Aw, Shucks: Decades-Old Water Dispute Affecting Florida Oyster Farming

Background

The final product of two decades of water use disputes has now resulted in a contentious lawsuit filed in the United States Supreme Court (“Supreme Court”). For more than twenty years, Florida, Georgia, and Alabama have been elbows deep in negotiations over the distribution of water shared by the three states. The negotiations involve a river system that begins in northern Georgia with Lake Lanier, which was created in 1950 by damming the Chattahoochee River. The river system continues south with the Chattahoochee River along the Alabama state border, where it then meets the Flint River near the Florida state line. At this junction, the two rivers flow into the Apalachicola River, which then empties into the Apalachicola Bay (the “Bay”). The Bay accounts for 10% of the nation’s oysters and provides over 2,000 jobs to the fishing industry in Florida.

The fishing and oyster industries in Florida encountered, and continue to battle, near collapse. On August 12, 2013, the National Oceanic and Atmospheric Administration declared a fishery disaster for oyster farmers in the Bay. This disaster threatens a deeply seeded tradition and the income of many Florida families, as the Bay produces 90% of Florida’s oysters. The Bay provides an ideal environment for oyster farming as the brackish water promotes oyster growth through decreased disease and predators. Reduced river flows emptying into the Bay disrupts the Bay’s salinity levels and leads to decreased oyster growth, resulting in decreased numbers of oysters to harvest and increased economic difficulties for the oyster farming industry.

Though the current conflict among Florida, Georgia, and Alabama remains in familiar territory due to the history of water disputes among these states, the current lawsuit proves to be a new frontier. Throughout the many years of disagreement, the states refrained from suing one another, electing to instead sue third parties like the United States Army Corps of Engineers (“Army Corps”). The Army Corps manages the system of dams and reservoirs shared by the three states. Past litigation addressed the Army Corps’ compliance with various federal statutes and management of the storage and water use issues in the river system. In 1992, Florida, Georgia, and Alabama commenced a study to determine the needs of the river system. The study lead to the creation of the Apalachicola-Chattahoochee-Flint River Basin Compact (“AFC Compact”). The AFC Compact developed an allocation formula for equitably apportioning the water resources of the river system. Florida’s need to file the current lawsuit suggests that the Army Corps failed to address each state’s water needs and the allocation formula failed to meet its intended purpose.

Florida has reached a point of desperation. Instead of continuing to negotiate with Georgia, Florida has escalated to involve the Supreme Court in an attempt to save one of their largest industries. In the most recent round of litigation, Florida emerged down for the count. The Eleventh Circuit Court of Appeals granted Georgia access to Lake Lanier, subject to restrictions, to provide water to Atlanta, an outcome Florida wished to avoid. With negotiations failing and lower courts ruling contrary to Florida’s interests, a lawsuit in the Supreme Court may be Florida’s only option to protect the Bay’s current brackish ratios and save the struggling fishery industry.

What Are the Arguments?

The fight for water originates in the competing needs of urban development and traditional agricultural endeavors. As urban development continues to grow, the demand for water outpaces the available supply. Georgia has been particularly motivated in urban development due to Atlanta’s constantly increasing water needs. Furthermore, as cities upstream continue to demand more and more water, the amount of fresh water entering the Bay will decrease.

Florida

From Florida’s perspective, Georgia continues to engage in unchecked consumption and unfair use of water shared by Florida, Georgia, and Alabama. In particular, Florida worries about the water use by irrigation wells in Georgia. According to Florida, the combined effect of increased water storage for Atlanta and South Georgia’s increased groundwater use has decreased water levels in the Bay, thus increasing salinity, and devastating Florida fisheries and oyster farmers. Florida Governor Rick Scott accuses Georgia of failing to engage in good faith negotiations while simultaneously consuming more water than necessary. Scott now alleges that Georgia’s actions make resolution possible only through a lawsuit. Florida has invoked the Supreme Court’s original jurisdiction in order to seek appropriate apportionment of water resources to redress existing harm and avoid continued harmful depletions caused by Georgia’s alleged unfair use. Throughout the past year, Florida suffered a drought and claims Georgia’s consumption only increases the threat faced by the Bay fisheries. And while the drought might be a factor, Florida argues climate data does not demonstrate that a lack of rain accounts for the freshwater reduction in the Bay. Without a ruling from the Supreme Court restricting Georgia’s consumption of water, Florida officials worry the Bay’s brackish levels will continue to fluctuate and continue to threaten the oyster farming industry’s survival.

