IT’S ABOUT TIME, or WADING THROUGH 30 YEARS OF WATER WARS
By: Clyde Morris, Attorney for the Lake Lanier Association
It turns out Justice Amy Coney Barrett has a gift for brevity. She sure made quick work of the Water Wars, taking only 12 pages to end a string of litigation that stretched back 30 years and cost tens of millions of taxpayer dollars.
Ultimately, it was Florida’s failure to prove that Georgia caused the oyster fishery collapse that lead to the Supreme Court’s recent decision in favor of Georgia. But in the immortal words of The Grateful Dead, what a long, strange trip it’s been. So, how did we get here?
Apalachicola’s oyster fishery collapsed around 2014 as the result of a multitude of factors, not the least of which were back-to-back-to-back droughts of historical proportion AND overharvesting in the wake of the Deep Horizon oil spill. That combination of events was enough to doom the oysters, but Florida persisted in pointing the finger at Georgia anyway, as it had for 25 years.
And Florida pointed at a lot of things. Remember the mussels? There were three: the Fat threeridge, the Chipola Slabshell, and the Purple Bankclimber. And don’t forget the Gulf sturgeon, a prehistoric fish that has used the Apalachicola River for reproduction for maybe a couple hundred thousand years. All were endangered or threatened, and Georgia was to blame!
And of course there was the RIOP – the Corps’ moniker for its Revised Interim Operating Plan for the ACF dams. That was the system that reinforced the minimum flow of 5,000 cfs at Woodruff Dam, a flow rate that was first put in place in the Corps’ 1950’s operating manuals.
Along the way, the states actually called a truce of sorts in the form of an Interstate Compact that allowed them to live and let live. But eventually even that attempt to resolve the dispute failed, and Florida turned to the Supreme Court for redress in a case of original jurisdiction, where the Supreme Court serves as a trial court to resolve disputes between the states.
But before we got there, we spent years in federal district courts – in Alabama, Georgia, Florida, and Washington, D.C. There were seven different lawsuits stretching back to 1990, all of which were eventually consolidated for purposes of judicial economy in the District Court for the Middle District of Florida, located in Jacksonville. Judge Paul Magnuson, a federal judge from Minnesota with a notable background in water use litigation, was recruited to oversee that trial. Who can forget his bombshell decision in July of 2009 in which he decried Georgia’s profligate water use at the expense of the “creatures” that call the ACF basin home? He ruled that Lake Lanier was never authorized as a source of water supply for Atlanta, and his remedy was to limit Georgia’s municipal water consumption to the level from 17 years earlier – 1992. Who could even imagine the repercussions such a draconian order would wreak on North Georgia?
Then there was the Eleventh Circuit. Georgia appealed Magnuson’s ruling to the Court of Appeals in what felt at the time like a desperate attempt to stave off the inconceivable devastation that would have sprung from turning back the clock to 1992 levels of water consumption – a time when the metro area’s population had millions fewer people. Fortunately, the three-judge panel ruled in Georgia’s favor: of course water supply was an authorized purpose of Lake Lanier, it said so in the Park Report from 1938, years before the Corps broke ground for Buford Dam! Not only that, but the Corps’ Colonel Park also cited the “Recreational Value” of the then-proposed two-reservoir system – which he pegged at $50,000. Little did he know that the 1071 Coalition’s Economic Impact Analysis published in 2010 would more accurately assess Lanier’s annual impact at closer to $300 million.
And then the Supreme fun started.
We recall that the first Special Master blasted Georgia’s “unrestricted” agricultural water use but ruled against Florida anyway because the Corps was not a party to the lawsuit. Then the Justices voted 5-4 to remand the case to a Special Master for further findings. The second Special Master found Florida’s arguments wanting in virtually every way and recommended that the Justices dismiss Florida’s petition altogether. Which was followed by a hearing in which the Justices wondered aloud where the water went, how Florida’s “precious ecosystem” should be taken into account, and why Georgia should deserve a different outcome when in a precedent-setting 1931 case the Court imposed water use restrictions on New York in order to protect New Jersey’s oyster beds. One could almost see the ghost of Paul Magnuson hovering menacingly over the ACF.
But then came that sweet, unanimous final ruling, dismissing Florida’s complaint without further ado. In the end, Georgia was acquitted of the dastardly deeds of which it was accused by Judge Magnuson and saved from the devastating water use restrictions he and Florida’s lawyers envisioned. Had it gone the other way, life in both north and southwest Georgia would be drastically different from what we’ve become accustomed to. But we dodged a bullet and now we can breathe a sigh of relief, just in time for summer on Lake Lanier. It’s about time.