Florida's water brawl with Georgia nears historic SCOTUS hearing

Florida's request to the U.S. Supreme Court to limit the state of Georgia's water usage along the Apalachicola River basin is headed to a hearing on Feb. 22.

The case is the first such interstate water dispute in the eastern United States to be heard by the high court since 1931, when New Jersey won a bid to restrict New York's water usage.

In the Florida case, the Apalachicola River descends from the Atlanta area to historically productive fishing and oyster regions in Florida.

"In the 1930s, New Jersey complained that New York was using too much water from the river and causing pollution, damaging oyster production," said Robin Craig, law professor at the University of Utah, who specializes in water resource disputes.

"Florida also is complaining that its oyster production is harmed by Georgia's withdrawals."

At stake in the lawsuit are such diverse interests as the Atlanta area water supply, farm irrigation in Georgia and fish and oyster nurseries in the Gulf of Mexico.

Florida's claim in the suit is that Georgia's "overconsumption" of water from the basin is crippling the ecology of the bay in northeast Florida, while Georgia argues that droughts are to blame.

Florida filed the suit in 2013 as the state's former oyster capital in Apalachicola suffered a near-total collapse of oyster harvest.

Oysters harvests are among the most obviously impacted because they rely on fresh water mixed with saltwater, but other fish species have also suffered population declines in the Apalachicola area. Florida reluctantly leveled a complete ban on area oyster harvests in 2020.

"There's so much at stake for Florida -- jobs, interstate commerce, fish populations in the Gulf," Craig said. "It's a gross oversimplification to say this is about Atlanta drinking water versus oysters."

Georgia's office of attorney general declined to comment for this story, citing pending litigation as the reason, according to a spokesperson.

Florida seems to have made "a strong case that it was hurting for water while Georgia wasn't doing its job to conserve water," said Robert Percival, a law professor at the University of Maryland.

Florida won some early procedural decisions in the case, Percival said, but the court has changed after the retirement of Justice Anthony Kennedy and the death of Ruth Bader Ginsburg.

In 2018, the Court appointed an attorney and circuit judge in New Mexico, Paul Joseph Kelly Jr., to investigate the case, known as a special master.

Kelly filed a report in July 2019 recommending against the requested restrictions for Georgia, saying such restrictions would cost over $100 million per year during droughts -- $39 million just for losses to pecan groves that require irrigation.

Kelly's report cited research that indicated Florida's Apalachicola Bay only would benefit by around $760,000 for improvements to fisheries in the Apalachicola Bay.

Such a simple math equation for the complex water rights dispute shocked observers like Georgia Ackerman, head of the non-profit Apalachicola Riverkeeper environmental group.

"That's a gross oversimplification of the economic benefit of the bay," Ackerman said. "This estuary provides a considerable economic impact to the entire northeast Gulf of Mexico, because large percentages of juvenile fish species come from the estuaries."

Ackerman said she remains "hopeful that our Supreme Court justices can come up with an equitable solution" that will support Florida's ecology.

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