Speech to ACCG Water Law Conference

SPEECH TO ACCG WATER LAW CONFERENCE THE FUTURE OF THE SOUTH – THE ROLE OF WATER THE GEORGIA CENTER FOR CONTINUING EDUCATION AUGUST 26, 2003

REMARKS BY THURBERT E. BAKER ATTORNEY GENERAL, STATE OF GEORGIA

THANK YOU FOR THE OPPORTUNITY TO JOIN YOU TODAY. ALSO, LET ME APPLAUD ALL OF YOU WHO ARE HERE AND HAVE PARTICIPATED IN THIS CONFERENCE WHICH FOCUSES ON OUR MOST IMPORTANT NATURAL RESOURCE -- WATER.

GROWING UP, WATER WAS SOMETHING THAT WE LOVED TO PLAY IN, DIDN’T WANT TO HAVE TO DRINK IF A SODA WAS AROUND, AND HATED WHEN IT WAS TIME FOR OUR BATH. AS ADULTS, AS POLICY-MAKERS ON THE STATE AND LOCAL LEVEL, WE HAVE COME TO APPRECIATE THAT WATER IS THE LIFE’S BLOOD OF GROWTH, PROSPERITY, HOPE AND HEALTH. THE PRESS AND EVEN THE PUBLIC WILL SOMETIMES PAINT WATER DECISIONS AS BEING ABOUT WHO GETS TO WATER THEIR LAWN OR WASH THEIR CAR, BUT THOSE OF US IN THIS ROOM KNOW BETTER. THE DECISIONS WE MAKE WILL DETERMINE NOT ONLY THE SAFETY OF OUR DRINKING WATER, BUT IT’S ALLOCATION AS WELL. THE DECISIONS WE MAKE WILL IMPACT THE ABILITY OF OUR COMMUNITIES TO ATTRACT BUSINESS AND INDUSTRY WITH JOBS AND THE CONTINUED VITALITY OF OUR STATE’S AGRI-BUSINESS. WATER IS A CRITICAL PART OF OUR ENVIRONMENT, CRUCIAL FOR OUR VERY SURVIVAL AND WE CANNOT LIVE WITHOUT IT. PRESIDENT JOHN F. KENNEDY SAID, “NEVER BEFORE HAS MAN HAD SUCH CAPACITY TO CONTROL HIS OWN ENVIRONMENT. WE HAVE THE POWER TO MAKE THIS THE BEST GENERATION OF MANKIND IN THE HISTORY OF THE WORLD - - - OR TO MAKE IT THE LAST.”

IF WE’RE GOING TO MAKE THIS THE BEST GENERATION FOR OUR ENVIRONMENT, THEN WE’VE GOT TO MAKE SMART DECISIONS ON SURFACE AND GROUND WATER IN OUR RIVERS AND ACQUIFERS.

HISTORICALLY, GEORGIA HAS BEEN CONSIDERED A WET STATE WITH AN ABUNDANT SUPPLY OF WATER. WE HAVE 14 MAJOR RIVERS AND 6 MAJOR AQUIFERS. THE GEORGIA ENVIRONMENTAL PROTECTION DIVISION ESTIMATES THAT GEORGIA HAS OVER 70,000 MILES OF RIVERS AND STREAMS, OVER 425,000 ACRES OF LAKES AND RESERVOIRS, AND OVER 100 MILES OF COASTLINE, AS WELL AS MAJOR AQUIFERS BELOW OUR FEET IN MIDDLE AND SOUTH GEORGIA. DESPITE THIS HISTORY, WE FIND OURSELVES TODAY BOMBARDED WITH ISSUES RELATING TO THE QUANTITY OF WATER AS IF THE TAPS WERE GOING TO RUN DRY AT ANY MOMENT. ARE WE BEING REACTIONARY OR PRUDENT AS WE DEBATE THE WATER POLICIES THAT WILL AFFECT OUR LIVES AND THE LIVES AND HEALTH OF OUR CHILDREN?

I DO NOT THINK ANYONE CAN TELL YOU PRECISELY WHAT HAS CREATED THIS ATMOSPHERE. I CAN TELL YOU WHAT I BELIEVE ARE FACTORS THAT ARE MAJOR CONTRIBUTORS. FIRST, WE HAVE AN EXPLODING POPULATION IN OUR LARGER CITIES AND SUBURBAN AREAS. EVERY NEW RESIDENT REQUIRES WATER TO DRINK, COOK AND BATHE; WATER THAT DOESN’T MAGICALLY APPEAR FROM OUT OF THE PIPES OR WELLS BUT MUST COME FROM SOME COMMON RESOURCE THAT WE HAVE MADE AVAILABLE.

