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Georgia faces another crucial court test in water war

The Flint River, from high atop the bridge on Po Biddy Road, looks nothing like the water-hogging culprit Florida makes it out to be. It’s all rocks with slivers of water barely coursing through.

“That’s what paddlers call ‘bony,’ ” said Gordon Rogers, the Flint Riverkeeper. “It should be almost three times as high. And we’re not even in a big-dog drought.”

Yet much of Georgia is in a drought — worsening by the day — and the lack of rain, barren streams and dwindling reservoirs buttress the latest “water war” legal battle set to begin Monday in a Maine courtroom. The stakes for Georgia have never been higher.

Metro Atlanta’s future rides on the legal opinion of one irascible, no-nonsense Yankee barrister who has warned that neither Georgia nor Florida will be satisfied with his ruling. The U.S. Supreme Court appointed Ralph Lancaster as the “special master” to determine the validity of Florida’s 2013 lawsuit against Georgia and its alleged overconsumption of the Chattahoochee and Flint rivers.

If Florida prevails, then Georgia might have to cap its water use, much to the economic detriment of southwest Georgia cotton farmers and/or Atlanta utilities, factories and Realtors. Florida, in pretrial briefs, seeks as much as 40 percent more water from Georgia during droughts.

“Anybody who knows anything about the water war has got to be worried,” said Bradley Currey Jr., the retired CEO of the packaging company Rock-Tenn who has played a key role in Georgia’s water-supply saga for 25 years. “We’re at risk. There is no more important single issue than resolving the water war in terms of the long-term future of the Atlanta region and of Georgia.”

Metro Atlanta is expected to grow into a 10-million-man megalopolis by 2050, an urban-suburban swath of concrete and steel stretching from Tennessee to Alabama and Athens. Without ample water, though, the region withers. This latest drought, with 25 North Georgia counties experiencing “exceptional” dryness — the worst designation — punctures metro Atlanta’s sense of inevitability.

But Florida v. Georgia is not just a parochial spat. The master’s ruling, if seconded by the high court, carries far-reaching national implications, especially for states east of the Mississippi where water law and “equitable apportionment” of rivers — the crux of this case — remain unsettled.

Whiskey’s for drinking, as the adage goes, but water’s worth fighting over.

Georgia, Florida and Alabama have traipsed to the courthouse numerous times the past 27 years attempting to resolve the tri-state water war. Georgia, more times than not, prevailed.

This time, though, may be different. While some legal experts give Georgia the upper hand — Florida has to prove that Georgia consumes too much water and that harms the Sunshine State’s economy and environment — nobody knows the special master’s thinking.

Lancaster rarely speaks publicly and even less frequently to the press. Yet he is considered sensitive to arguments over environmental degradation and impact on the economy. In a July teleconference call with attorneys from Georgia and Florida, for example, the special master said he was “impressed with the writings that relate to the droughts that are there and happening and are being predicted.”

A warning to Georgia perhaps?

“Judge Lancaster is wise enough to tell the parties that, ‘You need to start considering changing weather patterns in your water use,’ ” said Ryan Rowberry, an attorney in Atlanta who worked on behalf of Florida in a previous water fight with Georgia. “We’ve had so much abundant water before that we’ve not had to worry about regulating it. Now, Lancaster might recommend conservation measures by both states to better manage the water we have.”

‘Death or life for us’

The Chattahoochee and Flint rivers flow into a reservoir along the Georgia-Florida line that feeds into the Apalachicola River, which trickles 100 miles to the Gulf of Mexico. Apalachicola Bay is an ecologically beautiful spot where salt and fresh water combine to produce some of the tastiest oysters in the country.

Yet lack of abundant fresh water, Florida claims, allows salt water to push further upstream, harming the delicate fresh-salt water balance that nurtures the plankton oysters live on. The bay once produced 10 percent of the nation’s oysters.

In 2012, though, after eight months of bad drought, the oyster industry in Apalachicola collapsed. The federal government declared a disaster. Oystermen who once filled bag upon bag with juicy oysters laid down their tongs. The state instituted a four-bag-a-day limit, yet the fishermen have trouble filling their quota. Dockside value of oysters in 2014: $4.4 million — a pittance compared with earlier hauls.

The trial, beginning Monday in Portland, Maine, might be an oysterman’s last, best chance.

“It’s death or life for us,” said Shannon Hartsfield, who heads up Apalachicola’s seafood workers association. “If we don’t get nothing out of this, we’re over with.”

Florida’s lawsuit says Georgia unfairly hoarded water in the Chattahoochee and Flint river basins during the 2012 drought. It cites “massive” withdrawals of groundwater from the Floridan aquifer, which supplements Flint River irrigation by cotton and peanut farmers, as one reason for the paucity of water reaching Florida. And it targets overconsumption by metro Atlanta industries, utilities and lawn-waterers as another.

