Florida to Supreme Court: Ga’s excessive water use killing bay’s oysters

An oysterman works his oyster tongs in Apalachicola Bay near St. George Island. In the distance is the five-mile long bridge that connects the island to the mainland. Credit: Blake Guthrie
An oysterman works his oyster tongs in Apalachicola Bay near St. George Island. In the distance is the five-mile long bridge that connects the island to the mainland. Credit: Blake Guthrie

Credit: Blake Guthrie

Credit: Blake Guthrie

Justices to hear 8-year-old water rights case on Feb. 22

In the early 1980s, Steve Rash would drive across the bridges that ring Florida’s Apalachicola Bay and see fishing vessels so crammed together on the water that a person could walk from boat to boat.

There were hundreds of oystermen using traditional wooden hand tongs to harvest the estuary’s culinary jewel. Business was good.

LISTEN TO REPLAY: Supreme Court hears oral arguments in Florida v. Georgia, a case on water rights law

As recently as 2008, one in every 10 residents of Franklin County held an oyster license. Together, they harvested roughly 10% of the country’s wild oysters.

ExploreYour guide to the Florida-Georgia Supreme Court water case

But all of that came crashing down in 2013, when the oyster population collapsed and never recovered.

Rash, the owner of the distribution company Water Street Seafood, would drive across the same bridges and see only a few dozen boats plying the bay. Within a few years, it was down to only one or two. And, as of six months ago, following an extraordinary move by the state fish and wildlife commission to ban oyster harvesting for five years, there are now zero.

In this file photo, oystermen head out from Eastpoint, Fla. for a day of fishing in the Apalachicola Bay. DAN CHAPMAN
In this file photo, oystermen head out from Eastpoint, Fla. for a day of fishing in the Apalachicola Bay. DAN CHAPMAN

Ask many Floridians what’s responsible for the bay’s blight and they point to their upstream neighbor. It was Georgia, they argue, that siphoned off too much water from the basin that feeds the Apalachicola River, upsetting the delicate balance of fresh and salt water the oysters need to thrive.

Now Florida is hoping to make Georgia pay. Supreme Court justices on Feb. 22 are scheduled to hear a water rights case the Sunshine state filed eight years ago in response to the oyster industry’s decline.

If Florida gets its way, hundreds of farmers along the Flint River in southwest Georgia and potentially residents of parts of metro Atlanta could see strict limits placed on their water consumption — particularly during drought years.

ExploreWater war shifts to southwest Georgia as Florida takes aim at farmers

The burden will be on Florida to convince the court that the benefits to the Bay will outweigh the costs to the Peach State’s economy.

Without the court’s intervention, Florida’s lawyers wrote in a July 27 filing, “Apalachicola faces a death sentence.”

‘Lost without them’

Florida and Georgia’s squabbling over water is nothing new. The two neighbors, along with Alabama, have tussled over water rights for more than three decades. Alabama is not a party to the Supreme Court case but is backing Florida.

The current fight centers on the Apalachicola-Chattahoochee-Flint river basin, which begins in the North Georgia mountains. The water flows through dammed Lake Lanier, and along the Alabama border to Lake Seminole, where it meets with the Flint before feeding into the Gulf of Mexico via a sleepy section of the Panhandle coined “the Forgotten Coast.” The basin serves as the main source of drinking water for roughly 70% of metro Atlanta and irrigates many farms in southwest Georgia.

This aerial photograph shows the Flint River near the Decatur-Mitchell County line on October 17, 2019. (Hyosub Shin / Hyosub.Shin@ajc.com)
This aerial photograph shows the Flint River near the Decatur-Mitchell County line on October 17, 2019. (Hyosub Shin / Hyosub.Shin@ajc.com)

Credit: HYOSUB SHIN / AJC

Credit: HYOSUB SHIN / AJC

Georgia argues its water use has been reasonable and that Apalachicola’s oysters have suffered because of climate change, Florida’s lax fishing oversight and overharvesting following the 2010 Deepwater Horizon oil spill. The state’s lawyers have warned that any court decree limiting Georgians’ water use would cost hundreds of millions of dollars to implement. It also would have negligible results due to the complicated way the Army Corps of Engineers operates the river basin’s locks and dams, Georgia’s attorneys say.

