Florida, Georgia take water case before special master Nov. 7
Note: This article ran in the Oct. 10 GFB Field Notes, at which time we had not learned the hearing date was moved from Oct. 17 to Nov. 7.
On Nov. 7, representatives of Florida and Georgia will each have 45 minutes to present their state’s case to Special Master Paul Kelly regarding the Florida-Georgia water lawsuit. In the suit Florida filed against Georgia in the U.S. Supreme Court in 2013, Florida claims overuse of water by Georgia resulted in diminished fresh water downstream in the Apalachicola River and ultimately the Apalachicola Bay, causing harm to the oyster industry there. Georgia contends that overfishing resulted in the oyster losses.
“Judge Kelly is expected to issue his ruling in late winter to early spring, so the earliest the U.S. Supreme Court will get the case is in 2020. I expect a decision from the Supreme Court in early 2021,” Georgia Environmental Protection Division Rick Dunn said while giving a status update on the suit at the Georgia Joint Agriculture Committee Chairmen Ag Issues Summit held Sept. 27 in Perry.
The Supreme Court appointed Kelly, a judge with the U.S. 10th Circuit Court of Appeals in New Mexico, as special master to the case Aug. 9, 2018, after original special master Ralph Lancaster asked to be removed. Lancaster subsequently died in January.
Lancaster recommended in 2017 that the court dismiss the case because Florida failed to show that imposing a cap on Georgia’s water use from the Chattahoochee and Flint rivers would provide the relief Florida was seeking. Lancaster noted that he could not provide sufficient relief to Florida because the U.S. Army Corps of Engineers, which controls flows on the Flint and Chattahoochee, was not a party to the lawsuit.
The Supreme Court sent the case back to Lancaster noting that he applied too strict a standard in concluding that Florida failed to demonstrate that the Supreme Court could reach a fair ruling.
Dunn highlighted the questions Kelly has asked the states to answer: 1) Has Florida suffered harm as a result of decreased water flows? 2) Has Florida shown Georgia has taken more than its fair share from the Chattahoochee & Flint River Basins? 3) Has Georgia’s water use harmed Florida? 4) Would a cap on Georgia’s water use lead to increased flow to Florida? 5) How much would a cap on Georgia’s water use harm Georgia?
Since 2004 Georgia has been collecting water use data on ag irrigation pivots in Southwest Georgia.
“The [irrigation] mapping efforts and water data collected is helping us determine that some of the numbers Florida has thrown out are not real,” said Cliff Lewis, who works with the Georgia Environmental Protection Division’s ag water permitting and metering programs. “We’ve determined there’s not the significant amount of irrigation happening in some areas that Florida claimed there are.”
Marjie Dickey, EPD ag water project manager, outlined steps the agency has taken to ensure the meters are in place and in good working order.
“We want to make sure we have the most accurate data possible,” Dickey said.
Georgia Rep. Tom McCall praised the water metering program for showing farmers are using water responsibly as they irrigate their crops.
“I know there was some heartburn by farmers when we started putting meters on 15 years ago, but without the data we have collected we would be in a whole lot worse shape with Florida than we are now,” McCall said. “This was one of the best things we’ve done [to protect farmers’ right to water].”