Georgia Water Wars Trial Set to Start Oct. 31

Editor’s Note: The following guest post was written by Nathan Williams. Williams is from Cumming, Georgia, and earned his undergraduate degree in political science and economics at the University of Georgia. He currently lives in the United Kingdom where he’s enrolled in a master’s program at the London School of Economics & Political Science.

Water warriors in Georgia are preparing for battle.

Despite efforts to reach a settlement, the decades-long water supply conflict with neighboring Florida is headed to trial beginning October 31. The legal stand-off is now a prisoner’s dilemma, with neither state willing to bow down without concessions that the other renders unacceptable.

Georgia has proven victorious in recent high-profile court battles over water rights, but Florida hopes to revive its legal challenge by targeting Georgia’s water consumption.

The lawsuit filed in 2013 claims significant harm to the Sunshine State’s oyster industry in the Apalachicola watershed as the result of negligent basin management upstream. Florida attorneys claim Georgia restricts adequate flow of water into Lake Seminole where the Chattahoochee and Flint Rivers merge, compromising the fragile bivalve mollusks industry which requires a sustainable balance of fresh and saltwater to survive. They demand Georgia reduce consumption and encourage higher levels of industrial efficiency in order to prevent additional “catastrophic and irreversible” damage to the industry, according to briefs. Yet Georgia attorneys argue that there is no direct impact of the state’s consumption on the downstream environment and that the ecological stress surrounding the reduction of oyster populations should be blamed on fishery mismanagement.

Waterways involved in litigation run downstream from Lake Lanier, where officials release supplies through the Chattahoochee River for use in the metropolitan region, to the Flint River, which serves as the primary water source on which many South Georgia agricultural industries depend to irrigate the state’s multi-billion dollar cotton and peanut industries.

The case reached the U.S. Supreme Court, which appointed Ralph Lancaster of Portland, Maine as Special Master in 2014 to mediate pleadings. After failing to reach a settlement, a federal court will now resolve the dispute.

The burden of proof will require Florida to demonstrate that Georgia’s consumption habits cause undue environmental and economic harm. The legal framework beyond that becomes much murkier as little precedent exists concerning water rights litigation between states, aside from the Kansas v. Nebraska case where the Supreme Court awarded Kansas $3.7 million in damages after finding that Nebraska “knowingly violated” the Republican River Compact established by Congress in 1943.

No permanent compact exists between Georgia, Alabama, and Florida, so litigation will likely rely upon federal laws like the Federal Power Act, Endangered Species Act, and the Clean Water Act for guidance. In order for Florida to prevail in seeking “equitable apportionment” of water rights and collect damages, the state’s attorneys must prove a direct linkage between Georgia’s water consumption and the resulting ecological harm downstream. The threshold is set high, but Florida’s case is strengthened by the inclusion of the Flint River and surrounding aquifers in arguing that Georgia isn’t seriously attempting to conserve water.

Over the past quarter-century, Georgia has spent more than $20 million defending use of Lake Lanier and the Chattahoochee River to supply water for the Atlanta metropolitan region, now the country’s ninth largest, which has grown at nearly two-percent annually since 2000. The state is set to spend an additional $20 million as proceedings head to court.

Experts predict neither state will be satisfied by the court’s mandate, which could include forcing Georgia to reduce consumption levels, improve water conservation – especially in the Flint River basin – or turn to new sources for groundwater. Such scenarios could cost the state millions in adjustment costs, without considering if may be held liable for damages. The state’s agriculture industry, especially in southwestern Georgia, is of particular concern given its relative dependence on groundwater resources for crop irrigation. The court could also rule in favor of Georgia if harm cannot be proven.

The resolution, however, will likely mandate a variety of changes in order to balance competing interests between states and industries involved in the matter. Though Florida faces a high burden of proof, the decision could force Georgia to adjust its water consumption. As trial begins next week, expect the relationship between Georgia Governor Nathan Deal and Governor Rick Scott of Florida to remain tense given the high stakes of the ruling on each state’s economic and political landscape.