Florida made a last-ditch effort on Monday to convince Supreme Court justices to place limits on how much water Georgia farmers can consume along the Flint River, arguing that a failure to act would be a “death sentence” to the unique ecology of the Apalachicola Bay.
During an hour-long oral argument, conducted virtually due to the coronavirus pandemic, Florida’s attorney Gregory Garre said that Georgia’s “unrestrained” water use led to the collapse of the bay’s iconic oyster industry beginning in 2012. He said that a water-sharing decree by the court would provide “meaningful” benefits to the bay at “little to no cost to Georgia.”
“A decree would simply require (Georgia farmers) to prevent outright waste and adopt more efficient measures to save water while still irrigating,” Garre said. “That’s hardly asking too much.”
Georgia countered that its water use in the Apalachicola-Chattahoochee-Flint river basin, which originates near Lake Lanier, has been reasonable and that other factors, particularly Florida’s mismanagement of its fisheries, led to the oyster population’s decline.
“Florida has not shown by clear and convincing evidence that Georgia caused Florida’s alleged harms,” said Georgia’s attorney Craig Primis, who called Florida’s proposed decree “draconian.”
Monday’s events marked the second time in four years that justices have heard the suit, which Florida filed in 2013. The two sides have disagreed on many of the basic facts in the case, as well as their interpretations of separate recommendations made by a pair of court-appointed expert judges known as special masters.
Justices pressed both sides on those different interpretations on Monday, as well as the conflicting evidence presented. They also questioned the parties about how to balance business and environmental interests of the two states.
Credit: Blake Guthrie
Credit: Blake Guthrie
“This is about the most fact-bound case that we have heard in recent memory,” said Justice Samuel Alito, who suggested the two special masters offered conflicting views on a number of key points. “What do we do with that?”
Apalachicola once produced 10% of the country’s oysters. Florida argues that Georgia disrupted the delicate blend of freshwater and saltwater that the oysters rely on by siphoning off too much from the Flint River during a multiyear drought, hastening the bay’s ecological decline.
Though Florida once blamed metro Atlanta’s use of water from the Chattahoochee River, the Sunshine state has since backed off that claim. On Monday, Garre confirmed that Florida is now focusing exclusively on limiting use by farmers along the Flint, a tacit acknowledgment of metro Atlanta’s conservation efforts.
Garre suggested the court could halt illegal irrigation, enforce current water use permits, reduce farm pond evaporation and crack down on overwatering near the Flint, where a large chunk of Georgia’s cotton, peanut and pecan crops are grown.
Primis countered that such a ruling could cost Georgia hundreds of millions of dollars while providing only “negligible relief” to Florida, in no small part because of the complicated way the Army Corps of Engineers manages upstream dams.
“Granting relief on this record would be the very opposite of equity,” Primis said. “Georgia is home to more than 90% of the population, 98% of the jobs and 99% of the economy in the (Apalachicola-Chattahoochee-Flint river) basin.”
The most recent special master sided with Georgia in 2019, though several justices on Monday suggested they may not be content accepting all of his recommendations. At the same time, some of the justices appeared skeptical toward Florida’s arguments.
Chief Justice John Roberts compared the situation in Apalachicola to the Agatha Christie classic “Murder on the Orient Express,” in which multiple train passengers collaborate to commit the crime. He said that several factors may have led to the death of the bay’s oyster industry, including drought, overharvesting, Florida’s regulatory policies and Georgia’s upstream water usage.
“But you can’t say that any one of those things is responsible for killing the fishery,” Roberts said.
Garre responded that allegations of overharvesting were “utterly refuted by the evidence.” He added that “the fact that there could be contributing causes” does not let Georgia off the hook for its actions, which he said were the determining factor in the oyster industry’s decline.
“The one thing we know that has changed in the region over time is that Georgia’s consumption has drastically increased,” he said.
Jeffrey Harvey, director of public policy for the Georgia Farm Bureau, later criticized the way Florida characterized Georgia farmers.
“We have done a tremendous amount of work over the years focusing on conservation and the efficiency of our irrigation systems,” he said in an interview. “The cost of running these systems is so pricey. I think you’d be hard-pressed to find someone who’s running them more than they have to.”
The case has cost Georgia taxpayers upward of $49 million in legal fees — Floridians even more. It’s expected to set a legal precedent as climate change makes droughts and other extreme weather events more common in eastern U.S. states.
Chris Manganiello, water policy director for the environmental group Chattahoochee Riverkeeper, said justices seemed to be “trying to thread a needle” between Georgia and Florida’s interests.
“Obviously, it’s their job to ask hard questions and figure out what’s going on, and they seem to be really looking for some sort of middle ground between what are two really opposing end zones,” said Manganiello.
Georgia, Florida and Alabama have been fighting over water in the Apalachicola-Chattahoochee-Flint river basin for 30 years. Though Alabama is not a party to the Supreme Court case, it’s rooting for Florida because it also sits downstream from Georgia.
Following Monday’s oral arguments, Georgia Ackerman, executive director of the Apalachicola Riverkeeper, said she hopes justices can settle on a water-sharing approach.
“The Apalachicola River and Bay are suffering,” she said.
What’s next?
Supreme Court justices could accept the Dec. 2019 recommendation from their appointed expert judge that favored Georgia. Or they could opt to reject it, issue their own opinion or hold more proceedings.
Best case scenario for Georgia: Florida’s suit gets dismissed this summer. Several lower-level water cases are still ongoing.
Best case scenario for Florida: A favorable ruling could mean the case is sent to another expert judge to determine how water in the Flint River could be divvied between Georgia and Florida.
