Florida, Georgia, and Alabama have been battling over water in the Apalachicola, Chattahoochee, and Flint River Basins (“ACF Basin”) since 1990. The twenty-seven years of litigation has been primarily focused on what each state contends is the proper apportionment of water from the ACF Basin to each state. And now, the battle is coming to a head in the United States Supreme Court. Once the dust settles, the future of the ecology in the Apalachicola Bay, the operation of the Buford Dam, and the water resource needs of the city of Atlanta will finally be decided.
This dispute is indicative of larger issues facing watershed and water resource management elsewhere in the country as it is motivated by the same competing forces that drive disagreements over how our most vital resource should be utilized. Georgia wants more water to feed its rapidly growing metro Atlanta area, Alabama wants more water to stay in the rivers of the Basin to continue to support its power generation and industrial needs, and Florida argues that increased water usage in the Basin has resulted in reduced flows that cause serious injury to its seafood industry and to the ecology of the Apalachicola Bay.
The Court held oral arguments on January 8th, 2018. Gregory G. Garre argued on behalf of Florida, and Craig G. Primis argued on behalf of Georgia.
These interests have played out in courtrooms, before Special Masters, district courts, appellate courts, and now, the Supreme Court, possibly resulting in an equitable apportionment decree that puts this three-decade war over the waters of the Flint, Chattahoochee, and Apalachicola Rivers to rest.
Understanding the context in which this litigation will play out before the Supreme Court is vital to comprehending what the positions of the parties are, why they are so entrenched, and why this fight has been going on for almost three decades. Without it, the dispute over the ACF Basin may appear to be a mere squabble between three states over how much water they feel entitled to. But in reality, this battle is indicative of the water resource struggles that communities all over the nation are dealing with.
The struggle at the center of this litigation is about how to balance solid economic growth with environmental protection—values and positions growing states must consider. Acknowledging this history allows for a more complete understanding of why these three states have been so contentious since the 1980s and why each state has argued their positions so vigorously. Further, it illustrates the implications that an equitable apportionment decree would have on the lives of the millions of people who live in the ACF Basin.
The origin of the conflict goes back to the early 1980s when the Basin suffered periods of serious drought and the metro Atlanta area began to experience huge population growth. The state of Alabama is concerned with reserving enough water for municipal, industrial, and power generation. Florida is distressed with the effect of lower river flows on the ecology of the Apalachicola Bay. And Georgia uses water from the Basin as the main source of drinking water for the city of Atlanta, whose metro area now has a population of almost six million people. Atlanta’s growth has come without much forethought about water supply and management.
All these competing interests—coupled with the fact that the ACF watershed is the smallest in the nation to supply the majority of a metropolitan area’s water—adds to the complexity and ferocity of the litigation over the years. These interests are diametrically opposed and motivated by very different sets of needs across the Basin. For example, both Florida and Alabama look for solutions that fit their needs: Alabama uses water for cities and industry and Florida leaves water in the Basin to protect the ecology of North Florida. The one thing that the two states seem to be able to agree on is blaming Georgia for a lack of environmental awareness and engaging in few conservation efforts.
Most of the litigation over the years has been focused on the Buford Dam project that created Lake Lanier in Gainesville, Georgia and the small fishing town of Apalachicola, Florida. As Atlanta continues to take more and more water out of the Chattahoochee River, water levels in the Apalachicola Bay have fallen to historically low levels due to decreased flow in the Apalachicola River. The Chattahoochee meets the Flint River and other tributaries at Lake Seminole near Bainbridge, Florida, to form the Apalachicola River, which flows into the Apalachicola Bay. Historically normal flow levels are crucial for the health of the Bay, which supports one of the most fertile seafood industries in the United States. Ten percent of the country’s oysters and about ninety percent of Florida’s oysters come from the Bay. Despite its small size, Apalachicola has been in litigation with the city of Atlanta for almost thirty years.
The impetus for all of this fighting and the spark that started the “water wars” between the states was a bad drought in the 1980s that lead Atlanta to implement water rationing. In response to this, the city of Atlanta worked with the U.S. Army Corps of Engineers to take 1623.44 acre feet of water per day from the Chattahoochee in the Lake Lanier area. Alabama quickly challenged this decision and sued the Army Corps. Florida joined the suit to protect its own interests in the Basin. Both states were concerned with the effect on river flows. Alabama needed natural flows for farming, industry, and hydropower and Florida needed natural flows to sustain its seafood industry in the Apalachicola Bay.
