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Clock ticks on Georgia in water wars dispute

November 20, 2009 — Picture this scenario: It’s the summer of 2012, and the US Corps of Engineers is getting ready to turn off the tap, following through on a judge’s three-year-old order which prohibits Metro Atlanta from drawing any more water from Lake Lanier than it did in 1970.

Meanwhile, President Obama is in the fight of his life. His strategists don’t think they can win with the same combination they achieved in 2008, and desperately need to pick up a state they didn’t carry four years before.

Solution? Obama puts a full court press on Congressional Democrats – plus the Republicans in the Georgia delegation – to hammer out a compromise in the Water Wars with Florida and Alabama. He gets a deal, the water faucet stays on, and millions in Democratic ads begin flowing into the Atlanta Vote-alopolis, praising Obama for accomplishing what no one else had been able to pull off.

If that seems a little over the top, at least it’s a scenario.

 You don’t hear a lot of panic around Atlanta when people talk about the crisis which threatens to throttle the economic engine of Georgia, but the conversations are all noticeably absent of any details about how the state and the metro area get from here to there, water-wise.

The phrase “too big to fail” comes up a lot. US District Court Judge Paul Magnuson termed his decision “draconian” when he ruled in July that Atlanta must revert to the 1970 level of withdrawals from the lake if Congress doesn’t come to a new agreement on water usage, and ever since there’s been the feeling that an action with such dire consequences simply won’t be allowed to happen. There was some of that in the words of Bert Brantley, spokesman for Gov. Sonny Perdue, reacting  this week to the news that the Corps is preparing to rewrite its operating manuals in compliance with Magnuson’s order.

“I don’t think anybody… believes the ruling will go into effect in 2012. We think that we will have some resolution by then,” Brantley said.

Yet it isn’t clear at all how the ruling will be headed off.

Earlier this week, the state suffered another setback when its chief litigator in the appeal of Magnuson’s ruling, Paul Clement, was forced to withdraw from the case. When he was U.S. solicitor general, Clement was attorney of record for the Corps in a U.S. Supreme Court appeal in the water wars case, creating a possible claim of conflict of interest.

 King & Spalding, which has handled the water litigation for the state, replaced Clement with another former solicitor general, Seth Waxman. But Alabama Gov. Bob Riley has asked the U.S. Justice Department whether the revelation is sufficient to require that the firm remove itself entirely from the case.

Clement’s earlier involvement in all likelihood amounts to no more than having his name on a document while he was in government service. But it’s surprising that a law firm which has been so heavily involved in this years-long case didn’t catch this. In the case of this decades-long litigation, it’s as puzzling as the Georgia Bulldogs’ penchant for penalties.

These legal problems may be a moot point, since there’s very little confidence Georgia can successfully appeal a finding of fact by a judge specially appointed to settle the case, anyway. But progress in forging an agreement, either in Congress or among the governors of the three states, has also been slow.

A few weeks ago the congressional delegations of the three states met and signed a letter to the governors, urging them to meet. US Rep. Lynn Westmoreland (R-Ga.) said afterwards the Georgia delegation was “kind of miffed” when Perdue seemed to dismiss the effort, calling on Congress to take action on a national water policy and saying the problem shouldn’t be confined “just into a little flurry between Alabama, Georgia and Florida.”

Westmoreland said he had been the one who suggested the letter to US Rep. Allen Boyd, because Perdue had complained about the difficulty of getting the other two governors to the table. He thought he was doing Perdue’s bidding, and felt blindsided by his response.

As yet, there’s been no meeting of the governors, although Brantley said Thursday there has been “further communications between the three offices, and we hope to be able to announce a meeting date very soon.”

 “All three offices have been in contact with each other, which is certainly a very positive sign indicating there is a willingness to meet and negotiate,” Brantley said.

The co-chairs of Perdue’s Water Contingency Task Force, Coca-Cola Enterprises CEO John Brock and Lowe Engineers president Tim Lowe, wrote in an op-ed piece in the Atlanta Journal-Constitution op-ed piece that their group is going to spend the next few weeks coming up with a list of recommendations for the governor and General Assembly to consider, implying at least that there may be some proposals for the legislature to consider in its upcoming session.

Brantley said there have been “numerous” smaller meetings around the state, gathering input from “a wide spectrum of varied interests.” But the full task force has only met once, when it was formed.

So while some things may beginning to happen, nothing seems to be happening very fast. Especially given the drawn-out nature of the water negotiations before Magnuson’s ruling – and fact that Florida and Alabama have time on their side – don’t discount the possibility of a last minute presidential rescue unless you can come up with a more plausible scenario.

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