History of the Dispute
For nearly 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. Lanier lies within the Chattahoochee’s headwaters, just north of Atlanta.
The Corps built Lanier in the 1950s with clear Congressional authorization for flood control, navigation, and hydropower. Over time, however, Lanier has become the primary source of drinking water 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 judge ruled against Georgia, deciding that water supply was not an authorized purpose of 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 federal district court decision, ruling that water supply is an authorized purpose of Lanier, on par with hydropower, navigation, and flood control. The appellate court vacated the lower court’s decision, and instead gave the Corps just one year to determine the extent to which it could operate Lanier to meet water supply and the other authorized purposes.
- In 2012, the Corps responded to the Eleventh Circuit, determining it has discretion to operate Lanier in order to meet Georgia’s current and future water demands. The degree to which the Corps may fulfill Georgia’s request is contingent on its ability to provide downstream releases from Buford Dam in order to satisfy other authorized purposes and to comply with the Endangered Species Act and the Clean Water Act.
The Florida v. Georgia legal challenge is the most recent. This legal action began when Florida filed a petition with the Court on September 25, 2013 seeking relief to help alleviate increased salinity levels in the Bay due in part to Georgia’s water consumption upstream. On November 3, 2014, the Court announced that it would hear Florida’s petition requesting the Court to appoint a “Special Master” to allocate water in the ACF Basin. You can view the official docket and calendar here, and access additional filings here.
The Special Master’s Trial
Two years later the 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 is to deny Florida’s request for relief.
Florida clearly failed to win over the Special Master. And so did Georgia. The Special Master believes there is legitimacy to Florida’s complaint that Georgia’s agricultural water management policies are ineffective. In the Special Master’s words, agricultural water use has been “largely unrestrained.” Days before the October trail commenced, 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.
The Special Master also 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 the former EPD Director Jud Turner.
Florida Responds to the Special Master
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. However, the Special Master in recommending a finding against Florida held that the Corps’ supervening operations in the ACF Basin could not guarantee additional flows to the Sunshine State even if an equitable apportionment was made.
Water and Agriculture in Georgia
Florida’s “Exceptions” brief again identified Georgia’s agricultural water use in the lower Flint and Chattahoochee rivers as poorly regulated and as example of the harm Florida seeks a remedy for. 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 as noted above, EPD began issuing notices of violation to permit holders in the lower Flint River basins alleged to be withdrawing water without a permit or irrigating more acreage than specified in their permits.
While the Agricultural Permitting Compliance Task Force results and recommendations have not been publicly released, in June, the Governor’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. Now the state will inject $10.5 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.
Georgia now has until July 31 to respond to Florida’s exceptions to the Special Master’s recommendation. The Supreme Court will review the Special Master’s recommendation and issue a decision later this year or in 2018.
The Take Home
We are not surprised by the Special Master’s conclusion in this matter. Nevertheless, we continue to advocate for greater efficiencies and conservation to preserve water in the Chattahoochee River Basin to assimilate wastewater, to sustain healthy flows for fish and wildlife, to support recreation and agriculture, and to accommodate population growth and future generations.
The Special Master has identified Georgia’s liabilities and opportunities for the world to see. Now the state must take steps to shore up its water management policies and practices to avoid future lawsuits and show good stewardship of this precious resource. CRK will continue to advocate for the same.