The parties came to an agreement in 1992 to begin a five-year comprehensive study sponsored by the Army Corps that froze water-usage levels and started a period of negotiation to solve their differences outside of court.
In 1997, the three states entered into the ACF River Basin Compact. The agreement was meant to bring the states together to negotiate their interests in the Basin in order to find an equitable means of appropriating the water, but Georgia—some three years before the deadline of the negotiations—submitted a request to increase water withdrawals from Lake Lanier over the next thirty years. The Army Corps denied the request for increased withdrawals, but Georgia’s attempts served to sour the negotiations. Georgia appealed the denial, and Alabama and Florida both challenged the request for increased water distribution from Lake Lanier for the City of Atlanta. The negotiation period subsequently expired, the attempted compact achieved little, and the parties continued to litigate for the next three decades.
In the course of that litigation, Georgia argued that it had the right to divert water from hydropower generators for its municipal water supply to the city of Atlanta. This water would be stored in Lake Lanier. However, the D.C. Circuit court rejected that argument, holding that reallocation of storage space in the lake would be a major operational change that would require congressional approval. Georgia sought United States Supreme Court review of that decision, but the Justice Department recommended that the Court not grant review. The case went unheard.
After review was denied, the case was transferred to the U.S District Court for the Middle District of Florida. This round of litigation focused on whether Atlanta had the right to rely on Lake Lanier as its primary source of water. Florida and Alabama argued that maintaining water supply for Atlanta was not within the original purpose of the Buford Dam project and it would, therefore, need congressional approval for changes to the operation of the dam. The Court, in 2009, accepted this argument and set aside the Corp’s approval because the Corps failed to get the necessary congressional approval before changing the operation of the dam, which constituted an abuse of discretion.
In 2011, the U.S District Court’s ruling was reversed by the Eleventh Circuit due to concerns about cutting off the water supply to the millions of people living in the Atlanta metro area. The Eleventh Circuit found that the Corps had never formally reallocated storage in the reservoir and that water storage was, in fact, within the purpose of the Buford Dam project. The Court found that storage was within the intent of the project because of a report made during the project’s planning phase. That report had stated water storage for the city of Atlanta was intended to be one use for the project.
Remanded to the Corps
Pursuant to the 2011 finding, the district court remanded the case with instructions for the Corps to reconsider the Buford Dam plan in order to determine its legal authority over dam operations in a way that would be in accordance with Georgia’s growing water needs. To do this, the Court told the Corps to complete its analysis of its water supply authority and to release its conclusions within one year. The result of this ruling placed the litigation over the Basin into a state of greater unpredictability and put the burden on the Corps to determine their legal authority over the entire project.
Unsurprisingly, the Corps did not meet their July 2012 deadline to complete the report. But it did start signaling that it was willing to rule in Georgia’s favor for more water for Atlanta, finding that “it has always been apparent from the plain text of the Newman report that the Corps proposed, and Congress authorized, a system that was expressly intended to ‘ensure an adequate water supply for the rapidly growing Atlanta metropolitan area’ downstream.” Moreover, the Corps states that they have and will continue to “operate the Buford project with this goal in mind,” rebutting the argument that operating the dam in this way would contravene the Congressional intent.
However, this 2011 finding did not put an end to the dispute. In 2014, Florida convinced the United States Supreme Court to hear their claims against Georgia and sought an equitable apportionment of the waters of the ACF Basin. Equitable apportionment actions ask the Court to issue a decree allocating interstate waters and dictating how much water each state can use. In this instance, Florida requested the Court to divide the waters of the ACF Basin between the two states. Florida’s argument continued to focus on the fact that Atlanta’s suburbs were withdrawing too much water from the Chattahoochee and damaging the ecology of the Apalachicola Bay.
In order to protect the bay, Florida, in its complaint against Georgia, asked the Court to restrict Georgia’s consumptive water use to levels that existed in 1992. Florida felt this restriction was necessary to combat the increased salinity in the Bay, which it argues has caused the oyster industry there to collapse. Georgia, however, claimed that its water use did not cause injury to Florida and that its use only had a minor impact on the flow in the Apalachicola River at the state line. Further, Georgia argued that the problems facing the Apalachicola Bay are the result of a changing environment and poor management by Florida.
Alternatively, to make its case, Georgia claimed that the burden is on Florida to show by clear and convincing evidence that Georgia’s current water use causes material injury or damage to Florida’s substantial interests. One of these interests would likely be the oyster fisheries in the Apalachicola Bay. Yet, even if Florida was able to convince the Court of its injury, the Court would have to decide whether the nature and intensity of the injury are enough to justify the impacts that would follow from the reductions in Georgia’s water use that Florida is seeking.
