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Dec. 10, 2016
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Mediation to begin this month in water wars


By Jane Harrison

A mediator is expected to wade into troubled waters between Georgia and Florida this month to potentially settle a lawsuit that’s cost both states tens of millions of dollars in two years. Attorneys for both states in the lawsuit over water in the Apalachicola-Chattahoochee-Flint river basin told the special master appointed to oversee pretrial proceedings that the warring parties were close to selecting a mediator.

Georgia attorney Craig Primis told Special Master Ralph Lancaster in a Dec. 8 teleconference that both states had exchanged names of reputable attorneys and that his Florida counterpart, Philip Perry, was further evaluating one of the candidates. “Georgia stands ready to move expeditiously once he’s done that,” Primis said.

Lancaster stated his expectation that states choose a mediator and post a schedule for mediation before the next status report, early this month. Although he applauded states’ progress toward mediation, he cautioned attorneys about tentative plans to choose a mediator by consensus. “Let me just suggest that a consensus decision, that is a decision by the outside lawyers and representatives of the states and God knows who else, is doomed to failure,” Lancaster warned.

He advised against consulting states’ decision makers about who should divine the waters. “There should be one person on each side; and it should be one of – in my opinion it should be one of the outside lawyers who has the authority to make that decision. Otherwise, you’re never going to get there … I am going to suggest to you because you are experienced, talented lawyers – that you suggest to your state clients that they delegate the authority to select the mediator to you. You can obtain whatever information they want to give you; but in the end, you make the decision.”

Lancaster further told legal counsel to “feel free” to tell their state officials that he supported authorizing the attorneys to choose a mediator rather than doing it by  consensus, which, he repeated, could result in failure of the mediation process.

Whoever is chosen will get an earful in early meetings with attorneys who’ve collected millions of documents since Florida filed suit in Oct. 2013. Primis suggested that after presenting an overview of the case and its issues, the states would “then get that person’s take on the best way forward.”

Florida filed suit in Oct. 2013 claiming that Georgia’s water consumption has withered the economy and environment of the Apalachicola Bay area downstream from the state line. Lake Lanier is the largest reservoir on the river system that includes the Chattahoochee, with headwaters in northeast Georgia, the Flint, which begins near the Atlanta airport and flows through south Georgia farmland. They join at Lake Seminole near the state line and form the Apalachicola, which flows into the Gulf of Mexico.

The suit seeks a cap on Georgia’s water use and reparations for alleged damages. Georgia claims it cannot be blamed for a collapse of oyster fisheries in Apalachicola, which Florida admitted were caused at least in part by over fishing, and that Florida cannot prove the state suffered harm due to Georgia water use.

Lancaster, a veteran water wars special master, has urged settlement ever since the Supreme Court assigned him to the case in Nov. 2014. He warned that the states might spend millions, if not billions of dollars resulting in a decision that would satisfy neither.

Posted online 12/28/15
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