ATLANTA — How much water metro Atlanta will be allowed to pull from the Chattahoochee River for decades to come and how much Southwest Georgia can pump from farm irrigation wells will be at stake Monday.
The U.S. Supreme Court will hear oral arguments in a lawsuit the state of Florida filed in 2013 demanding the justices order Georgia to use less water. It’s just the latest episode in the so-called “tri-state water wars,” a legal battle over water allocation between Florida, Georgia and Alabama that has dragged on for nearly three decades.
The suit claims Georgia is taking so much water out of the Apalachicola-Chattahoochee-Flint River Basin to meet the needs of fast-growing metro Atlanta and irrigate crops in the lower Flint that Florida isn’t left with enough freshwater for its once-thriving oyster industry Apalachicola Bay.
Georgia’s lawyers counter that the cap on water consumption Florida is seeking would cripple the metro region’s economy by halting growth and devastate farmers.
Georgia appears to have the advantage going into Monday’s hearing, said Chris Manganiello, water policy director for the Chattahoochee Riverkeeper. A special master the Supreme Court appointed to hear the dispute recommended in late 2019 that the court dismiss Florida’s case.
“Special Master [Paul] Kelly was pretty clear: Florida failed to make a compelling argument that Georgia was using too much water or that any harm to Florida’s fisheries could be traced to Georgia,” Manganiello said.
But Gil Rogers, director of the Georgia and Alabama offices of the Southern Environmental Law Center, is less certain. He pointed to the court’s decision in 2018 to assign the case to Special Master Kelly after an earlier special master already had sided with Georgia. That 5-4 ruling followed oral arguments held earlier in 2018.
“It’s a little hard to use [Kelly’s] recommendation as a predictor, particularly since the Supreme Court has ordered oral arguments again,” Rogers said.
Rogers said the court’s different makeup adds to the uncertainty. Two new justices – Brett Kavanaugh and Amy Coney Barrett – have joined the court since it last weighed in on the case.
Another key change since the last time the Supreme Court heard the lawsuit is an agreement Georgia signed with the U.S. Army Court of Engineers last month that for the first time authorizes the use of Lake Lanier as a water supply. While the federally managed reservoir has been supplying water for decades, its use for that purpose has been among the legal issues contested during the water wars.
Since the $70 million contract runs through 2050, metro Atlanta water policy planners and regional business leaders are celebrating it as safeguarding a water supply that has been under threat from the Florida lawsuit and others.
“This contract will help secure our region’s long-range future by ensuring access to water from Lake Lanier to responsibly support long-term growth while protecting this vital natural resource,” Katherine Zitsch, managing director of natural resources for the Atlanta Regional Commission, said in a prepared statement.
While a Florida victory in the current lawsuit theoretically could render moot the new contract between Georgia and the Army Corps, Rogers doesn’t see it as a threat to the agreement.
“The Supreme Court, if it makes a substantive ruling on water allocation, is likely to stop short of directing how that would happen,” he said. “I don’t think the Supreme Court would throw out the contract.”
Water conservation a key legal argument
Metro Atlanta’s ability to grow its population while reining in water consumption has been one of Georgia’s major arguments in defending against Florida’s lawsuit.
Since 2000, total water use in the region has dropped by more than 10%, even as the population has increased by more than 1.3 million.
“Given our region’s excellent record on water conservation through the years, I am confident that our communities will make wise use of this essential resource going forward,” added Katie Kirkpatrick, president and CEO of the Metro Atlanta Chamber.
In fact, metro Atlanta’s water conservation efforts have been so successful that Florida’s lawyers for the last couple of years have focused more on the amount of water farmers in the lower Flint use to irrigate their crops.
But Gordon Rogers, executive director of Albany-based Flint Riverkeeper, said farmers also have made great progress reducing their water consumption.
For one thing, an initiative to install meters on all irrigation wells measuring how much water they use has been completed, he said.
Also, when Hurricane Michael tore through Southwest Georgia in 2018, it forced farmers to replace a lot of their old infrastructure with more modern equipment that uses less water, Rogers said.
Georgia’s lawyers also have cited the state’s long-running moratorium on new well permits in 23 counties drawing from either surface or groundwater in the lower Flint as evidence of a good-faith effort to save water.
“People can’t get permits for the Floridan aquifer or a creek,” Rogers said. “I’m enough of a constitutionalist to say that’s a usurpation of property rights … It’s not a solution. It’s a defense in court.”
Gil Rogers said no matter which state wins the current case, the tri-state water wars will continue. Alabama is still a party to the dispute, specifically through its appeal of the 2017 decision by the Army Corps of Engineers that led to last month’s agreement with Georgia over Lake Lanier.
Ultimately, the solution lies outside the courtroom in cooperative water management among the states, Gil Rogers said.
“Until the states agree on some kind of commission or authority to look after the health of the system, we’ll have ongoing litigation,” he said. “[But] it will be interesting to see how this decision changes the dynamic among the three states.”