“The benefits to Florida are small and speculative,” Georgia wrote in its latest court filing in June, “because Georgia uses much less water than Florida claims.”

A court-appointed expert judge sided with Georgia in late 2019. His recommendation is expected to carry major weight.

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

If the Supreme Court doesn’t step in, Floridians say, the world stands to lose one of the most ecologically unique and productive estuaries on the planet. Area residents have harvested Apalachicola oysters — known for their plump size and saline, slightly sweet taste for at least 5,000 years. At its peak, the bay supplied about 90% of Florida’s oysters.

Apalachicola Bay is known for its slow pace, fantastic oysters and equally fantastic natural scenery
Apalachicola Bay is known for its slow pace, fantastic oysters and equally fantastic natural scenery

Credit: Mike Williams / Cox News Service

Credit: Mike Williams / Cox News Service

Oysters are a keystone species; their reefs form a habitat for marine life such as shrimp, flounder and crabs. They improve the estuary’s water quality by filtering algae, and their beds help lower shoreline erosion by reducing the power of waves coming in from the Gulf of Mexico. But oysters are extremely sensitive to salinity levels, which is why less river water flowing into the estuary — say, from a drought or increased use upstream — can have an immense impact on the mollusks’ ability to survive. The same is true if oysters are overharvested and not given enough time to grow to maturity and reproduce.

The industry’s decline forced many full-time oystermen — some of whom hail from families that have worked the bay for generations — to move elsewhere. Others have switched to working in industries like construction and tourism.

Rash is worried that the Apalachicola he fell in love with four decades ago — the one where the community newspaper prints detailed water quality reports, ministers bless the fishing vessels and revelers gather at the annual seafood festival to crown a King Retsyo, which is “oyster” spelled backward — is quickly slipping away.

“Oysters are the foundation, the way of life,” said Rash. “The whole area is kind of lost without them.”

The last resort

As the case wound its way through the high court’s labyrinthine process, Florida officials took actions of their own to try to reverse the bay’s collapse.

The Florida Fish and Wildlife Conservation Commission significantly reduced oyster harvest limits and cut down on the number of fishing days. It blocked off portions of the bay and installed “check stations” to make sure oystermen were adhering to bag limits and rules that only mature oysters could be harvested.

But nothing seemed to reduce the population’s downward trend — even years of above average rainfall.

This graphic provided by the Florida Fish and Wildlife Conservation Commission shows how oyster harvests have crashed since 2012 in Apalachicola Bay.
This graphic provided by the Florida Fish and Wildlife Conservation Commission shows how oyster harvests have crashed since 2012 in Apalachicola Bay.

Credit: Florida Fish and Wildlife Conservation Commission

Credit: Florida Fish and Wildlife Conservation Commission

In 2012, more than 3 million pounds of wild oysters were harvested in Apalachicola Bay. That plummeted to less than 21,000 pounds in 2019, according to state data.

ExploreFlorida blocks oyster harvesting as court mulls Georgia water case

The freefall prompted the state agency last summer to take an action of “last resort,” as its chairman called it: suspending all commercial and recreational oyster harvesting in the bay for five years. Possessing oyster tongs is now a second-degree misdemeanor in Apalachicola.

FILE- In this April 2, 2015, file photo, John Stokes, center, culls Apalachicola oysters while his two sons Ryan, left, and Wesley Stokes tong oysters from the bottom of Apalachicola Bay. The Supreme Court is giving Florida another chance to make its case that Georgia uses too much water and leaves too little for its southern neighbor. The justices ruled 5-4, Wednesday, June 27, 2018, in the long-running dispute between the two states. The court said that a special master appointed to hear the lawsuit should reconsider Florida's argument that limiting how much water Georgia uses would provide more for the Apalachicola river that flows into Apalachicola Bay and the nearby Gulf of Mexico.
FILE- In this April 2, 2015, file photo, John Stokes, center, culls Apalachicola oysters while his two sons Ryan, left, and Wesley Stokes tong oysters from the bottom of Apalachicola Bay. The Supreme Court is giving Florida another chance to make its case that Georgia uses too much water and leaves too little for its southern neighbor. The justices ruled 5-4, Wednesday, June 27, 2018, in the long-running dispute between the two states. The court said that a special master appointed to hear the lawsuit should reconsider Florida's argument that limiting how much water Georgia uses would provide more for the Apalachicola river that flows into Apalachicola Bay and the nearby Gulf of Mexico.

