Florida-Georgia Water Fight to Be Heard in October before Federal Judge in New Mexico. (SSN/Center Square)

Florida-Georgia Water Fight to Be Heard in October before Federal Judge in New Mexico

By 

JOHN HAUGHEY THE CENTER SQUARE

September 6, 2019 - 6:00am

Oystermen, a dying breed on the Apalachicola River 

Florida’s “last, best hope” to save Apalachicola Bay’s multi-million-dollar shellfish industry will play out Oct. 17 before a federal judge in Albuquerque, N.M.

Senior U.S. Circuit Court Judge Paul J. Kelly, appointed by the U.S. Supreme Court in August 2018 to serve as a “special master” to oversee Florida’s 2013 lawsuit against Georgia, said the hearing would be nearly two months earlier than originally scheduled.

The lawsuit is the latest chapter in the “Tri-State Water Wars” dating to 1990 between Florida, Georgia and Alabama over water allocations from two river systems – the Alabama-Coosa-Tallapoosa basin, between Georgia and Alabama, and the Apalachicola-Chattahoochee-Flint (ACF) basin that spans all three states.

In 2013, Florida filed its lawsuit with the U.S. Supreme Court requesting it “equally apportion” water in the ACF basin, which originates near Lake Lanier and flows south to the Panhandle, by capping Georgia’s water usage at roughly 1992 levels.

In November 2014, the Supreme Court accepted Florida’s complaint and the case was reviewed by a “special master,” a post that often is appointed in jurisdictional disputes to hear evidence and issue a recommendation in cases that will go before the high court.

The Apalachicola River delta

In 2017, Maine attorney and former U.S. Circuit Court Justice Ralph Lancaster – appointed special master by the Supreme Court an unprecedented four times before passing away in January at age 88 – determined Florida had not proven its case “by clear and convincing evidence” that imposing a cap on Georgia’s water use would benefit the Apalachicola River.

However, after hearing oral arguments – based on more than 7 million pages of documents, 30 subpoenas, 30 expert reports and 100 depositions – in January 2018, the Supreme Court ruled 5-4 that Florida’s lawsuit should be revisited. Last August, it named Kelly as the new special master in hearing the case.

While Florida’s attorneys maintain booming Atlanta’s "negligent" water conservation policies have contributed to the diminished flow of ACF waters into the Panhandle, they cite agricultural water use in southwest Georgia as the primary culprit.

The ecological stress from low river flows and saltwater intrusion have decimated the oyster and shrimp industry in Franklin County’s Apalachicola Bay, which generate millions of dollars for the region and employs thousands, Florida states.

Georgia claims it has been a responsible steward of the ACF’s headwaters and that it needs the water to sustain metro Atlanta’s 5.6 million people and to meet the demands of farmers in the state’s southwest corner.

Capping its tap at 1992 levels would have a catastrophic impact on the state’s economy, Georgia insists.

Both states will each receive 45 minutes to summarize arguments and answer questions from Kelly. Florida will then be given time for a rebuttal since it is the plaintiff in the case.

When he was named special master last August, Kelly said he would not accept new evidence or expert testimony and that he’ll work off the record built by proceedings since 2016 and, of course, the 7 million pages of documents, 30 subpoenas, 30 expert reports and 100 depositions already compiled in the case.

Kelly is expected to issue a recommendation sometime in early 2020 to the Supreme Court, which could choose to hold another hearing or accept Kelly’s recommendation.

Although Alabama is not a party in Florida’s lawsuit against Georgia, the three states have been engaged in litigative tussles over water since, at least, 1990, when the Lake Lanier project in Georgia was authorized by Congress as an impoundment for water that could be equally apportioned.

Battling Florida over ACF water was a campaign issue in Georgia’s hotly contested gubernatorial race won by Republican Brian Kemp over Democrat Stacy Adams.

In his last days as governor, Republican Nathan Deal lamented his failure to reach water-use agreements with Alabama and Florida – and the $50 million the state has spent in litigating – were among the biggest regrets of his eight-year tenure.

On the campaign trail, however, Kemp vowed to double-down on winning the court case, saying a compromise would leave “hardworking Georgians high and dry.”

John Haughey is the Florida contributor to The Center Square.