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Could water wars court trial be 'end game in 26-year-old conflict?
Judge to hear Florida's lawsuit starting Monday in Maine
1024DROUGHT
Drought conditions have reduced Lake Lanier's water level to nearly 10 feet below full pool. All of Hall County other than a small portion in the southeast part of the county is considered to be in extreme drought conditions, according to the U.S. Drought Monitor. - photo by Erin O. Smith

‘Water Wars’ chronology

2013: Florida files litigation in the U.S. Supreme Court challenging Georgia’s “overconsumption” of water in the ACF, alleging it has devastated the Apalachicola Bay in the Gulf of Mexico.

2011: The federal Court of Appeals overturns the 2009 lower court ruling against Georgia.

2010: A federal court in Jacksonville rejected claims by Florida that the corps’ operations violated the Endangered Species Act.

2009: A federal judge ruled that Atlanta had little legal right to withdraw water from Lake Lanier and would curtail water withdrawals by 2012 unless Alabama, Florida and Georgia struck a deal by then.

2003: Negotiations on allocation formulas in the ACF between the states break down. Litigation resumed and mushroomed, with eight separate cases in different federal courts, all challenging various aspects of the corps’ operation of its reservoirs.

1997: The study was never completed, but the states agreed to determine each state’s fair share of the water.

1992: Alabama, Florida, Georgia and the corps agreed to suspend the litigation while studying water resources in two shared basins, including the Apalachicola-Chattahoochee-Flint River Basin, which contains Lake Lanier.

1990: Alabama sued the Army Corps of Engineers to prevent it from finalizing a plan that would have allowed metro Atlanta communities to buy storage space in the corps reservoirs so they could store water for municipal and industrial water supply.

Source: Atlanta Regional Commission 

A major “water wars” trial between Georgia and Florida is set to start Monday on Halloween — interesting timing, as the issue of water sharing has haunted the two states, as well as Alabama, for more than two decades.

The latest court battle, taking place in Portland, Maine, could be a significant milestone, observers of the exhaustive conflict said in interviews last week.

“I think this is, in large part, probably the end game ... for Florida in terms of trying to secure more water for itself out of the ACF,” said Clyde Morris, lawyer for the Gainesville-based Lake Lanier Association.

Dan Tonsmeire, who heads Apalachicola Riverkeeper, agrees.

“This is our last best chance, I think, to require Georgia to respect the freshwater needs of our part of the basin,” he said.

The ACF is the Apalachicola-Chattahoochee-Flint River Basin, which straddles the three states and has Lake Lanier in its headwaters.

Lake Lanier is a flashpoint in the tri-state struggle, as ever-growing metro Atlanta pulls its drinking water from the reservoir that hugs Hall County’s boundaries.

The other major hot spot is the oyster-rich Apalachicola Bay in Florida on the Gulf of Mexico. Florida charges in its lawsuit before the U.S. Supreme Court that Georgia’s “overconsumption” of water has harmed the region.

“The region also contains historic communities, whose social well-being is intrinsically linked with the health and sustainability of the ecosystem and who rely economically upon Apalachicola Bay’s oyster, shrimp and other fisheries, the production of tupelo honey and tourism,” Florida states in a court filing.

And though Alabama has nothing at stake in the newest fight, the state sides with Florida.

“A cap on Georgia’s consumption from the ACF is appropriate,” Alabama lawyers stated in a recent “friend of the court” brief.

“As the population of metropolitan Atlanta has grown, Georgia largely has chosen not to invest its resources in reservoirs and other infrastructure that would facilitate the area’s water-supply demands.

“Instead, Georgia has sought to use federally owned resources, such as the corps’ reservoirs at Lake Lanier in the ACF Basin and Lake Allatoona in the (Alabama-Coosa-Tallapoosa) Basin, to meet its new demands.”

Tonsmeire said he sees Georgia as refusing to budge on the issue.

“They claim that all the water that falls in Georgia is Georgia’s, and they fully intend to use every drop of it if they can, without any regard of what the impacts downstream are,” he said.

Georgia dismisses Florida’s arguments.

“Florida attempts to establish a series of ecological harms that it claims must be caused by Georgia’s upstream water use,” lawyers said in a lengthy pre-trial filing.

“But these harms either do not exist, are based on speculation, or were caused by factors other than Georgia, such as operations of the corps, uncontrollable forces of nature or Florida itself.”

Georgia also says that evidence will also show its water use is “equitable by any measure.”

“The Atlanta metro region is a nationally recognized leader in water stewardship. Georgia has spent millions on water conservation in the region, and both per capita and total consumptive water use have declined in Atlanta over the last 20 years.”

Jason Ulseth, who heads the Chattahoochee Riverkeeper, said he believes “there is some legitimacy to Florida’s claims.”

“Seventy-five percent of the time, we have enough water for everybody throughout the basin,” he said. “But it’s the periods of drought, like what we’re in right now, where we have significantly lower flows that are coming down the river systems into the bay.”

At the same time, metro Atlanta “has made significant strides in water conservation,” Ulseth said. “However, we have a long way to go.”

Under the strong urging of the Ralph Lancaster, a Portland lawyer appointed by the Supreme Court to preside over the case, Georgia and Florida have tried to settle the dispute over the past few months.

But closer to trial, it appeared talks had crumbled.

The lack of progress is “despite the efforts of a highly skilled mediator, numerous mediation discussions, and considerable time and effort invested in the mediation process throughout this year,” Florida has said.

Georgia said it was disappointed Florida didn’t show a Sept. 21 session with the mediator, but it “continues to believe that mediation is a viable option in this case and remains hopeful that Florida will re-engage with the mediation process.”

Morris said he expects the friction to continue.

“Once they see each other’s evidence, there might be a greater willingness to find some middle ground,” he said. “I’m not sure that will happen. I wouldn’t necessarily bet on it.”

Ryan Rowberry, a Georgia State University law professor who once served as a lawyer representing Florida, said he believes “the most sensible” end to the dispute is a joint agreement “that builds in what happens during a drought and those kinds of things.”

But that may not happen until Lancaster issues a decision that both sides probably won’t be happy with.

“His report will put pressure on both states to solve this politically, rather than judicially,” he said. “The judicial system is not equipped to deal with this.”

 

 
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