Senior U.S. Circuit Court Judge Paul Kelly heard 90 minutes of testimony in his Albuquerque, N.M., courtroom last week in Florida’s 2013 lawsuit against Georgia demanding it impose ”reasonable regulation" of "unrestrained and mismanaged" irrigation by farmers along the Flint River.
Kelly was appointed by the U.S. Supreme Court in August 2018 to serve as “special master” in overseeing the case, which Florida claims is the “last, best hope” to save Apalachicola Bay’s multimillion dollar shellfish industry.
He is expected to issue a recommendation to the Supreme Court by spring. The court can accept Kelly’s findings, reject them and schedule more oral arguments, or appoint another judge as “special master” and conduct another review.
With more than 7 million pages of documents, including 30 subpoenas, 30 expert reports and 100 depositions, already compiled in the six-year case, Kelly will have much to mull over during his deliberations in what is the latest chapter in the 30-year “Tri-State Water Wars” between Florida, Georgia and Alabama over water allocations in the Apalachicola-Chattahoochee-Flint (ACF) basin and elsewhere.
In 2013, Florida filed its suit with the U.S. Supreme Court requesting it “equally apportion” water in the ACF basin, which originates near Lake Lanier and flows south to the Panhandle, by capping Georgia’s water usage at roughly 1992 levels.
Florida has since updated its request to freeze Georgia’s water usage at current levels through 2050. Florida’s latest brief also refers to a potential new outcome with a voluntary water-sharing plan being composed by ACF water users in Georgia, Florida and Alabama.
In November 2014, the Supreme Court accepted Florida’s complaint and the case was reviewed by a “special master,” who are often appointed in jurisdictional disputes to hear evidence and issue a recommendation in cases that will go before the high court.
In 2017, Maine attorney and former U.S. Circuit Court Justice Ralph Lancaster – appointed special master by the Supreme Court an unprecedented four times before passing away in January at age 88 – determined Florida had not proven its case “by clear and convincing evidence” that imposing a cap on Georgia’s water use would benefit the Apalachicola River.
But the Supreme Court, in a 5-4 decision, remanded Lancaster’s recommendations back to federal court, saying his “clear and convincing evidence” standard made it nearly impossible for Florida to prove its case.
Georgia attorney Craig Primis – with Georgia Attorney General Chris Carr, Solicitor General Andrew Pinson and David Dove, Gov. Brian Kemp's executive counsel, watching from the front row Thursday – said Florida is exaggerating Georgia's water usage and has failed to meet Lancaster’s ”clear and convincing evidence” standard.
The court "cannot possibly find that the benefits substantially outweigh the cost to Georgia," Primis said, noting Florida’s "draconian" proposal to freeze water usage at current amounts to 2050 in certain areas of the ACF, primarily along the Flint River in southwest Georgia, is “just not possible to achieve.”
He said the proposed restrictions on agricultural water use on the Flint River would level a “staggering" impact across southwest Georgia of roughly $330 million in direct costs, more than $320 million in losses to gross regional product and the loss of up to 4,000 jobs.
Georgia has an "obligation to take reasonable steps" to conserve water, Florida attorney Gregory Garre said. "Ultimately, this is about Georgia's failure to meet this obligation” and the subsequent collapse of Apalachicola Bay’s oyster industry.
Florida's attorneys said their proposed remedies do not include "trying to take water away from Atlanta" – roughly 70 percent of 5.6 million metro Atlanta residents receive their drinking water from Lake Lanier – but attempt only to impose “targeted” irrigation controls, especially during dry years, on southwest Georgia farmers along the Flint River.
Florida’s proposal is similar to regulations it imposes on agricultural lands along the Flint River once it crosses the Georgia-Florida state line, its attorneys said.
Georgia could easily and inexpensively adopt Florida’s Flint River regulations to help preserve downstream ecologies and economies, such as Apalachicola Bay, they maintained.
"It's no longer reasonable to allow current irrigation practices to persist," Florida attorney Philip Perry said.
Although Alabama is not a party in Florida’s suit against Georgia, the three states have been engaged in litigative tussles over water since, at least, 1990, when the Lake Lanier project in Georgia was authorized by Congress as an impoundment for water that could be equally apportioned.