SECOND, WE HAVE GROWING USAGE OF THE WATER BY THE STATE’S ECONOMIC DEVELOPMENT, WHICH INCLUDES COMMERCIAL DEVELOPMENT AS WELL AS CRITICAL INDUSTRY AND AGRIBUSINESS THAT NEED WATER TO SURVIVE. FROM DEVELOPING COMMUNITIES STATEWIDE TO AGRICULTURAL IRRIGATION OF VEGETABLE AND PEANUT CROPS IN SOUTH GEORGIA TO PAPER PLANTS ON THE COAST TO MANUFACTURING AND DEVELOPMENT AND BUSINESS CONCERNS IN METRO ATLANTA, ALL THESE BUSINESSES MUST HAVE WATER IN ORDER TO PROVIDE THE JOBS THAT SUPPORT OUR FAMILIES AND COMMUNITIES. GEORGIA’S FINE NETWORK OF WATER TREATMENT FACILITIES HAVE STRIVED TO PROVIDE PLENTIFUL SUPPLIES OF CLEAN WATER. THESE EFFORTS ARE SUPPLEMENTED BY A SYSTEM OF INDIVIDUAL WELLS AND SURFACE AND GROUND WATER WITHDRAWAL PERMITS.

THIRD, WE HAVE SUFFERED THROUGH FLOODS AND TWO DROUGHTS IN THE LAST TWENTY YEARS. THE LAST DROUGHT LASTED FOR FIVE YEARS AND SET THE RECORD FOR THE MOST SEVERE DROUGHT RECORDED IN GEORGIA’S HISTORY. IN DAYS OF DROUGHT WHEN STREAMS AND EVEN RIVERS ARE STARTING TO DRY UP AND OUR RESERVOIRS BEGIN TO EXPOSE MORE AND MORE RED CLAY ALONG THEIR BANKS, EVERYONE FROM THE STATEHOUSE TO THE LOCAL STEAKHOUSE REALIZES THAT WATER IS A FINITE RESOURCE. IT IS IMPORTANT TO REMEMBER THAT BOTH DROUGHTS AND FLOODS ARE PART OF THE WATER EQUATION.

ON TOP OF THAT, GEORGIA IS IN THE SECOND DECADE OF WATER WAR NEGOTIATIONS WITH FLORIDA AND ALABAMA OVER WHO GETS WHAT WATER FROM OUR RIVERBASINS. THESE AND FUTURE WATER-SHARING AGREEMENTS ARE IMPORTANT. ARGUING OVER WHO GETS WHAT MINIMUM RIVER FLOW MAY SEEM ARCANE, BUT THE RESULTS WILL DETERMINE WHICH COMMUNITIES HAVE THE ABILITY TO ATTRACT BUSINESS, DEVELOPMENT, INDUSTRY, AGRICULTURE AND IN FACT ANY ECONOMIC GROWTH, AND, QUITE FRANKLY, WHICH COMMUNITIES MAY NOT.

WITH THE STAKES SO HIGH IT IS IMPERATIVE THAT GEORGIA CONTINUE TO PURSUE A STATEWIDE WATER MANAGEMENT PLAN. ONE THAT WILL BRING ALL OUR STAKEHOLDERS TO THE TABLE, INCLUDING REPRESENTATIVES OF WATER USERS, WATER PROVIDERS, BUSINESS, INDUSTRY, ARGICULTURE, ENVIRONMENTALISTS, ELECTED AND APPOINTED GOVERNMENT OFFICIALS. THE STATE OF GEORGIA, HER COUNTIES AND CITIES, AS WELL AS GEORGIA’S CITIZENS MUST ALL HAVE A SEAT AT THE TABLE.

OUR GOVERNMENTAL LEADERS HAVE BEEN CRUCIAL IN HELPING TO CREATE A STATEWIDE VISION FOR GEORGIA. I WANT TO THANK THE ACCG AND THE GMA FOR YOUR EARLIER VISION ON WATER RESOURCES MANAGEMENT AND FOR STAYING ON THE POINT IN OUR WATER DEBATES, FOR AS YOU KNOW, OUR LOCAL COUNTIES AND CITIES WILL BE MOST DIRECTLY IMPACTED TOMORROW BY THE DECISIONS WE MAKE TODAY.

