Legal recommendation favors Georgia over Florida in water case

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ATLANTA — A special master appointed by the U.S. Supreme Court to hear arguments in a long-running dispute between Florida and Georgia over water allocation sided with the Peach State Thursday.

Paul Kelly recommended the justices dismiss Florida’s 2013 lawsuit asking the federal courts to order Georgia to withdraw less water from the Chattahoochee River basin, a system that includes the lower Flint River.

Florida’s lawyers argued Georgia’s withdrawals to supply water customers in rapidly growing metro Atlanta and irrigate crops in the South Georgia Farm Belt aren’t leaving enough water at the state line to support the environmentally fragile oyster industry in Apalachicola Bay.

But after hearing from both sides last month in a New Mexico courtroom, Kelly disagreed with Florida’s contentions.

“The evidence has not shown harm to Florida caused by Georgia,” Kelly concluded in his report. “The evidence has shown that Georgia’s water use is reasonable, and the evidence has not shown that the benefits of apportionment would substantially outweigh the potential harm.”

“We greatly appreciate Special Master Kelly’s recognition of Georgia’s strong, evidence-based litigation,” Gov. Brian Kemp said in a statement shortly after the report was released. “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.”

Kelly’s recommendation was the second handed down in the case that was favorable to Georgia. In 2016, the first special master assigned the case, the late Ralph Lancaster, also recommended the Supreme Court deny Florida’s water allocation demands.

However, Lancaster’s ruling did not address the merits of Florida’s case. Instead, he reasoned that since the U.S. Army Corps of Engineers – which controls the flow of water down the Chattahoochee River through a series of reservoirs – is not a party to the lawsuit, Florida could not be guaranteed the relief it was seeking.

As a result, the Supreme Court ordered the case sent to a second special master for a hearing on the merits.

With a second opportunity to argue the case, Florida’s lawyers primarily targeted farmers in the lower Flint as water wasters, essentially acknowledging the Atlanta region’s successful efforts in recent years to curb wasteful water use habits.

While metro Atlanta’s population has grown by 1.3 million since 2000, water withdrawals have declined by more than 10%, thanks to conservation efforts undertaken by the region’s water utilities.

“The fact that [Florida] is focusing on the Flint says to me they’ve recognized they don’t have much of a case regarding the Chattahoochee,” said Brad Currey, retired CEO of Rock-Tenn Inc. and a board member of ACF Stakeholders, a decade-old nonprofit that includes farmers, seafood harvesters, utility executives, manufacturers and environmental advocates.

Florida had more leeway to attack Georgia’s irrigation practices. As recently as the turn of this century, farmers in the region did not measure their water consumption with meters, so they had no idea how much they were using.

Since then, however, the vast majority have installed meters. Also, technological advances have allowed farmers to install low-pressure drip nozzles located close to the ground instead of spraying large volumes of water onto farm fields, most of which is lost to evaporation.

“The next iteration of that … is to have soil-moisture sensors in the field feeding back into the hardware so it’s applying exactly what’s needed,” said Gordon Rogers, executive director of Albany-based Flint Riverkeeper.

Florida wants the Supreme Court to place a cap on Georgia’s water usage, a request Georgia’s lawyers have called draconian. Such a limit, they have argued, would bring growth in metro Atlanta grinding to a halt, wreaking severe damage to the state economy.

Kelly’s recommendation lands the case back with the Supreme Court. The justices can decide whether to accept or reject the special master’s recommendation.