Supreme Court ruling in water war may shift burden to farmers in Southwest Georgia

By David Pendered

Metro Atlanta may have escaped unscathed, but farmers in Southwest Georgia may one day feel the prick of the Supreme Court’s ruling Wednesday on the lawsuit Florida filed against Georgia to increase the flow of water into the Sunshine State.

The court sent the case back to Special Master Ralph Lancaster, with instructions to take the necessary steps to come up with a plan to equitably distribute waters flowing in the Apalachicola-Chattahoochee-Flint River Basin.

Metro Atlanta’s water consumption once was the primary target in Florida’s claim that Georgia was using so much water that the fishery at Apalachicola, Fla. was dying for a lack of fresh water. The new ruling points in a different direction.

The notion that the ruling suggests farmers in Southwest Georgia may face increased scrutiny over their water consumption habits was raised by observers including Craig Pendergrast, an environmental attorney who specializes in water law at the Atlanta law firm Taylor English Duma, LLP.

Pendergrast observed the court ruling barely mentions metro Atlanta. When it does, the ruling notes that Florida agrees with Georgia’s claim that the region had, “demon­strated effective water conservation.”

The use of waters of the Flint River to irrigate fields is mentioned repeatedly. When farmers draw from creeks or wells, the end result is less water flowing through the Flint and the underlying Floridan Aquifer, Pendergrast said. The aquifer stretches from the southern tip of Florida almost to Macon.

Given the court’s focus on the usage of the Flint River waters by the agricultural industry, Georgia could respond with steps to conserve water pumped to irrigate fields. Georgia has taken steps in this direction with meters attached to water pumps and the usage reported to the state Environmental Protection Division. Other steps could include reconfiguring the center pivot irrigation systems that lose water to evaporation before it reaches plants.

“Georgia may be in position to control its own destiny while the case remains pending,” Pendergrast said. “It may be quite a while until the special master makes a recommendation. … In that time frame, the EPD could come up with a better way to more effectively manage, and appropriately condition, farm irrigation use in the Flint Basin.”

In its ruling, the Supreme Court recognized the view of the special master, in that the U.S. Army Corps of Engineers has ultimate control over water flow through the ACF River Basin. That’s due to the corps’ congressional mandate to manage the reservoir system to provide water and flood control along the basin.

The ruling noted that the corps is now willing to comply with a consumption decree placed on the system:

• “In addition, the United States has made clear that the Corps will co-operate in helping to implement any determinations and obligations the Court sets forth in a final decree in this case.”

The corps took this position following Lancaster’s recommendation, on Feb. 16, 2017. On March 30, 2017, the corps itself issued its water control manual for the ACF Basin.

A number of entities expressed their views about the ruling. Here is a sampling:

Gov. Nathan Deal:

The Supreme Court included this map of the Apalachicola-Chattahoochee-Flint River Basin in the ruling released Wesnesday. Credit: supremecourt.gov

• “Though the Court remanded this case back to the Special Master following a five-week trial, during which the ineffectiveness of draconian caps placed on Georgia’s water use as a solution was demonstrated, I remain confident in the state’s legal position. Georgia heeded the Special Master’s warning and took legislative action, which is now law, to address his concerns.
• “I look forward to continuing to defend our position in this case. Georgia remains committed to the conservation efforts that make us amicable stewards of our water resources and Attorney General Chris Carr and I remain committed to making every effort to defend Georgia’s water resources for our current and future citizens. We look forward to obtaining a positive ruling on the merits in this case.”

Florida Gov. Rick Scott (Credit: AP via ktbs.com)

• “Today’s ruling is a huge win for the entire state of Florida. After decades of failed negotiations, we took our historic action to protect families all the way to the U.S. Supreme Court.
• “I am glad that the court ruled in Florida’s favor today and we look forward to further securing a healthy Apalachicola Bay while protecting the thousands of jobs that depend on this natural resource. The best interest of these families will always come first.”

Katherine Zitsch, natural resources manager at the Atlanta Regional Commission:

• “We are disappointed this litigation will continue, but we are confident Georgia will prevail in the end. Metro Atlanta is a national leader in water conservation and uses on average only 1.3 percent of the water in the ACF basin to support a thriving region of more than 5 million people and 2.5 million jobs. We appreciate the State of Georgia’s vigorous defense of our water use, and look forward to a time when we can move beyond litigation and cooperatively manage the basin’s water.”

Gil Rogers, director of the Southern Environmental Law Center’s Georgia and Alabama offices:

The Floridan Aquifer, shaded here in blue, is an underground river system that is affected by water pumped from the Flint River Basin to irrigate crops. Credit: pubs.usgs.gov

• “Today’s decision illustrates just how complicated these interstate water battles can be, particularly when there are key decision-makers missing from the table. By allowing for additional time to brief the issues, we hope this will provide an opportunity to forge a better, long-term solution for the river system overall.
• “After more than 28 years of litigation with no end in sight, this battle is not going to be resolved by wasting more taxpayer dollars in various courtrooms. It’s clear that state leaders must come together on a resolution that factors in all stakeholders, by forming a multi-state compact or some kind of overarching entity, in order to fairly represent all sectors of water users in Alabama, Georgia, and Florida, once and for all.”

Tania Galloni, Earthjustice attorney who filed a separate lawsuit against the corps Florida Wildlife Federation, the National Wildlife Federation and the Apalachicola Riverkeeper

• “The ruling is great news for Florida’s environment, drinking water supply and wildlife. We’re confident that Florida will be able to meet the Supreme Court’s test to show that reining in Georgia’s wasteful water consumption upstream will provide much needed freshwater to Florida downstream.
• “Cutting back the water that flows downstream from Georgia into Florida has had devastating impacts on the Apalachicola River ecosystem, one of the six ‘biodiversity hotspots’ in the U.S. The lack of adequate freshwater flows has starved fish and shrimp populations, and led to the loss of more than 4.3 million trees. Many people lost their jobs after the population of Apalachicola Bay oysters crashed because the river wasn’t feeding enough freshwater into the area. At one time, the Apalachicola Bay provided 90 percent of Florida’s oysters and 10 percent of the whole country’s supply. A lack of freshwater flowing into the river jeopardizes the many species that live in the basin including the Florida black bear, the threatened West Indian Manatee and dozens of federally threatened or endangered species.”

The Supreme Court withheld ruling on the failing fishing industry in Apalachicola, Fl. The court asked its special master to reconsider the case and recommend an equitable distribution of water. File/Credit: David Pendered

Richard Dunn, director of the Environmental Protection Division of the Georgia Department of Natural Resources, speaking Wednesday after a DNR board meeting:

• “We are preparing for additional litigation, unfortunately. … We’re not clear whether it’s back to the same special master. We’ll get some clarity on that later this afternoon, as the days go by.”

ACF Stakeholders, a group of individuals, corporations and non-profits seeking a resolution of the ACF River Basin concerns:

• “ACF Stakeholders was founded on the premise that litigation is not the way to determine how to share equitably the water in the ACF Basin. That’s why a diverse group of stakeholders from across Florida, Georgia and Alabama came together nearly a decade ago to identify a sustainable solution. We firmly believe that the ACFS Sustainable Water Management Plan (SWMP) – borne of collaboration and grounded in science – stands as the clearest path forward.
• “With this recent Supreme Court ruling, we are confident that our stakeholder-driven efforts will continue to benefit the Basin. We stand ready to work with state and federal governments and other stakeholders to implement the recommendations in the SWMP.”

The Council for Quality Growth issued a statement  Wendesday afternoon.

Maggie Lee contributed to this report.