THE ACCG-GMA JOINT TASK FORCE ON WATER RESOURCES POLICY ISSUED AN IMPORTANT PUBLICATION THREE YEARS AGO. IT ESTABLISHED A BLUEPRINT FOR GEORGIA COUNTIES AND MUNICIPALITIES. THE SEVEN WATER POLICY RECOMMENDATIONS MADE BY THE ACCG, IN PARTNERSHIP WITH GMA, ARE EXTREMELY RELEVANT TODAY. YOUR (1999) “GEORGIA WATER RESOURCE POLICY: A CALL TO ACTION” PUBLICATION WAS A CLARION CALL FOR GEORGIA’S LAWMAKERS, COUNTY COMMISSIONERS AND ADMINISTRATORS, CITY COUNCILS AND METRO ADMINISTRATORS, POLICYMAKERS, AND THE PUBLIC AND PRIVATE SECTORS. AS A FORMER ENVIRONMENTAL LITIGATOR AND LEGISLATOR, I RECOGNIZE THE CRITICAL IMPORTANCE OF GEORGIA WATER POLICY. THE ESSENTIAL QUESTION FOR ALL PUBLIC AND PRIVATE SECTOR ENTITIES IS SIMPLE – HOW DOES THE STATE OF GEORGIA AND THE COUNTIES AND CITIES PROVIDE PLENTIFUL SUPPLIES OF CLEAN WATER TO ITS EIGHT MILLION CITIZENS, TO ENSURE A STRONG ECONOMY AND A HIGH QUALITY OF LIFE, WHILE PROTECTING RIVERS AND AQUIFIERS? THE DEVIL IS IN THE DETAILS, BUT I BELIEVE WE CAN ALL MEET THE CHALLENGE. ACCG AND GMA MADE A SET OF RECOMMENDATIONS, TWO OF WHICH I HIGHLIGHT HERE: 1. THE FIRST AND MOST SIGNIFICANT RECOMMENDATION WAS THAT A “COMPREHENSIVE, CLEARLY STATED WATER PLANNING STRATEGY” BE ADOPTED. ALTHOUGH THREE IMPORTANT GEORGIA WATER PLANS HAVE BEEN DRAFTED, THE ACCG-GMA CALL FOR A STATEWIDE WATER PLANNING EFFORT IS MORE TIMELY IN 2003 THAN EVER. 2. THE (ACCG-GMA) REPORT MADE ANOTHER STATEMENT OF GREAT FORESIGHT. THE REPORT STATED THAT, “THE STATE, IN ITS ROLE AS TRUSTEE FOR THE PEOPLE, MUST ACT TO PROTECT GEORGIA’S WATER RESOURCES.” YOUR REPORT RECOGNIZED THE UNIQUE VALUE OF GEORGIA’S SURFACE AND GROUND WATERS.

WE NEED WATER QUALITY AND WATER SUPPLY POLICIES WHICH WILL MEET THE NEEDS OF URBAN, SUBURBAN AND RURAL WATER USERS ALIKE, WHILE ALSO PROTECTING THIS PRECIOUS RESOURCE. OUR WATER SUPPLY IS NOT INFINITE AND WE MUST BE RESPONSIBLE MANAGERS.

ALL OF US, REGARDLESS OF THE LEVEL OF GOVERNMENT OR OFFICE WE HOLD, WILL BE CALLED UPON TO HELP SHAPE WATER POLICY AND MANAGEMENT ISSUES. AS I’M SURE ALL OF YOU KNOW, THE ENVIRONMENTAL PROTECTION DIVISION, EPD, HAS BEEN AUTHORIZED BY THE GENERAL ASSEMBLY TO REGULATE SURFACE AND GROUND WATER WITHDRAWALS. WHAT YOU MAY NOT KNOW A GREAT DEAL ABOUT IS THE ROLE PLAYED BY THE ATTORNEY GENERAL THROUGH THE STATE’S LAW DEPARTMENT. LET ME SPEAK TO THAT FOR JUST A MINUTE.

AS ATTORNEY GENERAL FOR GEORGIA AND HEAD OF THE STATE’S LAW DEPARTMENT, IT IS MY RESPONSIBILLITY TO REPRESENT ALL STATE AGENCIES, BOARDS AND COMMISSIONS. ON A DAY-TO-DAY BASIS, THE LAW DEPARTMENT IS CALLED UPON TO PROVIDE LEGAL GUIDANCE ON EXISTING LAW AS WELL AS PROPOSED LEGISLATION. WHAT WE ADVISE WILL IN MANY INSTANCES HAVE SIGNIFICANT LEGAL AND POLICY IMPLICATIONS.