Georgia

Georgia officials have responded and accused Florida of filing a frivolous lawsuit motivated by a political agenda. Brian Robinson, a spokesman for Georgia Governor Nathan Deal, called the lawsuit “political theatre” used to gain favor with voters as an election year approaches. Georgia officials believe Florida’s mismanagement of the Bay area has enhanced the issues created by the recent drought, leaving Florida in need of a “boogeyman” to blame for the poor management. In response to accusations that Georgia has indulged in unfair water consumption, Georgia responds that other factors have played a more detrimental role: the Bay’s woes result from the recent drought, overharvesting of oyster beds, and Florida water mismanagement. Georgia strongly asserts that Georgia’s water consumption continues to create  minimal effects. Further, Georgia argues responsible water conservation measures have been enacted and followed by Georgia’s citizens both in major cities and agricultural communities.

Alabama

At this time, Alabama officials have yet to decide if they will join the suit against Georgia. Jennifer Ardis, a spokeswoman for Alabama Governor Robert Bently, said the state will consider “all available options” to protect its water rights. Should Alabama choose to join the lawsuit, their support will most likely fall with Florida. Alabama senators have partnered with Florida senators in attempts to convince Congress to set stricter limits on Georgia’s access to water in federal reservoirs. However, Congress did not accept these limitations, and a lawsuit might provide the only solution Alabama needs to ensure access to sufficient water resources. Further, Alabama’s involvement with the AFC Compact suggests any decision by the Supreme Court will affect Alabama’s access to water resources.

Conclusion

The decades of conflict and the current lawsuit reflect a clash between urban expansion and traditional agricultural endeavors. Should the Supreme Court decide to hear the case, determining the fair use of the water resources available to Florida, Georgia, and Alabama will govern which interest takes priority in future conflicts and, therefore, the interest most likely to survive. However, significant doubt remains concerning the Supreme Court agreeing to hear the case. As recently as June 2012, the Supreme Court refused to hear an appeal from both Florida and Alabama lower courts concerning proper water use in Lake Lanier. If the Supreme Court refuses to hear the case or fails to find a solution to share the available water equally among the three states, Florida, Georgia, and Alabama will likely suffer economic hardships and struggle to provide the necessary water resources to their citizens.

The title picture is of Apalachicola Bay located in Florida.


Sources:

Florida’s Motion for Leave to File a Complaint, Complaint, and Brief in Support of Motion, Florida v. Georgia (petition for cert. filed Oct. 1, 2013), available at http://www.flgov.com/wp-content/uploads/2013/10/FLORIDA-v.-GEORGIA-Original-Action-Complaint.pdf.

Arian Campo-Flores, Florida Sues Georgia Over Water Use, Wall St. J. (Oct. 1, 2013), http://online.wsj.com/news/articles/SB10001424052702303643304579109673261813180.

Bill Cotterell, Florida Sues Georgia to Protect Oyster Farmers in Water Dispute, Reuters, (Oct. 1, 2013), http://www.reuters.com/article/2013/10/01/us-usa-florida-oysters-idUSBRE99015D20131001.

Gabriela Raffaele, Florida Sues Georgia to Protect Oyster Farmers, FIS United States (Oct. 3, 2013), http://fis.com/fis/worldnews/worldnews.asp?monthyear=10-2013&day=3&id=63905&l=e&country=&special=&ndb=1&df=1.

Dave Williams, Water War II: Florida Sues Georgia, Atlanta Business Chronicle (Oct. 4, 2013), http://www.bizjournals.com/atlanta/news/2013/10/01/water-war-ii-florida-sues-georgia.html.

Allison Floyd, Florida Lawsuit Could Restrict Georgia Irrigation, Growing Georgia (Oct. 9, 2013), http://growinggeorgia.com/features/2013/10/florida-lawsuit-could-restrict-georgia-irrigation/.

Gary Fineout, Scott Says State Will Sue Georgia Over Water, Associated Press (Aug. 13, 2013), http://www.postandcourier.com/article/20130813/PC16/130819727.

Daniel Malloy, Florida Will Ask Supreme Court to Limit Georgia’s Water Use, The Atlanta Journal-Constitution (Aug. 13, 2013), http://www.ajc.com/news/news/local-govt-politics/florida-will-ask-supreme-court-to-limit-georgias-w/nZNTy/.

Toluse Olorunnipa & Michael C. Bender, Florida to Sue Georgia in U.S. Supreme Court Over Water, Bloomberg Sustainability (Aug. 13, 2013), http://www.bloomberg.com/news/2013-08-13/florida-to-sue-georgia-in-u-s-supreme-court-over-water.html.


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