U.S. Supreme Court ruling on 'Water Wars' imminent but battle to save Apalachicola Bay won't end soon

Ledyard King | Tallahassee Democrat

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WASHINGTON — The U.S. Supreme Court is expected to rule as early as Monday on the decades-long dispute between Florida and Georgia known as the "water wars."

The case pits Georgia's growing thirst for water to fuel metro Atlanta's growth against Florida's need for fresh water to preserve the declining health of Apalachicola Bay, an estuary that once produced 10 percent of the nation's oysters.

Few believe next week's ruling will end the battle, whether the justices decide to force Georgia to reduce its consumption or to allow the Peach State to continue drawing from nearby river basins at the expense of its southern neighbor. Advocates for the bay say a defeat for Florida would be difficult to overcome.

"I'm not expecting a decision that will bring total closure to the case," said Dan Tonsmeire, Riverkeeper Emeritus with the Apalachicola Riverkeeper, an environmental organization trying to rescue the bay. "The hope is they will give us a response to allow us to move towards a reconciliation on the issue."

Tonsmeire was present in the courtroom in January when lawyers for both states argued before the justices. Out of an original load of 63, the case is one of six remaining cases the court has yet to decide this term.

None of the unresolved cases have taken longer for a ruling than Florida v. Georgia. Analysts say that distinction is due most likely to its relatively rare status as an "original jurisdiction” case that begins in the Supreme Court, rather than one coming to the justices as an appeal from a lower court.

"Usually, by the time a case gets to the Supreme Court, the facts have been decided," said Tallahassee lawyer Jonathan Williams, a member of Florida's legal team in the case when he served as deputy solicitor general under Attorney General Pam Bondi from 2015-17. "But that's not the case (here) because the Supreme Court makes the facts."

The high court is hearing the case because Florida appealed a decision issued last year from Special Master Ralph Lancaster Jr. Tapped by the court to review the arguments, Lancaster agreed with Sunshine State officials that Apalachicola Bay had suffered harm from the decreased water flow. But he concluded that capping Georgia's consumption would not necessarily help the bay’s fragile ecology recover.

That's because the U.S. Army Corps of Engineers is not a party to the lawsuit and wouldn't be compelled to send water taken from Georgia down to Florida, Lancaster concluded.

And that’s the legal question Williams said the justices must negotiate.

"In practical terms, does the fact that there's a question about how the Corps will respond if the court orders (Georgia) to reduce its consumption ... mean the court cannot order Georgia to reduce its consumption," he said.

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What’s clear is that Florida can't even entertain the possibility of relief unless Georgia first reduces its water usage, Williams said.

It’s taken more than half a century to get to this point.

Under congressional direction, the Corps of Engineers built the first of five dams in the 1950s that began diverting Apalachicola-Chattahoochee-Flint River Basin water heading downstream to Florida's panhandle in order to accommodate Georgia's growth.

The lack of water began taking a heavy toll about a decade ago, when the bay supported several hundred oyster boats each harvesting around 20 bags per day. In 2013, the Obama administration declared the fishery a disaster. Today, about a dozen boats patrol the bay, collecting about two bags of oysters daily.

"The Apalachicola region has suffered serious harm," Gregory G. Garre, a lawyer representing Florida, told the Supreme Court in January. "Not only have its oysters been decimated, but really a way of life."

Craig S. Primis, arguing for Georgia, told the justices it was more complicated than that.

"It's not as simple as if extra water comes in, then you just pass it through to Florida because they have articulated one concern," he said. "There are multiple interests in the basin, there are multiple stakeholders, and multiple congressionally defined purposes."

Riverkeeper Emeritus Tonsmeire said Friday he remains hopeful that the justices will treat Florida equitably. But even if they do, he doesn't expect the water wars to end.

"Some way or another, it's going to keep going on whether it moves over to working out what the Corps is going to do or whether the states continue their discussion about Georgia providing relief," he said. "It will be terrible if Georgia is not required to put some sort of limits on their use."