Special Master’s Report
The Court appointed a Special Master to oversee the litigation in November 2014, and a hearing was held in late 2016. The Special Master issued an order compelling the states to participate in more mediation geared at settlement. The Court directed the parties to file confidential reports by January 26, 2017 that showed their efforts to come to an agreement.
After receiving the reports, the Special Master issued a report of his own in mid-February, recommending that the Supreme Court deny Florida’s claims because, according to the Special Master, it did not meet the standard of providing clear and convincing evidence that its alleged injury is able to be remedied without the Corps as a party to the suit. While the report is not legally binding, it does inform the Court’s view of the evidence at trial and provides the Supreme Court Justices with a frame to view how the law should be applied to the case. After the report was made, both states had the opportunity to file exceptions and responses, which the Court reviewed prior to making a decision on whether to hear the case and scheduling oral arguments.
In late May, Florida filed its exceptions to the Special Master’s report, arguing that the Master erred in several areas by imposing a heightened standard for establishing redressability of the injury Florida contends it is suffering. Florida’s exception specifically took issue with the conclusion that even after proving that it suffered injury, the Special Master required Florida to prove redressability by clear and convincing evidence. Florida contended that the Army Corps of Engineers’ ability to use its discretion in operating dams under its control precludes a finding of redressability, as the Army Corps’ discretion is outside of Florida’s control. Additionally, Florida argued that the Master failed to account for the ways in which Florida’s injuries could be redressed irrespective of the Corps’ discretion in what the Corps may or may not decide to do about the operation of the Buford Dam. Florida’s final argument spelled out the ways in which the Master was not able to account for the principles of equity and the role of the United States Supreme Court in resolving interstate disputes. Essentially, Florida reiterated its position that equitable apportionment by the Supreme Court was its last hope to save the Apalachicola Region from irreparable damage.
Georgia, not filing its own exception, instead responded to Florida’s exception in late July maintaining its position that Florida had not met its burden of proof from demonstrating injury. Georgia argued that the Special Master applied the correct legal standard in finding that: (a) Florida failed to prove effective redress via clear and convincing evidence; (b) Florida failed to prove that imposing a consumption cap on the Basin would provide the State with effective relief from its claimed injury and that any cap would be “uncertain and speculative”; and (c) Florida failed to prove that it would receive any meaningful benefits from increased overall flows into the Apalachicola Bay. Additionally, Georgia claimed that the manner in which the Special Master considered the role of the Army Corps was proper. Georgia did not defend the guarantee standard employed by the Master, instead reframing the Special Master’s report in a light favorable to its position.
In reframing the report, Georgia argued that the Master applied the correct legal standard when he found that Florida failed to prove its case because the Master required Florida to prove effective redress, something that Georgia believes Florida was not able to do. Georgia argued that Florida had failed to prove that a consumption cap in the Basin would provide the State with the relief it requested from the Court. That line of argument, Georgia contended, is supported by the fact that Florida’s claims of injury cannot be rectified by the Corps because of how the Corps operates its reservoirs in the Basin. Georgia asserted that any benefit to Florida from a consumption cap would be uncertain and speculative because Florida failed to prove that the Corps would use its discretion to pass additional water to the Apalachicola Bay during times of drought. Florida admitted that the only way to materially increase flows during drought is to involve the Corps and change the way the dams on the Basin operate to allow more water to reach the bay, but the Special Master found Georgia’s modeling to be reliable and Florida’s suffering from critical shortcomings that prevented the Master from finding that the Corp’s could redress Florida’s injury. From this, Georgia argued that Florida failed to prove any meaningful benefit from increased overall flows and the Master’s consideration of the role of the Corp’s in the dispute was proper.
After Georgia filed its response, both the United States and the State of Colorado filed amicus curiae briefs supporting of Georgia’s position and bolstering the Special Master’s conclusions.
The United States filed a friend of the court brief in this matter because the operational protocols of the Army Corps of Engineers played a critical role in the Special Master’s recommendation and the United States wanted to ensure that the Court fully understood those protocols before arguments were held. Furthermore, the United States stated that it is concerned with protecting the Corp’s ability to operate its system of dams in the region for congressionally authorized purposes and in compliance with other federal statutes. The brief from the United States also addressed Florida’s contention that imposing a consumption cap on Georgia would allow for greater flows to reach the Apalachicola Bay. Contrary to Florida’s argument, the government argued that the consumption cap would have little effect towards restoring historical flows to the bay due to constraints on how the Corps must operate the system of dams in the ACF Basin.