NO WHERE IN THE WIDE RANGE OF LAW DEPARTMENT WORK HAVE WE BEEN MORE ACTIVE THAN IN OUR REPRESENTATION OF EPD. WE ADVISE AND COUNSEL THE EPD ON A NUMBER OF WATER QUALITY AND ALLOCATION MATTERS RANGING FROM POINT AND NON-POINT SOURCES TO TMDL’S. QUITE OFTEN, THE ATTORNEY GENERAL IS ASKED BY CLIENT AGENCIES, INCLUDING EPD, FOR AN OFFICIAL OPINION ON LAW, EXISTING OR PROPOSED. WHAT YOU SHOULD UNDERSTAND ABOUT THESE OPINIONS, ONCE RENDERED, IS THAT THEY BECOME BINDING ON STATE GOVERNMENT. SO, UNLIKE THE PRIVATE ATTORNEY-CLIENT RELATIONSHIP WHERE ADVICE IS SIMPLY THAT, AN OFFICIAL OPINION BY THE ATTORNEY GENERAL COMPELS THE AFFECTED AGENCY TO FOLLOW THE ADVICE GIVEN. THIS IS AN AWSOME RESPONSIBILITY AND ONE WE DON’T TAKE LIGHTLY.

IN PROVIDING COUNSEL AND ADVICE ON WATER ISSUES, I WANT TO MAKE SURE THAT WE IN THE STATE’S LAW DEPARTMENT HAVE A FULL RANGE OF KNOWLEDGE AVAILABLE TO US AS WE WEAVE THROUGH THE COMPLEX DEBATE ON WATER. I HAVE THEREFORE ESTABLISHED FOR THE FIRST TIME EVER, THE ATTORNEY GENERAL’S WATER ADVISORY COUNCIL. THIS IS A DIVERSE GROUP OF SPECIALISTS WHO WILL ADVISE ME ON A BROAD RANGE OF WATER ISSUES PERCOLATING IN THE STATE. MY GOAL IS A 360 DEGREE AWARENESS OF THE WATER DEBATES, AND WE’RE GOING TO NEED IT. LET ME TELL YOU WHY.

THE WATER LAW IN THIS STATE COULD BE EVOLVING BEFORE OUR VERY EYES AND THE WATER ALLOCATION ISSUES WE ARE DEBATING TODAY WILL HAVE A PROFOUND IMPACT ON WATER RIGHTS FOR YEARS TO COME.

AS YOU MAY KNOW, DURING MOST OF OUR HISTORY, GEORGIA HAS BEEN CONSIDERED A RIPARIAN STATE. BLACK’S LAW SAYS A RIPARIAN WATER RIGHTS SYSTEM TREATS SURFACE WATER AS A COMMON RESOURCE THAT IS SHARED BETWEEN AND AMONG USERS. WHILE ADDRESSING THE JOINT MEETING OF THE COMPREHENSIVE WATER PLAN STUDY COMMITTEE AND THE WATER PLAN ADVISORY COMMITTEE LAST YEAR, I DESCRIBED GEORGIA’S LONG-STANDING RIPARIAN RIGHTS DOCTRINE AS FOLLOWS: “IT ESSENTIALLY SAYS THAT RUNNING WATER, WHILE ON LAND, BELONGS TO THE OWNER OF THE LAND. HOWEVER, THAT LANDOWNER HAS NO RIGHT TO DIVERT THAT WATER FROM THE USUAL CHANNEL, NOR MAY HE INTERFERE WITH THE ENJOYMENT OF THE WATER BY THE NEXT OWNER, EXCEPT FOR REASONABLE USES.”

GEORGIA HAS REFINED HER RIPARIAN WATER LAW TRADITION WITH REGULATED RIPARIANISM. THE QUESTION OF REASONABLE USE OF SURFACE AND GROUND WATER HAS ALWAYS BEEN A COMPLEX, FACT DRIVEN MATTER. IN 1972, THE GEORGIA GENERAL ASSEMBLY ENACTED THE GROUNDWATER USE ACT. THE ACT PROVIDES THAT NO PERSON SHALL WITHDRAW, OBTAIN OR UTILIZE GROUND WATER IN EXCESS OF 100,000 GALLONS PER DAY FOR ANY PURPOSE UNLESS THAT PERSON OBTAINS, AT NO COST, A PERMIT TO USE THAT WATER FOR A SPECIFIC PURPOSE. THESE PERMITS ARE ISSUED BY THE GEORGIA ENVIRONMENTAL PROTECTION DIVISION.

