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Fla. lawsuit may restart years of water litigation

POSTED: October 7, 2013 12:27 a.m.

For those believing the tri-state “water wars” were done with a 2012 U.S. Supreme Court decision favoring Georgia, along came legal action last week that could add another decade to the already 20-year-old fight.

Florida filed suit against Georgia in the U.S. Supreme Court — the legal setting for interstate suits — claiming Georgia has “overconsumed” water in the Apalachicola-Chattahoochee-Flint River basin, leaving flows to trickle into the Apalachicola Bay, home of Florida’s struggling oyster industry.

Much of the focus of the dispute is on Lake Lanier, metro Atlanta’s main drinking water source.

Continuing litigation over Florida’s suit isn’t a given, as the Supreme Court will decide whether to accept the case.

But if the suit passes muster with the court, it will be assigned to a special master, who will oversee all aspects of the case and eventually write a report for the court that will include a proposed allocation, said Lewis Jones of Atlanta law firm King & Spalding, which has represented Atlanta, the Atlanta Regional Commission and other local governments in the matter.

“The parties will then be given an opportunity to file objections to the special master’s report before the Supreme Court issues a final decree,” he added.

The entire process could take up to 10 years, Jones said.

The ACF Stakeholders, a group seeking water-sharing solutions for the basin, which also extends into Alabama, passed a resolution last week asking Florida Gov. Rick Scott “to delay any further legal action or pursue any current lawsuit” against Georgia over freshwater consumption in the basin.

The group’s governing board asked for the delay until it “has published its recommendations for a sustainable water management plan,” adding it has worked for four years to develop the plan and expects to complete the effort by June 2014.

The group “is convinced that collaborative efforts are essential to finding sustainable water management solutions,” the resolution states.

Melissa Sellers, Scott’s communications director, couldn’t be reached for comment. Patrick Gillespie, press secretary for the Florida Department of Environmental Protection, has declined comment.

Scott announced on Aug. 13 he would sue Georgia following a U.S. Senate field hearing where lawmakers heard about the impact that drought and reduced water flows had on Apalachicola Bay.

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

Last week, Georgia Gov. Nathan Deal’s spokesman, Brian Robinson, said in response to the suit: “The only ‘unmitigated consumption’ going on around here is Florida’s waste of our tax dollars on a frivolous lawsuit.

“Florida is receiving historically high water flows at the state line this year, but it needs a bogeyman to blame for its poor management of Apalachicola Bay.”

Clyde Morris, an attorney for Gainesville-based Lake Lanier Association, said: “From my view, the complaint uses a lot of hyperbole — words like ‘unchecked use’ and ‘unmitigated use by Georgia’ that simply aren’t true.

“And frankly, they’re not going to be able to prove those things, but it’s not surprising to see those things in a complaint.”

Florida’s lawsuit doesn’t focus squarely on Lake Lanier and the Upper Chattahoochee basin.

“Now, they’re taking aim at South Georgia and irrigation uses for farming, not just the Atlanta area,” Morris said. “We really didn’t deal a whole lot with the Flint River in earlier litigation, and it looks like (Florida) is trying to make that a high focus of this case.”

The suit also complains about “low flows in the summertime.”

“It seems like their attitude continues to be that Lake Lanier is a bottomless resource that was built, in this case, to preserve the oyster industry, when we all know it’s neither bottomless nor was it built for that purpose,” Morris said.

The lawsuit doesn’t acknowledge “we have taken huge strides to reduce our per capita consumption,” he added.

“I think they’ve got a tough road to hoe to prove that Georgia is not being a good steward of the water that’s coming down through the ACF,” Morris said.

Shannon Hartsfield, president of the Franklin County (Fla.) Seafood Workers Association, doesn’t quite share that view.

“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.”

But even he is wary about a lawsuit.

“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.”


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