For its part, Colorado filed a brief in this dispute because of its long history of interstate water disputes and to protect its interest in preserving a strong burden of proof in equitable apportionment decrees. Interestingly, Colorado takes no position on the merits of Florida’s case. Rather it is primarily focused on the burden-of-proof question because a decision from the Court could potentially establish precedent affecting Colorado’s rights and obligations under its current—and possible future—equitable apportionment decrees. Colorado wants to ensure that the complaining state in these kinds of fights bears the weighty burden of proving both its injury and its right to relief by clear and convincing evidence. It emphasizes that this burden applies through the entire course of equitable apportionment case and that to win out, the state seeking an equitable apportionment must prove, according to that higher standard, the effectiveness of redressability.
In late August, Florida filed its supplemental reply to its May exception responding to some of the concerns raised by the United States and Colorado. Florida acknowledged Georgia’s position, recognizing that Georgia contends that it has not wasted any water or injured Florida in any fashion. However, relying on the report made by the Special Master, Florida urged the Court to accept some of the findings made by the Master. Specifically, Florida urged the Court to accept that it has suffered injury as a result of unreasonable upstream water use by Georgia—including that this harm is the result of decreased flows in the Chattahoochee River coupled with the largely unrestrained agricultural water use by Georgian farmers in the Basin. Because Florida characterizes these statements from the Special Master as “findings,” it argues that the Court must accept both the injury and Georgia’s inequitable conduct through overuse of the waters in the Basin. Moreover, Florida contends that Georgia’s claim that the case cannot move forward without the inclusion of the Corps as a party is unfounded. Florida took this position because the Special Master found that the case may proceed without the Corps because Florida would be left without any solution for its injury if the case were to be dismissed.
Additionally, Florida also argued that because Georgia failed to file an exception, the Court should accept the Master’s report as the case goes to oral arguments. However, if the Court were to accept the Master’s report, doing so would seemingly ignore the fact that Special Master’s final conclusion was to dismiss the case. In fact, the Special Master concluded that there was no guarantee that the Corps would not offset any additional flows available to Florida and achieved through a consumption cap on the Flint River. The Master found that the Corps could hold back waters in reservoirs on the Chattahoochee River, and that reduced flows on the Chattahoochee would mitigate any additional flows on the Flint River Florida. Florida, maintained that the Special Master made a mistake of law when reaching that determination about dams on the Chattahoochee because the Court has never placed that kind of requirement—one where the party seeking an equitable apportionment decree must envision what the Corps may or may not do—on a party before.
Interestingly, after the Special Master submitted his report, the Corps issued a Record of Decision that spoke to how the Corps would respond to an equitable apportionment decree if one were issued in this case. The Corps stated that it would take the apportionment into account and adjust its operations accordingly. Florida, in its sur-reply, points to the fact that the United States affirmed that decision in its amicus curiae brief, stating that the United States has said that it stands behind that statement by the Corps and that any decision by the Court would necessarily affect the laws to be considered by the Corps when deciding how to operate control of waters in the ACF Basin. Therefore, Florida argues that the United States should accommodate a decree if one were made in this case; and even if it did not, a decree would still likely provide a meaningful redress to Florida’s injury because increased flows resulting from a decree would materially improve conditions in the Apalachicola region.
Finally, Florida refuted Georgia’s arguments about unclear or uncertain redressability by contending that it is at the very least reasonable to predict that the Corps would respond to a decree by adjusting its operations to be in compliance with that decree and other applicable law. To prove this point, Florida urged the Court to examine Georgia’s arguments to illustrate the fact that that Georgia is merely speculating by arguing about what the Corps would or would not do.
On October 10, 2017, the Court set oral arguments on the exceptions to the Special Master’s report in due course. Due course should bring the case before the Court during the October term, which is usually over in June or July. When the parties appear before the Court, Florida will likely argue that, because negotiations between the states have been so contentious and fraught over the years, an equitable apportionment decree may be the best way to finally sort out where the waters of the ACF Basin should go.
However, an equitable apportionment is not the only solution. The states could agree to an interstate compact or Congress could take direct action to apportion the waters in the Basin. An interstate compact may be the cheapest way to resolve the issues between the parties, but the likelihood of a compact being successful is doubtful given the long history of litigation.
The last time the parties attempted to directly negotiate in 1997 not only failed to come to an agreement, but also exacerbated tensions and spawned even more litigation. Georgia refused to give up its demands for the water needed for Atlanta. Similarly, Florida has not given up its claims for adequate downriver flows to preserve water levels in the Apalachicola Bay. These positions make coming to a formal compact agreement unlikely.