Credit: AP Photo/Mark Wallheiser, File

Credit: AP Photo/Mark Wallheiser, File

The hope is the ban will give the oyster population time to rebound while the commission uses a $20 million grant to implement a monitoring and restoration plan. The large-scale effort will include a process known as “cultching,” or introducing old oyster shells and other materials into the bay that oyster larvae can settle onto and grow to maturity.

The plan was backed by many stakeholder groups in the region, including some local oyster harvesters and environmental groups.

“We all want a healthy, thriving Apalachicola Bay abundant with wild oysters,” said Georgia Ackerman, executive director of the Apalachicola Riverkeeper. “The closure is, from our point of view, the tough but right decision.”

Map of Apalachicola-Chattahoochee-Flint (ACF) River Basin.

But more than 350 opponents signed an online petition, posted by local commercial fisherman Wayne Williams, that begged the commission to reconsider.

The fish and wildlife commission, which declined to make anyone available for an interview due to the Supreme Court case, previously said it will monitor conditions in the bay to evaluate whether “limited harvest opportunities” are available before 2026.

Meanwhile, Florida State University has received a separate grant to study why the oysters haven’t come back. Researchers are hoping to find reef sites and strains of local oysters that could be resilient to stress.

“We’re hoping that the science helps managers make decisions about how to manage and restore the fishery in the future,” said Sandra Brooke, who’s overseeing the initiative for FSU.

In this March 31, 2011 photo, commercial fisherman Stanley Encalade walks down a dock toward a pair of his family's boats while doing maintenance work at a marina in Pointe A La Hache, La. Encalade, who stays busy by fixing up his boats while he waits for oyster season to open, had his oyster beds impacted by oil and freshwater diversion projects that attempted to keep oil away from the coast.
In this March 31, 2011 photo, commercial fisherman Stanley Encalade walks down a dock toward a pair of his family's boats while doing maintenance work at a marina in Pointe A La Hache, La. Encalade, who stays busy by fixing up his boats while he waits for oyster season to open, had his oyster beds impacted by oil and freshwater diversion projects that attempted to keep oil away from the coast.

Credit: AP

Credit: AP

Oil spill

The work of both Brooke and the commission is being funded by grants underwritten by BP and Transocean as part of their plea agreements following the Deepwater Horizon oil spill off the Louisiana coast.

Even though oil from the April 2010 spill never reached the shores of Apalachicola, it had a major impact on the bay’s oysters.

ExploreEnough blame to go around for decline of Florida’s oyster industry

Immense stress was placed on the estuary’s oyster beds by fishermen who came from elsewhere in the Gulf after harvests were banned from Texas to just west of the Bay. Worried the spill would reach Apalachicola and wipe out the oyster fishery, the state expanded the number of days a week oystermen could ply the bay. At the same time, it didn’t crack down on poachers who were illegally harvesting too-young oysters, depleting future stocks.

For his part, Rash stopped buying Apalachicola oysters more than four years ago when it became clear the population was dwindling. He now gets his oysters from places like Texas and Virginia. But he’s holding out hope that the bay’s closure — and a favorable Supreme Court ruling — can help bring things back.

“Without the oysters in the bay, the whole dynamic is gone,” said Rash. “It just turns into a body of water.”

ExploreWatch Supreme Court oral argument Monday at 10 a.m.