SEVERAL YEARS AFTER ENACTMENT OF THE GROUND WATER USE ACT, THE GENERAL ASSEMBLY ENACTED A SIMILAR PROVISION FOR SURFACE WATER WITHDRAWALS. I BELIEVE THAT THIS ACT WAS INTENDED TO PROVIDE A MEANS TO ENSURE THAT RIPARIAN OWNERS AND GRANTEES FROM RIPARIAN OWNERS DID NOT ENGAGE IN UNREASONABLE USES OF SURFACE WATER.

NONE THE LESS, SOME HAVE VIEWED THE LEGISLATIVE CHANGES ON WATER LAW STARTING IN 1972 AS A TRANSITION FROM A PURE RIPARIAN STATE, TO A REGULATED RIPARIAN LAW STATE. NOTED WATER EXPERT DR. STEPHEN DRAPER HAS POINTED OUT THAT “A REGULATED RIPARIAN WATER RIGHTS SYSTEM TREATS SURFACE AND GROUND WATER AS A COMMON RESOURCE THAT IS MANAGED BY THE STATE IN ITS ROLE AS TRUSTEE FOR THE PEOPLE. A HALLMARK OF REGULATED RIPARIANISM IN GEORGIA IS THE ISSUANCE OF SURFACE AND GROUND WATER WITHDRAWAL PERMITS AS A METHOD OF WATER ALLOCATION.”

OUR LIMITED TIME TODAY WILL NOT ALLOW FOR A FULL COMPARISON OF TWO BODIES OF WATER LAW. ONE IS SOMETIMES REFERRED TO AS “EASTERN WATER LAW,” OF WHICH GEORGIA’S LAW WOULD BE REPRESENTATIVE. THE OTHER IS WESTERN APPROPRIATIVE RIGHTS WATER LAW. IT SHOULD BE NOTED, HOWEVER, THAT UNDER WESTERN LAW, WATER IS TREATED AS A COMMODITY, WITH SPECIFIC QUANTITIES OF WATER OWNED BY INDIVIDUAL WATER USERS IN A PRIORITY SYSTEM. A SENIOR WATER RIGHTS HOLDER, THE SENIOR APPROPRIATOR, IS ALLOWED TO WITHDRAW HIS FULL ALLOTMENT BEFORE ANY JUNIOR WATER RIGHTS HOLDER IS ALLOWED TO WITHDRAW ANY WATER. THE “WATER AS A COMMODITY” VERSUS “WATER AS A COMMON RESOURCE” ARGUMENT HAS ALWAYS BEEN A SUBSTANTIAL DIFFERENCE IN WATER POLICY BETWEEN EASTERN AND WESTERN LAW, AND ONE THAT WILL BE REFERRED TO OFTEN AS WE FORMULATE A COMPREHENSIVE WATER POLICY IN OUR STATE.

NEEDLESS TO SAY, ANY RESPONSIBLE ANALYSIS OF GEORGIA WATER LAW SHOULD BE VIEWED WITHIN THE FRAMEWORK ESTABLISHED ABOVE. THIS IS ESPECIALLY IMPORTANT SINCE CERTAIN PROPOSED CHANGES IN GEORGIA WATER LAW MAY BE IRREVERSIBLE.

SINCE MANY OF YOU HERE TODAY ARE FAMILIAR WITH GEORGIA’S HISTORICAL APPROACH TO WATER LAW, YOU REALIZE THAT THE SURFACE WATER AND GROUNDWATER RESOURCES ARE CONTROLLED BY THE GROUNDWATER USE ACT AND THE SURFACE WATER WITHDRAWAL LAW AND RELATED REGULATIONS. IN TERMS OF OUR WATER FUTURE, IT IS CLEAR TO ME THAT OUR FUTURE STATE WATER POLICY SHOULD BE DRIVEN BY INFORMED USE AND JOINT PROTECTION OF OUR WATER RESOURCES.

DESPITE THIS UNDERSTANDING, WATER-SHARING IS STILL A TENDER SUBJECT. WATER ALLOCATION AND SHARING OF WATER RESOURCES CONTINUES TO BE DISCUSSED ON INTER-STATE AS WELL AS INTRA-STATE LEVELS. THE TRI-STATE WATER COMPACT IS A PRIME EXAMPLE OF THE FORMER.

AFTER YEARS OF WATER WARS, THE GOVERNORS OF GEORGIA, FLORIDA AND ALABAMA ENTERED INTO TWO WATER COMPACTS, THE ACF AND ACT, IN AN EFFORT TO WORK OUT DISAGREEMENTS AMONG THE STATES REGARDING THE SHARING OF WATER.

