Ruling favors Georgia in water dispute, but end not in sight

Despite a recent legal decision, there’s no end in sight for a long-running dispute between Georgia and Florida over allocation of the water in the Apalachicola-Chattahoochee-Flint River basin, panelists said during a Friday conference at the University of Georgia.

The UGA School of Law’s Red Clay Conference, organized annually by the Environmental Law Association, brought together experts to talk about emerging issues in environmental law, including the disposal of toxic coal ash in the state, the fate of clean air and other programs under the new Trump administration and the decades-old water dispute involving Georgia, Florida and Alabama.

The argument is mainly between the states of Georgia and Florida over the water that flows south down the Chattahoochee and Flint rivers into Florida’s Apalachicola Bay. Alabama is also involved, but the main contention has between Georgia and Florida.

Last month, a special master appointed in the case recommended that the U.S. Supreme Court reject Florida’s argument that a water cap should be imposed on Georgia’s water use.

Florida has argued that Georgia — and in particular, Atlanta — use too much of the water in the Chattahoochee, which flows from north Georgia southward, forming some of the border between Georgia and Alabama,

The cap would help protect the environment and ecology of the rivers — and of Apalachicola Bay, including the area’s struggling oyster fishery, according to Florida’s argument.

Lawyers for Florida have argued that not releasing enough water from Lake Lanier — Atlanta’s main water supply, fed by the Chattahoochee River — could cause endangered mussel species to die from lack of water. Federal courts, though, have rejected that argument.

And in fact, Atlanta only withdraws water from about 5 percent of the watershed, returning about 70 percent of what it withdraws, said panelist Lewis Jones, a lawyer with King & Spalding, which has represented Georgia’s side.

Most withdrawal comes downstream, so Atlanta’s not the big issue, he said.

After a five-week trial earlier this year, the special master recommended to the U.S. Supreme Court that Florida’s claims be denied, but that’s not the end of the issue; there will be more litigation,

The trouble is that “the law is extremely vague on allocation” of water resources, said Jones. “No one’s clear what everyone else’s legal rights are.”

It’s hard to predict how the court will rule. Florida has to show Georgia’s water use is unreasonable, and that it’s causing harm to Florida.

But the persistent droughts that have repeatedly dried up rivers and groundwater in the Southeast are the real wild card, said former state Environmental Protection Division director Judson Turner, keynote speaker for this year’s Red Clay Conference..

The millions of dollars the states have spent on the legal wrangling could have financed a lot of water management planning and measures, he argued.

South Carolina and Georgia were able to come to agreement on a water dispute over saltwater intrusion into underground aquifers, and Turner says he hopes Georgia and Florida might do the same.

“I think we’re approaching a point where we can have a similar conversation,” said Turner, now an adjunct professor at the UGA School of Law.

But, regardless of the dispute, Georgia needs to move forward with better water management, Turner and others said.

Groundwater withdrawals in the river basins affect stream flow, including big, water-thirsty paper industries and large agricultural operations, affect stream flow, he noted.

“Agriculture is a major water issue,” said panelist Wilton Rooks, who’s been involved with discussions among various stakeholders in the dispute.

“The biggest problem is political, particularly in Florida,” Jones said.

“The one thing we can do is manage,” said Jones, noting that Atlanta in recent years has decreased its per capita water use by 30 percent, and overall by 10 percent.

According to a recent NASA study, a vast underground aquifer underlying much of Georgia, Alabama and other states is one of two in the United States that is actually losing water gradually.