in Georgia involves interbasin transfers into greater Metropolitan Atlanta for water supply purposes, the potential exists for large scale, bulk transfers of water across the State line, involving quantities that dwarf the current transfers.[23] Pending legal challenges between states could result in increased transfers. This Article confines the discussion to interbasin transfers of water within Georgia.

B. Interbasin Transfer Issues in Georgia

Several questions arise regarding extensive interbasin transfers. When will greater Metropolitan Atlanta have enough water? What are the current and future standards in law that ensure interbasin transfers will not disrupt the economy, recreation, public health, environment, and local sovereignty of the basin of origin? Currently, these questions remain largely unanswered. Georgia lacks an existing comprehensive water plan to address interbasin transfers and basin of origin protection. This Article addresses the unique opportunities inherent in the drafting of a statewide water management plan, a process that is currently underway.

Georgia law and the drafters of Georgia's proposed comprehensive statewide water management plan need to provide some certainty for the potential basins of origin. Prior to proposing and adopting the suitable laws and policies, Georgia's lawmakers, policy makers, and stakeholders must examine four issues concerning interbasin transfers in Georgia. The first issue is the role that the GSWM Plan can play in formulating and developing efficient, effective, and equitable interbasin transfer...