November 01, 2014

Florida’s (truly) original action and why it’s unlikely to advance the ACF interstate water rights dispute

Lewis B. Jones and John L. Fortuna

Editor’s note: Trends published an article discussing Florida’s perspective on the “water wars” litigation in the last issue. This article provides a counterpoint position.

As Matt Leopold, general counsel for the Florida Department of Environmental Protection, described in the September/October 2014 issue of Trends, Florida has petitioned the U.S. Supreme Court for leave to file an equitable apportionment action against Georgia to divide the waters of the Apalachicola-Chattahoochee-Flint (ACF) River Basin. If accepted, the case will open a new front in this long-running controversy. The basin has been mired in litigation for decades, but all previous litigation has focused on reservoir operations by the U.S. Army Corps of Engineers (Corps).

Florida’s proposed complaint against Georgia requests a decree restricting Georgia’s use of the waters of the ACF basin to 1992 levels. According to Florida, this restriction is necessary because Georgia’s use of water from the basin has harmed endangered species in the Apalachicola River, and because Georgia’s use of water from the basin has increased salinities in Apalachicola Bay, which in turn has caused the bay’s oyster fishery to collapse. Florida has not sued to protect any human use of water because communities in the Florida Panhandle are amply supplied by groundwater from the Floridan Aquifer. Indeed, Florida has dedicated the entire flow of the river—including “the magnitude, duration, and frequency of observed flows”—to the protection of the fish and wildlife of the rivers, floodplains, and Apalachicola Bay. See Rule 40A-2.223, Fla. Admin. Code.

This case is interesting because it is novel. If allowed to proceed, it would be just the second equitable apportionment among Eastern states, the only other example being the 1931 and 1954 decrees in New Jersey v. New York that led to the creation of the Delaware River Basin Commission. 283 U.S. 336 (1931), 347 U.S. 995 (1954). (South Carolina sued North Carolina in 2007, but that case settled in the very early stages.) It would also be the first equitable apportionment case in the modern environmental era and the first to present strictly environmental claims as opposed to claims based on the traditional economic uses of water.

Notwithstanding its interest to Court-watchers and water lawyers, however, it is difficult to envision a scenario in which the Court would grant the relief that Florida has requested based on the specific injuries that Florida has alleged.

The big picture

The ACF river basin is comprised of the Chattahoochee, Flint, and Apalachicola Rivers. The Chattahoochee River originates in the Blue Ridge Mountains of North Georgia. The Chattahoochee River flows southwest past Atlanta to form Georgia’s border with Alabama. At the Florida state line, the Chattahoochee River joins the Flint River—which originates below Atlanta and flows south through the agricultural belt of Southwest Georgia—to form the Apalachicola River, which flows south through Florida’s panhandle into the Apalachicola Bay.

The controversy to date has generally focused on metropolitan Atlanta and on the Corps’ operation of Lake Lanier, which is located approximately 350 river miles north of the Georgia-Florida state line. Because groundwater is very limited in North Georgia, the Chattahoochee River is the main source of municipal and industrial water supply for the Atlanta area, which relies on Lake Lanier to regulate the flow of the river to provide a reliable supply. As a result of both geography and conservation, water consumption in metropolitan Atlanta has minimal impact on Florida, which is 350 miles downstream.

Geographically, metropolitan Atlanta is situated at the very top of the ACF basin, and Lake Lanier controls runoff from just 5.6 percent of the basin’s land area. Therefore, most of the water enters downstream of Atlanta and is not affected by consumption in Atlanta at all. The result is that water consumption in the Atlanta area reduces the annual average flow of the ACF basin at the Florida state line by only 1 to 2 percent—never more than 3 percent, even in a drought.

In addition to attenuating the impact of Atlanta-area consumption, the basin’s geography also provides Georgia with a strong, internal motivation to conserve. Because Atlanta is at the top of the watershed, it is served by a relatively small headwaters stream. Thus, quite apart from any impacts to Florida, the Atlanta region and Georgia are highly motivated to conserve water to achieve their own long-term objectives, as shown by the conservation programs the state and region have adopted.

Importantly, the Georgia General Assembly created the Metropolitan North Georgia Water Planning District in 2000 and directed it to create long-term water supply and conservation plans for the region. The result is one of the most aggressive and comprehensive conservation programs in the East. The Atlanta area has also spent billions constructing some of the most advanced water reclamation facilities in the nation to reduce consumptive uses and to increase the amount of water that is reclaimed and returned the river basin.

Georgia has done its part, too, completing a comprehensive, statewide water plan in 2008 and establishing regional planning councils throughout the state to continue this work. The state has also enacted model legislation requiring water audits, reducing water loss, encouraging conservation, and facilitating and funding smart infrastructure projects.