THE GEORGIA DEPARTMENT OF LAW HAS BEEN INTIMATELY INVOLVED IN REVIEWING THESE COMPACTS, WHICH ARE CONTRACTS AMONG THE STATES, AND ADVISING GEORGIA ON THEIR IMPLICATIONS. WE HOPE THAT ULTIMATELY THE STATES WILL AGREE AND THE U.S. CONGRESS WILL APPROVE THESE CONTRACTS. THE ALLOCATION FORMULA AGREED UPON BY THE STATES WILL BECOME FEDERAL LAW WHICH WILL SUPERSEDE STATE LAW SHOULD ANY CONFLICT EXIST. COMPACT REQUIREMENTS ARE IMPORTANT TO UNDERSTAND AS WE DRAFT STATE-BASED LAWS WHICH REGULATE THE ALLOCATION OF WATER.

THERE IS NO BETTER ILLUSTRATION OF INTRA-STATE ALLOCATION THAN INTER-BASIN TRANSFERS OF WATER. THE SUBJECT OF INTER-BASIN TRANSFERS, OR EVEN INTER-COUNTY TRANSFERS WITHIN A SINGLE RIVER BASIN, IS AN EMOTIONAL ONE. IT HAS COME UP OFTEN IN OUR “WATER WARS” WITH ALABAMA AND FLORIDA, AND IT HAS BEEN THE TOPIC OF HEATED DEBATE AND LONG DISCUSSION IN THE GENERAL ASSEMBLY.

OBVIOUSLY, EVERY USER AND COUNTY IN THE STATE, IN TIME OF FLOODS, HAS FAR TOO MUCH WATER. CONVERSELY, IN TIMES OF DROUGHT, WE FEEL THAT WE HAVE FAR TOO LITTLE, EVEN IF OUR ESSENTIAL NEEDS ARE BEING MET. MY OWN LAWN IS AS GOOD AN EXAMPLE AS ANY. IT WENT FROM BEING THE EQUIVALENT OF THE OKLAHOMA DUST BOWL FOR THE LAST TWO YEARS TO BEING A PROTECTED MARSHLAND THIS SPRING AND SUMMER. I SWEAR THAT I SAW A GATOR IN THE FRONT FLOWER BED ON THE FOURTH OF JULY. MY WIFE SAYS I WAS DREAMING, BUT WE HAVEN’T SEEN THE CAT SINCE.

SOME OF US MIGHT AGREE THAT OUR SURFACE AND GROUNDWATERS ARE PUBLIC RESOURCES AND THAT WE ARE ALL BETTER OFF WHEN THESE RESOURCES ARE USED AND MANAGED WISELY. DESPITE THIS ASSUMPTION, I SENSE THAT THERE IS NO CONSENSUS OVER HOW AND WHAT WE, AS INDIVIDUALS, OR COLLECTIVELY, AS GOVERNMENT, SHOULD BE ABLE TO DO WITH THE WATER THAT IS AVAILABLE TO US. THIS WAS MADE MOST CLEAR TO ME WITH THE GENERAL ASSEMBLY’S CONSIDERATION OF HB 237.

AS YOU WILL RECALL, THAT LEGISLATION PROPOSED, AMONG OTHER THINGS, TO ALLOW GROUNDWATER WITHDRAWAL PERMIT HOLDERS IN AREAS SUBJECT TO PERMITTING RESTRAINTS TO TRADE THEIR PERMITS OR POSSIBLY TO SELL WATER. IN SHORT, THE DIALOGUE SHIFTED FROM WHETHER A PROPOSED USER HAD ENOUGH WATER FOR HIS NEEDS TO WHETHER HE MIGHT BE ABLE TO SUPPLY, FOR PROFIT, THE NEEDS OF OTHERS.

STATE SENATOR HUGH GILLIS WROTE TO ME DURING THE 2003 LEGISLATIVE SESSION SEEKING ADVICE AS TO THE LEGAL RAMIFICATIONS OF WHAT WAS BEING PROPOSED IN THIS PIECE OF LEGISLATION. ESSENTIALLY, THE BILL DEALT WITH FOUR CRITICAL AREAS, WATER MANAGEMENT PLANNING, AGRICULTURAL METERING, INTERBASIN TRANSFERS AND WATER WITHDRAWAL PERMIT TRADING. THE MOST CONTENTIOUS AREA OF DEBATE SURROUNDED THE IDEA OF WATER PERMIT TRADING AND THE CONCEPT HAS INDEED RAISED SIGNIFICANT LEGAL DISCUSSION ON SEVERAL FRONTS. LET ME POINT OUT SOME OF THE CHALLENGES PRESENTED.

