ATLANTA — Florida’s decades-long fight with Georgia to get an equitable share of a major regional water source to revive its dying oyster industry is headed to a New Mexico courtroom next week.
U.S. Circuit Court of Appeals Judge Paul J. Kelly of Santa Fe, New Mexico, was chosen by the Supreme Court to serve as a special master in the 2013 case and will hear oral arguments from both states on Nov. 7 in Albuquerque.
Kelly is expected to make a recommendation to the Supreme Court in the months following the hearing.
The lawsuit, filed by Florida, alleges Georgia is using too much water from the the Apalachicola-Chattahoochee-Flint river system and the federal government should cap the state’s water usage. The river system flows from Georgia down to the Florida Panhandle.
Florida officials say decreased flows to the Apalachicola River led to the 2012 collapse of the state’s oyster fishery in Apalachicola Bay. The collapse has jeopardized the livelihood of many Florida oystermen and the economic vitality of coastal communities where seafood is the primary industry.
Apalachicola Bay once produced 10% of the nation’s oysters, said Georgia Ackerman, executive director of the Apalachicola Riverkeeper, an organization that advocates for the protection of the Apalachicola River and Bay.
Ten years ago, the bay supported several hundred oyster boats harvesting about 20 bags per day. Today, only a dozen or so boats patrol the bay, collecting just two bags of oysters daily.
“Very few people are making a living in oystering,” Ackerman said. “Commercial and recreational fishing are a big part of Florida’s economy.”
Georgia argues its water use is reasonable and the water supply is needed to fuel the state’s agricultural economy and growth of metropolitan Atlanta. The state maintains it has implemented policies and practices to improve conservation and efficient water use and blames drought for the decreased flow downstream to the Apalachicola River and Bay.
“Georgia makes the argument that they have been doing their part,” said Chris Manganiello, water policy director for the Chattahoochee Riverkeeper in Georgia. “I don’t expect Georgia to say anything different or all that earth shattering (at the upcoming hearing).”
A spokesman for Georgia Gov. Brian Kemp did not respond to a request for comment.
Florida, Georgia and Alabama have been fighting over use of the water system for more than 30 years, but Florida’s lawsuit against Georgia in 2013 marked the first time the case was heard by the Supreme Court.
In 2017, court-appointed Special Master Ralph Lancaster Jr. sided with Georgia, determining that while Florida had suffered harm from the decreased water flow in the river basin, it had not proven that limiting the amount of water Georgia consumed would provide the relief it sought. That was largely because the U.S. Army Corps of Engineers, the agency in charge of federal water projects and water releases through a series of dams on the river system, is not a party to the lawsuit.
But last year, the Supreme Court ruled that Lancaster was too strict in his decision and remanded the case for further consideration. Florida lawmakers celebrated the ruling, saying it gave the state another chance to fight its case.
Former Florida Gov. Rick Scott said it was a “huge win for the entire state of Florida.”
“For nearly 30 years and under five governors, Florida has been fighting for its fair share of water from Georgia,” Scott said in a statement last year.
Florida GOP Rep. Neal Dunn, whose Panhandle district includes Apalachicola Bay, said he remains optimistic Florida will win the relief it seeks.
The Supreme Court “established that Georgia’s unchecked and excessive water usage has harmed Florida and cost us jobs, particularly in our oyster industry,” Dunn said in a statement. “I am confident in the state of Florida’s argument and that justice will prevail.”
The hearing is set to take place at the U.S. District Courthouse for the District of New Mexico, in Albuquerque. Kelly was appointed in August 2018 to replace Lancaster who died earlier this year.
The Supreme Court said in its ruling it needed more information on whether a cap on Georgia’s water use will significantly increase the stream flow into the Apalachicola River. The high court also is seeking a clear answer on whether the extra water would remedy the economic and ecological harm that Florida has suffered.
Many observers were surprised when the Supreme Court sided with Florida last year, said Manganiello.
“It’s hard to say I think it’s a slam dunk for one state or the other,” he said, adding the Chattahoochee Riverkeeper has remained a neutral party in the case.
Ackerman said she is confident the water in the ACF river system can be “equitably shared.”
“There are needs of various communities and we’ve gotta figure out a way to share the water so that all communities can thrive,” she said. “The longer we wait for a resolution the more people are hurting in the state of Florida.”