These programs are working. Per-capita use in the Atlanta area is now far lower than comparable cities such as Birmingham, Alabama and Orlando, Florida. Metropolitan Atlanta’s conservation programs are on par with some of the best-performing cities in the country. In fact, overall water use in the Atlanta area has decreased since 2000, even as the area has added more than 1 million new residents. Statewide, Georgia consumes less than 5 percent of the flow at the Florida state line on average—which means that Florida typically gets more than 95 percent of the original, unimpaired flow—despite the fact that 74 percent of the land-area of the ACF basin exists within Georgia and 99 percent of the economic activity of the basin occurs in Georgia.

Clearing the “clear and convincing evidence” hurdle

Given these facts, we think Georgia would likely fare very well in any traditional equitable apportionment: Georgia is using its water resources wisely and conservatively, as it entitled to do, and the existing precedents tilt heavily in Georgia’s favor by establishing a strong preference for domestic uses and for established economies, see e.g., Connecticut v. Massachusetts, 282 U.S. 660 (1931), while paying little attention to environmental claims. And, while it is certainly possible that a modern Court will give more weight to environmental interests than past precedent would suggest, Florida’s case would seem to be an especially poor vehicle for the Court to use to make new law, due to the difficulty of proving causation.

If the Court allows Florida’s case to proceed, Florida will have to prove by “clear and convincing evidence” that Georgia’s use causes “real or substantial injury or damage” to endangered species and/or to the oyster fishery in Apalachicola Bay. Florida will confront three major challenges in clearing this hurdle.

The first is to prove by clear and convincing evidence that Georgia’s use of water is the root cause of any harm to the river or bay. This will be exceedingly difficult because the reduction in flow due to Georgia’s consumption is modest and also because ecological conditions in the Apalachicola River and Bay have been affected by many other factors or equal or greater significance. The flow of the river is controlled by five major dams operated by the Corps, and its bed has been severely degraded by the construction and operation of those reservoirs, as well as by dredging and other navigation projects. Local sources, including one that is currently the subject of a major citizen suit, have also polluted the river.

Causation will be even harder to prove when it comes to the allegation that Georgia’s water use has altered salinity in the bay. As indicated above, Georgia consumes only a small fraction of the total flow of the basin. Even after 20 years of controversy, the authors are not aware of any evidence produced by any party suggesting water withdrawals on the scale that actually occur in Georgia can have a material impact on salinity in the bay. Moreover, any purported impact on salinities that Georgia’s use might have must be considered in light of the huge daily variations in salinity that occur naturally as a result of the complex interactions of winds and tides.

If Florida could succeed in proving by clear and convincing evidence that Georgia has caused some injury, Florida’s next challenge would be to persuade the Court that the nature and magnitude of the injury are sufficient to justify the exercise of the Court’s “extraordinary” equitable apportionment power. With respect to endangered species, Florida would have to explain why any threatened or endangered species are not already fully protected by the Endangered Species Act. (It would also have to explain why the Court should intervene when the U.S. Fish and Wildlife Service has previously determined on three separate occasions that the Apalachicola species are not in jeopardy.) And for other types of injuries that are not protected by any federal statute, such as Florida’s concern about the general well-being of fish and wildlife in the river floodplain, Florida would have to persuade the Court that these types of injuries rank as high as other more traditional interests, such as the severe harm an injunction would inflict on the established economic uses in Georgia.

Florida’s third major challenge will be to counter evidence suggesting that Florida’s own mismanagement caused the Apalachicola Bay oyster fishery to collapse. Georgia will argue that overharvesting was a primary cause of the catastrophe. Oyster landing data show that the harvest soared to record levels in the years immediately preceding the collapse. In part, this was the result of a panic that set in after the BP oil spill, when it was thought the fishery would be ruined and a “use it or lose it” mentality took hold. As reported by the Tallahassee Democrat in 2011, the spill threw the industry “into a frenzy with the idea that oil could ruin their bay and their livelihood.” Outlook Improving for Apalachicola Oystermen, Tallahassee Democrat (Apr. 20, 2011). To placate the oystermen, Florida opened the winter oyster bars three months early—an “unprecedented decision” that “many believe led to overharvesting.” One fisherman observed: “They were telling people who made claims that they needed to go out and catch as many oysters as they can. A lot came out and caught everything.” And even while waiting for a decision from the Supreme Court, Florida officials continue to debate possible “fixes” for this “self-inflicted over-harvest by oystermen worried that oil from the Deepwater Horizon spill endangered the remaining shellfish.” Apalachicola Oyster Decline Sparks Fear About Fixes, Tallahassee Democrat (Oct. 5, 2014).

Lewis B. Jones and John L. Fortuna

Lewis Jones and John Fortuna are attorneys with King & Spalding LLP in Atlanta, representing metropolitan Atlanta water supply providers in the Tri-State Water Wars litigation. The views expressed in this article are their own.