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Water wars timeline

Gov. Herman Talmadge (far left) and Mayor William B. Hartsfield (fourth from left) join members of the U.S. Army Corps of Engineers in breaking ground on the Buford Dam on March 2, 1950. (Jimmy Fitzpatrick / AJC Archive at GSU Library AJCNS1950-03-00b)
Gov. Herman Talmadge (far left) and Mayor William B. Hartsfield (fourth from left) join members of the U.S. Army Corps of Engineers in breaking ground on the Buford Dam on March 2, 1950. (Jimmy Fitzpatrick / AJC Archive at GSU Library AJCNS1950-03-00b)

Credit: Jimmy Fitzpatrick

Credit: Jimmy Fitzpatrick

1956: The U.S. Army Corps of Engineers completes construction of the earthen Buford Dam, impounding the Chattahoochee River to form the 38,000-acre Lake Lanier. One of the corps’ main functions is to operate three hydroelectric turbines that supply power to the region.

The cities of Buford, Cumming and Gainesville, as well as Forsyth and Gwinnett counties, draw water out of the lake. Cobb, DeKalb and Fulton counties get water from pumping stations on the Chattahoochee after the water passes through the dam’s turbines.

Atlanta Mayor William B. Hartsfield dedicates the Buford Dam on Oct. 9, 1957, by crashing a Coca-Cola bottle against a platform. (Lane Bros. Commercial Photographers / GSU Library LBME1-026c)
Atlanta Mayor William B. Hartsfield dedicates the Buford Dam on Oct. 9, 1957, by crashing a Coca-Cola bottle against a platform. (Lane Bros. Commercial Photographers / GSU Library LBME1-026c)

Credit: Lane Brothers

Credit: Lane Brothers

1960s: The corps allows the metro area to increase its water withdrawals from the Chattahoochee River because the intakes did not affect the dam’s hydroelectric operations.

1989: The corps releases a proposal for a new operating manual for Buford Dam that calls for significantly increasing the amount of water that could be used to meet the area’s needs.

1990: The corps scuttles its plan to make more water available as water supply after Alabama files the first of four lawsuits challenging metro Atlanta’s withdrawals from Lake Lanier.

1997: Georgia, Alabama and Florida agree to form a commission to figure out an allocation formula. The pact includes a “live and let live” provision that allows the corps to honor existing water supply contracts and permits water systems to increase their withdrawals to satisfy “reasonable” increases in demand. The agreement dissolves in 2003 when the commission cannot agree on a formula.

2000: Georgia asks for increased withdrawals to meet Atlanta’s needs through 2030. The request is denied.

In 2003, Georgia Gov. Sonny Perdue, left, met with Alabama Gov. Bob Riley, center, and Florida Gov. Jeb Bush, right, as part of the Apalachicola-Chattahoochee-Flint River Basin Commission. That year, the commission, which had been formed six years earlier, dissolved when no agreement could be reached on water rights. (Phil Coale / AP file)
In 2003, Georgia Gov. Sonny Perdue, left, met with Alabama Gov. Bob Riley, center, and Florida Gov. Jeb Bush, right, as part of the Apalachicola-Chattahoochee-Flint River Basin Commission. That year, the commission, which had been formed six years earlier, dissolved when no agreement could be reached on water rights. (Phil Coale / AP file)

Credit: AP

Credit: AP

2009: A federal judge signs an order that would severely restrict Atlanta’s water withdrawals unless Alabama, Florida and Georgia strike a water-sharing deal. U.S. District Judge Paul Magnuson said that Lake Lanier was not intended as a water supply for metro Atlanta. The intended purposes were hydropower, navigation and flood control, he said. Magnuson gave the states three years to work out an agreement before the order would take effect, limiting metro Atlanta to withdraw water at the same levels as it did in the mid-1970s.

June 2011: An appeals court overrules Magnuson’s decision, saying supplying metro Atlanta water was an intended use for the lake.

June 2012: The U.S. Supreme Court secures metro Atlanta’s claim to water from Lake Lanier when the court turns down appeals from Alabama and Florida.

October 2013: Florida sues Georgia at the U.S. Supreme Court, urging the justices to limit the water Georgia can take out of the Chattahoochee and Flint rivers so more can flow into the Panhandle to keep Florida’s oyster industry afloat. Florida cites Georgia’s water usage during a multi-year drought, which it alleges hastened the collapse of the Apalachicola Bay’s iconic oyster industry in 2013.

