Florida, as promised, asked the U.S. Supreme Court on Tuesday to order Georgia to let more Chattahoochee River water flow into the Panhandle to keep the state’s oyster industry afloat.
Gov. Rick Scott, sidestepping the traditional, up-through-the-courts legal process, requested that the justices ultimately decide the thorny and protracted interstate dispute that, of late, has broken Georgia’s way. He wants to cap Georgia’s withdrawals from the Chattahoochee at 1992 levels, according to a brief filed Tuesday.
The Supreme Court hasn’t determined an apportionment of water between competing states since 1945. Yet a variety of water rulings and environmental laws promulgated over the last half century give Florida a fighting chance, water-resource experts say.
One thing is clear: The 23-year-long “water war” between Georgia, Florida and Alabama is set to enter yet another costly, lengthy phase.
Scott, in a statement released Tuesday, vowed “to stop Georgia’s unmitigated consumption of water.”
“After 20 years of failed negotiations with Georgia, this is our only way forward in securing the economic future of northwest Florida,” he added.
A spokesman for Georgia Gov. Nathan Deal labeled the proposed lawsuit “frivolous” and “political theater” and vowed to fight for the state’s water rights.
“We’ve won consistently in court and will defend Georgia’s water rights vigorously in the Supreme Court, because our case is the only one with any merit,” Brian Robinson said.
A spokeswoman for Alabama Gov. Robert Bentley said the state “will consider all available options to protect our right to a fair share of the water in the Chattahoochee River.”
No official from Georgia, Florida or Alabama would say whether the states have held discussions recently to resolve the water war.
The Chattahoochee joins with the Flint River at the Georgia-Florida line to form the Apalachicola River, which flows 110 miles into the eponymous bay. The confluence of fresh river water and salty Gulf of Mexico water provides a nutrient cocktail that sustains the bay biologically and, therefore, financially.
The bay accounts for 90 percent of Florida’s oyster supply and 10 percent of the nation’s. Hundreds of oystermen, seafood processors and truck drivers depend on the oyster harvest for their livelihood.
The National Oceanic and Atmospheric Administration ruled in August that low water flows, primarily due to drought, have caused an Apalachicola fishery disaster. Tuesday, Scott blamed “Georgia’s unmitigated consumption of water” for upsetting the critical fresh-salt water balance.
But Scott has acknowledged that other factors, including overfishing, have also played a role in the oysters’ decline.
Florida’s lawsuit comes after a string of court victories for Georgia that has tipped the water war in its favor. Last year, the Supreme Court declined to review a decision by the 11th Circuit Court of Appeals allowing metro Atlanta to tap into Lake Lanier which is fed by the Chattahoochee and serves as the region’s major water source.
Florida filed a so-called motion for leave Tuesday which, in essence, asks the Supreme Court to hear its latest lawsuit against Georgia. The justices could consider the request if — government shutdown notwithstanding — they return to the bench next week. Typically, though, the court seeks the opinion of the U.S. Department of Justice and the various parties before deciding to take on an interstate tussle.
If accepted, the justices will likely appoint a “special master” to investigate the water-sharing claims of Georgia, Florida and Alabama. The master will likely dredge up all the water war’s well-trod issues: withdrawals from Lake Lanier; Atlanta conservation measures; federal management of power-generating dams; and low-flow impacts on endangered species.
Robin Kundis Craig, a water law expert at the University of Utah College of Law, estimated this next legal phase could take five years. She said past legal victories may mean little to a special master or the Supreme Court. Craig noted that justices sided with New Jersey fishermen over New York City’s growing water needs to determine an appropriate allocation of the Delaware River in 1931.
“Florida definitely has a good argument on the merits that shows the Apalachicola Bay has been measurably damaged by the failure to have a guaranteed flow of water into the Apalachicola River,” she said. “Especially in times of drought, that flow is damaging a needed Florida industry.”
George William Sherk, a water resource attorney who taught at Georgia State, said federal environmental law, including the Clean Water and Coastal Zone Management acts, could trump past legal decisions pertaining to Lake Lanier.
“In essence what Florida has done is open the door to federalizing the watershed,” said Sherk, who once represented downstream Chattahoochee River users in the tri-state water war. “But the states have long buried their heads in the sand and said they don’t have to comply with federal laws. Now, there is no way to avoid the requirements of federal law.”
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