Josh Goes Policy Wonk in Georgia-Tenn Border War

March 25, 2013 2:18 p.m.

A bit earlier we flagged this sort of weird story where Georgia (the US state of Georgia in case John McCain gets any bright ideas) is making a claim on a tiny sliver of Tennessee. And as usually happens, when we dip into a new story at least one reader writes in who understands the issue in great detail. In this case it’s TPM Reader JM …

Some background might be helpful for this Georgia goes to war with Tennessee thing. As a Georgia resident and someone who has been involved behind the scenes with this resolution’s crafting and advancement, what looks far-fetched at a glance is actually surprisingly substantive when examined. I’ve tacked on the official white paper that details this in much better depth but – speaking as someone who was very skeptical at first – I honestly can suggest there is a concrete legal argument buried in there.

The long story short is that the original border was drawn wrongly. Both sides agreed the border would be the 35th parallel, and both sides conceded through the 1900s the original survey was flawed, drawn a few hundred yards too south. Georgia has worked diligently to remedy this since the border was first drawn inaccurately, but Tennessee has refused to take action (Tennessee, however, did take action against Mississippi regarding the same 35th parallel dispute and won … otherwise the Memphis airport would actually be in Mississippi).

One of the biggest advocates of the bill is State Sen. Jason Carter, the grandson of President Carter, and it’s largely because his grandfather really kicked this off back in the 1970s when he convened a commission to review the dispute.

Take a look at the white paper which lays out the legal justification and a litany of precedent for why this isn’t as crazy as it seems.

I was intrigued so I asked for some more detail and JM obliged …

There never has been any impetus for Tennessee to treat this seriously because there hasn’t been any concerted legal strategy behind it. It’s been, for the most part, the Georgia state government puts together a commission or passes a resolution that says “let’s redraw this border” and nothing comes of it because it’s doesn’t force Tennessee’s hand. So our northern neighbors just shrug (or, as they did a few years back at the height of a severe drought, sent some pallets of bottled water to the Georgia General Assembly).

With this resolution, there’s a two-fold strategy:

1. There’s a clear compromise on the table. Tennessee gets to keep all the people who live in the disputed area, thus preserving that tax base and preventing any sort of mishaps on a whole host of other levels. Georgia, in turn, gets access to the Nickajack Lake, which is part of the Tennessee River system. Other attempts were either symbolic or not done in the spirit of protecting the residency of those folks in the disputed area.

2. There’s a stick tacked on to this carrot. An amendment that was added on the Senate floor authorizes Georgia’s attorney general to pursue legal action against Tennessee if the latter doesn’t respond by the end of Georgia’s legislative session in 2014 (which will close in spring since Georgia only has its sessions from January through March/April). This, from my understanding, is the real game-changer since it’s all been symbolic bluster for the most part up until now.

Judging by the Tennessee response today, it seems the latter has at least gotten their attention.

Now, regarding water rights, there are a couple of interesting arguments. Tennessee’s main argument is that Georgia is not riparian to the Tennessee River (given the existing boundary) and, therefore, can’t access the water. Georgia’s argument is a bit more multi-faceted. For starters, if you examine the historical arguments and review the judicial precedents, thus conceding the 35th parallel should be properly sited, Georgia becomes riparian to the river through access at Nickajack. That’s the most basic approach.

Additionally, the Tennessee River’s headwaters are located in Georgia, churning out 1.6 billion gallons of day from Georgia for Tennessee. However, there are two other interesting elements to that discussion:

1. The Tennessee River is managed by the Tennessee Valley Authority, meaning the entire river system has been federalized. As such, the TVA would be bound by an 1802 agreement known as the Cession Agreement granting Georgia’s original riparian status (to say nothing of the fact that the TVA serves parts of North Georgia and owns three hydroelectric plants in the state).

2. Tennessee used to permit transfers of water from Nickajack to Georgia prior to 2000 which is when the issue started to smoke again. At that point, Tennessee passed state legislation restricting the sale of water to Georgia. In a sense, then, Tennessee was conceding Georgia could have access to system up until it became politically beneficial for them not to. Additionally, where a river forms a border between two states, it is governed by federal common law and neither state can impose inconsistent state law regulations on the other side.

The Tennessee River has one billion gallons of water that is considered to be “excess capacity” and that amount, the TVA determined, could be extracted without impacting the downstream reservoir levels. Georgia simply wants a fraction of that.

It’s a weird story, to be sure, but one that even grew on me.

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