Endless litigation over Chattahoochee River, no matter who wins water war
By David Pendered
The Supreme Court is slated to hear oral arguments next week in the relentless case of Florida seeking more water from Georgia for Apalachicola Bay. No matter who wins, it won’t be the end of litigation over the major river system in metro Atlanta – the Chattahoochee River.
Two pending cases that are unrelated to the one before the Supreme Court indicate the never-ending nature of arguments over the Chattahoochee River and its adjacent lands:
- The City of Columbus has filed an administrative appeal of a ruling by the Georgia Environmental Protection Division. EPD ordered Columbus to reduce the amount of untreated waste it dumps into the Chattahoochee River. A hearing date has not been set.
- Green Rock, LLC has filed a lawsuit intended to allow the company to develop a quarry on the western bank of the Chattahoochee River. The Carroll County Board of Commissioners responded to citizen protests of the proposed quarry by changing the site’s zoning to a category that doesn’t allow quarries. Green Rock has contested the commissioners’ action in a lawsuit filed Dec. 18, 2020 in Carroll County Superior Court. A hearing date has not been set.
Meanwhile, on Feb. 22 the Supreme Court is to hear Florida’s argument that the court should decline to rule in favor of Georgia in the amount of water released from Georgia into Florida. Such a ruling was the recommendation of the special master appointed by the Supreme Court to review the matter. Florida filed the original case on Nov. 11, 2014.
Georgia contends it is a responsible steward of waters in the state and that Florida itself has done things that harm the oyster population.
An issue not in dispute if that inflow from Georgia creates the Apalachicola River. The fresh water from the river that flows into the Apalachicola Bay protects the oysters by reducing the salinity in the bay. This lower salinity prevents predators of oysters from entering the bay.
Florida contends that Georgia’s increasing use of water from the Chattahoochee and Flint rivers has spelt the end of a protective habitat for oysters, decimated the oyster population, and ended the harvesting of oysters and the traditional ways of life along Florida’s Forgotten Coast.
In an effort to give oysters a chance to rebound, Florida responded last year with the dramatic step of closing Apalachicola Bay to all harvesting of oysters – whether for commercial or personal use. The bay was closed until Dec. 31, 2025 and state officials said they hope the oyster population will rebound by that date. The action triggered harsh outcry from some Franklin County commissioners, who said the closure will put more pressure on the county’s weakened economy.
A brief submitted by the Franklin County Seafood Workers Assoc. on April 20, 2020 observes:
- “Since the Special Master took evidence in 2016, things have only gotten worse for Apalachicola Bay oystermen. In 2016, Tommy Ward testified that there were just 10-15 oyster dealers left in Franklin County. Now there are three. Before 2012, there were 500-600 small oyster boats that regularly carried tongers out onto the Bay. Now there are just two.
- “Perhaps the cruelest irony is that the Bay no longer supplies enough oysters to fulfill even the needs of the Florida Seafood Festival—this event, the pride of Franklin County, now must source its oysters from other. ”
The court responded to Florida’s original lawsuit by naming a special master to consider evidence and recommend a ruling. Two special masters have considered the case. The first special master reported he couldn’t recommend that justices rule for either Florida or for Georgia. This is because the amount of water that reaches Georgia is at the total control of the U.S. Army Corps of Engineers and its management of five dams along the Apalachicola-Chattahoochee-Flint river basin.
The court sent this recommendation to a second special master. This one suggested in 2019 the Supreme Court rule in Georgia’s favor.
Florida has cited 10 points it intends to present to counter the special master’s recommendation. Plus, Florida contends it should be allowed to introduce additional evidence, according to a court filing that observes of this point:
- “Florida also takes exception to the Special Master’s refusal to allow additional evidence, as to circumstances after the 2016 trial, concerning (i) the continued and worsening harm to the Apalachicola Bay and River; (ii) Georgia’s continued increase in consumption of the waters at issue; (iii) the impact of the Corps’ Revised Master Manual; and (iv) the reasonable modifications that could be made to that Manual to accommodate a decree.”