Allocation agreement is unconstitutional, says George Washington University lawyer

By Staff | September 17, 2001 | The Post | Cherokee County, AL

At least one lawyer who has read the latest allocation agreement between Alabama and Georgia believes it's so legally unsound that it could even be deemed a written attempt to usurp the United States Constitution.

"When I saw the Dec. 13 version of the proposal, I was surprised by the approach the states took because, honestly, I didn't think they would make as many mistakes as they did," attorney George William Sherk told The Post on Sept. 12.

"I know some of these people working on this thing, and they're good lawyers. But this is bad lawyering," he added, referring to the agreement.

Sherk, a practicing attorney and lecturer in the School of Engineering and Applied Science at George Washington University in Washington. D.C., wrote in a extensive legal analysis made public earlier this month that the latest agreement for the sharing of water in the Alabama-Coosa-Tallapoosa river basin is "substantively flawed" and appears to violate the Constitution. In his report, Sherk cited over 35 court cases, some dating back to the 1800s and almost all involving disputes over water.

Trey Glenn, Division Director for the Alabama Department of Economic and Consumer Authority, said lawyers in his office have not yet finished looking over the report.

"We received a copy of the document from a third party," said Glenn. "We have not completed our review, but we disagree with the general premise (of the analysis)."

Sherk released the 37-page report on Sept. 6. Titled "The ACT Allocation Formula Agreement: An Analysis of Legal Issues and Implementation Impediments," the paper asserts that the current agreement is an unconstitutional attempt by negotiators to "change the use or operation of federal facilities or to exempt private facilities from the requirements of federal laws."

Sherk said some of the most problematic areas of the agreement deal with attempts by negotiators from the two states to establish rules and regulations that conflict with already existing federal laws and regulations.

"Georgia has taken the position that it has sovereignty over all water resources in the state and that this sovereignty controls over the requirements of federal law," Sherk told The Post. "That's flat wrong. I don't know if that's politics or a case of a lawyer simply telling a client what the client wants to hear, but the U.S. Constitution doesn't allow Congress to permit states to supercede federal laws and regulations, which is what Georgia is apparently trying to do through the allocation agreement."

Sherk quoted several passages in the allocation agreement in which Georgia directs the U.S. Army Corps of Engineers (COE), a federal agency, how to operate reservoirs in the ACT river basin. Specifically, Sherk referred to wording from the agreement from Section 2.1 which reads: "The Corps of Engineers shall make weekly average releases from Allatoona Dam and Carters Regulation Dam ... "

The report reprinted several passages from the agreement, all from Section 2, and all of which included the term "shall" when referring to tasks to be performed by the COE. Sherk claims the use of this key word in the proposal makes his argument that the states are trying to circumvent long-established federal procedures.

Sherk, who said he became interested in the interstate water negotiations while teaching at Georgia State University in Atlanta from 1994-96, claims the nature of the wording is unconstitutional because it usurps federal authority vested in Congress by the Constitution and changes the purposes for which federal projects were initially authorized.

He said only Congress can alter directives in such a manner.

"Several federal agencies, including the Environmental Protection Agency and the Army Corps of Engineers, have already sent letters to Lindsay Thomas pointing out what's wrong with the agreement," Sherk said.

Sherk said problems between federal and state in the area of water law have existed for a century, but became exacerbated in the early 1980s when funding for the Water Resources Council (WRC) was cut completely by the Reagan administration. Sherk said prior to that, the WRC had attempted to resolve disputes arising between conflicting federal and state water laws and policies.

"Congress was left to muddle through disagreements over disputes involving water usage, quality, and apportionment, as well as environmental and conservation issues after the WRC was zeroed out of the federal budget," Shrek said.

Sherk said that, at least in this particular case, it looks like Congress failed to do its job.

"I have talked to congressional staff members who can't figure out what Congress was doing when they gave the go-ahead for Alabama and Georgia to decide this issue on their own, because states cannot agree amongst themselves without congressional approval," Sherk said.

Sherk also wrote in his report that the riparian water rights doctrine in existence in Georgia clearly decrees that interbasin transfers the permanent removal of water from one river basin to another, which the allocation agreement permits are illegal.

Alabama sued the COE 11 years ago to prevent it from changing the use of Lake Lanier to provide additional water supplies to Atlanta. When the COE told Georgia that water from Lake Lanier would not be used for public consumption in metropolitan Atlanta, the state filed suit to gain access to the reservoir. The states have been trying to negotiate an out-of-court settlement since 1997, but have made little progress. The states have been attempting to reach an agreement partially to avoid the eventuality of having the case settled in the United States Supreme Court. That, said Sherk, is an alternative that could prove disastrous for everyone involved.

"The very first interstate case tried before the Supreme Court was a water dispute between Kansas and Colorado," Sherk said. "That case began in 1901 and is still before the court."

Sherk claims the COE is correct in deciding to limit the use of the water in Lake Lanier to hydroelectric power generation and flood control.

"In 1945 and again in 1946, Atlanta had a chance to contribute to the construction of Lake Lanier, but chose not to," Sherk explained. "As a result, the federal government built it without Atlanta's help and the city lost all legal claim to any of the water in that reservoir for public supply." Sherk said this particular issue could have been avoided if Atlanta had used "a little foresight" 50 years ago.

Sherk said as a result of these facts, which he obtained from the National Archives in Washington, D.C., he feels Georgia has a "very weak case" against the COE.

Federal commissioner Lindsay Thomas refused to comment on the specifics of Sherk's analysis. He said his federal group planned to review the report and issue a statement in the near future.

"It is too early to say what the impacts of this report will be at this time," said Thomas.

Calls to the Anniston office of Jimmy Campbell seeking a reply to Sherk's analysis were not returned by press time. Campbell is the attorney in charge of Alabama's water compact negotiating team.

Other problems brought up by Sherk in his report include Alabama's apparent acceptance of the term "reasonable use" to apply limits to the amount of water Georgia can remove from the ACT basin before it reaches the state line.

"It is in no way a limit on consumption," Sherk wrote in his report. "Under Georgia law, a use is reasonable if a state agency or reviewing court on any given day concludes that it is reasonable. Apart from stream flows required by federal laws and regulations, there is no quantifiable limit on reasonable use of water in Georgia ... In essence, Alabama gets nothing from the allocation agreement that it did not have when it filed suit against the COE in 1990."

"I don't know what Alabama negotiators were thinking when they agreed to language like that," Sherk said.

Sherk is the latest in a growing line of experts to speak out publicly against the latest version of a water sharing proposal between Alabama and Georgia. Previously, Auburn University professors Dr. David Baine and Dr. Mike Meceina warned that the agreement could be detrimental to the Coosa River and Weiss Lake, as well as Cherokee County's estimated $200 million annual tourism economy.

Sherk began writing the analysis of the allocation agreement on his own with the intention of eventually submitting the work for publication in a law review magazine. He said after the project began, he realized the errors in the agreement must be brought quickly to the public's attention. It was then that he decided to release the report to the public instead of waiting up to six months for it to appear in a magazine.

see also:

ACT not great Interest Stories - Environment: Watersharing plan improves, but still not great
Alabama-Coosa-Tallapoosa River Basin compact: better, still not great.

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