Apalachicola Riverkeeper Georgia Ackerman is more than a little familiar with economic struggles in the freshwater habitats in her Florida corner of the Gulf of Mexico. She describes it as a “slow decline with no end in sight.”
But when asked if she’d like to see the Sunshine State prevail in the latest piece of “water wars” litigation between Georgia and Florida, she didn’t merely pick sides.
“What I’d like to see is a fair sharing of water,” Ackerman said. “That would be the success story here.”
The issue of water sharing from a common source for Florida and Georgia — the Apalachicola-Chattahoochee-Flint River Basin, which includes Lake Lanier in the headwaters — has made its way to the U.S. Supreme Court, where oral arguments are set for Monday, Feb. 22, and live streaming online at an undetermined time.
Florida is alleging “overconsumption” of water in the basin. The Apalachicola River spills into the Gulf of Mexico, where Florida claims it has suffered economic and ecological harm.
“Denying Florida relief not only would spell doom for Apalachicola, it would set the bar so high for an equitable apportionment that it would effectively invite states to raid water as it passes through their borders,” Florida lawyers said in a brief filed in July 2020 in the Supreme Court.
Florida’s plea to the court is in response to U.S. Circuit Judge Paul J. Kelly’s recommendation in December 2019 that justices not grant Florida’s request for an “equitable apportioning” of waters in the basin.
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 to review the 11th Circuit’s decision.
- 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 sends 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.
- December 2019: U.S. Circuit Judge Paul J. Kelly Jr. rules against Florida in an 81-page order, saying he didn’t recommend the Supreme Court grant Florida’s request for an equitable apportioning of waters in the ACF.
- Dec. 31: Case is set for oral arguments on Feb. 22
Georgia, meanwhile, wants the court to accept Kelly’s recommendation. Georgia said in a June court filing, “After more than six years of litigation, it is now clear that Florida’s case was built on rhetoric and not on facts.”
Georgia contends that while it accounts for more than 90% of the population, employment and “economic output” in the basin, the state’s total water consumption is 2.4% of “state line” flows in wet years and 6.1% in dry years, its lawyers say.
The issue is actually making its second pass through the Supreme Court. Ralph Lancaster, a court-appointed special master before Kelly, offered a recommendation — also siding with Georgia — but justices had additional questions and decided to appoint Kelly to carry on the work.
“It seems to me (Kelly) answered all the questions put to him by the justices,” said Clyde Morris, attorney for the Gainesville-based Lake Lanier Association. “Perhaps more importantly — and this is merely my opinion — I think the justices were throwing Florida a bone when they remanded the first time.
“My sense is that the justices did not want Florida to lose on a technicality, so to speak, so they gave Florida another opportunity to win on the merits. Sadly for Florida, they lost in the eyes of the special master – badly. And I see nothing in Judge Kelly’s report to suggest that the justices should give Florida another bite at the apple.”
And for Clyde’s part, “I don’t think this case will be the last legal challenge regarding the ACF (basin), but I do think it will be the end of Florida’s legal attempt to obtain equitable apportionment.”
Ackerman said, “We’ve got to share water fairly in the ACF basin, and it can be done.”
“Regrettably, the inequitable sharing of water has devastated the Apalachicola’s floodplain, the source of life-giving nutrients for the estuary of Apalachicola Bay,” she said. “The region is recognized internationally as a biodiversity hotspot with a long list of other notable ecological designations.
“And yes, the Apalachicola River supports the productivity of not only Apalachicola Bay, but also the eastern Gulf of Mexico — a tremendous economic impact to Florida’s west coast.”
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.
Stemming from that decision, Georgia and the Army Corps of Engineers agreed earlier this year to a $71 million water contract for permanent water storage at Lake Lanier.
Water storage talks between Georgia and the Corps began in 2017, after the Corps approved Georgia’s request to reallocate the storage space among Lanier’s water suppliers. The overall storage space is projected to meet projected municipal and industrial water supply through 2050, Richard Dunn, Environmental Protection Division director, has said.
Water providers around the lake, including Gainesville Department of Water Services, will share in the costs based on pro rata usage, said Linda MacGregor, director of the Gainesville utility.
Those dollar amounts, along with allocations, will be reflected in subcontracts between Georgia and the utilities. The subcontracts have yet to be issued.