By Chris Manganiello
On December 11, 2019, Special Master Judge Paul Kelly issued a recommendation to the U.S. Supreme Court in the Florida v. Georgia legal case. In plain terms, Kelly recommends the court drop Florida’s latest volley in the decades-long “water wars.” Special Master Kelly thinks Florida failed to make a compelling legal argument and failed to provide sufficient evidence that Georgia uses too much water or that any harm to Florida’s oyster population could be traced to water use in Georgia. You can read the recommendation here.
For additional background, next steps, and CRK’s take, expand the sections below.
- Water in the Chattahoochee River for 5 million people—homeowners, businesses and communities of all sizes from Helen, Ga., to Gordon, Al.
- About 800,000 acres of irrigated agriculture in Georgia’s portion of the Chattahoochee and Flint River basins, and a big slice of Georgia’s $13.76 billion farm-gate value of all food and fiber commodities grown in-state
- Historic tupelo honey industry and oyster fishery in Florida’s Apalachicola River floodplain and the Apalachicola Bay
- Millions in recreation dollars generated on Lake Lanier, at Columbus’ whitewater course, and in the sport fishing industry
- Water necessary for energy generation and industrial production
- Water resources that will be further stressed by growing populations, expanding economies, extreme weather and climate change
For thirty years, Georgia, Alabama, and Florida have fought over the use of water in the Apalachicola-Chattahoochee-Flint River Basin (ACF), which is heavily influenced by the U.S. Army Corps of Engineers’ operation of Lake Lanier’s Buford Dam. Lake Lanier lies within the Chattahoochee’s headwaters, just north of Atlanta.
The Corps built Lake Lanier in the 1950s with clear Congressional authorization for flood control, navigation, and hydropower. Over time, however, Lake Lanier has become the primary source of drinking water supply for metro Atlanta, and Alabama and Florida have argued that Georgia withdraws too much and isn’t sharing the water fairly. All three states have turned to the courts to try to resolve the conflict. Key litigation milestones include:
- In 2009, a federal district court judge ruled against Georgia, deciding that water supply was not an authorized purpose of Lake Lanier. The judge gave Georgia three years to reach a water–sharing agreement with Alabama and Florida and get Congressional approval.
- In 2011, the Eleventh Circuit Court of Appeals reversed the 2009 federal district court decision, ruling that water supply is an authorized purpose of Lake Lanier, on par with hydropower, navigation, and flood control. Furthermore, the appeals court gave the Corps one year to determine the extent to which it could operate Lake Lanier to meet water supply needs in addition to the other authorized purposes.
- In 2012, the Corps responded to the 2011 Eleventh Circuit decision, determining it has discretion to operate Lake Lanier in order to meet Georgia’s current and future water demands.
- In 2013, Florida launched the current dispute at the U.S. Supreme Court level, alleging that Georgia was using too much water, that Florida suffered economic and ecological harm as a result, and requesting equitable apportionment of the waters in ACF Basin. The Supreme Court agreed to hear the case [Supreme Court docket here], and appointed a special attorney known as a Special Master to oversee and manage the case, which is ongoing.
- In 2017 and during the Supreme Court litigation, the Corps released an updated ACF Water Control Manual to guide operations of the Corps’ five reservoirs, dams, and navigation locks in the basin to meet Congressionally authorized purposes of power generation, flood control, navigation, water supply, recreation, and fish and wildlife. This manual had not been updated since 1958.
After extensive discovery resulting in production of millions of pages of documents, a six-week trial began on Halloween and concluded on December 1, 2016. All documents pertaining to the Special Master’s proceedings can be found here.
On February 14, 2017, the Special Master—Portland, Maine, attorney Ralph Lancaster—who oversaw the trial concluded that Florida had not proven by clear and convincing evidence that a cap on Georgia’s consumptive water use would result in additional streamflow in Florida. The Special Master’s recommendation was to deny Florida’s request for relief.
Florida clearly failed to win over the Special Master – but so did Georgia. First, Lancaster noted that metro Atlanta only embraced water conservation because of constant legal threats. According to the Special Master, “Georgia appears to have taken significant steps to conserve water in the Atlanta metropolitan region—though only after having been spurred to take such steps by adverse litigation results,” citing testimony from the former Georgia Environmental Protection Division Director Jud Turner.
Second, Lancaster appeared persuaded by Florida’s allegations that Georgia’s agricultural water management policies were ineffective and led to waste. In the Special Master’s words, Georgia’s agricultural water use was assumed to have been “largely unrestrained.”
In pre-trial briefs, Florida accused Georgia’s farmers, producers, and growers of illegally irrigating up to 90,000 acres of farmland. In response and only days before the October trial commenced, former Georgia Governor Nathan Deal created an Agricultural Permitting Compliance Task Force to evaluate the state’s water withdrawal regulatory process; and in an unprecedented set of actions, the Georgia Environmental Protection Division (EPD) began issuing dozens of “notices of violations” to agricultural water withdrawal permit holders for irrigating a greater number of acres than were disclosed in withdrawal permits. However, it does not appear that EPD required any permittees to reduce the actual volumes being withdrawn or cease irrigation of any crops.
While the Georgia’s Agricultural Permitting Compliance Task Force results and recommendations were never publicly released, in June 2017, former Governor Nathan Deal’s office announced plans to increase funding for EPD’s agricultural water withdrawal metering program. The program has existed since 2003 and installed thousands of meters all over the state. The state will reportedly inject $20 million into the program to install thousands of additional water withdrawal meters and specifically target un-metered withdrawal points in the Flint and Suwannee River basins, which both ultimately flow into Florida.
