The Atlanta Journal-Constitution
I t was one year ago this month that the U.S. Supreme Court appointed Ralph Lancaster as the so-called special master to resolve 25 years of water war between Georgia and Florida.
Since then, dozens of attorneys have pored over millions of pages of documents in search of the critical piece of evidence to sway Lancaster. They’ve toiled largely in secret at the direction of the special master, who seemingly prizes secrecy above all.
But an analysis by The Atlanta Journal-Constitution of the burgeoning case file, as well as on- and off-the-record interviews with sources familiar with the lawsuit, appears to give the upper hand to Georgia. Nobody, though, takes anything for granted.
Lancaster warns that his decision will leave neither side totally satisfied and urges Georgia and Florida to seek a settlement. Georgia recently requested a mediator to bring Gov. Nathan Deal and his Florida counterpart to the negotiating table.
Not surprisingly, Lancaster — who issued an order preventing the media from viewing documents that could shed light on any settlement between the states — declined to comment, as did every Georgia and Florida legal, political and government official directly involved in the water wars negotiations that could prove critical to metro Atlanta’s future.
But an examination of subpoenas issued and experts deposed provides insight into what exactly Georgia and Florida are trying to prove. Georgia’s lawyers, for example, have requested hydrologic flow levels of the Apalachicola River dating to 1975 in hopes of showing Florida’s poor stewardship of the river. Florida, meanwhile, seeks the number of well permits issued to southwest Georgia farmers to prove lax regulation by Georgia.
Georgia officials are cautiously optimistic that Florida faces a tough task convincing Lancaster that Georgia is to blame for the Sunshine State’s water woes. Even if proved, Florida must then persuade Lancaster to give it more water without causing undue harm to Georgia — another tall order.
The optimism is most pronounced in metro Atlanta. Florida, for the first time, has set its sights on the Flint River in southwest Georgia. If Lancaster rules against Georgia, then the Flint — not the Chattahoochee River, which provides Atlanta with most of its water — might be targeted.
Georgia, therefore, holds a few bargaining chips in settlement talks with Florida, as well as Alabama. The governor could offer to limit withdrawals and water permits from the Flint. Or he could cancel a reservoir planned for the metro Atlanta region.
Water warriors south of the state border don’t speak as rosily about Georgia’s chances. The environmental and economic damage along the Apalachicola River and same-name bay are clearly perpetrated by a water-hogging Georgia, they say.
But it is the special master, barring a settlement, who will decide, along with the Supreme Court, metro Atlanta’s future.
“When this matter is concluded — and I hope I live long enough to see it happen — one and probably both of the parties will be unhappy with the court’s order,” Lancaster, 85, intoned during a February call with attorneys. “Both states will have spent millions and perhaps even billions of dollars to obtain a result which neither one wants.”
Map: About the Water War
The dispute over water from the Chattahoochee and Flint rivers is more complex than one state against another state. Some areas in Georgia have competing interests and want to ensure there is enough water to sustain their growth whether it is for new residents, corporations, farming, power plants or other industries. Florida also wants to make sure there's a sustainable flow for their oyster industry. Click on the menu of places below to see each communnity's water needs.
‘The doctrine of unclean hands’
Hartt, like other Georgia water experts, says Florida nonetheless faces an uphill battle.
“Florida’s got their work cut out for them in terms of proving things,” she said. “And Georgia feels they have a pretty strong case.”
Florida, first off, has to prove Georgia’s consumption and storage of water (in reservoirs) harms the oysters, mollusks, sturgeon and way of life along the Apalachicola River and bay.
“Florida has to show ‘real and substantial injury or harm’ — that’s the catchphrase,” said George Sherk, a water management expert and former Georgia State University professor. “There’s a very high burden of proof.”
Florida then has to show that more water from Georgia — equitably apportioned between the states — will remedy the environmental and economic problems.
Georgia points the finger squarely back at Florida for the oysters’ ills.
“Florida’s claims are barred by the doctrine of unclean hands,” reads the state’s January response to the lawsuit.
Five years ago, after the Deepwater Horizon spill off Louisiana led to the closure of the oyster beds from Texas to Florida, fishermen in droves descended on the bay. Oyster boats doubled with fishermen grabbing every mollusk they could find, including ones smaller than the legal 3-inch size, which depleted future stocks.
In June 2010, for the first time ever, Florida expanded the time oystermen could fish the bay from five to seven days a week. It also opened up winter harvesting areas.
Florida’s wildlife commission reported that “the overall condition of many reefs has declined substantially over the past two years as a result of … concentrated and intensive harvesting by the majority of the fishing fleet and the excessive harvesting of sub-legal oysters.”
The University of Florida added that “insufficient fishery management enforcement” was also to blame.
Georgia, in fact, has also tried to shift the legal burden onto the federal government, by arguing that the Army Corps of Engineers can readily guarantee a minimum flow of water over the dam to satisfy Florida.
Sherk and other legal experts say neither the courts nor a special master can usurp federal laws passed by Congress.
“The master does not have the discretion to make recommendations or issue decrees inconsistent with federal law,” he said. “The Federal Power Act, for example, deals with dams on the river. The Endangered Species Act protects habitats. The Clean Water Act protects the water. You have a whole suite of federal statutes that affect water issues in the river basin.”
Georgia, Atlanta in particular, cringes at the prospect of a mandated cap on future water use. Development, they fear, would dry up.
Robert Abrams, a professor at Florida A&M University who has taught water law for 40 years, says limiting Georgia’s water use may not be such a bad deal.
“You’d try to meet a cap with as much conservation as you can,” he said. “And a cap is better than a (minimum flow) option because in a water-short year you can still consume the same amount. Florida would really be taking all the risk.”
Both states will have spent millions and perhaps even billions of dollars to obtain a result which neither one wants.- Ralph Lancaster, special master of water war case
By the Numbers: Georgia-Florida lawsuit
$20 million What Georgia expects to spend on this round of the water wars.
70 The number of attorneys on retainer by Georgia.
4 million Pages of documents produced by Georgia agencies, universities and non-profits requested by Florida.
660,000 Emails given to Georgia by Florida
45 People deposed by both Georgia and Florida
Please confirm the information below before signing in.