News Release: English Common Law Makes The Most Common Sense in Georgia’s Fight for Water

I applaud Georgia Governor Sonny Perdue pushing for an agreement this legislative session on Georgia’s next steps in our tri-state water compact. Our neighbors in Alabama and Florida finally appear more receptive to reaching a consensus and solution.

I am not a lawyer, but having spent nearly a decade in the Georgia General Assembly, the majority as either Caucus Chairman, the Governor’s Floor Leader in the State Senate, or the Senate Majority Leader, so I do think I know the meaning of compromise, building consensus and finding Common Sense Solutions to the problems we face.

Georgia Property Law Descended from English Common Law & Riparian Water Rights

Old English common law is the way property rights have evolved in the original 13 colonies of the United States.  Georgia, one of those original 13 colonies, therefore, via a couple of hundred years of legal precedent, property and east coast water law follow the British tradition of riparian water rights.

In Old English common law, the primary natural asset is the land, rather than the streams, rivers, creeks, etc., which incidentally run off that land.  Riparian rights given ‘reasonable use access’ proportionate to the land ownership frontage along any body of water…allowing a land owner with a river running through his property, or living on a lake to make use of that water, as long as they don’t deny others access.

This standard in place for centuries also makes common sense for Georgians to make reasonable use of the water running under, through or stored upon its land.  There are nearly 700 miles of shoreline on Lake Lanier lined by thousands of Georgia residents, businesses and property owners, and thousand more to their north, lining the banks of the Chattahoochee and Chestatee Rivers, which join to flow through Buford Dam and form Lake Sidney Lanier.  Both of those rivers also have their headwaters in Georgia, so the water being damed is also a riparian asset of the state, and the millions of collective owners (residential and commercial).

Judge Magnuson’s decision of last July unfortunately more closely follows precedent established in U.S. Western water rights….such as the management of the Colorado River.  Simply put, Judge Magnuson placed a western coast ruling to an eastern coast waterway.  This flaw has caused our Governor and others to pursue legal appeal as the first line of defense to protect Georgia’s access to potable drinking water from the Chattahoochee, Chestatee and Lake Lanier.

It is important to recognize that private land owners may not be subject to certain water rights against federal, state, or local governments because those rights have been ceded to local government under governmental regulation, in this case the Rivers and Harbors Acts of 1945 or 1946 and the Water Supply Act of 1958.  Even in that case, Georgians still own the land, thus water, of the Chattahoochee River and Chestatee River, which is the source of water for Lake Lanier and Buford Dam.

Georgians Will Fight For What Is Rightfully Theirs

Georgians respect the rule of law, as well as their local, state and federal governments.  While we also fully appreciate the needs of our friends and neighbors in Alabama and Florida to also have the right to reasonable access to a potable water supply.

There are existing and historic patterns of consumption, during times of drought and normal flow.  The U.S. Army Corps has years and reams of data on how may billions of gallons typically flow through Buford Dam, as well as how releases change due to the already statutorily authorized needs of power generation, flood control and recreation.  Across the country there are 80 other dams, reservoirs and waterways, maintained or managed by the Army Corps with similar issues regarding no statutorily authorized use of potable water consumption.  Simply put, our Federal Government has never been in the water supply business.  They regulate inter-state commerce (shipping), power generation and supply and flood control.  Local cities, townships and counties withdraw, treat and distribute water to their millions of commercial and residential users.  That said, it is again only common sense to add the withdrawal, treatment and consumption of potable water supply to the authorizing legislation of all U.S. Army Corps of Engineers dams, reservoirs and waterways.

Though the state of Georgia and city of Atlanta unfortunately did not choose to participate in the 1945 funding of the construction of Buford Dam, those funds were drawn from the U.S. Treasury, giving all U.S. taxpayers (including those in North Georgia) a partial claim on the asset (Buford Dam), add to that the English Common Law precedent of Riparian rights for Georgia property owners along the lake and its tributaries, and the pure common sense of reasonable use of water supply and its clear that Georgia and Georgians will always have reasonable access to this water source that sits on 38,000 acres of Georgia land.

There are other measures that obviously need to be taken to preserve our water also.  State Senator David Shafer (R-Duluth) has already proposed a valid option regarding leak abatement for Georgia’s pipelines a week into the legislative session.  I fully support water conservation efforts and other proposals such as raising Lake Lanier’s authorized Full Pool Level to 1073 feet (currently 1071 feet above sea level).  This new water retention level could create billions of gallons of additional stored supply during times of non-drought.  Regardless, we will retain access to that water for potable drinking water.  What is ours is ours, just as what is there (Alabama, Florida and elsewhere) is theirs…this is just common sense.  Sharing is an age-old lesson.  Determine need, allocate resources appropriately, and write down a plan.  Revisit the plan as needs change.  This doesn’t have to be rocket science…it’s a lot more like, one for me, one for you, you know, common sense.

Bill Stephens

GOP Congressional Candidate

9^th District of Georgia

Resident, Cumming, Georgia (near Lake Sidney Lanier)