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Jun. 5, 2020
5:35 am


Water lawsuit date for oral arguments reset again

By Jane Harrison
A week after setting an October date for oral arguments, the special master presiding over a six-year Florida-Georgia water dispute moved the hearing to Nov. 7. Special Master Paul J. Kelly reset the hearing date upon Florida’s request due to a previously scheduled oral argument in Washington, D.C. Kelly originally planned the showdown for Dec. 16, then without explanation moved it up to Oct. 17 before changing it again.
Oral argument is set to commence at 10 a.m. Nov. 7, at the U.S. District Courthouse for the District of New Mexico, in Albuquerque. Observers of Florida’s 2013 lawsuit over water in a river system shared by the states believe Kelly granted Florida’s request for a face-to-face meeting so he can get specific answers to help him formulate recommendations to the Supreme Court about how to allocate water.
They expect that after months of reviewing voluminous evidence from the previous special master’s reign, Kelly will seek the final responses he needs before composing his report, which could come in winter or early spring.
The outcome of Kelly’s report is almost certain to influence an eventual Supreme Court ruling in the lawsuit Florida filed Oct. 1, 2013. The legal action accuses Georgia of hoarding water on the Chattahoochee and Flint rivers, causing ecological and economic harm downstream on the Apalachicola River and in Apalachicola Bay, where oyster fisheries collapsed after the 2012 drought. The lawsuit originally sought to cut Georgia water consumption from the rivers back to 1992 levels, but Florida has since amended that request to maintain current usage levels until 2050.
In Georgia, the lawsuit holds particular significance to those who rely on Lake Lanier for water supply and as an economic engine. Lanier, the largest reservoir on the Apalachicola-Chattahoochee-Flint River System, is the metro area’s main water supplier. Lakefront real estate, marine industries, recreation and tourism fuel the local economy in the North Georgia counties it touches.
The legal matter reaches far beyond the shores of Lanier and metro Atlanta. Down on the Flint River, which emerges from beneath Hartsfield-Jackson International Airport into Georgia’s Piedmont and Coastal Plain, farmers rely on the near-350-mile undammed channel to irrigate crops. The Chattahoochee and Flint rivers come together to form Lake Seminole at the Georgia-Florida line.

From it flows the Apalachicola, a 107-mile river that nourishes a diverse ecosystem in route to the gulf. There it feeds fresh water into Apalachicola Bay, where oyster harvesting and fishing are a major source of income.
Representatives from the non-profit Riverkeeper organizations on the Chattahoochee, Flint and Apalachicola have kept an eye on the lawsuit from the beginning. They filed amicus briefs with the first special master and sat in courtrooms in Portland, Maine and Washington, DC. anticipating a ruling that would outline how to share the water, not just for economic reasons. The Riverkeepers hope for a solution that considers more than cash flow, but also the priceless natural environment and way of life on the ACF.
Although the primary mission of each is to advocate for their own river, each also views the ACF as a whole. Not completely bullish on their river, they see the 20,000 square mile river basin as interdependent on each of its entities. And they won’t interpret the eventual lawsuit outcome as a win-lose duel.
“(The special master) will have to think about what happens to the system as a whole,” said Chris Manganiello, Chattahoochee Riverkeeper Water Policy Director. He added Kelly is under pressure to draft a solution “that’s best for the rivers and everybody that depends on” the ACF for drinking water, recreation, commercial income, cultural traditions, and wildlife sustenance.
An Oct. 2016 amicus brief filed jointly by Chattahoochee and Flint Riverkeepers and the Alabama Rivers Alliance stresses the river advocates’ wholistic approach and the importance of conservation, which has cut metro Atlanta’s water use by 10 percent since 2000. Alabama also draws water from the ACF but is not included in Florida’s lawsuit. The Riverkeepers’ amicus brief urges the special master to consider how Georgia can further reduce consumptive use.
It concludes, “When balancing the economic, ecological, and cultural interests at stake in this apportionment decision, the Special Master is not required to prioritize upstream consumptive uses over the interests of users downstream.”
It urged then Special Master Ralph Lancaster to “consider the true value that the ACF Basin provides to all its states … to ensure that his equitable apportionment decision improves the health and vitality of the ACF Basin for the benefit of all.”

Riverkeepers look for wholistic solution
There will be no “slam dunk” win in the matter, said Gordon Rogers, Flint Riverkeeper Executive Director. “Georgia wins when everybody wins,” said the advocate for the river which waters middle and South Georgia crops. Farms in the sparsely populated rural landscape southwest of Atlanta account for more than half the state’s water usage, consuming more water than residents and industry in the state’s more densely peopled cities. Former Gov. Nathan Deal in 2017 pumped $10 million into farm country to better monitor the flow. “The farming industry is well along the road to achieving conservation. We’re beginning to see the affects of millions and millions of dollars in hardware and innovations in agriculture,” Rogers said. “The trend has started,” he said, but he noted that conservation upstream may not add a trickle downstream on the Apalachicola.
The flow into Florida goes through Woodruff Dam, regulated by the U.S. Army Corps of Engineers at Lake Seminole. The Corps controls the spigot, Rogers said, thus the Corps must be part of the solution. “Unless the Corps is involved, we’re not going to get a truly workable solution.” His viewpoint was shared by former special master Lancaster, who recommended the court deny Florida’s claims because he felt they could not be remedied without Corps involvement. Florida’s lawsuit targeted Georgia but did not include the Corps. Justices remanded Lancaster’s report and in Aug. 2018 named Kelly special master to replace the 87-year-old Lancaster, who died early this year.
“I hope the recommendations of the special master offer a reasonable solution to the full court involving all the stakeholders, which includes the Corps,” Rogers said. “There’s enough water in the system to where if reasonably allotted, no state, industry or interest will have to suffer unduly. During drought times, everybody experiences a little pain,” he said, but reasonable apportionment could preclude unbearable suffering when skies are dry.
Across the state line, Apalachicola Riverkeeper Executive Director Georgia Ackerman looked to the natural significance of the Florida river and the biodiversity and cultural heritage it carries. She pointed out that the former special master agreed that the region had suffered ecological and economic harm due to decreased flows on the river.
“Regrettably, lack of sustained freshwater flow due to upstream demands has hurt the Apalachicola floodplain, river and bay – and the people that depend on it for their livelihoods,” she wrote in an email in August. “There is very little oyster harvesting in Apalachicola Bay. You won’t see oyster boats on the bay like years past. In fact, I saw two boats a few days ago and stopped in my tracks since it seemed an oddity – that there were two. A sharp contrast to dozens of boats at first light years ago.”
The Apalachicola River nourishes far more than oysters, Ackerman said. The health of the eastern Gulf of Mexico depends somewhat on its fresh flow. Without it, the eastern Gulf could develop a “dead zone” like that already stagnating in another part of the Gulf due to pollution on the Mississippi River. Ackerman added, “Oysters are an indicator species” in an interconnected ecology. “Redfish, trout and shrimp populations are reported in decline” she added. “Apalachicola Bay has changed.”
Although defensive of her beloved river, Ackerman does not espouse a belligerent view of the legal matter. “Unfortunately it is often seen as a Florida vs. Georgia fight. I know there are people, citizens in both states that care deeply about the health of all three rivers and Apalachicola Bay. The water of the ACF Rivers can and should be shared equitably.”

Posted online 9.27.19
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