The likelihood of Congress getting involved is equally slim. Congress has been unwilling in the past to wade too deeply into contentious disputes like this. Congress would have to gather a substantial amount of expert information on the dispute and then make an informed decision on the best use of waters in the Basin.
While the dispute has been going for almost thirty years, Congress appears to be preoccupied with issues like health care, disaster relief, and tax reform. Because neither a compact nor Congressional action appear to be viable solutions, this case will have to be decided by the Supreme Court if it is to be resolved decisively.
Looking to the Supreme Court
At oral arguments, the Court will hear that Florida and Georgia are looking for completely different uses of the water from the Basin. This will be unlike other instances where the Court has made equitable apportionment decrees in the West because, in the Western cases, the Court was asked to consider how much water was necessary to support agriculture in Colorado, Kansas, or Texas. In this case, the Court will be asked to weigh the consequences of its decision on the growing city of Atlanta and the ecology of Apalachicola Bay. On the one hand, the growth and developmental future of Atlanta—one of the fastest growing cities in the nation. And on the other hand, the possibility that reduced flows in the Chattahoochee will destroy an entire river ecosystem—putting the final nail in the coffin of one of the country’s major shellfish-producing areas.
Florida will likely argue that Georgia is requesting the Court to withhold water while also not taking necessary steps to solve Atlanta’s drinking water supply problem. Georgia, in turn, will probably argue that it has no other choice but to take the water it needs to fuel its explosive growth and that there are no other viable solutions to its water supply issues. But as many in the West already know from past experiences, equitable apportionment decrees often do not leave any of the parties happy.
The Court has a tough road ahead. It will have to unravel the almost thirty years of litigation and find a balance in a watershed that supplies drinking water for almost four million people. The three rivers, the Flint, Chattahoochee, and the Apalachicola provide water for industry in Alabama and power generation throughout the three states. They support agriculture in South Georgia and Alabama, recreation in the Chattahoochee River National Recreation area, and fisheries further south in the Apalachicola Bay.
Moreover, the Flint is home to one of the most diverse aquatic ecosystems in the country and is one of only forty rivers left in the U.S that flows for more than two hundred miles without being obstructed by a dam. The Basin provides thirty-five percent of the freshwater and nutrients to the Eastern part of the Gulf of Mexico, which in turn supports both fisheries valued at $5.8 billion as well as the traditions of families who have been living off the water in the region for generations. While it is not entirely conceivable to predict what the Court will do to resolve all of these problems, it is somewhat possible to envision how the Court will approach the issues that run throughout this dispute.
First, the Supreme Court Justices will use the recommendation of the Special Master to inform themselves of the issues and the law affecting the dispute before them. But Special Masters have somewhat limited judicial experience due to being from private practice, are given limited guidance as to how to guide the parties, and do not receive extensive oversight on the matters of law from the Court. Second, the dispute is likely to spark up again in the future, even if the Court issues an equitable apportionment decree. Atlanta continues to grow and keeps taking more and more water out of the Basin each day. Florida claims that this will keep reducing water levels in the Apalachicola Bay to the detriment of the seafood industry and ecology of the region. Since the dispute has already been going for thirty years, it seems unlikely that it will end so simply unless the Court can craft a solution that is acceptable to both parties far into the future.
What would that solution look like?
An effective solution would have to be something that gives both parties what they want without making either feel like the “loser.” The plan would have to give Atlanta the water resources it needs to continue growing, but on the condition that the City engage in water conservation programs while looking for other, permanent alternative sources of water.
For Florida, the Court should set a minimum flow requirement on the Chattahoochee that would allow for the river to return to its natural flow level and increase the health of the Apalachicola Bay. In order to maintain confidence in the solution, Florida should be allowed to monitor these flows in order to keep Georgia accountable and to appease the seafood industry that claims to have been harmed so extensively by reduced flows.
An answer like this would make Georgia happy while also compelling the State to find its own solutions to its water needs. It would also help save the ecosystem and industry of Florida while finally forcing Atlanta to get serious about water conservation efforts or finding a source of supply that is not so environmentally taxing. And if it is able to be resolved in this way, it would illuminate a problem that is facing the country as a whole: how to balance urban growth and expansion with environmental conservation while preserving unique ecosystems in a manner that allows for both people and the natural world to thrive.
Image: Oyster Boats Sit Idle Near the St. George Island Bridge Over the Apalachicola Bay. Flickr user smuzz, Creative Commons.
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