AS NOTED, WATER PERMIT SALES IS PROBABLY THE MOST SIGNIFICANT POLICY ISSUE NOW BEING DEBATED. DECISIONS RELATED TO THIS PROPOSAL WILL AFFECT THE FUTURE OF WATER LAW IN GEORGIA FOR GENERATIONS. THE MUCH DEBATED LEGAL QUESTION IS WHETHER GEORGIA WATER LAW SHOULD BE CHANGED TO ALLOW THE PRIVATE, FOR PROFIT SALE OF SURFACE AND GROUND WATER AND/OR WATER WITHDRAWAL PERMITS.

THE SPECIFIC QUESTION RAISED BY SENATOR GILLIS WAS WHETHER OR NOT THE (EPD) DIRECTOR CAN DECLARE THAT PERMITS MAY BE BOUGHT AND SOLD IN ONE COUNTY, BUT NOT IN AN ADJACENT COUNTY, EITHER IN OR OUT OF STATE, WITHOUT RUNNING AFOUL OF ANY LEGAL OR CONSITITUTIONAL DOCTRINE. IN RESPONDING, THE FIRST CONSTITUTIONAL CHALLENGE I NOTED AS A POSSIBLE STUMBLING BLOCK WAS THE COMMERCE CLAUSE OF THE UNITED STATES.

IN THE LANDMARK DECISION OF SPORHASE V. NEBRASKA, THE UNITED STATES SUPREME COURT RULED THAT THE COMMERCE CLAUSE PREVENTS A STATE FROM MAKING A LAW INVOLVING WATER RIGHTS THAT TREATS OUT-OF-STATE CITIZENS DIFFERENTLY THAN IN-STATE CITIZENS WITHOUT A LEGITIMATE LOCAL NEED TO DO SO. THIS MIGHT MEAN THAT IF A STATE ALLOWS IN-STATE CITIZENS TO BUY AND SELL AN ITEM, THE STATE MUST ALLOW OUT-OF-STATE CITIZENS TO ALSO BUY AND SELL THE ITEM. IN SHORT, I NOTED, THE COMMERCE CLAUSE MIGHT BE AN IMPEDIMENT TO THE EPD DIRECTOR EXERCISING THE DISCRETION SET OUT IN HB 237.

SENATOR GILLIS ALSO ASKED WHETHER HB 237 WOULD ALLOW WATER WITHDRAWAL PERMTS GIVEN TO PERMITTEES BY THE STATE FOR NO CONSIDERATION, TO BE TRADED AMONG WATER USERS FOR CONSIDERATION. “DOES THIS CONSTITUTE A GRATUITY FROM THE STATE TO THE PERMITTEE IN VIOLATION OF ANY FEDERAL OR STATE LAW OR THE UNITED STATES OR GEORGIA CONSTITUTION,” HE ASKED.

IN RESPONDING, I DIRECTED SENATOR GILLIS’ ATTENTION TO O.C.G.A. §12-5-91 WHEREIN THE GENERAL ASSEMBLY FINDS THAT THE GENERAL WELFARE AND PUBLIC INTEREST REQUIRE THAT THE WATER RESOURCES OF THE STATE BE PUT TO BENEFICIAL USE TO THE FULLEST EXTENT TO WHICH THEY ARE CAPABLE, SUBJECT TO REASONABLE REGULATION IN ORDER TO CONSERVE THESE RESOURCES AND PROVIDE AND MAINTAIN CONDITIONS WHICH ARE CONDUCIVE TO THE DEVELOPMENT AND USE OF WATER RESOURCES.

I WENT ON TO SAY THAT ORDINARILY, A PERMIT IS THE MEANS BY WHICH THE STATE IMPOSES REASONABLE REGULATIONS ON THE USE OF ITS RESOURCES, IN THIS CASE, THE USE OF WATER FROM LAND OR FROM A STREAM PASSING LAND OWNED OR POSSESSED BY A POTENTIAL PERMITEE. THE PROPOSED CHANGES IN THE SENATE SUBSTITUTE TO HB 237 COULD ALLOW THE TRADING OR SALE OF THAT PERMIT TO ANOTHER PERSON. THIS COULD CREATE ISSUES RELATED TO AN IMPROPER DELEGATION OF GOVERNMENTAL AUTHORITY TO PRIVATE INDIVIDUALS UNDER THE STATE CONSTITUTION. IN ADDITION, BASED ON THE CURRENT STRUCTURE OF THE STATE PERMITTING PROCESS AND THE PROPOSED CHANGES TO THAT PERMITTING PROCESS, IT IS POSSIBLE THAT ONE COULD CHALLENGE THE VALIDITY OF THE STATUTE USING THE GRATITUTIES CLAUSE OF THE STATE CONSTITUTION.

