Judge Paul Magnuson's recent decision involving the metro Atlanta water situation could have done more to effect a solution.
What?
Reflecting upon my earlier (16 October 2007; 23 October 2007; 5 November 2007; 16 November 2007; 8 February 2008; 5 August 2008) and last two (19 August 2009 and 20 August 2009) posts on the metropolitan Atlanta water situation has led me to conclude that the recent decision of Judge Paul Magnuson (see Watercrunch's post) didn't go far enough - he should have appointed a watermaster to oversee the situation.
That is a drastic step, but a watermaster is needed to "persuade' Alabama, Florida, and Georgia to resolve their differences and help metro Atlanta get on a water diet so that three years from now it won't become the world's largest purchaser of bottled water.
So let me explain myself, but first, some background.
About seven years ago I listened to my then-University of New Mexico colleague, law professor Chuck DuMars, talk about the chances that Alabama, Georgia, and Florida would amicably reach a compact agreement for the Apalachicola-Chattahoochee-Flint Basin (ACFB).
The accompanying map, from the U.S. Army Corps of Engineers, also shows the adjoining Alabama-Coosa-Tallapoosa Basin (ACTB).
Chuck, a brilliant water lawyer, was in the employ of Georgia at the time. He described the efforts to develop a compact, and was optimistic that the three states would reach an accord without more litigation. He noted that the technical people from each state were working together to develop a model (or models) that all could agree upon, thereby bypassing the dreaded 'dueling experts' syndrome ("Mine is bigger than yours."). This approach, he said, was quite different from previous cases in which he had been involved and would facilitate a compact agreement.
I left the presentation optimistic and enthusiastic, believing that the Southeast could get it right, unlike the West.
Boy, did I get it wrong!
Somewhere between then and now the wheels fell off, and the three states are still squabbling over water allocation and use in the ACFB. It's been almost 20 years of disagreements, which is actually short compared to some Western water water law fights.
I've spoken to some colleagues about why the process failed; I won't go into those reasons here.
I now question whether the three states can reach an agreement in three years, even though there is a gun being held to their (or at least Georgia's) head. Some have opined that the three governors, Sonny Perdue (R-GA), Charlie Crist (R-FL), and Bob Riley (R-AL), each a Republican with about 18 months left in office, can get this on track and leave a legacy of sorts. I don't know all the political dynamics involved, but I am skeptical that three years can accomplish what needs to be done.
That is where a court-appointed watermaster could come in, reminding all involved of the court's looming presence and cajoling or knocking heads when necessary. The ideal watermaster would be someone knowledgeable about water but would not a stakeholder - preferably someone from out of the region who'd be viewed as an 'honest broker' by all three states.
The watermaster would not only help the three states reach an agreement, but would also be in charge of managing the basin's water. That's an unusual dual role - my limited experience suggests that a watermaster is appointed to enforce an agreement, not to help broker one.
This step might be viewed as some as an unwarranted Federal intrusion, but it needs to be implemented; the states have shown that they can't do it alone. The stakes are high. And these are indeed unusual times.
Suggestions? I've got one - Pat Mulroy. Why not? You want someone who can get the job done? A person who won't be intimidated by politicians? Someone without a vested interest in the outcome, right? Her only drawbacks might be too big for some - a go-go-growth philosophy and proclivity for increasing supply instead of managing demand. But if anyone can do it, she can.
As I said earlier, these are unusual times, and an unusual approach is requisite.
Not to mention unusual people.
"I think the governors all felt they were likely to be victorious. I kept telling them that if you don't settle it, somebody's going to win and somebody's going to lose." - US Sen. Jeff Sessions (R-AL)
"A cynic is a man who, when he smells flowers, looks around for a coffin." -- H.L. Mencken
Hi, Chris.
Thanks for your comments - always appreciated.
What I want is someone one doesn't encounter often, if ever: a person who functions both as a watermaster (manage the basin) and a special master (broker an agreement). The ACFB needs both right now; I just decided to call him/her the "watermaster", but perhaps "Superman" or "Superwoman" is more appropriate!
Posted by: Michael | Sunday, 23 August 2009 at 08:11 PM
I think you are right that a watermaster will be necessary for this basin, but it may be too soon for that. What will likely be needed first is a special master. That is the name for a court-appointed expert who helps the parties to a complex dispute work out a settlement that would be entered as a decree, which may then be implemented by a water master. A water master is typically someone with technical expertise who can figure out the engineering aspects of making the decree work, while a special master is usually someone with both legal and technical expertise who can help develop a legal framework for resolving the competing interests of the parties in a (hopefully somewhat) workable compromise.
Posted by: Chris Brooks | Sunday, 23 August 2009 at 07:32 PM