Tipping point in water war?

Georgia optimistic about long legal battle, but judge warns of a decision that will make both sides unhappy.

By: Dan Chapman
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.

Water war

Latest round began in 2013

Georgia is spending $20 million on lawyers to fight the never-ending water wars with Florida — on top of $20 million previously spent the past 25 years.

Seventy attorneys are being paid to prove Georgia’s prudent stewardship of the Chattahoochee and Flint rivers and Florida’s abuse of the Apalachicola River and bay. They pore over 4 million documents and 660,000 emails provided by Florida.

The Sunshine State, for its part, has received 2.1 million pages and 2.3 terabytes of data from Georgia. It seeks information from 35 Georgia counties, 28 water districts, numerous universities and nonprofits.

All that to prove who gets how much of the Chattahoochee, Flint or, once they join at the Florida border, the Apalachicola River. Oystermen and farmers want their share. Power plant and utility operators do, too. Paper mills and Coca-Cola bottlers. Kayakers and golfers. Cities and counties. Endangered mollusks and sturgeon.

Florida started the latest legal merry-go-round with its 2013 lawsuit claiming “serious harm because of Georgia’s increasing storage and consumption from both the Chattahoochee and Flint River Basins.” The special master must “equitably apportion” the rivers to ensure a steady Apalachicola flow.

Georgia, before, was sitting pretty thanks to the Supreme Court’s refusal to hear an appeal arguing that Lake Lanier was never intended as water supply for metro Atlanta.

The high court’s acceptance of Florida’s latest lawsuit shocked Georgia. Florida argues that oysters, specifically the damage done to the bivalve mollusk industry due to a lack of fresh water from up north, are the main victims of Georgia’s insatiable thirst for water, particularly during the 2011-2012 drought.

Healthy oysters need a mix of fresh and salt water to thrive. The drought, combined with water hoarding by Georgia, caused the lowest Apalachicola River flows in 90 years, the lawsuit says, and the oyster industry to “collapse.”

“We’re still struggling. We haven’t recovered yet,” said Shannon Hartsfield, 46, an oysterman who runs the Franklin County Seafood Workers Association in Apalachicola. “When I was a young man in my 20s, we used to catch 70, 80 bags a day. And we had 300, 400 oystermen. Now we’re allowed four bags per person per day, and there’s only about 70 oystermen.”

Florida wants metro Atlanta to withdraw water from Lake Lanier and the Chattahoochee at 1992 levels, about 275 million gallons a day. The region today uses about 375 million gallons daily. Yet the population has nearly doubled since 1992.

Florida also targets southwest Georgia and the cotton and peanut farmers who tap the Flint and underground aquifers. Agriculture, not metro Atlanta, uses most of the water between North Georgia and Florida.

“Farmers are in the bull’s-eye,” said Laura Hartt, the water policy director for the Chattahoochee Riverkeeper. “But Governor Deal has made very clear that we are one state. As go the farmers, so goes metro Atlanta. And vice versa.”

‘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

‘You will not get everything you want’

Abrams, like others, credits metro Atlanta for reducing its consumption of water the past decade. The local water district estimates that the region will use 25 percent less water by 2050 than was estimated in 2009.

A significant drop-off in population projections for the 15-county region helps. So does the retirement of water-hogging coal-fired power plants. But metro Atlanta is also credited with the widespread replacement of inefficient toilets, improved detection and repair of leaks, and tiered pricing that charges higher rates for heavy users.

“We’re being a lot more careful on how we use the water, we’ve got a better record of conservation and the rain, after all, falls on Georgia,” said Brad Currey, a board member for the Metropolitan North Georgia Water Planning District. “So it’s difficult for Florida to prove they are being severely damaged due to what’s going on up here.”

Florida might have a better conservation case in southwest Georgia. Despite the 2012 moratorium, an additional 250 well permits have been issued to farmers to tap aquifers below the Floridan Aquifer, the main source of groundwater for South Georgia and northwest Florida. And 40,000 more acres are being irrigated.

Georgia has “significantly over permitted the river basin,” a nonprofit water research group reported this year.

“Adding the Flint to the lawsuit makes Florida’s case a little more plausible because fallowing low-value irrigated agriculture is much less expensive than (curtailing) Atlanta’s water use,” Abrams said. “If you’re the Georgia Legislature and the choice is turning off the water for all the voters in Atlanta or a couple of counties in South Georgia, what are you going to do?”

Georgia, though, hopes that additional water capacity — new reservoirs around metro Atlanta, untapped aquifers in southwest Georgia, more conservation — will convince the special master of the state’s water supply seriousness. They could also be used as bargaining chips in any deal between the two governors. Deal, for example, could forgo building a new reservoir to show that Georgia is not hogging the Chattahoochee.

The typically taciturn Lancaster offered up a tantalizing clue as to his legal leanings in a teleconference call last March. He told the attorneys to give their respective governors copies of Kansas v. Nebraska. It would provide “a good roadshow for them to understand,” Lancaster said.

Kansas v. Nebraska, on the surface, looks awfully similar to Florida v. Georgia: a long-running intrastate battle over a low-flow river; lawsuits and temporary resolutions; claims of water hoarding and resource mismanagement; millions spent on lawyers; and a special master and Supreme Court that ultimately resolved the matter.

Last February the high court ruled that both states had legitimate claims to the Republican River and set forth a settlement that completely satisfied nobody.

“The big thing that jumps out at me is that neither Nebraska nor Kansas got 100 percent of what they wanted,” said Sherk, who now teaches water management at the University of Saskatchewan. “On one level, that’s what Lancaster is saying to the governors of Georgia and Florida. You will not get everything you want here.”

Video: The day water wars began

Timeline: The Water war