The U.S. Supreme Court could weigh in as soon as this week on the Southeast’s long-running water wars, a decision that could have a major impact on the region’s environmental and economic development. But don’t expect the justices’ decision to end decades of legal and political fighting between Georgia, Florida and Alabama, observers say.
Here’s a breakdown of the water fight and a peek at what could be around the corner as the justices prepare to rule on the fight for the first time:
The three Southeastern states have tussled for decades over water rights in two river basins: the Apalachicola-Chattahoochee-Flint (ACF) and the Alabama-Coosa-Tallapoosa (ACT). Both originate in Northeast Georgia, with the former flowing through metro Atlanta and farm country along the Georgia-Alabama border to the Florida Panhandle before emptying into the Gulf of Mexico. The latter flows southwest into Alabama, ending in Mobile Bay.
The fighting has gone on for the better part of three decades, costing taxpayers tens of millions of dollars in legal fees. The governors of the three states have met quietly at several points to try to hash out a water-sharing agreement, but recent efforts have fallen short. Lawmakers on Capitol Hill have also sought to weigh in legislatively.
More information:A tipping point in the water war?
There are four major cases related to the ACT and ACF currently winding their way through the court system. Most involve states suing the U.S. Army Corps of Engineers, the federal agency that manages the country’s locks and dams, but the case awaiting a ruling from the Supreme Court is different because it pits two states against one another.
Florida sued Georgia five years ago following the collapse of its oyster industry in Apalachicola Bay. The state alleged the region’s ecological and economic decline was hastened by the unchecked thirst of metro Atlanta residents and Southwest Georgia farmers upstream in the ACF. Florida argued the state “suffered real harm” at the hands of Georgia and called on the court to impose a cap on Georgia’s water usage so more water can flow downstream.
Georgia argued it has been a responsible steward of water, especially in Atlanta. It said a cap — which would limit consumption at roughly 1992 levels, when metro Atlanta was home to only half as many people — would deeply harm Georgia economically in exchange for little benefit to Florida because of the complicated way the corps regulates water.
The justices appointed a special master, Ralph Lancaster Jr., to collect facts in the case. After five weeks of hearing testimony in Maine, Lancaster said Georgia could have been more responsible with its water use but essentially handed the state a win on a technicality. Lancaster urged the justices to drop Florida’s case, in no small part because the Sunshine State couldn’t prove that limiting Georgia’s water usage would provide relief downstream.
Alabama has stayed on the sidelines in this particular fight but has watched the case closely and sided with Florida.
The courtroom scene
Georgia stakeholders had entered Supreme Court oral arguments in January feeling like they had the wind at their backs following several recent legal and regulatory victories. But the questioning from the justices left some taken aback.
Several justices indicated they were amenable to finding a remedy for Florida, rather than dismissing the case outright as Georgia wanted. The justices peppered lawyers for the two states and the corps with questions about whether options existed that would result in more water flowing downstream to the Panhandle. But several also said they were flummoxed by Florida’s decision not to also sue the corps since the agency controls much of the water flow in the ACF.
Georgia ceded some of its argument time to the corps, which told the justices it would take their eventual ruling into consideration but that the agency essentially didn’t have to listen because of the way its mandate was set up by Congress.
The possible verdicts
It’s been more than five months since oral arguments, and the Florida-Georgia fight is among just 21 cases from this term that have yet to see a verdict.
An opinion must come before the end of the month.
Local observers are generally expecting one of three outcomes from the court:
- Accept Lancaster’s recommendation. That would be a clear-cut win for Georgia since that would dismiss Florida’s case.
- Rule in Florida’s favor. Justices could do that by setting a cap on Georgia’s water consumption or laying out other parameters apportioning the water in the ACF.
- Send the case back to Lancaster. Justices could direct the special master to re-examine the case in order to answer different questions or flesh out his previous recommendation using a different legal lens.
Chris Manganiello, the water policy director for the conservation group Chattahoochee Riverkeeper, took some hints from the justices’ lines of questioning.
“I think they were trying to understand how the system works,” he said. “And at a basic level they were asking pretty simple questions, like if there’s more water in the system why can’t it flow downhill? But on the other hand, the system is quite complicated and it’s not as simple as just making sure there’s more water.”
“Without the Army Corps being a part of the case I think the court was just really trying to understand how to make a resolution work,” Manganiello said.
The court’s longer timeline for deciding the case has prompted some speculation about whether justices are planning a broader ruling. Another water rights case argued before the court on the same day as the Florida-Georgia case was decided months ago.
“It’s very difficult to predict, particularly in a case like this that doesn’t really have a partisan aspect to it,” said Gil Rogers, the director of the Southern Environmental Law Center’s Georgia and Alabama office.
