Although Lake Lanier stakeholders may have heaved a sigh of relief after nary a mention of the North Georgia reservoir surfaced in a recent federal court hearing, they may want to brace for possible changes. If Supreme Court Justices rule in favor of downstream interests across the state line, the largest reservoir on the river system that nourishes three states could be impacted.
That was one of the takeaways Lake Lanier and Chattahoochee River advocates considered online with Lakeside News after Feb. 22 oral arguments before the Supreme Court. The hour-long court hearing via teleconference was the latest round in a seven-year water battle that pits Florida’s pleadings for more water against Georgia’s claims that its water use is not to blame for downstream woes. This was the second go-round before the High Court, which in 2018 postponed a ruling to allow a new special master to offer recommendations, which ultimately denied Florida’s claims.
Florida’s alleged miseries include not only the collapse of an Apalachicola Bay economy reliant on oyster fisheries, but also the potential decimation of a “precious ecosystem” on the Apalachicola River. In its 2013 lawsuit, Florida blames Georgia for low flows on the river, fed by the Chattahoochee and Flint rivers in Georgia. Legal and environmental experts reached by Lakeside News also reacted to Justices’ apparent efforts to put a price tag on ecological benefits.
“If Florida gets a favorable ruling from the Supreme Court, then Lake Lanier is still on the table,” said Chris Manganiello, Water Policy Director for Chattahoochee Riverkeeper. He added that if Florida gets what it wants, equitable apportionment of water in the Apalachicola-Chattahoochee-Flint river system, then all U.S. Army Corps of Engineers projects and operations, including Lanier, would be involved. “But if Florida’s challenge is dismissed, then Lake Lanier’s operations would essentially remain untouched,” he said.
Lake Lanier Association legal counsel Clyde Morris believes similarly. “The Court has complete discretion to fashion a remedy that could still affect North Georgia adversely,” he said. For example, he added, if the court grants Florida’s request for an additional 500 cubic square feet per second to flow across the state line, “Lanier could be back in play.” It would be up to Georgia and the Corps to decide how to provide extra water.
Morris and Manganiello also noted Florida’s apparent surrender of attacks on municipal water consumption to base its case entirely on farm irrigation along the Flint River. “So the good news for Lake Lanier stakeholders is that Florida is now focused exclusively on limiting agricultural water use,” on the Flint, Morris said, which “makes it far less likely that the Court would impose a remedy that negatively affects Lanier.”
“Metropolitan Atlanta’s decision-makers were surely happy to hear Florida acknowledge that Florida was now solely focused on Georgia’s agricultural water use,” Manganiello said. “This would suggest that Florida does not think metro Atlanta’s water use can be painted as unreasonable or poorly managed.” Lake Lanier is a major Georgia water supplier and has been heralded by state leaders as an economic engine for growth in North Georgia and metro Atlanta.
Apalachicola Riverkeeper Executive Director Georgia Ackerman weighed in on Justices’ probes about the value of the environment by pointing to an amicus brief the group submitted early in the case. In that brief, ARK accuses Georgia of arguing that the Court should deny Florida’s request for equitable apportionment because Florida offered “no evidence of economic harm.” However, it goes on to ask the Court to consider inequities caused when significant depletion of fresh water harms another state’s ecosystem. “The ecological significance of the Apalachicola … transcends the interests of the individual states; it implicates the broader interest in sustaining this nation’s treasured ecosystems,” it continues. To render a just remedy, it says, the Court should consider “the inherent value of and ongoing damage” to the Apalachicola region’s ecological resources.
Several justices, including Elizabeth Coney Barrett, Brett Cavanaugh and Samuel Alito, asked about how to monetarily assess potential benefits to the natural environment of sending more water downstream. Justices’ inquiries portrayed an interest in more than the dollar value of oyster fisheries and Georgia farms, business, and development. In the Court’s 2018 hearing of the case, justices’ queries did not indicate such a focus on ecology.
“Posing questions in such leading fashion can give insight into the Justices’ thoughts, but it doesn’t dictate how they will ultimately rule,” Morris said. “Clearly the Court places a value on the loss of the Apalachicola oyster fishery, but the vast difference in pure economic impact of the states’ ACF water use overwhelmingly favors Georgia. The Justices’ questions suggest that they think Georgia has some culpability, but it is unclear how much and how to remedy that, if at all.”
Manganiello said CRK was “really pleased to hear the Justices attempt to look beyond a traditional balance sheet.” He added that early in the case, CRK submitted an amicus brief “explaining how the first Special Master could indeed consider environmental and ecological benefits when evaluating equitable apportionment. Unfortunately, we did not see a whole lot of this conversation between the beginning of the case and the most recent argument. The curious Justices were giving Florida an opportunity to make the case.”
Manganiello said that CRK’s primary concern is that “if the Court dismisses Florida’s case, then Georgia leaders will stop thinking the state needs to advance water conservation and efficiency … Georgia still has room to improve how it measures water use and consumption.”
A Supreme Court decision is expected by the end of June.