The regional water wars enter a critical phase Thursday, when a Supreme Court-appointed judge in New Mexico weighs Florida’s request to freeze Georgia’s water usage at current levels through 2050 and cut it further during droughts. It’s just the latest chapter in a protracted dispute with plenty of twists. Here’s a primer on what’s happened so far and what’s at stake:
Georgia, Florida and Alabama have been fighting over water for the last three decades. After political leaders failed to strike an agreement divvying up water, Florida sued Georgia at the Supreme Court in 2013. Florida is alleging that Georgia’s cavalier water usage in the Apalachicola-Chattahoochee-Flint river basin during a recent drought decimated the oyster population in the Apalachicola Bay. It wants the court to limit Georgia’s future fresh water usage so more will flow downstream to help revive the oyster industry, which depends on a delicate balance of fresh and salt water. Alabama is sitting out this particular fight but has backed Florida.
THE FRONT LINES
The Apalachicola-Chattahoochee-Flint river basin includes three major rivers. The Chattahoochee originates northeast of Lake Lanier and flows along the Alabama border. At Lake Seminole it merges with the Flint River, which begins as a modest collection of creeks not far from Hartsfield-Jackson International Airport and flows southwest through Georgia’s farm country. The two rivers converge to form the Apalachicola River, which empties into the Gulf of Mexico in Florida’s Panhandle.
The basin serves as the main source of drinking water to more than 4 million people, including roughly 70% of metro Atlanta’s population. It also supports a broad swath of industries including agriculture, power generation, manufacturing, commercial fishing and recreation.
Since water rights are extremely complicated, the Supreme Court appointed an expert judge known as a “special master” to hear arguments and collect evidence from Florida and Georgia. That Maine-based judge, Ralph Lancaster, sifted through some 7.2 million pages of documents, 130 subpoenas, 30 expert reports and 100 depositions. He recommended in February 2017 that justices dismiss Florida’s case over a technicality. Justices heard the case in Washington in January 2018 and five months later ruled that the special master should conduct further proceedings, handing a preliminary victory to Florida. They appointed a new expert judge, Paul Kelly of New Mexico, to revisit the states’ arguments last year.
Kelly will hear oral arguments from Florida and Georgia in an Albuquerque courtroom on Thursday morning. It will be his first time speaking publicly about the case. He’s expected to make a recommendation to the Supreme Court in the months ahead. Justices could accept his findings, reject them, opt for another round of oral arguments or direct Kelly or another judge to review them again.
Justices have directed Kelly to focus on five questions that seek to evaluate the harm Florida has suffered at the hands of Georgia and whether a legal remedy exists that could help Florida. In other words, is there a way to cap the Peach State’s water consumption in a way that could lead to substantial additional water flowing to the Panhandle without decimating Georgia’s economy? The burden of proof is on Florida since it brought the case, and past court victories have Georgia interests believing they have the upper hand.
WHAT FLORIDA WANTS
The Sunshine State is asking the court for a few different things. First is for the justices to freeze Georgia’s water usage at current levels through 2050. The second is an even lower water cap for drought years. Florida also wants metro Atlanta’s current conservation efforts enforced – things like a daytime outdoor watering ban and a leak detection program – and for the state to crack down on the irrigation practices of farmers in southwest Georgia. (Agriculture is by far the largest user of water south of metro Atlanta.)
WHAT GEORGIA IS SAYING
That its water use is “eminently reasonable” and that factors outside of its control killed Florida’s oyster industry (climate change, overly generous fishing quotas, the Deepwater Horizon oil spill). Georgia has warned that if Florida gets its way, agricultural water use in the state’s southwest would be all but shut down. It estimates that the cost to Georgia would be “severe,” between $335 million to more than $1 billion to implement and several times more in lost economic output. The Peach State also contends that no cap on its consumption will get Florida what it wants due to the complicated way the federal Army Corps of Engineers regulates water in the Apalachicola-Chattahoochee-Flint river basin.
THE PRICE TAG
The case has cost Georgia taxpayers $47.5 million in legal fees, but that’s not counting past rounds of the broader water fight involving Alabama and Florida.
WHAT’S AT STAKE
Far more than oysters. Depending on whom you ask: the states’ economies, agriculture, the environment, fishing, manufacturing, recreation, the future growth of metro Atlanta. The case is expected to set a legal precedent for water fights on the East Coast, which hasn’t experienced the same litigation that’s become commonplace in the West, no small thing as climate change threatens to trigger more water battles in the decades to come.
WHEN WILL THIS BE OVER
Not anytime soon, many stakeholders admit. Not only will it take time for the Supreme Court to weigh in once and for all on this particular case, but there are several other related cases making their way through the federal court system.
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