You can read more about this topic in a Georgia Water Coalition report: Watering Georgia: The State of Water and Agriculture in Georgia. The 2017 report highlights the history, economics, water demand trends and forecasts, and regulatory nature of irrigated agriculture in Georgia. The report offers recommendations for how Georgia can avoid future conflict and ensure there is enough water for all water users and the environment.
On May 31, 2017, the state of Florida filed “Exceptions to Report of the Special Master,” and argued that the Court may find in its favor regardless of whether or not the U.S. Army Corps of Engineers is a party to the case. In his recommendation, the Special Master had ruled against Florida in large part because he found that the Corps’ operations in the ACF Basin would likely prevent additional flows into the Sunshine State even if an equitable apportionment was made and Georgia was forced to further restrict water usage.
The Supreme Court heard oral arguments in the case on January 8, 2018. On June 27, 2018, the Court issued an opinion in the Florida v Georgia trial. The opinion says (read it here) the court needs more information before it can render a final opinion.
On August 9, 2018, the Court named a new Special Master—Senior Judge Paul J. Kelly, Jr., from the U.S. Court of Appeals for the Tenth Circuit—who initiated another round of information gathering to proceed with the case. The Court specifically requested that Florida articulate what specific volume(s) of water would benefit Florida, and what consequences Georgia could face. Additionally, the Court sought to understand why Georgia’s use of water may or may not qualify as reasonable.
On Thursday, November 7, 2019, the two states presented their arguments before Special Master Kelly in an Albuquerque, New Mexico, court room. The Special Master asked specific questions already articulated in the full court’s 2018 decision.
For example, he asked Florida a key question: how would the benefit of additional streamflow into Florida not harm Georgia? Florida eventually explained that there were a number of remedies Georgia offered Florida in previous negotiations (for example, Glades Reservoir in Hall County). Florida argued that if Georgia thought these were reasonable and economically viable solutions to get more water to Florida in the past, then Georgia should see them as reasonable solutions for the future. The Special Master also asked Georgia: at what point in the future would Georgia’s water use become unreasonable? Georgia’s attorney essentially dismissed such concerns by indicating that Georgia could not foresee that its use would ever become unreasonable, and that if it did the state would assess streamflows at that time.
On December 11, 2019, Special Master Judge Paul Kelly issued a recommendation to the U.S. Supreme Court in the Florida v. Georgia legal case. In plain terms, Kelly recommends the court drop Florida’s case. Kelly thinks Florida failed to meet its burden of proof to show by clear and convincing evidence that Georgia uses too much water or that any harm to Florida’s oyster population could be traced to water use in Georgia. You can read the recommendation here.
The Supreme Court has formally accepted the Special Master’s Report and recommendations, and initiated the next phase in the process. In February, 2020, the Court granted Florida’s request to extend the next round of briefing, which will conclude in July. Then the court may set a date for oral argument prior to accepting or rejecting the recommendation, making an independent decision, or returning the case yet again to a Special Master. At this stage, the Court will presumably rule on the matter during the 2020-2021 session.
That the Special Master sided so strongly with Georgia is indicative more of Florida’s failures to present sound scientific support for its arguments rather than a sign that Georgia’s evidence was 100% accurate or infallible. Despite his recommendation, the Special Master did acknowledge that low flows and increased salinity appeared to negatively affect Florida’s oysters, but these conditions alone were not responsible for the fisheries’ collapse.
There is no denying that Special Master Kelly’s recommendation puts Georgia in a strong legal position to justify its current Chattahoochee River-water use in metro Atlanta and agricultural withdrawals in the Flint River basin. If the court accepts this recommendation, CRK’s primary concern is that Georgia leaders will stop thinking they need to advance water conservation and efficiency in the municipal, industrial and agricultural sectors. Georgia still has room to improve how it monitors water use and consumption; and Georgia must remain the leader in this space to protect water quantity and quality throughout the ACF basin.
Chattahoochee Riverkeeper also believes Alabama, Florida and Georgia must negotiate an interstate compact to equitably divide the waters. The states should not spend additional time and millions of additional dollars on litigation. Georgia alone has spent more than $55 million since 2010. Combined, the states have spent hundreds of millions of taxpayers’ dollars on litigation since the 1990s.
The three states have the opportunity to turn to an existing technical solution produced by the ACF Stakeholders—a collaborative group of agricultural, municipal, industrial, environmental, individual, and other interests who live, work, and use the water resources of the ACF river basin. Their Sustainable Water Management Plan (2015) offers recommendations to improve data collection and drought management; to alter operations of the Corps’ five dams and reservoirs; and to reduce water withdrawals while maximizing returns. The plan represents a technical solution formed from the ground-up where a top-down solution has been lacking. Special Master Lancaster and Florida repeatedly referenced the plan throughout the Florida v. Georgia trial.
We must cease endless rounds of litigation, and instead focus our resources on sharing our water because climate change is real, communities will continue to grow, and our clean water supply is limited.
The U.S. Supreme Court’s opinion recognized that there will always be a downstream community, farmer, or industry that will need clean water for economic sustainability. The legal battles are not really about which state wins or loses. The debate is about community health and economic sustainability in communities spanning three states.
Regardless of the trial’s outcome, Georgians have a responsibility to conserve water. CRK’s Filling the Water Gap highlights many examples of success and opportunities to improve water efficiency and conservation in the basin.
If a robust culture of conservation does not take hold in Atlanta, the Flint River basin, and across all economic sectors, we’ll be back in court again.
At the end of the day, meeting the challenges of climate change—not legal challenges—will drive our future water decisions.