The tri-state water wars, which now particularly pit Georgia against Florida, continue to chug along, poised to move into a third decade.
A Nov. 7 hearing in Albuquerque, N.M., won’t nearly mark the end of the water-sharing dispute that has piled up stacks of legal bills for the two states, as well as Alabama, over decades.
Water wars timeline
1990: Alabama files suit against the Army Corps of Engineers to block proposed actions in the Apalachicola-Chattahoochee-Flint River Basin, which straddles Alabama, Georgia and Florida.
1997: Georgia, Alabama and Florida adopt interstate compacts for the ACF and Alabama-Coosa-Tallapoosa river basins. The compacts specifically provide that water suppliers in metro Atlanta can increase withdrawals to meet reasonable increases in demand.
2004-07: Alabama terminates the ACT Compact and resumes litigation. Alabama challenges the Corps’ water supply operations and Cobb County-Marietta Water Authority’s water supply withdrawals from the reservoir.
2009: Judge Paul Magnuson of Minnesota rules that water supply is not an authorized purpose of Lake Lanier, and imposes, in his words, a “draconian” injunction that would have cut metro Atlanta’s water supply in half. Georgia is given three years to obtain congressional approval for additional authorization.
2011: The 11th Circuit Court of Appeals overturns Magnuson’s decision, finding that water supply is a fully authorized purpose of Lake Lanier.
2012: The U.S. Supreme Court effectively upholds the 11th Circuit’s decision by denying requests by Alabama and Florida’s requests to review the 11th Circuit’s key holding that water supply is an authorized purpose of Lake Lanier.
2014: The Supreme Court allows Florida to sue Georgia over an “equitable apportionment” of waters of the ACF Basin, and it appoints Maine lawyer Ralph Lancaster to oversee the case as special master.
2017: Lancaster recommends that the Supreme Court deny Florida’s request for relief because Florida has not proven by clear and convincing evidence that any issues could be addressed without the Corps as a party to the case.
January 2018: Georgia and Florida present arguments to the Supreme Court on Lancaster’s recommendation.
June 2018: The Supreme Court sent the case back to an appointed special master for further review, ruling Florida’s case was strong enough that further hearings and evidence could allow the court to come up with a decree on water consumption.
Source: Atlanta Regional Commission
But it does move the gear out of neutral, where it’s largely been stuck since June 2018, when the U.S. Supreme Court sent the case back to an appointed special master for further review.
And all eyes are on New Mexico.
“We are closely following the litigation before the Supreme Court, including the special master’s upcoming hearing,” said Linda MacGregor, director of the Gainesville Department of Water Resources.
“We, along with other water utilities, have filed briefs earlier in the case. It is important that the court understand the importance of our water supply and our conservation efforts to ensure wise water use.”
At the hearing, Georgia and Florida lawyers will get to present their state’s side in a dispute stemming from the latest piece of litigation — one that involves Florida’s claims it has suffered economic and ecological harm from Georgia’s “overconsumption of water” in the Apalachicola-Chattahoochee-Flint River Basin shared by the two states and Alabama.
The arguments are taking place in Albuquerque because that’s where the special master — Judge Paul J. Kelly Jr. of the U.S. Court of Appeals for the 10th Circuit — is based.
Before Kelly, another special master, the late Ralph Lancaster of Maine, had presided over the lawsuit, taking briefs from both sides before submitting a recommendation to the Supreme Court last year.
Lancaster had found that Florida had proven harm but that it wasn’t possible for the court to find a solution to the dispute. He believed the Army Corps of Engineers needed to be a party in the case because it controls water flows in the ACF.
Justices disagreed, ruling Florida’s case was strong enough that further hearings and evidence could allow the court to come up with a decree on water consumption.
“The special master applied too strict a standard in concluding that Florida failed to meet its initial burden of demonstrating that the court can eventually fashion an effective equitable decree,” wrote Justice Stephen Breyer, who delivered the 5-4 opinion.
The decision drew disappointment from Georgia leaders, who otherwise remained confident in their case, and elation from their counterparts in Florida.
In analyzing the justices’ decision, Clyde Morris, who represents the Lake Lanier Association, said, “It’s pretty clear they didn’t want this case to turn on a bad strategic decision by Florida. “Not that Florida could necessarily have forced the Corps into the case, but they argued all along that the Corps wasn’t necessary — as did the Corps,” he added.
The court said Florida “is entitled to relief under reasonable predictions of future conditions … and that’s the strength of Georgia’s case,” Morris said.
Georgia represents the vast majority of the population, economic production and employment in the basin.
Morris believes “it would be inequitable for Florida to win when the harm to Georgia would be so much greater than any benefit Florida could hope to gain.”
“Florida is facing the daunting — and, if you ask me, unsuccessful — task of trying to prove that the equities fall in its favor,” he said.
Also, “the caps that Florida is asking for are going to have little or no effect on the flow of water across the state line during times of drought,” Morris said. “And that’s the crucial factor here.”
Gil Rogers, the Southern Environmental Law Center’s director of Georgia and Alabama Offices, said watching the new special master at work will be interesting.
“He doesn’t have the history with the case, so it remains to be seen whether he will end up making a similar recommendation as (Lancaster did) or if he’ll go a different way,” he said.
One thing that seems fairly certain is that the case may drag on for at least another year.
“I would think we would hear something from (Kelly) sometime next year and then the Supreme Court will take some time to react to that,” Rogers said.
Morris said he expects the Supreme Court “to take oral arguments again” when the case comes back.
“It’s a big deal when one state sues another,” he said. “We could well be into 2021 before a decision comes around.”