“This harm is worsening with every drought; if the status quo continues, Florida’s injuries will be catastrophic and irreversible,” Florida contends.

Florida also claims low flows harm endangered species, including mollusks and sturgeon, further up the Apalachicola River. And it says the economic impact to the entire ecosystem — dying Tupelo honey trees, dried-out sloughs, desperate fishermen, reduced tourism — is incalculably high, yet must be considered.

Its lawsuit is predicated upon a wasteful and greedy Atlanta benefiting at Florida’s expense. It notes that water consumption in metro Atlanta has doubled since the 1970s and may double again by 2050 as the region’s population explodes.

Florida is also taking aim at the farmers in southwest Georgia who “are consuming exponentially more irrigation water from the Flint River Basin.” They’re easy targets.

In 2012, the farmers tallied 6,500 water withdrawal permits. Their wells irrigated 900,000 acres of cotton, peanuts, wheat and other crops. As the drought worsened, the state imposed a moratorium on wells for the Floridan aquifer, the Flint and other streams. So farmers just dug deeper wells into other aquifers.

An additional 237 permits were issued over the ensuing two years.

One Georgia official, in court filings, said “there is no doubt that we need a viable management tool to deal with drought in the Flint River Basin.” Georgia tried, sort of, to limit irrigation with a proposed auction to buy out farmers’ well-digging rights. But the General Assembly didn’t finance it.

Self-inflicted wounds?

“Florida has to prove by clear and convincing evidence that they’re being harmed by an inequitable distribution of water,” said Robert Abrams, a law professor at Florida A&M University who co-wrote a book on the water war. “Unless I completely missed it (in the briefs), they don’t have that proof. I cannot see Florida winning this case.”

Abrams points to the testimony of another professor, Karl Havens at the University of Florida, who said he “never found any quantitative linkage between flow from the (Apalachicola River) and the crash with the oysters.”

Georgia also says Florida’s “mismanagement” of the Apalachicola Bay, after the Deepwater Horizon oil spill in 2010 in particular, led to the oyster industry’s decline. As oyster beds in Texas and Louisiana closed after the devastating spill, fishermen headed to Apalachicola. Florida Gov. Rick Scott wrote in 2012 that “this led to overharvesting of illegal and sub-legal oysters further damaging an already stressed population.”

Georgia further cites its own water conservation measures. In 2000, for example, metro Atlanta used 155 gallons per capita per day. Today, it uses 98 gallons per day and credits low-flow toilets, tiered pricing and mandatory outdoor watering restrictions for the reduction.

And, according to Georgia’s 2001-page pretrial brief, “to the extent Florida asserts it is receiving less water than it did historically, the evidence shows that such decreases are largely due to an increase in the severity and frequency of natural droughts.”

A drought, though, cuts both ways. Georgia may blame low flows on lack of rain, but that doesn’t mitigate Florida’s need for more water. Dan Tonsmeire, the Apalachicola Riverkeeper, said the river was extremely low last week with kayakers getting stuck on sand bars.

“What this drought does is paint in stark terms the need of a (water wars) resolution that’s flexible and capable of dealing with changing weather patterns,” said Rowberry, the Atlanta attorney who teaches at Georgia State University. “Judge Lancaster said both sides will not be pleased with his ruling. I think he will recommend conservation measures for both states. And neither state will like that because of the cost in time and money.”

Georgia, seemingly, leaves little to chance. It hired 70 lawyers to prepare for trial. It has spent $24 million this year alone fighting the water wars. The threat of a huge economic hit — as much as $18 billion to industry and agriculture if the special master orders a heavy consumption cap — worries state officials.

But they won’t comment publicly; Lancaster has repeatedly warned them to avoid the press. Privately, though, some of Atlanta’s water warriors target the farmers along the Flint as sacrificial lambs. Florida is only too eager to go along.

“The majority of the water savings from potential measures Georgia could implement will involve its agricultural irrigation,” its brief says.

The Georgia Farm Bureau, in a court filing, says “if access to water for irrigation disappears, farming disappears, and the communities of southwest Georgia disappear.”

It won’t end here

The water wars won’t end with Lancaster’s ruling. He’ll make a recommendation to the Supreme Court, and the justices may put it on their calendar in 2017.

Professors Rowberry and Abrams expect Georgia and Florida to negotiate in good faith if the special master finds both at fault. Alabama, which is siding with Florida, could file yet another lawsuit.

The dams and reservoirs along the Chattahoochee River are controlled by the U.S. Army Corps of Engineers, which is finalizing its latest water plan for the river. No water-sharing deal is possible without the corps.

Talk of a “compact” between Georgia, Florida and Alabama, with each state guaranteed a set amount of water, will likely heat up in 2017. And droughts, which always bring water war negotiators back to the table, will likely be with us for years to come.

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