For The Record

Georgia claims major legal victory in ongoing ‘water wars’ with Florida

By: - December 13, 2019 7:14 am

Large irrigation equipment sits idle on a farm not far from Lake Seminole in south Georgia, where water flows in from the Flint River before flowing into the Apalachicola River in Florida. Jill Nolin/Georgia Recorder

Georgia won a major court victory Thursday in its ongoing legal battle with Florida over water rights as a federal judge studying the case recommended the U.S. Supreme Court dismiss the case.

The opinion from special master Paul Kelly Jr. is a major milestone, with billions of dollars per year at stake for the economies of Georgia and Florida. In arguments last month, Florida attorneys argued south Georgia farmers drew so much water for irrigation that it destroyed the oyster farming industry in Apalachicola Bay. 

“The evidence has shown that Georgia’s water use is reasonable,” Kelly, a New Mexico-based federal appeals court judge, wrote in his opinion. “And the evidence has not shown that the benefits of apportionment would substantially outweigh the potential harms.”

Kelly is the second special master to rule in Georgia’s favor. The U.S. Supreme Court could accept Kelly’s recommendation, reject it, or appoint another special master to rehear the case. The justices previously overruled the 2017 opinion of the case’s last special master, the late Maine attorney Ralph Lancaster. It then appointed Kelly to rehear the arguments.

The “water wars” over rights to the Chattahoochee, Flint and Apalachicola rivers dates back to 1990. Florida officials accuse Georgia of seizing too much water before it reaches the state line, damaging the economy and wildlife. Georgia officials argue the state’s $14 billion agriculture industry depends on its current water withdrawal level and should not be forced to undergo expensive changes.

In Thursday’s opinion, Kelly relied on data provided by Georgia water experts that made the case the state draws a fair share of water since the waterways serve much more land and people in Georgia than in Florida. Kelly found Florida’s evidence unconvincing.

Kelly wrote that the blame for the troubles of Florida’s oyster industry’s lies with poor management practices and drought. Those drought conditions were likely worsened not by Georgia, Kelly said, but by the U.S. Army Corps of Engineers’ strict control of the water that flows through dams within the river system. 

The special master also rejected as either too far fetched or too expensive 10 water-conservation measures that Florida proposed for the court to force Georgia to adopt. Georgia also is already making good progress in water conservation both in metro Atlanta metro area and on farm land.

“If anything, it appears that the potential harms to Georgia would substantially outweigh the benefits to Florida,” Kelly said of Florida’s request for a cap and conservation measures.

Kelly’s opinion drew quick praise from Georgia Gov. Brian Kemp, who called it a “recognition of Georgia’s strong, evidence-based case in this litigation.”

“We will continue to be good stewards of water resources in every corner of our state, and we hope that this issue will reach a final conclusion soon,” Kemp said in a statement Thursday.

Meanwhile, Florida officials are “extremely disappointed” about the opinion and are reviewing their legal options, said Florida Department of Environmental Protection Secretary Noah Valenstein.

“The water this river provides is essential for the Apalachicola Bay, and we will remain steadfast in our commitment to protecting it,” Valenstein said.

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Beau Evans
Beau Evans

Beau Evans has covered local and state government and breaking news in New Orleans and California. He’s reported on immigration issues, the threat of rising seas to coastal areas, public safety and hurricanes. At The Times-Picayune in New Orleans, Evans detailed the critical role government plays to ensure that people in a community have access to clean water and other public needs. In 2018, his investigative reporting revealed top officials at New Orleans’ cash-poor water utility dealt themselves huge raises, prompting several to resign. Evans’ prior reporting was in West Marin north of San Francisco for The Point Reyes Light. Evans is an Atlanta native who graduated with honors from The Lovett School and is an honors graduate of North Carolina’s Davidson College. Beau was with the Georgia Recorder until January 4th, 2020.

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