Even if the court rules squarely in favor of Florida or Georgia, Rogers said he does not expect the justices’ ruling to signal an end to the water fight.
If Florida loses, it could turn around and sue the corps. There are also several separate federal cases related to the corps’ water allocation plans for the ACF and ACT that will see action in lower courts.
“I just don’t see that going away anytime soon,” Rogers said.
Water wars timeline
1956: The U.S. Army Corps of Engineers completes construction of the earthen Buford Dam, impounding the Chattahoochee River to form the 38,000-acre Lake Lanier. One of the corps’ main functions is to operate three hydroelectric turbines that supply power to the region.
The cities of Buford, Cumming and Gainesville, as well as Forsyth and Gwinnett counties, draw water out of the lake. Cobb, DeKalb and Fulton counties get water from pumping stations on the Chattahoochee after the water passes through the dam’s turbines.
1960s: The corps allows the metro area to increase its water withdrawals from the Chattahoochee because the intakes did not affect the dam’s hydroelectric operations.
1975: The corps determines that it could supply an average of 230 million gallons of water per day to metro Atlantans without it affecting hydropower generation.
1986: The corps determines that it could supply an average of 327 million gallons of water per day to metro Atlantans without it affecting hydropower generation.
1989: The corps releases a proposal for a new operating manual for Buford Dam that calls for significantly increasing the amount of water that could be used to meet the area’s needs.
1990: The corps scuttles its plan to make more water available as water supply after Alabama files the first of four lawsuits challenging metro Atlanta’s withdrawals from Lake Lanier.
1997: Georgia, Alabama and Florida agree to form a commission to figure out an allocation formula. The pact includes a “live and let live” provision that permits the corps to honor existing water supply contracts and allows water systems to increase their withdrawals to satisfy “reasonable” increases in demand. The agreement dissolves in 2003 when the commission cannot agree on a formula.
2000: Georgia asks for increased withdrawals to meet Atlanta’s needs through 2030. The request is denied.
2009: A federal judge signs an order that would severely restrict Atlanta’s water withdrawals unless Georgia, Alabama and Florida strike a water-sharing deal. U.S. District Judge Paul Magnuson said that Lake Lanier was not intended as a water supply for metro Atlanta. The intended purposes were hydropower, navigation and flood control, he said. Magnuson gave the states three years to work out an agreement before the order would take effect, limiting metro Atlanta to withdraw water at the same levels as it did in the mid-1970s.
2011: An appeals court overrules Magnuson’s decision, saying supplying metro Atlanta water was an intended use for the lake.
2012: The U.S. Supreme Court secures metro Atlanta’s claim to water from Lake Lanier when the court turns down appeals from Alabama and Florida.
2013: Florida asks the U.S. Supreme Court to order Georgia to let more Chattahoochee water flow into the Florida Panhandle to keep the state’s oyster industry afloat. The suit asks that metro Atlanta’s withdrawals from Lake Lanier and the Chattahoochee be held to the same levels as in 1992, when the region drew about 275 million gallons a day to serve 3 million. The level in 2013, following a 55 percent increase in the region’s population since 1992 to 5.4 million, was about 360 million gallons a day.
2014: The U.S. Supreme Court agrees to hear a Florida lawsuit that seeks to cap Georgia’s withdrawals from the Chattahoochee River.
September 2015: The corps updates its water-sharing plan for the Chattahoochee for the first time since 1989. The plan, which requires final approval, would allow Georgia by 2040 to tap nearly 600 million gallons each day from the Chattahoochee and Lake Lanier.
November 2015: Georgia and Florida agree to enter mediation in an attempt to reach an agreement on sharing water. Mediation will not succeed.
April 2016: American Rivers, a national environmental group, declares the Chattahoochee basin as the nation’s “most endangered” waterway. It cited a generation’s worth of water-sharing fights involving Georgia, Alabama and Florida, outmoded river management by the corps and the ever-looming chance of drought as evidence of the basin’s precariousness.
October 2016: The Florida v. Georgia water war trial begins in a Maine courtroom with Ralph Lancaster, the attorney the Supreme Court appointed as special master to oversee the case, presiding.
December 2016: The Florida v. Georgia water wars trial in Maine ends. Also in December, the corps rules that Forsyth, Gwinnett and Hall counties may withdraw 242 million gallons daily from Lake Lanier. The city of Atlanta and Cobb, DeKalb and Fulton counties would get an additional 379 million gallons daily from Lake Lanier and the Chattahoochee – enough water to slake population demands through 2050. Metro Atlanta currently taps about 360 million gallons a day from the Chattahoochee.
February 2017: Lancaster rules that Florida failed to prove that new limits on Georgia’s water consumption were needed.
January 2018: The Supreme Court hears oral arguments from Florida’s water rights case against Georgia.