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Aug. 6, 2020
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Special Master sides with Georgia in water war

By Jane Harrison
 
Georgia’s latest win in a decades long water brawl with its neighbors drew a guarded victory declaration from the governor’s office, an admonition from a Georgia river advocate, and disappointment down in Florida.
 
Special Master Paul J. Kelly, Jr. flatly denied Florida’s claims that Georgia water use caused harm downstream on a river system that runs from the Georgia mountains to the Florida Panhandle. His Dec. 11 report is likely to influence a Supreme Court decision, possibly this summer, in a lawsuit Florida filed in 2013 for equitable apportionment of water in the Apalachicola-Chattahoochee-Flint rivers. Florida’s suit asks for a cap on Georgia water use at current levels through 2050.
 
In an 81-page recommendation written a little more than a month after oral arguments, Kelly basically stated he found Georgia’s evidence more convincing than Florida’s. He quoted witnesses that blamed woes suffered downstream in Apalachicola Bay on Florida mismanagement of resources rather than on Georgia water consumption. He deemed Georgia water use “reasonable,” noted Georgia conservation efforts, and contrasted Georgia’s larger economy and population with the tiny region at stake on the gulf.
 
Kelly concluded, “I do not recommend that the Supreme Court grant Florida’s request for a decree equitably apportioning the waters of the ACF Basin because the evidence has not shown harm to Florida caused by Georgia; the evidence has shown that Georgia’s water use is reasonable; and the evidence has not shown that the benefits of apportionment would substantially outweigh the potential harms.”
 
The case, the latest in the long-standing water wars between Georgia, Florida, and Alabama, attracted attention of Lake Lanier stakeholders concerned about how it could affect levels on the largest ACF reservoir and major water supplier for metro-Atlanta and the region. But, Florida’s final arguments mainly targeted Georgia farmers’ irrigation on the Flint River.
 
Ga. Gov. Brian Kemp responded in a statement, “We greatly appreciate Special Master Kelly's recognition of Georgia’s strong, evidence-based case in this litigation. We will continue to be good stewards of water resources in every corner of our state, and we hope that this issue will reach a final conclusion soon.”
 
Fla. Department of Environmental Protection Secretary Noah Valenstein responded with extreme disappointment to the latest setback in the legal battle has cost the state more than $50 million; Georgia has spent nearly as much. “Florida remains committed to restoring the historic flows of the Apalachicola River and the families who rely on this river for their livelihood. The water this river provides is essential for the Apalachicola Bay, and we will remain steadfast in our commitment to protecting it. We are in the process of reviewing the report in its entirety and are evaluating our legal options.”
 
Chattahoochee Riverkeeper, a non-profit private organization that advocates for the health of the river, interpreted Kelly’s report as “indicative more of Florida’s failures to present sound scientific support for its arguments rather than a sign that Georgia’s evidence was 100 percent accurate or infallible.”
 
In a statement, CRK warned that although the report “puts Georgia in a strong legal position” to justify its water use, the state must not let up on its conservation efforts. “If the court accepts this recommendation, CRK’s primary concern is that Georgia leaders will stop thinking they need to advance water conservation and efficiency in the municipal, industrial and agricultural sectors. Georgia must remain the leader in this space to protect water quantity and quality throughout the ACF basin,” CRK stated.
 
Apalachicola Riverkeeper Executive Director Georgia Ackerman called Kelly’s report “disheartening.” She added, “It misses the mark in understanding the connectivity of a floodplain, river and bay. The Apalachicola River and Bay system is ecologically and economically invaluable, not just for Florida, but also for the Eastern Gulf of Mexico. Freshwater flow is the driver of health and productivity for the entire Apalachicola system. The waters of the ACF should be shared equitably.”
 
Kelly is the second special master to turn down Florida’s claims.  Justices remanded the first set of recommendations by Ralph Lancaster, now deceased, for reconsideration after Lancaster denied Florida’s claims on a technicality. In a 5-4 vote, justices ruled that Lancaster used “too strict a standard” for Florida to prove its case. The first special master ruled that Florida’s claims should be dismissed because it could not prove that cutting Georgia’s water supply would ameliorate the flow downstream where Florida oyster fisheries need fresh water to survive. He stated that since the U.S. Army Corps of Engineers controls ACF water flow through dams, there was no guarantee that limiting Georgia consumption would send more water into Florida.
 
In the January 2018 Supreme Court hearing, justices indicated some sympathy for Apalachicola, with Justice Stephen Breyer even suggesting, “You’d think that if we’re being equitable here, it would be equitable to give at least a little bit to Florida.”  The court ultimately asked the new special master to get answers to five questions focused on how much water Florida needed and how much it would cost Georgia.
 
Water law attorney John Draper, a longtime acquaintance of Kelly’s in the Santa Fe, New Mexico legal community who has argued numerous cases before special masters, commented that he felt Kelly’s report was “very well written” and “covered all the issues in a way I believe the Court will find satisfactory.”
 
He added that Kelly, a senior federal appellate court judge “found strongly in favor of Georgia, but he didn’t gloss over any important arguments to the contrary. He considered the new issues suggested by the Supreme Court concerning ecological and cultural resource concerns, but he was convincing in his explanation for finding in Georgia’s favor even on those issues.”
 
Quotes from Kelly’s report:
• Florida highlights the collapse of the Bay’s oyster fishery, but Florida has not proved that the harm to the oysters resulted from “the action of Georgia”… I conclude that low flows played some role in the oyster population decline of 2012. Nevertheless … I conclude that Florida’s management was a more significant cause of the decline. Further, to the extent that low flows caused the decline, drought was a more significant cause of the low flows than Georgia’s consumption … Other evidence also supports Georgia’s position that overharvesting and a lack of re-shelling were significant causes of the collapse.
 
• I do not find evidence of harm to the animal species in the river and floodplain ecosystems caused by Georgia. First, Florida has not shown any population level harms to animals in the river and floodplain that were caused by Georgia.
 
• Georgia’s estimates of its consumptive use are more reliable (than Florida’s) … Georgia consumes a relatively small portion of state-line flows during most periods. The Georgia portion of the ACF Basin contains 92% of the population, 96% of employment, and contributes more than 99% of the gross regional product of the whole ACF Basin. The Georgia ACF produces 129 times the gross regional product and contains more than five times the land area of Florida in the Basin.
 
• Georgia has made significant progress in conserving water … These conservation measures appear to have been quite effective. Georgia’s (ACF water consumption) has not increased from 1994 to 2013, despite population growth from 3.3 million to more than 4.9 million people.
 
• Florida has not shown that Georgia’s agricultural water use is inequitable based on this evidence.
 
• Florida argues … that Georgia should have built the Glades Reservoir and should have implemented a lawn watering ban in 2011–2012. But the measures that Florida would have Georgia pursue are very costly. The Glades Reservoir would cost $803 million to construct, and Georgia concluded that its conservation measures rendered the project unnecessarily expensive.
 
• Regarding Corps operations: I conclude that very little streamflow generated by a potential decree would pass through to Florida at the times it claims to need additional streamflow under existing (Corps) operational rules … I therefore find that the Corps has not exercised discretion to release significantly more water than the minimums required by its operational rules … I do not reach the question whether the Corps could make reasonable modifications to its Master Manual so that flows would pass through to Florida during drought.

Posted online 12.26.19
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