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Each side prosecuting every possible fact in water wars Supreme Court trial

A U.S. Supreme Court case over water sharing has Georgia and Florida showing up with teams of lawyers, expert witnesses and stacks of carefully documented evidence.

“The methodical nature by which they are prosecuting every possible fact — that was impressive,” said Juliet Cohen, executive director of Chattahoochee Riverkeeper, who has watched part of the trial in Portland, Maine.

“But it’s unfortunate at the same time, because my sense is that had the states had put half of that effort into honest, good-faith negotiation, we could have resolved this a long time ago.”

Cohen shared some of her observations of the legal battle after returning last week to Georgia.

The trial began Oct. 31 with Florida presenting its case first, as the suit alleging “overconsumption” of water in the Apalachicola-Chattahoochee-Flint River Basin was filed by Florida.

The ACF straddles the two states and Alabama and has Lake Lanier in its headwaters.

“It’s a battle of Florida arguing it was low flows that led to the collapse of the oyster fishery in 2012 and Georgia arguing that it was an over-harvesting problem,” Cohen said.

“In my mind … you can’t put 100 percent of the blame on any one factor. From the evidence I saw, it was a variety of factors that contributed to the collapse.

“It was reduced flows from the river that allowed for higher (saltiness) in the bay, and it was increasing over-harvesting of the fishery. All that made for a perfect storm.”

Chattahoochee Riverkeeper, an environmental watchdog group with an office on the Gainesville square, is keeping an eye on the trial.

“We are thinking that the best time to send up another person will be when Georgia starts to present its case,” said Jason Ulseth, who heads the organization as its riverkeeper. “Right now, that’s looking like the week after Thanksgiving.”

The trial is the latest chapter in a longstanding battle that also has included Alabama, tracing to 1990 when Alabama sued the Army Corps of Engineers.

In that opening salvo, the state was seeking to prevent the corps 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.

The latest court battle could be a significant milestone, longtime observers have said.

“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.

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.

“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 has said in a court filing.

Georgia dismisses Florida’s arguments, saying Florida’s allegations of “ecological 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.”

“There are solutions to all of the failures,” Cohen said. “And then you’ve got the corps, which is this sort of unrepresented, unspoken factor (at the trial).

“Regardless of how much water Georgia conserves and doesn’t withdraw, that water … has got to come down the river system starting at Buford Dam. And that involves corps operations, which this court is not addressing at all.”

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