Another hearing. Another decade. And on marches the seemingly never-ending “war” between Georgia and Florida over the use of water from the Apalachicola-Chattahoochee-Flint River Basin.
A hearing has been set for Nov. 7 for the latest round in a legal battle that has perplexed and entangled a multitude of government entities for nearly 30 years.
If ever there was a case that proves the complexity of issues involved in seeking legal remedies to government and political issues that transcend the jurisdictions of individual states, it is the courtroom battle over access to water — much of it coming from Lake Lanier — that has confounded jurists, lawyers and state officials since 1990.
Still there is no assurance of an end in sight, as next month’s hearing is expected to start a new review process that almost certainly will last well into next year, if not longer, with yet another judicial decision still to come once that review is done.
While certain elements of the debate have changed over time, the core aspects of the case have made their way to the U.S. Supreme Court, from that Court to a “special master” assigned to review and make recommendations, from the special master — who has since died — back to the Supreme Court, which disagreed with the recommendations made and has now sent the case to a different special master for a new legal review.
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- Cheryl Brown
- David George
- Mandy Harris
- Brent Hoffman
- J.C. Smith
- Tom Vivelo
And that’s just in the past seven years or so and doesn’t count the 20-plus years of legal wrangling that went on before the case ended up at the Supreme Court in 2012.
Along the way, governors involved in the litigation have changed and changed again, lawyers have come and gone, judges have been replaced, participants in the decision making process have died, and still we await a definitive final decision on the question of whether Georgia takes too much water from the river basin and thus precludes Florida from receiving all the water it should.
Alabama, a participant in the water battle initially, has stepped aside, but presumably could yet re-enter the fray.
“It’s a big deal when one state sues another. We could well be into 2021 before a decision comes around,” said Gil Rogers, director of the Georgia and Alabama offices of the Southern Environmental Law Center.
Certainly it’s a “big deal” when one state sues another, but it shouldn’t be an impossible situation to resolve. That is, after all, one of the reasons the Supreme Court has the authority to hear cases involving one state challenging the actions of another.
That the courts, the Congress, the Army Corps of Engineers, the federal government and the states themselves have been unable to declare a victor or force a surrender in this war over water says nothing good about any of the entities involved.
An ACF Stakeholders recommendation was met with muted reaction from states.
The original debate was whether Georgia was drawing so much water from the river basin, particularly in the metro Atlanta area, that it was negatively impacting Alabama and Florida from an economic and environmental standpoint.
At the heart of the issue was Lake Lanier, and how much of the water it contains can be used for drinking purposes in the Atlanta area vs. being allowed to flow downstream to other states. At one point,a judge ruled that drinking water was not an authorized use for the lake, and that much of what was being drawn from the reservoir for that purpose was being done without legal justification. That decision later was overruled.
In the meantime, Georgia has had great success at conserving water.
The saga does serve as a reminder of how totally dependent on Lake Lanier much of the Atlanta area is, and that we still have not developed sufficient alternative water sources to help serve the region’s growing population.
At times of severe drought, such as we endured in 2007, state and local officials turn their attention to finding and funding better supply systems, but as memory of those seriously dry periods wash away with new rainfall, the need for anything other than existing water supplies seems to be forgotten.
Remember the urgency that creating new reservoirs in North Georgia — like the ill-fated Glades — once had? Heard anybody talking about those ideas in recent years? Think we’re never again going to encounter drought conditions?
Over the course of the 30 years since the original lawsuit, metro Atlanta’s population has grown by leaps and bounds, the need for water has increased exponentially, and our neighboring states seem to have found ways to cope with the basin’s flow.
Despite the many millions of tax dollars that have been spent on legal representation by the state governments involved, it’s hard to realistically say we are closer to a resolution today than we were when the case first went to the Supreme Court in 2012.
The new special master for the case is Judge Paul Joseph Kelly Jr., a “senior” judge of the 10th Circuit of the U.S. Court of Appeals. “Senior” status is a sort of semi-retirement for judges, indicative of a jurist who has cut back on his workload after a long career on the bench.
Kelly was appointed a federal judge 27 years ago. By then, the “water wars” litigation had already been in the court system for two years. Hopefully the reality that the case he is hearing has been in the system longer than he has been a federal judge won’t be lost on the new special master and he will expedite a recommendation that the Supreme Court will find to its liking. It’s past time for this particular bit of legal warfare to end.