• Water Quantity Disputes •

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In recent years, change in climatic conditions worldwide has plunged the southeastern United States into first stage drought conditions, with some areas suffering from severe drought conditions. Across much of this region, streams, rivers and lakes are at the lowest levels ever recorded, a condition that has continued to worsen since the late 1980's as the southeast experiences mild winters, very hot summers, and below average rainfall. The persistency of the drought conditions, coupled with increases in water use by industries and growing populations has resulted in a controversy over water quantity in the usually water-plentiful gulf and southeast region. 

One such controversy is the so called "tri-state water war", between Georgia, Alabama and Florida. In 1990, the city of Atlanta, after assessing its projected population growth and future water needs, sought a permit from the Corps of Engineers to create reservoirs on the Chattahoochee, Flint, and Coosa Rivers that would retain an additional 529 million gallons of water a day to be stored in Lake Sidney Lanier, Atlanta's major source of drinking water. Atlanta's long-term plan included an increase in withdrawals of 50% from the Chattahoochee and Flint by the year 2010.

This proposal and announcement by the Corps set off a dispute between Georgia and its downstream neighbors, Alabama and Florida. Alabama viewed the plan as a threat to its own water supply, possibly stunting industrial and population growth in the state and resulting in degraded water quality due to the decrease in water flow. Alabama argued that the downstream flow already brings with it Atlanta's pollution and that a decrease in the water flow would mean more pollutants that would not get diluted. Florida joined the dispute contending that the plan to siphon off more water from the Chattahoochee and Flint rivers would deplete the flow into Florida's Apalachicola Bay and would critically injure the state's $70 million oyster industry.

Unable to convince Atlanta to halt its plans, Alabama filed a lawsuit in federal court to prevent the Corps from implementing the siphoning plan. Florida later joined the suit. In 1992, the lawsuit was suspended pending a comprehensive study of the future water needs of the three states. In apprehension of the results of the study, the three states entered into two interstate water Compacts that would allow the governors of each state and one federal appointee to analyze the study's finding and divide the water supplies accordingly.

The Compacts encompass two separate river systems. The Alabama-Coosa-Tallapoosa river basin (ACT) originates in north Georgia and southern Tennessee where the Coosa and Tallapoosa flow into northeast Alabama, meandering southward to join the Alabama and the Tombigbee rivers, eventually emptying into Mobile Bay. The Apalachicola-Chattahoochee-Flint river basin (ACF) also originates in the hills of north Georgia, flows through metropolitan Atlanta and winds south along the Alabama-Georgia border, joining the Flint River and emptying into Florida's Apalachicola Bay. The two river systems serve a wide variety of municipal, industrial and recreational uses and support a complex natural ecosystem.

The two Compacts are the first of their kind in the southeast. While water Compacts are commonplace in the water-scarce west, prior to this dispute only one other compact was in place outside the western region. There are many factors that must be considered in interstate water allocation. The first is the traditional water law doctrine that has developed in the United States: the older riparian principles of the eastern states and the doctrine of prior appropriation in the arid western states. Riparianism starts with the assumption that water is plentiful and available to all riparian and littoral property owners. Under this doctrine, all water uses are allowed as long as they do not unreasonably interfere with other uses. This means that water uses that have been in place for a long period of time and any new users have equal rights and entitlement to the water. This doctrine works well as long as water is plentiful and there are no disputes that involve "ownership" of the resource, however in times of water scarcity the shortcomings of the riparian system become evident. 

Prior Appropriation operates on the "first in time, first in right" principle. The first or prior user's rights are superior to later-arising uses, regardless of scarcity or social benefits. Users typically acquire rights from the state to withdraw and consume water and even in times of drought may continue to do so at the expense of subsequent users. There is also a relative new-comer to the water rights scheme that is being embraced by a growing number of eastern states, that of a hybridized version of the riparian and prior appropriation doctrines. 

The Legal Program is reviewing the traditional water rights doctrines, including the newer, hybridized version of the two doctrines, focusing on the states that have implemented this method and the changing supply and allocation demands that precipitated its evolution. This research addresses what role the riparian doctrine plays in the east in the face of increasing water disputes and how changing water rights will effect the adjudication of allocation disputes in the future. 

The Legal Program is currently analyzing how western states have resolved water quantity disputes, focusing on the shortcomings of each of the three traditional methods of resolution and examining how the experiences in the west can be used to establish a model for compact drafting, alternative dispute resolution, enforcement and modification and the federal government's participation. The Legal Program's analysis will create a template for negotiation, allocation and water compact agreements for future water quantity disputes. Results of this research will be published in law journal format and offered to water managers and planners through presentations at national and regional conferences and symposia.

University of Mississippi