Culling oysters, Apalachicola Bay, FL. Nancy Nusz, Collector; State Archives of Florida, Florida Memory
Attorneys for Georgia and Florida are returning to the courtroom Thursday for a proceeding that could have major impact on southwest Georgia farmers who rely on the Flint River to water their crops.
Both sides will argue their cases before a New Mexico judge, kicking off a new chapter in a decades-long dispute over a water system that starts north of Atlanta and eventually winds its way down to the Florida Panhandle.
It’s the same case that has gone all the way to the U.S. Supreme Court once already, with the justices issuing a 5-3 decision last year sending it back down for a fresh round of inquiry after an earlier court-appointed special master, Ralph Lancaster, came up short.
Lancaster had recommended dismissing the case because of what amounts to a technicality.
At the time, Florida officials heralded the Supreme Court’s decision as a win. The Sunshine State blames Georgia’s thirst for the demise of its prized oyster population in the Apalachicola Bay, saying dwindling water flows downriver have hurt its economy and ecology.
Even as Lancaster recommended dismissing the case, he laced his report with searing criticism of Georgia’s agricultural water use – which has now become a focal point in the case.
“It also appears that Georgia’s upstream agricultural water use has been – and continues to be – largely unrestrained,” Lancaster wrote in 2017.
Florida now has another chance to persuade the courts that capping Georgia’s water consumption would resolve its problem without disproportionately hurting Georgia.
That’s a troubling prospect for the Georgia’s top industry, which produces nearly $14 billion in chickens, cotton, peanuts and other staples each year. The case now largely centers on southwest Georgia, where the Flint River sustains valuable farmland.
For farmers at the mercy of the weather’s whims, reliable access to water is like an insurance policy, said Jeffrey Harvey, director of public policy with the Georgia Farm Bureau.
“Capping the amount of water use really just kind of caps agriculture,” Harvey said. “Access to water is kind of synonymous with access to capital from our lenders.”
Harvey pointed to several changes over the years aimed at improving water efficiencies on the farm. The cost to run large irrigation systems alone creates a de facto cap, he said.
Georgia is pushing back mightily on Florida’s insistence on a court-imposed cap. Cutting back its water use as Florida has suggested would cost the state at least $335 million to more than $1 billion, according to a court filing from earlier this year. And it may still not improve water flows down south, Georgia officials argue.
“A lot of it’s the same themes we’ve been hearing now for 30 years,” said Gil Rogers, an attorney with the Southern Environmental Law Center. “There’s only so many ways to argue this.
“It’s just going to be a matter of whether this special master thinks that there is enough evidence for Florida to be awarded some kind of equitable allocation or whether Georgia has proven its point that Florida just hasn’t met its burden yet,” Rogers said.
Either way, the states are now dealing with a different Supreme Court, Rogers noted. One of the justices in the majority, Anthony Kennedy, has since retired, and the ruling did not fall along the usual split.
Georgia native Justice Clarence Thomas penned the dissent, arguing that Florida had not proven a cap would actually boost water flows during its times of need – droughts.
“In the final analysis, Florida has not shown that it will appreciably benefit from a cap on Georgia’s water use. Absent such a showing, the balance of harms cannot tip in Florida’s favor,” Thomas wrote at the time.
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