Apalach to join state suit

Brenda Ash Photo available for purchase

Brenda Ash

David Adlerstein
Published: Wednesday, August 21, 2013 at 01:49 PM.

In keeping with the legal strategy it first began six years ago, Apalachicola has voted to join the state in its upcoming suit against Georgia to secure more water for Apalachicola Bay.

By unanimous consent at a special meeting Friday afternoon, city commissioners gave the go-ahead for City Attorney Pat Floyd to pursue a two-pronged legal strategy - joining forces with the state, as well as researching the feasibility of basing a suit on inverse condemnation, a legal term for when a government takes private property but fails to pay the compensation required.

City Commissioner Frank Cook was absent from the meeting, which had been called by Mayor Van Johnson just two days earlier.

Johnson emerged as a strong proponent for taking legal action, just as he was in Nov. 2007, when he pushed for the city to join the state in suing the Army Corps of Engineers. While she eventually voted in favor of joining the suit, Commissioner Brenda Ash led the push for specifics as to the financial cost of resuming this legal battle.

The mayor began by reading the 2007 resolution, passed unanimously, which had first involved the city in the “water wars” legal battle. That suit initially received a favorable ruling in 2009 from Senior U.S. District Judge Paul Magnuson, who said it was illegal for the Corps to draw water from Lake Lanier to supply the metro-Atlanta region. His ruling also established a July 2012 deadline for Georgia, Alabama and Florida to come to an agreement on how to share the water.

But, in June 2009, the 11th Circuit Appeals Court unanimously overturned Magnuson’s ruling, and said that there had not been a “major operational change” regarding the Corps’ policy. The appeals court ruled that one of the purposes for Lake Lanier was to supply water to the metro-Atlanta region, and directed the Corps to make a final determination on water allocation from Lake Lanier.

“We first sued the Corps and Atlanta interests and we went through the process that it was illegal to take this (water) without going to Congress to get permission,” Floyd said. “This was a major operational change, and they had to go back to Congress to get it. (But) the Corps continued under the interim plan, and continued to increase the water.”

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