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Rewriting Georgia Water Law in Two Acts

May 31, 2013

As the Georgia Water Coalition worked on SB 213 (Flint River Drought Protection Act revision) during the 2013 legislative session there was much discussion about the parallels folks saw with the failed 2003 permit trading bill (HB 237).   Just as a point of reference, in final form, HB 237 passed the House and Senate in 2004 and became the Comprehensive State-Wide Water Management Planning Act.

In essence, SB 213 can be interpreted as an attempt to implement a framework what was lost in the original HB 237 fight a decade ago.  Below you will find an assessment of the similarities between a past and present attempt to rewrite Georgia water law.  These two stories also reveal that the movement to change water law was and remains driven by a small interest-group’s desire to privatize water for “water exchanges” to benefit metro-Atlanta at the expense of the state’s other regions.

First – like SB 213 – HB 237 was sold as a benefit for farmers.  HB 237 was also popular among some industrial (primarily the pulp and paper manufacturers) and municipal users.  The idea was that farmers or industry could sell their permits (or portions of their under-utilized withdrawal limits) to communities building new subdivisions or other industries (including proposed power plants).  Or permits could be sold to the highest bidder, who might then decide to pipe the water far away to a place like Atlanta via an interbasin transfer.  I discovered no reference to endangered species in the HB 237 debate, which was a rallying cry in Senate and House committee meetings for SB 213 advocates eager to protect farmers from an alleged endangered species lawsuit.

Second, the people behind HB 237 and SB 213 were the same people or special interests who used some of the same tactics.  According to Jay Bookman – who wrote the following in a 2005 Atlanta Journal Constitution op-ed – “Supporters of the bill [HB 237], including Harold Reheis, then head of the state Environmental Protection Division, at first tried to deny the bill’s revolutionary impact, hoping to sneak it into law before anyone understood its implications.”  This is the same tactic we saw with SB 213.  SB 213 was written to replace riparian rights with prior appropriation.  This change would protect operation of a large aquifer storage and recovery (ASR) scheme promoted by Joe Tanner & Associates (where Reheis is currently employed).  Other folks promoting SB 213 included former Rep. Bob Hanner, who also introduced HB 237.

Third, HB 237 – like SB 213 – was supposed to be geographically limited.  HB 237’s water permit trading was supposed to be limited to southwest (Flint) and southeast (coastal) Georgia.  Of course, SB 213 was supposed to be limited to the Flint, but the augmentation provisions could be exercised in other river basins as discussed in the Southwest Georgia Regional Commission’s initial application to the Governor’s Water Supply Program for state direct investment in an ASR project. (The SWGRC and the contractors’ consortium, including Joe Tanner & Associates, have since withdrawn from the ASR project.)

A fourth similarity: HB 237 – like SB 213 – was apparently designed so the state might ‘claw back’ un-used or under-utilized water withdrawal permits.  Such an action would increase the value of utilized permits should they ever be sold on an open market.

Fifth, during HB 237 debates, the paper industry understood that permit trading “will codify the method of moving permits….[and] gives a number of new options in water management,” according to an International Paper company spokesman interviewed for a 2003 Atlanta Journal Constitution article.  It is hard to imagine that the paper folks working SB 213 did not see the same potential to buy, sell and trade water withdrawal permits to benefit metropolitan areas like Savannah and Atlanta.

Sixth – prior to the introduction of HB 237 and SB 213, the EPD director suspended “consideration of agricultural” water withdrawal permits in the lower Flint and Chattahoochee river basins.  In May 2013, EPD decided to stop taking new applications for all groundwater withdrawals in Georgia’s Coastal Plain.  While this is a good move for groundwater supplies, it is also another way to increase the value of existing and utilized permits.

What does a comparison of HB 237 and SB 213 tell us?  First, SB 213 looks like a vehicle for what was lost in the original HB 237 fight.  Second, a small interest group continues to think the solution to Georgia’s interstate and intrastate water supply problems lies in an alteration of Georgia’s water law.  Third, this movement is motivated by profit.  The drive to privatize water and alter water law comes from the top-on-down and not from the grassroots.  If these changes would really benefit all Georgians and downstream communities equally, the discussions and actors would be more transparent.

-Chris Manganiello

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