By Christian Flinn
A recent report in the Atlanta Journal-Constitution tells of a 25-year struggle between Georgia and Florida over which state has drawn excessive amounts of water from the Flint and Chattahoochee Rivers, which meet at the state line to form the Apalachicola River. The “war” itself is currently under the “special mastership” – officially a proxy of the U.S. Supreme Court – of Ralph Lancaster, Jr. an attorney from Maine. The fight is a glimpse into the future as dwindling supplies of drinking water force states to battle for control. To properly understand the task the special master has at hand, a brief summary of the situation is in order.
The states’ quarrels relate to metro Atlanta’s use of Lake Lanier, created in the 1950s, as well as the Flint and Chattahoochee Rivers, and how this use has allegedly negatively affected certain counties in Northern Florida and, more marginally, parts of Alabama. For the purposes of this article, the focus will be on Georgia and Florida and the arguments each has posed in a series of water-supply related lawsuits. Starting in 1960, metro Atlanta began increasing its drawing of water from Lake Lanier, originally made to generate power for the surrounding area via the hydro-electric Buford Dam. This trend would continue as the USACE gradually increased its estimates of how much water it could provide metro Atlanta without negatively affecting power generation until around 1990, when Alabama filed the first lawsuit challenging Georgia’s withdrawals from Lake Lanier. This action marked the beginning of tensions between the three states.
In 1997 Florida, Georgia, and Alabama formed a commission tasked with determining an allocation formula. That commission was dissolved in 2003 after failing to establish the formula in question, and several smaller legal skirmishes followed. The situation escalated in 2007, when a drought hit the southeastern United States. The drought served to accentuate grievances among the states and in 2009 U.S. Judge Paul Magnuson ruled that Lake Lanier’s intended purpose was for power generation, not supplying water to metro Atlanta. As a result, the city found its water withdrawal rights at risk of being severely restricted unless the states agreed upon a common solution. The 2009 ruling was reversed in 2011, however, and Atlanta’s withdrawal rights were restored in full.
By 2013, a new problem had arisen and Florida issued its most recent lawsuit, which claims that Georgia’s, (i.e., Atlanta’s and certain southern counties’ in the state), “increasing storage and consumption from both the Chattahoochee and Flint River Basins” was causing irreparable harm to Florida’s oyster industry. The case’s argument is based on the fact that “healthy oysters need a mix of fresh and salt water to thrive” and that the drought, “combined with water hoarding by Georgia, caused the lowest Apalachicola River flows in 90 years,” and consequently the collapse of the oyster industry in Florida. The goal is to force Atlanta to withdraw water from Lake Lanier and the Chattahoochee at 1992 levels, about 275 million gallons a day, as opposed to its current 375 million gallons a day. Accomplishing this goal, as put by the report, is a tall order for Florida and may end up costing both sides more than it would benefit either one.
The importance of the case lies in its potentially prophetic nature. As urban populations grow, cities will find their water resources increasingly under pressure and, if left unchecked, such pressure may turn currently uncommon legal battles similar to this one into the norm. A mixture of climate change and sea-level rise, which threatens fresh water sources and aquifers with increasing amounts of salt water, is already taking its toll on the country’s ecosystem and resources. Atlanta’s story of incrementally drawing water from artificial lakes fed by rivers is not unique and, despite conservation efforts, will consistently make downstream users of those rivers nervous. It is for this reason that cooperation and mutual agreements, by the states in question, hold the least costly and most long-lasting potential to stave off conflict.
To illustrate the alternative, the issue between Florida and Georgia proves useful. A solution sought through litigation has already, over 25 years, cost Georgia around $20 million, with the current suit costing another $20 million. What is more, around 70 attorneys must go over 4 million documents and 660,000 emails provided by Florida just to determine whether or not Florida has a case against Georgia. Florida in turn has received around 2 million documents and 2.3 terabytes of data from the 35 counties and 28 water districts in Georgia it believes are responsible for the poor management of the water resources in question. Put briefly, the amount of information and effort required to prove which state has drawn what amount from the Flint, Chattahoochee, and Apalachicola Rivers is gargantuan. What is more, the size of the endeavor makes the opportunity for the spreading of misinformation equally large. This risk was so great, in fact, that in April 2015 special master Lancaster issued an order preventing the public from accessing records involving settlement negotiations for the ongoing case.
As special master for the case, Lancaster is in a position where he cannot satisfy both states completely; even leading him to say that, if left up to him, “Both states will have spent millions and perhaps even billions of dollars to obtain a result which neither one wants.”
Furthering the point that it is in the best interest of the states to devise a mutual agreement between themselves – outside of court – Lancaster cited a February 2015 decision in Kansas v. Nebraska, a similar case involving the Republican River that was also decided by a special master. The decision was that while Nebraska had indeed exceeded its pumping allocation from the Republican River aquifer, and would subsequently pay damages to that effect, Kansas had failed to demonstrate a recurrent violation and as such could not demand an injunction to Nebraska’s pumping. Essentially, a long and expensive legal battle resulted in an expensive and unilateral decision that left things more or less the same as before. Perhaps out of fear of a similar result, then, Governor Deal of Georgia and Governor Scott of Florida have held a series of meetings to discuss a solution to the problem.
Said Governor Deal, “We’ve made good progress on our side of the line, and both governors have indicated a willingness to re-engage to see if we can finalize it. It’s better for us to re-engage than have a court try to decide it.”
A spokeswoman for Governor Scott was more focused on the aim of the negotiations, saying only that “Governor Scott will continue to work to protect the families whose livelihoods depend on the Apalachicola Bay.”
As of now the lawsuit remains in place and the special master retains final say in the matter. Warwick Group will continue to monitor the situation and provide updates on any decisions reached, as what occurs in this case may very well set precedent for future water wars.
For more information, please contact Christian Flinn at email@example.com.