A federal judge is recommending that Georgia prevail in a longstanding legal battle with Florida over water consumption from rivers shared by the states, though the final decision rests with the U.S. Supreme Court.
The neighboring Southern states have been fighting since the 1990s over Georgia's use of water from the Chattahoochee and Flint rivers that serve booming metro Atlanta and southern Georgia's abundant farms before flowing to the Apalachicola River that's crucial to Florida's oyster fisheries.
Florida wants the courts to limit how much water Georgia uses, saying Florida residents have been harmed by reduced flows downstream from Apalachicola River into Apalachicola Bay and the nearby Gulf of Mexico. Among other problems, Florida blames Georgia for the drastic decline of its once lucrative oyster fishery.
The Supreme Court last year appointed U.S. Circuit Judge Paul Kelly Jr. of New Mexico to review the case. Kelly issued his findings in a 96-page ruling Dec. 11 that recommends the high court reject Florida's request to impose limits on Georgia's water usage through 2050.
"The evidence has not shown harm to Florida caused by Georgia," Kelly wrote. "The evidence has shown that Georgia’s water use is reasonable; and the evidence has not shown that the benefits of apportionment would substantially outweigh the potential harms."
Georgia Gov. Brian Kemp applauded the judge's findings, saying in a statement that Kelly recognized "Georgia's strong, evidence-based case."
"We will continue to be good stewards of water resources in every corner of our state, and we hope that this issue will reach a final conclusion soon," Kemp said.
Florida Gov. Ron DeSantis' office said he was reviewing the decision.
Noah Valenstein, secretary of Florida's Department of Environmental Protection, said his agency was "extremely disappointed" in the judge's recommendation.
"The state of Florida remains committed to restoring the historic flows of the Apalachicola River and the families who rely on this river for their livelihood," Valenstein said in a statement.
"It’s a terrible decision," Apalachicola Mayor Kevin Begos wrote on Facebook immediately following the announcement.
On Tuesday morning, he appeared before the county commission, and noted the composition of the Supreme Court has changed over the past year.
"(Supreme Court Justice) Anthony Kennedy has retired, and he’s been replaced by Justice Kavanaugh," he said. "The whole question may come down to this Supreme Court majority."
Following the issuing of the recommendation, Rep. Neal Dunn wrote that "Judge Kelly’s recommendation is very disappointing and completely ignores the decades of damage that Georgia’s water use has had on families and the ecosystem in Florida.
"Last year, the Supreme Court recognized that Florida has been harmed as a result of decreased water flow to the ACF River Basin. They established that Georgia’s unchecked and excessive water usage has harmed Florida and cost us jobs, particularly in our oyster industry," he wrote. "I trust that the Supreme Court will stand by their previous acknowledgment and ensure Florida gets its fair share of water."
Not long after he was first elected, in Feb. 2017, Dunn questioned the Corps of Engineers about the ACF River Basin, and led a letter, signed by the entire Florida House delegation, to the Corps calling for it to halt implementation of the Water Control Manual immediately and meet with stakeholders. In July 2017, he also led a letter, also signed by the entire Florida House delegation, urging President Trump to ensure the Corps takes a neutral role and refrains from intervening in Florida v. Georgia.
Also following Kelly’s recommendation, Florida Agriculture Commissioner Nikki Fried said it was "a major disappointment for fair, responsible water usage on which both states depend.
"Georgia’s unchecked disruption of our shared waters in the Apalachicola River has devastated Florida’s oyster industry," she wrote. "I’m encouraging our state agencies to continue fighting to hold Georgia accountable for its water use, and to explore all legal options."
Florida and Georgia have been fighting over water usage for decades along with Alabama, which isn't part of the current lawsuit. The river basin at the heart of the dispute flows from north of metro Atlanta to the Gulf of Mexico.
The U.S. Supreme Court appointed Kelly as a special master to review Florida’s argument that Georgia should be required to more water flow downstream from the Flint and Chattahoochee rivers. The rivers flow into the Apalachicola River, which empties into Apalachicola Bay.
The bay is famous for its oysters. But Florida contends diverting water from the rivers to supply 4 million people in metro Atlanta and farms in south Georgia increases the salinity in the bay, which harms the oysters.
Apalachicola has historically produced 90 percent of Florida’s oysters and 10 percent of the nation's. But the industry has suffered in recent years. The state's agriculture agency found the 2012 oyster harvest to be the lowest in two decades. The federal government declared a fishery disaster in 2013 and later awarded the Apalachicola Bay area $6.3 million in disaster relief.
The judge found that Florida attorneys failed to prove the harm to the oyster fishery was Georgia's fault. He also wrote that Florida "has not provided any evidence of harm during years with normal or more than normal rainfall."
Kelly is the second judge the Supreme Court has assigned to review the Georgia-Florida water case. The first special master also sided with Georgia in his recommendation, but the Supreme Court decided 5-4 last year to send the case back for further review.
Apalachicola Times Editor David Adlerstein contributed to this article.