THE FULL CONTEXT OF MY LETTER TO SENATOR GILLIS IS INCLUDED IN YOUR MATERIALS FOR REVIEW, BUT NEEDLESS TO SAY, WATER PERMIT TRADING AND SALES WILL RAISE QUESTIONS ON A NUMBER OF FRONTS. AS LAWYERS AND POLICY MAKERS, WE WILL BE CALLED UPON TO MAKE SOME TOUGH DECISIONS AS THE BATTLE LINES ARE DRAWN.

AT THE END OF THE DAY, I FEEL THAT GEORGIA IS WELL POSITIONED TO PROVIDE FOR OUR WATER FUTURE. THIS WILL, HOWEVER, REQUIRE CONTINUED VISION AND LEADERSHIP FROM THOSE OF YOU HERE TODAY. WITH COOPERATIVE EFFORTS, CONSERVATION, AND STUDY, WE ARE DESTINED TO MEET OUR RESPONSIBILITIES.

DAVID WRITES IN PSALM 24: “THE EARTH IS THE LORD’S AND EVERYTHING IN IT.” WE MUST BE GOOD STEWARDS OF THE SURFACE AND GROUND WATER WE HAVE BEEN GIVEN AND MAKE WISE CHOICES ON USE AND CONSERVATION OF OUR WATER RESOURCES. THAT STEWARDSHIP WILL GUARANTEE OUR FUTURE, AND I BELIEVE WE ARE UP TO THE TASK.

AS I CONCLUDE, LET ME LEAVE YOU WITH FOUR RECOMMENDATIONS WHICH I HOPE WILL KEEP ALL OF US ON THE RIGHT TRACK. • FIRST, AS MENTIONED EARLIER, I HAVE ESTABLISHED THE ATTORNEY GENERAL’S WATER ADVISORY COUNCIL TO ADVISE ME ON ALL ASPECTS OF WATER AND POLICY, SCIENCE, ENGINEERING, TECHNOLOGY, AND ECONOMICS. I WELCOME ANY ADDITIONAL MATERIALS ON WATER LAW AND POLICY THAT YOU WOULD LIKE TO SHARE WITH MYSELF AND THE ADVISORY COUNCIL. • SECOND, I RECOMMEND THAT ACCG AND GMA REACTIVATE AND CONTINUE THEIR JOINT WATER RESOURCES POLICY INITIATIVE, WHICH WAS COMPLETED IN 2001, WHERE ACCG AND GMA WERE KIND ENOUGH TO ASK ME TO KEYNOTE A SPEECH ON WATER ISSUES AT THEIR CONCLUDING CONFERENCE. YOUR WORK HAS BEEN INVALUABLE. • THIRD, I RECOMMEND THAT ACCG CONSIDER MAKING THIS WATER LAW CONFERENCE AN ANNUAL EVENT, AT LEAST FOR THE NEXT FIVE CRITICAL YEARS. BECAUSE WATER POLICY IMPACTS AT THE LOCAL LEVEL, THESE ISSUES SHOULD BE INTENSIVELY STUDIED BY GEORGIA’S COUNTIES AND MUNICIPALITIES WHO NEED TO HAVE A SEAT AT THE TABLE. • AND FINALLY, I RECOMMEND THAT AN ALLIANCE OF GEORGIA UNIVERSITIES AND COLLEGES BE ESTABLISHED AMONG ALL GEORGIA UNIVERSITIES WHO HAVE RESEARCHED WATER QUALITY AND WATER ALLOCATION ISSUES. THIS ALLIANCE WOULD COORDINATE A FULL EXAMINATION OF ALL EXISTING GEORGIA WATER LAW AND POLICY RESEARCH INITIATIAVES. AN ALLIANCE OF GEORGIA UNIVERSITIES SHOULD ALSO ESTABLISH AN IMPORTANT RESEARCH ARCHIVES, WHERE LEGAL SCHOLARS AND POLICY MAKERS FROM AROUND THE STATE CAN TURN TO AS WE DEAL WITH THESE COMPLEX ISSUES MOVING FORWARD.

THANK YOU AGAIN FOR YOUR INTEREST IN GEORGIA WATER LAW AND POLICY. AT THE END OF THE DAY, YOUR VOICES WILL MAKE A DIFFERENCE.