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Florida seeks legal cure for Apalachicola Bay crisis

Official worries water war lawsuit might outlive seafood industry

POSTED: September 1, 2013 12:00 a.m.

Seafood is more than a meal in Franklin County, Fla. It’s a way of life, down to having an annual festival, where oysters are shucked, ships are blessed and the industry’s rich past is celebrated.

But Shannon Hartsfield, president of the Franklin County Seafood Workers Association, is worried the coastal community’s future might not fare so well.

“We go through another drought like we did and our bay is over with,” he said in a phone interview last week.

This year’s heavy rains, which have fallen throughout the Southeast, have provided too much freshwater for oysters, while previous years of drought and dry weather have put an economic hurt on the Apalachicola Bay, which overlooks the Gulf of Mexico in Florida’s panhandle, Hartsfield said.

“I was up in Atlanta last year and rode around ... and everybody was watering their lawns and going on like there’s plenty of water, and here we are (in the bay) struggling to get any water. It’s not being fair and sharing the pain a little bit.”

The Apalachicola Bay, part of the Apalachicola-Chattahoochee-Flint River Basin, which includes Lake Lanier at its northernmost end, is a focal point in a longstanding debate between Florida and Georgia over water supply and usage, dubbed as “water wars” that also have included neighboring Alabama.

Georgia gained a strong upper hand in June 2012 with the U.S. Supreme Court’s rejection of a crucial appeal by Florida and Alabama, but tensions have flared again with Florida Gov. Rick Scott threatening to sue Georgia over increased water consumption limiting flows to the Apalachicola.

In an Aug. 13 statement, Scott said the Sunshine State must take such drastic action because it has been unable to negotiate a settlement in recent decades on how to allocate water between the three states. Florida’s step is an escalation in years of litigation.

“This lawsuit will be targeted toward one thing — fighting for the future of Apalachicola,” Scott said at the time.

“This is a bold, historic legal action for our state. But this is our only way forward after 20 years of failed negotiations with Georgia. We must fight for the people of this region. The economic future of Apalachicola Bay and Northwest Florida is at stake.”

Patrick Gillespie, press secretary for the Florida Department of Environmental Protection, said last week: “Florida will be filing its complaint, which is still in development.”

A possible lawsuit triggered immediate reaction among Georgia officials.

“More than a year ago, I offered a framework for a comprehensive agreement,” Gov. Nathan Deal said. “Florida never responded. It’s absurd to waste taxpayers’ money and prolong this process with a court battle when I’ve proposed a workable solution.”

He added, “The fastest and best resolution is an agreement, not a lawsuit going into an election year. On the flip side, the merits of Georgia’s arguments have consistently prevailed in federal court, and a victory in the U.S. Supreme Court would decide this issue in Georgia’s favor once and for all.”

Deal also pointed out the timing of Scott’s remarks, noting that both states have been deluged by rainfall this year.

Hartsfield said the bay is dealing with “too much freshwater, all at one time.”

“Every time Georgia gets too much water, they just flush it all down here,” he said. “Now, we’re getting overflows. It seems like during a wet season, there would be some kind of reservoir system that would fill up. Our river flood stage is 15 feet and we’ve hit over 19 feet in the last two or three months.

“What happens is it throws the oysters into shock. You get a sudden surge of freshwater and it messes their system up, and a lot of them die.”

U.S. Rep. Doug Collins, R-Gainesville, said, “This really is a sad political stunt to go about exercising a court battle over issues that have been litigated before. And I feel like Georgia is in a strong position to prevail again.”

In a statement issued last week, the Gainesville-based Lake Lanier Association called Scott’s intentions to sue a “major disappointment.”

“The LLA has empathy for the Florida oyster industry, having experienced the direct impact of a major drought on a North Georgia economy,” officials said. “Lake Lanier area losses exceed $100 million annually when Lake Lanier is drawn down to 1,060 feet or below for prolonged periods of time.”

Even Hartsfield has concerns about litigation, but his are of a different stripe.

“I told (Scott) we haven’t got five years,” he said. “Five years just to get it into the court system and then another five years fighting and wasting a bunch of money, I think that’s just a waste of time. Our bay won’t last long enough.”

Dan Tonsmiere, executive director of Apalachicola Riverkeeper, said the bay “collapsed last summer, and it’s going to take maybe five years to recover if we get some decent flows. Our entire fishing industry is on the rails right now.”

He said a lawsuit would serve “as a long-term fix, if it’s a fix at all.”

More court action would continue nearly 20 years of litigation between Georgia and Florida over water in the ACF. Lake Lanier has been a bone of contention because it is the main drinking water source for much of metro Atlanta, as well as Hall County.

Florida and Alabama appeared to gain the upper hand in July 2009, when U.S. District Court Judge Paul Magnuson imposed a three-year deadline for Georgia to find another source of water, have Congress reauthorize Lanier as a specially designated source of drinking water or negotiate a water-sharing agreement with Florida and Alabama.

Then, in September 2011, the 11th U.S. Circuit Court of Appeals in Atlanta reversed Magnuson’s decision. A three-judge panel said Congress always intended for the lake to be used as a source of drinking water for the Atlanta area and that previous decisions that said otherwise, including Magnuson’s ruling, were based on “a clear error of law.”

The case wound up in the U.S. Supreme Court, which later refused to hear appeals from Florida and Alabama.

The Lake Lanier Association recommends that Florida “invest in the several groups that are looking into this issue,” including the ACF Stakeholders, which “has worked for the past four years analyzing and modeling the flows on the system.

“Included in that work is significant modeling of the Apalachicola Bay with focus on the factors affecting oyster productivity. Initial results of their work are expected by the end of 2013. The LLA encourages a collaborative working relationship between the state governors to establish a fair and equitable water-sharing agreement without the delay and expense that would be incurred from legal proceedings.”

Hartsfield isn’t so sure the ACF Stakeholders is the answer, and he serves on the group’s governing board.

“When I first got into it, I had a lot of high hopes,” he said. “I’m still hoping, but it’s still comes down to the (ideas) we think might work ... the only one that is going to be looking at them is the corps.”


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