A resolution in the decades-long fights over water between Georgia and Florida is probably still a long way off. Even a decision from the U.S. Supreme Court in the case it’s hearing in the water wars, which the states argued Monday morning for the second time, is likely months away.
But one thing was made clear in Monday’s arguments: Florida, in its request to the court to limit Georgia’s water use, says that it is not coming after municipal water users in its case against Georgia.
That would include Atlanta.
Earlier in the case filed in 2013, Florida had criticized both metro Atlanta’s water use from the Chattahoochee River and southwest Georgia farmers’ water use from the Flint River. On Monday, Justice Amy Coney Barrett asked Florida’s attorney, Gregory Garre, whether that was still the case.
“Our focus here is on agricultural use and irrigation on the Flint River, your honor,” Garre said.
That’s an important development, said Katherine Zitsch, the managing director of natural resources at the Atlanta Regional Commission.
“That was a big thing for metro Atlanta,” Zitsch said.
She said while she’s still confident Georgia will ultimately win, Garre’s answer to the court for Atlanta was “definitive.”
“Every time we get these small or large wins in court, it’s a relief,” she said.
Jeffrey Harvey, the public policy director at the Georgia Farm Bureau, said after the arguments, he’s feeling cautiously optimistic about the outlook for Georgia’s farmers, too.
“I feel good, but I’ll feel better once it’s over,” Harvey said.
Searching For The Suspect
Florida says that Georgia uses too much water during droughts, which has harmed the environment and the oyster industry in Apalachicola Bay.
Advocates for Florida are hoping the Supreme Court will find that Florida has suffered from that lack of water — and that it’s Georgia’s fault.
“It’s kind of black and white to me that there are impacts that are resulting from Georgia,” said Dan Tonsmeire, who’s retired from the Florida environmental group Apalachicola Riverkeeper.
But Florida may have a tough time proving that. Two special masters, hired by the court to manage the case and make recommendations on how to decide it, have sided with Georgia.
Chief Justice John Roberts asked Florida’s attorney if the situation isn’t like the plot of “Murder on The Orient Express.”
“A lot of things took a stab at the fishery – drought, overharvesting, Florida regulatory policies, but also lower salinity that was caused by Georgia’s use of the water,” Roberts said. “But you can’t say that any one of those things is responsible for killing the fishery.”
In their questions, the justices grappled with how to figure how much Georgia is at fault—if it’s at fault at all, how much harm Florida would have to suffer for it to make sense for the court to step in and exactly how much water Florida says it needs to help the Apalachicola Bay.
‘Not A True Resolution’
Chris Manganiello, director of water policy at Chattahoochee Riverkeeper, said he appreciated that the justices were trying to answer those questions and also appeared to be considering the environment.
Still, he said, he doesn’t think the courts can ultimately solve the problem.
“At the end of the day, it’s going to be meeting the challenges of climate change, and not the legal challenges that are going to drive our future water decisions,” he said.
Ryan Rowberry, an associate dean at the Georgia State University College of Law, and a water law expert, agreed that this case wouldn’t solve the states’ conflicts.
“It’s a waste of money. And I’m not supposed to say that because I’m a lawyer. But it only makes it rain for lawyers,” Rowberry said. “It’s kicking the can down the road. And it’s not a true resolution. No matter what comes down from the court, this will not be the end of the matter.”
He said something more lasting would be a political solution like something worked out with the oystermen and the farmers, public officials and others from the affected communities.
A plan like that was put forth about five years ago by the Apalachicola-Chattahoochee-Flint [ACF] Stakeholders, a group composed of representatives from Florida, Georgia and also Alabama, which has been involved in these fights too, though not in the Supreme Court case.
“The solutions to all of this lie in having an equitable water-sharing plan that’s relatively uninfluenced by legal arguments,” said Gordon Rogers, executive director of Flint Riverkeeper and current chairman of the ACF Stakeholders. “It’s just driven off of the math and reasonable economics, reasonable impacts to folks, in a negotiated, non-litigious environment.”
Rogers said even as this case has proceeded, efforts in metro Atlanta and south Georgia have continued to increase efficiency and get more water into the rivers.
“I’m going to use a fishing analogy,” he said. “A serious fisherman really doesn’t care how cold it is or how bad the mosquitoes are. You’re either going to fish, or you’re not. And serious conservation people don’t really care what’s going on in the parallel world of court most of the time,” he said.
Gordon said he believes there’s a future for people in both states.
In Florida, at least for now, the Apalachicola Bay is looking better, said oysterman Shannon Hartsfield. He said the last few years he’d seen improvements, as, without prolonged droughts, there have been better flows of freshwater into the Bay, and Florida has issued a moratorium on oyster harvesting.
“The Bay has done a flip-flop. It’s thriving,” he said. “There’s areas we’ve seen oysters we haven’t seen them in a long time.”
Still, he said, if there’s another drought, it could all go away again. And he said he’s not optimistic about the outcome of the case.
Lynn Hatter with WFSU, our partner station in Tallahassee, contributed to this story.