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Dec. 8, 2019
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Glade Reservoir resurfaces in water dispute hearing

By Jane Harrison
 
A water storage idea from Hall County’s past emerged briefly in a federal court hearing last month in Albuquerque, NM. A suggestion to reconsider Glade Reservoir came not from Georgia’s attorneys, but from Florida’s in a plea for the judge to look at ways Georgia might store water and ameliorate flows downstream into Florida.
 
In the Nov. 7 hearing, Judge Paul J. Kelly, Jr. listened to and questioned attorneys in the 13-year-old lawsuit in which Florida accuses Georgia of hoarding water on the river system that flows from the Georgia mountains to the Florida Panhandle. Kelly is expected to use the 90-minute session to help form his recommendations to Supreme Court justices.
 
 Although Lake Lanier is the largest reservoir in the Apalachicola-Chattahoochee-Flint river basin, it did not garner much attention; instead, Florida focused on Georgia farmers’ water use along the Flint River south of Atlanta. Additionally, the Sunshine State attempted to convince Kelly that the price tag to reduce Georgia’s water consumption would not be as high as Georgia claims.  
 
Florida said the proposed 850-acre Glades Reservoir in northern Hall County exemplified a feasible idea that the state originally supported. Hall County was actively pursuing the project in 2011 and spent more than $16 million in land acquisition, engineering, legal and consultant fees. Hall officials withdrew the Glade permit application in 2016 after the state rescinded support and the Corps of Engineers did not include it in the latest Water Control Manual for operation of dams on the river system.
 
Florida attorney Phillip Perry produced evidence he said put Glade in a former Georgia settlement proposal. “Georgia considered bringing Glades Reservoir online … They were willing to do it, and this was in 2012,” he said. “This is something they thought was a reasonable, and more importantly, feasible solution.”
 
Kelly questioned Perry about how much it would cost to put in Glades, to which Perry responded, “Well, Your Honor, they have said their cost would be $803 million, but they proposed it. They proposed that as part of their solution in 2012. We're not asking them to do Glades Reservoir. We have those targeted measures just as to farming. We’re not asking them to spend hundreds of millions of dollars.”
 
Florida brought up a series of ideas it thinks should be revisited, said Chris Manganiello, Chattahoochee Riverkeeper Water Police Director, who attended the hearing. “Florida said that since Georgia thought about these in the past, they must be reasonable and affordable,” he said. Florida also alluded to “a whole range of solutions” compiled by the ACF Stakeholders in a water sharing plan in 2015. The non-profit group representing diverse water interests in Georgia, Florida and Alabama put together a consensus proposal that Perry said could send more water to Florida.
 
Manganiello pointed out this was Florida’s second reference to the Stakeholders’ Sustainable Water Management Plan, which Florida mentioned in its first brief after Supreme Court justices remanded the initial special master’s recommendations and sent the case to Kelly. Observers saw a copy of the document dog-eared and tab-marked on the desk of former special master Ralph Lancaster during a trial he held before making his recommendations. Lancaster eventually recommended the court deny Florida’s claims because the state could not prove that cutting Georgia’s water use would increase the flow into Florida. He wrote that because the Corps controls water release from the dams, there was no guarantee Florida would benefit.
 
In a 5-4 decision, justices ruled that Lancaster used “too strict a standard” for Florida to prove its case. Kelly was appointed special master in August 2018.
 
The hearing presented case followers their first look at Kelly, whose demeanor Manganiello described as professional and undeferential toward either side. Kelly kept his prescribed schedule, allowing each state 45 minutes, with Florida allowed to reserve 10 minutes for rebuttal.  
 
“There was nothing brand new, nothing new popped up,” said Manganiello, a long-time observer of the 2013 lawsuit.
 
Much of Florida’s argument focused on Georgia farmers’ irrigation from the Flint River and its groundwater. Georgia officials knew there was a problem as early as 2000, Florida claimed, when it exercised the Flint River Protection Act and bought back irrigation permits from farmers when drought was imminent. However, it did not follow course before and during the 2012 drought, when oyster fisheries in Apalachicola collapsed due to low freshwater flows.
 
Kelly asked Florida attorneys if they agreed that Florida has the burden of showing that the benefits of a decree in Florida’s favor would substantially outweigh the economic harms to Georgia. Perry replied, “They know they can fix the problem, and they can do it at a reasonable price, too.” He added that water efficiency solutions would cost the Georgia government but would not be a significant burden on farmers themselves.
 
Florida also accused a Georgia expert of miscalculating Georgia’s cost of cutting back water use. Previous Georgia testimony set that estimate at $350 million.
 
Georgia attorney Craig Primis argued that any benefit to Florida from Georgia cutbacks would not substantially outweigh the cost to Georgia. He also claimed Florida inflated its estimates of Georgia water use. “Using (Georgia expert’s) data, we know that Georgia’s consumption is a fraction of the amount estimated by Florida,” he said.
 
Kelly questioned Primis specifically about Georgia’s water consumption and future limits. “Let’s say that Georgia doesn’t waste any water and that they are very efficient when its consumption continues to increase. At what point does the consumption become unreasonable, assuming no waste and very efficient?” he inquired.
 
After Primis evaded a direct answer with “there’s a lot that goes into that question,” Kelly rephrased it: “At some point do you say to Florida, “Well, I’m sorry, there’s no more water for you because we’re using it all efficiently, and that’s just the way it is?”
 
Primus responded, “Well, I don’t think we’re going to get there.”  He added he didn’t think there is enough farmland left to develop and that there is a current moratorium on new irrigation permits.
Several times Kelly asked Primis what burden Florida should show in order to get what it wants, which is a limit on Georgia water use at current consumption. “Clear and convincing evidence that the benefit to Florida will substantially outweigh the harm to Georgia,” he replied.
 
About 30 people attended the Albuquerque hearing in a courthouse about an hour’s drive from Santa Fe, where Kelly is a senior judge in the U.S. 10 Circuit Court of Appeals. Attendees included Georgia Attorney General, Chris Carr, Solicitor General, Andrew Pinson, and Executive Counsel to the Governor, David Dove.
 
Kelly’s recommendations could come as early as this month or in the first quarter of 2020. The case could be back before the Supreme Court in late 2020.

Posted online 11.25.19
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