Georgia wins major victory in legal fight with Florida over water use

Judge’s recommendation now heads to Supreme Court

Editor’s note: This article has been updated with additional details throughout.

An expert federal judge recommended Thursday that the U.S. Supreme Court dismiss Florida’s 6-year-old water rights case against Georgia, handing Georgia a major victory in a dispute with vast implications for both states’ economies.

Florida is requesting strict limits on Georgia’s water usage, arguing that its upstream neighbor helped kill its once-thriving oyster industry during a 2012 drought.

Judge Paul Kelly said Florida’s request should be denied because “the evidence has shown that Georgia’s water use is reasonable.”

"The evidence has not shown that the benefits of apportionment would substantially outweigh the potential harms," Kelly wrote in his recommendation to the court.

The conclusion from the Supreme Court-appointed "special master" prompted jubilant responses from Georgia officials, business and regional planning groups. And it came surprisingly quickly - the New Mexico-based Kelly heard oral arguments for the case in an Albuquerque courtroom just five weeks ago.

Read more:Your cheat sheet to the Georgia-Florida water wars

Florida is seeking a cap on Georgia's water usage in the Apalachicola-Chattahoochee-Flint river basin through 2050among other remedies. Florida warned that without a steady, guaranteed stream of freshwater from Georgia to grow oysters, the ecology and economy of the Panhandle region could be permanently damaged.

The Apalachicola-Chattahoochee-Flint basin originates northeast of metro Atlanta and flows into the Gulf of Mexico, serving as the main source of drinking water to more than 4 million people, including roughly 70% of metro Atlanta. The basin also irrigates farms in southwest Georgia, a cornerstone of the state's $13.8 billion agriculture industry.

Kelly's recommendation is not an end to the case. Supreme Court justices must now decide whether to accept or reject his report, convene oral arguments in Washington or call for Kelly to revisit the case. If the justices want to hear from Florida and Georgia in person - like they did in January 2018 - it's not clear whether they would have time to do so before the end of their current term in June.

‘Reasonable’ consumption

Georgia argued in court that Florida’s proposed water limits were “draconian” and would cost the state hundreds of millions of dollars to implement for negligible results. That’s due to the complicated way the U.S. Army Corps of Engineers controls its locks and dams in the region.

Kelly agreed about the Corps.And he tipped his hat to metro Atlanta conservation measures that include a large-scale leak detection program, the replacement of inefficient toilets and a campaign to educate the public on best practices.

He said agricultural water usage along the Flint River basin wasn’t as cut and dry - especially during droughts.

“On the one hand, I find that Georgia’s use of irrigation in agriculture provides great value (especially during drought), and Georgia has implemented a number of agricultural efficiency measures,” he wrote. “On the other hand, when severe droughts hit the region, Georgia’s agricultural consumption only increases, and Georgia has not effectively curbed this use.”

Low freshwater flows helped contribute to the crash of the Apalachicola Bay’s oyster population on Florida’s Gulf Coast in 2012, Kelly concluded, but “drought was a more significant cause of the low flows than Georgia’s consumption.”

“Other evidence also supports Georgia’s position that (oyster) overharvesting and a lack of re-shelling were significant causes of the collapse,” Kelly said.

‘Good stewards’

The report thrilled Georgia officials, including Gov. Brian Kemp.

“We greatly appreciate Special Master Kelly’s recognition of Georgia’s strong, evidence-based case in this litigation. We will continue to be good stewards of water resources in every corner of our state, and we hope that this issue will reach a final conclusion soon.”

Noah Valenstein, secretary of the Florida Department of Environmental Protection, said he was “extremely disappointed” by the recommendation and that the state “remains committed to restoring the historic flows of the Apalachicola River and the families who rely on this river for their livelihood.”

“We are in the process of reviewing the report in its entirety and are evaluating our legal options,” Valenstein said.

The case has cost Georgia nearly $50 million to defend and far more for Florida to prosecute.

At least one prominent Floridian framed the lawsuit as a mistake after Kelly made his recommendation public.

When Florida Gov. Ron DeSantis “approved oil & gas drilling in the Apalachicola River Basin, FL’s standing to argue that we care about water rights and water quality in the Apalachicola Basin was lost,” tweeted former Democratic congresswoman and gubernatorial candidate Gwen Graham.

Florida, Georgia and Alabama have tussled over water rights for the last 30 years. (Alabama sat out of the Supreme Court case but supports Florida.) Two other cases involving water use in the Southeast are currently making their way through federal court.

The officials overseeing water planning for metro Atlanta celebrated Kelly’s findings as evidence that the region’s conservation work was proving fruitful.

“Since 2001, water withdrawals in metro Atlanta have dropped by 10 percent, even as our population has increased by 1.3 million,” said Katherine Zitsch, director of the Metropolitan North Georgia Water Planning District. “We are mindful that these precious resources are shared, and we remain committed to good water stewardship.”

Staff writer Greg Bluestein contributed to this article.