Current Status of Water Wars

Current status of Florida’s U.S. Supreme Court lawsuit against Georgia:

(6/23/17)

• On February 14th, 2017 U.S. Supreme Court “Special Master” Ralph Lancaster stated that he will recommend against Florida’s request to require Georgia to reduce water intake from the Chattahoochee and Flint River systems. Mr. Lancaster said that Florida had failed to show a “consumption cap” was needed after hearing 5 weeks of testimony in the case. (In the lawsuit, Florida requested that Georgia be required to reduce water intake from these water systems to 1992 levels).
• The basis of the lawsuit involved Florida’s claim that excess water use by Georgia had caused environmental and economic damage to the Apalachicola River system and estuary in Florida. This claim was substantiated by the National Oceanic and Atmospheric Administration (NOAA) which declared the Apalachicola River (and the associated estuary) a fisheries natural disaster area.
• In reviewing Mr. Lancaster’s recommendation, it was interesting to note that he did not deny that the Apalachicola River was being damaged by reduced water flow but said it was not adequately demonstrated that implementing a Georgia consumption cap would alleviate the problem.
• Mr. Lancaster’s finding did appear to leave an opening for Florida to launch a separate legal complaint by stating that Florida had made a “grievous” tactical error by not including the “Corps of Engineers” as a party to the lawsuit. This was due to the fact that Corps of Engineer dams control the water that is released from Georgia to the Apalachicola River system.
• During this lawsuit, both Georgia and Florida have spent many millions of dollars, employed hundreds of lawyers, and submitted approximately 4 million pages of documents for examination. (Mr. Lancaster’s recommendation to the U.S. Supreme Court technically does not settle the case as the official ruling will be made by the court. However, in the three previous cases where Mr. Lancaster was appointed as a “Special Master, the Supreme Court has always ruled as Mr. Lancaster recommended).

​Alabama’s concerns with the current status of the Florida/Georgia lawsuit:

• Based on Mr. Lancaster’s recommendation, it is almost a certainty that Georgia will receive a favorable ruling by the United States Supreme Court. This occurred despite the fact that low water flows to the Apalachicola River have caused saltwater intrusion into the Apalachicola River system and the associated estuary. This has caused severe damage to the Apalachicola oyster industry, endangered indigenous flora and fauna and lead to a “Fisheries Disaster Declaration” by NOAA.
• The State of Alabama and other entities have filed lawsuits against the “U.S. Corps of Engineers” concerning a reduction of water flow to the Coosa River due a provision in the “new” May 4th 2015 Alabama-Coosa-Tallapoosa (ACT) “Master Water Control Manual.” Specifically, a provision in the new water control manual allows Allatoona Dam to hold back water during potential dry seasons of the year for recreational purposes. This reduction in the amount of water released from Allatoona Dam will lead to reduced amounts of water reaching the Coosa River potentially causing environmental, aesthetic and economic damage to the Coosa River and the State of Alabama. (The EPA has published a study indicating that this provision in the new water control manual could cause environmental damage to downstream waters). Alabama’s concern is that if Florida did not receive a favorable opinion (despite proven damage to the Apalachicola River as a result of low water flow) why should Alabama expect to receive a favorable opinion on reduced flow to the Coosa River.
• Despite the fact that (due to the new water control manual) Alabama will receive less water from the Etowah River in Georgia, Georgia issued a formal request to the “Corps of Engineers’” requesting even more water from the Etowah River at Lake Allatoona. In addition, they requested permission to build another regional reservoir (the Richland Creek Reservoir) on the Etowah River downstream of Allatoona Dam. The reason for this request was to supply more water to the Atlanta Metropolitan Statistical Area. This request has not yet been approved by the “Corps of Engineers”. (On May 9th 2015 Georgia sued the “Corps of Engineers” requesting that a decision be made regarding their requests for more water for the citizens of Georgia).
• The State of Alabama’s limited budget (compared to Georgia’s) is also a major concern. During the course of the Florida, Georgia Supreme Court lawsuit millions of dollars were spent by both Florida and Georgia. For instance, it has been reported that Georgia spent 30 million dollars in 2017, employed 70 lawyers working full-time on the lawsuit and produced and examined approximately 4 million pages of documents. (It was reported Florida‘s legal expenditures equaled or surpassed Georgia’s).
• The fact that Alabama does not have a Comprehensive Water Management Plan: Throughout the Florida, Georgia Supreme Court trial Georgia repeatedly referenced their “Comprehensive Water Management” plan (specifically the water conservation aspects of their plan) and apparently this played a significant role in Ralph Lancaster’s decision. It is important to note that Alabama is the only southeastern state that does not have a comprehensive water management plan placing us at a major disadvantage in water-wars related lawsuits.
• The fact that is was reported that inter-basin water transfer was mentioned by Mr. Lancaster (in the Florida/ Georgia lawsuit) as a possible way to alleviate the water shortage issues impacting the Apalachicola River: When this was mentioned in the trail proceedings, Alabama let it be known that if inter-basin transfer involved any river and/or stream entering Alabama they would initiate action to become a party in the lawsuit. The concern is if there is a future Florida, Georgia lawsuit (involving environmental damage to the Apalachicola River and estuary) inter-basin transfer could again be brought into the trail proceedings as a potential solution to this problem. Of course, Alabama is extremely concerned about inter-basin transfer especially if it is suggested that this water could come from a lake or stream flowing into Alabama.