Florida v. Georgia: The Elephant in the Room at the Supreme Court

Florida v. Georgia: The Elephant in the Room at the Supreme Court

By: Clyde Y. Morris, Attorney

Ralph Lancaster, the Special Master appointed by the Supreme Court to hear Florida v. Georgia, issued his Report and Recommendation to the Justices on Valentine’s Day, 2017. The outcome was far better for Georgians than was the Super Bowl’s: we won.

Like the Falcons, the main reason Florida lost this case was a lapse in strategy. It lost because it failed to include the Corps of Engineers as a party. Early on, Georgia’s astute lawyers moved to dismiss the case because no adequate remedy could be ordered without the Corps being a party. And they were right. Florida resisted, and is now having to recover from a loss far worse than losing the biggest football game on the planet.

But there is much to be learned from the Special Master’s Report. Significantly, he included recreation in the list of ACF project purposes, something Water Wars veterans will recognize as a victory for the North Georgia economy that LLA fought for, long and hard. Even more significantly, he did not find that North Georgia’s water consumption was unreasonable, as the LLA has maintained throughout its long participation in the litigation. Rather, he said in a footnote, “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.”

But there’s an elephant in the room. Among other things, the Special Master opined that Georgia’s agricultural water usage is inadequately controlled and has harmed the oyster industry in Apalachicola Bay.

Georgia has wisely and correctly pursued a unified defense of its statewide water usage throughout the litigation. But the Report squarely paints a bullseye on agriculture as the proverbial straw that is breaking the ACF horse’s back. According to the Special Master, agricultural irrigation has increased dramatically since 1970 in Georgia. Of course, most people (including us in North Georgia) see increased agriculture as a very good thing. But its growth has come with a price tag not just for Florida but for North Georgia, too. The Special Master did not mince words in his criticism of the water usage of our southwestern farms, calling it “unreasonable.” Here is what he had to say:

Agricultural irrigation has increased dramatically in Georgia since 1970. By Florida’s count, Georgia’s irrigated acreage has increased from under 75,000 acres in 1970 to more than 825,000 acres in 2014. Georgia’s own estimates show a dramatic growth in consumptive water use for agricultural purposes. In the face of this sharp increase in water use, Georgia has taken few measures to limit consumptive water use for agricultural irrigation. Agricultural permits contain no limitations on the amount of irrigation water that can be used by farmers. Even the exceedingly modest measures Georgia has taken have proven remarkably ineffective.

The Special Master concluded that increased salinity is the most likely culprit for the 2012 collapse of Apalachicola Bay oyster resources – and what he sees as “unreasonable” ACF water consumption contributes to increased salinity.

As Lanier’s current plight of being ten feet below summer pool with vanishing hopes for refilling in 2017 illustrate, Georgia’s “Great Lake” is a limited resource that cannot and should not be called upon to supplement unnecessary water use downstream in the ACF, even for agriculture. What we all need are solutions that continue to support agriculture but lessen the burden on the rest of the ACF. If we don’t find them soon, we will surely be back in court with our neighbors to the south.

The Special Master’s recommendation is not the final word in this case. The parties will have an opportunity to file exceptions to his Report, and the Justices will ultimately decide whether to accept the report in whole, in part, or not at all. Even then, we probably won’t have finality in the Water Wars. Florida staked its case on equitable apportionment and argued – successfully but to its great detriment – that the Corps did not need to be a party to the case. The Special Master realized, correctly, that unless the Corps’ operations were included as part of any remedy, even the Supreme Court could provide no effective solution for Florida in this case. The hidden danger in his Report lies in the possibility that we could end up back in court, or in a legislative battle in Congress, with Corps operations up for grabs. If we do, Lake Lanier will end up back in the crosshairs. Already Florida legislators are lining up bills in Congress to force the Corps to release more water. If those measures succeed at any level, Lake Lanier will be directly and seriously affected. It’s time for the state to implement responsible controls on agricultural water consumption and stop the ACF merry-go-round that repeatedly threatens the primary economic engine of North Georgia and the repository that ensures water for metro Atlanta.

While Georgia dodged a bullet here, we should all expect more gunplay to come. Already Florida’s ammunition is being aimed at Corps water releases, which means Lake Lanier, even though the Special Master says the culprit is inadequately controlled agricultural water consumption. As the Special Master recognized, Florida’s problems occur only during times of relative drought, and during those times we all suffer – Lanier users, Atlantans, Georgia farmers, and oysters alike. There is simply no getting around that, and neither the courts nor the United States Army can control Mother Nature. What we can’t afford is to run the risk that the courts or Congress will try to compensate for droughts and inadequate irrigation controls during the next round of litigation or legislation by harnessing Lake Lanier to a wagon she can’t haul. If they do, we will all lose.

It’s time for the agriculture community to step up and do its part. Years ago, metro Atlanta instituted effective water use controls for times of drought, and it’s time our farmers did the same thing. Irrigation pumps have meters on them for a reason, but they will accomplish nothing in terms of water conservation unless the General Assembly institutes controls on how much water can be used for irrigation, especially during droughts. It’s time for the rest of Georgia to step up and help resolve the Water Wars, once and for all.

 

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