Georgia has won a significant decision in the tri-state water wars — one that might signal the end of water litigation that has lingered for nearly three decades.
While some cases involving the Apalachicola-Chattahoochee-Flint River Basin shared by Georgia, Florida and Alabama are still “percolating through the courts, this report likely sounds the death knell for Florida’s nearly three-decades-long attack on Georgia’s water use in the ACF,” said Clyde Morris, Lake Lanier Association attorney.
“We may see future litigation concerning environmental issues and the (Army Corps of Engineers) management, but the threat of equitable apportionment looks like it will finally go away in 2020,” he said.
U.S. Circuit Judge Paul J. Kelly Jr. ruled against Florida in an 81-page order issued Wednesday, Dec. 11, saying he didn’t recommend the Supreme Court grant Florida’s request for an equitable apportioning of waters in the ACF.
“The evidence has shown that Georgia’s water use is reasonable, and the evidence has not shown that the benefits of apportionment would substantially outweigh the potential harms,” Kelly said.
The Supreme Court now will decide whether to accept Kelly’s recommendation.
Kelly was chosen by the Supreme Court to hear the case between Florida and Georgia as special master.
Florida has claimed it has suffered economic and ecological harm from Georgia’s “overconsumption of water” in the Apalachicola-Chattahoochee-Flint River Basin.
Florida is asking the court to freeze Georgia's water usage at current levels in the ACF to 2050 and approve even tighter controls during droughts. The basin begins northeast of Lake Lanier and flows southwest past Atlanta into the Gulf of Mexico in Florida's Panhandle.
In a Nov. 7 hearing in New Mexico before Kelly, Florida hammered Georgia for not doing enough to limit agricultural water use in southwest Georgia as the oyster industry downstream in Apalachicola Bay collapsed.
Georgia's lead attorney spent much of his time picking apart the data sets used by Florida and insisted that Georgia's water usage was far less than Florida's estimates. He said Florida failed to meet one of the case's central questions, which was laid out by the Supreme Court in a June 2018 ruling.
The court "cannot possibly find that the benefits substantially outweigh the cost to Georgia," said Craig Primis, Georgia's attorney.
Kelly said in his ruling that Florida “has pointed to harm in the oyster fishery collapse, but I do not find that Georgia caused that harm by clear and convincing evidence.”
Kelly’s synopsis “certainly reflects my own analysis of the evidence and the law,” Morris said.
The judge’s ruling drew a favorable response from Gov. Brian Kemp.
“We greatly appreciate Special Master Kelly's recognition of Georgia's strong, evidence-based case in this litigation,” he said in a statement. “We will continue to be good stewards of water resources in every corner of our state, and we hope that this issue will reach a final conclusion soon.”
U.S. Rep. Doug Collins also weighed in, saying, “Today’s ruling is a big step in the right direction. The water wars have cost our state millions of dollars and countless years fighting to protect what’s ours.
“Georgia is home to an abundance of natural resources, and both the well-being of our citizens and the health of our economy depend on our ability to safeguard such resources. I’m relieved to see this 6-year dispute finally nearing its end, and I’m proud of the many individuals who have spent years fighting in good faith to get us to where we are today.”
The battle with Florida is the latest chapter in water litigation also involving Alabama that dates to 1990. The last critical decision was in 2012, when the Supreme Court upheld a lower court’s decision to deny requests by Alabama and Florida to review whether water supply is an authorized purpose of Lake Lanier.
The Associated Press contributed to this report.