September 2015: The corps updates its water-sharing plan for the Chattahoochee River for the first time since 1989. The plan would allow Georgia by 2040 to tap nearly 600 million gallons each day from the Chattahoochee River and Lake Lanier.

The Chattachoochee River, seen here in 2011, exits the Buford Dam powerhouse in Cumming. Lake Lanier is on the other side. (Bita Honarvar / AJC file)
The Chattachoochee River, seen here in 2011, exits the Buford Dam powerhouse in Cumming. Lake Lanier is on the other side. (Bita Honarvar / AJC file)

Credit: bhonarvar@ajc.com

Credit: bhonarvar@ajc.com

November 2015: Georgia and Florida agree to enter mediation in an attempt to reach an agreement on sharing water. Mediation will not succeed.

October 2016: The Florida v. Georgia water war trial begins in a Maine courtroom with Ralph Lancaster, the attorney the Supreme Court appointed as “special master” to oversee the case, presiding.

December 2016: The Florida v. Georgia water wars trial in Maine ends. Also in December, the corps rules that Forsyth, Gwinnett and Hall counties may withdraw 242 million gallons daily from Lake Lanier. The city of Atlanta and Cobb, DeKalb and Fulton counties would get an additional 379 million gallons daily from Lake Lanier and the Chattahoochee – enough water to slake population demands through 2050. Metro Atlanta currently taps about 360 million gallons a day from the Chattahoochee.

February 2017: Lancaster rules that Florida failed to prove that new limits on Georgia’s water consumption were needed. He recommends that justices dismiss the case.

January 2018: The Supreme Court hears oral arguments from Florida, Georgia and the U.S. Army Corps of Engineers.

June 2018: The Supreme Court, in a 5 to 4 opinion, opts to assign the case back to a special master to see if there is a water-sharing remedy available that could help Florida without decimating Georgia’s economy. Shortly thereafter, the court discharges Lancaster as the special master and assigns Paul Kelly, a federal circuit court judge based in New Mexico, to the case.

November 2019: Kelly hears from Florida and Georgia’s attorneys in an Albuquerque courtroom. Florida homes in on farmers in Southwest Georgia for using too much water from the Flint River for irrigation, while largely overlooking metro Atlanta’s water usage.

In recent years, Florida has shifted the focus of its water-rights complaints from metro Atlanta's use of Lake Lanier water to the farmlands of southwest Georgia. Here, workers at Worsham Farms in Vada, Ga., harvest sweet corn in 2019. (Hyosub Shin / Hyosub.Shin@ajc.com)
In recent years, Florida has shifted the focus of its water-rights complaints from metro Atlanta's use of Lake Lanier water to the farmlands of southwest Georgia. Here, workers at Worsham Farms in Vada, Ga., harvest sweet corn in 2019. (Hyosub Shin / Hyosub.Shin@ajc.com)

Credit: HYOSUB SHIN / AJC

Credit: HYOSUB SHIN / AJC

December 2019: Kelly urges the justices to reject Florida’s case, saying that “the evidence has shown that Georgia’s water use is reasonable” and that “the evidence has not shown that the benefits of apportionment would substantially outweigh the potential harms.”

July 2020: Members of the Florida Fish and Wildlife Conservation Commission vote unanimously to ban oyster harvesting in the Apalachicola for five years, part of a $20 million restoration plan for the bay.

October 2020: Rather than accepting Kelly’s recommendation outright, Supreme Court justices announce they’ll again hear oral arguments from Florida and Georgia, on Feb. 22, 2021.

January 2021: Georgia and the federal Army Corps of Engineers finalize a contract formally allowing Gwinnett and Forsyth counties, along with Buford, Gainesville and Cumming, to pull drinking water from Lake Lanier as long as the lake exists. The agreement allows Georgia access to just over 15% of the reservoir’s capacity, or 242 million gallons of water each day when the lake is full. The state will pay more than $74 million over 30 years for that right.

-Dan Chapman and Tamar Hallerman

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