ALBUQUERQUE, N.M. — Florida hammered Georgia in a federal courtroom here Thursday for not doing enough to limit agricultural water use in southwest Georgia as the oyster industry downstream in Apalachicola Bay collapsed.
Georgia’s southern neighbor is asking the court to freeze Georgia’s water usage at current levels in the Apalachicola-Chattahoochee-Flint river basin to 2050 and approve even tighter controls during droughts. The basin begins northeast of Lake Lanier and flows southwest past Atlanta into the Gulf of Mexico in Florida’s Panhandle.
In arguments before a Supreme Court-appointed expert judge, Florida's lawyers said Georgia allowed for "unrestrained and mismanaged" irrigation practices along the Flint River and that the adjudicator should require "reasonable regulation" so that more water can flow south and revive the bay's ecosystem and economy.
Georgia has an “obligation to take reasonable steps” to conserve water, Florida’s attorney Gregory Garre argued before the New Mexico-based judge, Paul Kelly. “Ultimately, this is about Georgia’s failure to meet this obligation.”
Thursday’s arguments were the latest round of a six-year-old lawsuit Florida filed against Georgia at the Supreme Court, part of a broader Southeastern water rights battle that’s raged for 30 years.
Georgia's lead attorney spent much of his time picking apart the data sets used by Florida and insisted that Georgia's water usage was far less than Florida's estimates. He said Florida failed to meet one of the case's central questions, which was laid out by the Supreme Court in a June 2018 ruling.
The court “cannot possibly find that the benefits substantially outweigh the cost to Georgia,” said Craig Primis, Georgia’s attorney.
In a sign of how seriously Georgia views the case, three of the state’s top lawyers - Attorney General Chris Carr, Solicitor General Andrew Pinson and David Dove, Gov. Brian Kemp’s executive counsel - watched the proceedings from the front row of the ornate courtroom, which was decorated in Southwestern-style block prints and drew about 30 spectators.
Read more: Your cheat sheet to the Georgia-Florida water wars
Read more: Water war shifts to southwest Georgia as Florida takes aim at farmers
Florida wants tighter irrigation controls on farmers along the Flint River, particularly during dry years; new water storage systems; and enforcement of current efficiency standards in metro Atlanta, among other proposed changes.
Florida has placed similar regulations on its own farmers, said the state’s attorneys, arguing Georgia could do so at a relatively modest cost to help preserve the ecology of the Apalachicola Bay and the livelihoods of its residents.
“It’s no longer reasonable to allow current irrigation practices to persist,” Florida lawyer Philip Perry said.
Primis, Georgia’s attorney, argued “it’s just not possible to achieve” the water levels Florida is seeking from the court even with “draconian” measures. He warned that placing strict limits on agricultural water use in the Flint would have a “staggering” impact on rural Georgia to the tune of roughly $330 million in direct costs, more than $320 million in losses to gross regional product and 4,000 job cuts.
Largely absent during the 90-minute hearing was much mention of metro Atlanta. Roughly 70% of local residents receive their drinking water from Lake Lanier, near the head of the Chattahoochee, and Georgia officials previously warned that limiting water in the Apalachicola-Chattahoochee-Flint river basin would kneecap development in the booming region.
Florida’s attorneys insisted they were “not trying to take water away from Atlanta” and that its proposed remedies were modest and “targeted” to a few thousand farmers in southwest Georgia. The metro area has in recent years upped its conservation efforts through a daytime lawn watering ban, toilet efficiency and leak detection programs.
The Supreme Court’s eventual ruling is expected to be precedent-setting on several fronts. It could impact several ongoing water cases Georgia, Florida and Alabama have in lower-level courts. (Alabama sat out this particular fight but has voiced support for Florida.) Water experts say the case could also be a model for future water rights battles east of the Mississippi River at a time when scientists warn climate change will increase and worsen droughts.
Kelly, the expert judge, isn’t expected to make a recommendation to the Supreme Court for months. The Supreme Court can accept his findings, reject them, opt for another round of oral arguments, or direct Kelly or another judge to review them again.
Kelly gave few hints Thursday. He let the lawyers present their evidence and focused most of his questions on where he could find information included in the attorneys’ slide decks.
Kelly is the second "special master" appointed to collect evidence in the case after his predecessor, the late Ralph Lancaster of Maine, heard five weeks of expert testimony in 2016. Lancaster ultimately urged the justices to dismiss Florida's case because it didn't include the U.S. Army Corps of Engineers, the federal agency that regulates several locks and dams in the Southeast, as a party to the lawsuit. The Supreme Court appointed Kelly to replace Lancaster last year.
Kelly said Thursday he saw his predecessor’s recommendations as “assumptions” rather than findings.
WHAT’S NEXT
Expert judge Paul Kelly is expected to review the arguments Florida and Georgia presented Thursday and make a recommendation to the Supreme Court in the months ahead. Justices could choose to accept, reject or review Kelly’s findings, either behind closed doors or following another round of oral arguments in Washington. (They took an initial crack in January 2018.) Regardless, the Southeastern water wars are not expected to end anytime soon as several other related cases are considered in federal court.
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