Court urged to hear Apalachicola water fight

In the latest round of battles about the Apalachicola River, environmental groups are asking a federal appeals court to hear arguments in a challenge to U.S. Army Corps of Engineers decisions that affect water flowing into the Northwest Florida river.

The National Wildlife Federation, the Florida Wildlife Federation and the Apalachicola Bay and River Keeper filed a 95-page brief this month at the 11th U.S. Circuit Court of Appeals as they seek to overturn a 2021 district-court decision backing the Army Corps.

Former U.S. Sen. and Gov. Bob Graham and local governments around the river have weighed in at the Atlanta-based appeals court to support the environmental groups. The issue centers, in part, on dams and reservoirs overseen by the Army Corps in a system that also includes the Chattahoochee and Flint rivers in Georgia and Alabama.

“The viability of this extraordinary (Apalachicola) ecosystem depends on the flow of freshwater from the ACF (Apalachicola-Chattahoochee-Flint) Basin — in the right amount and at the right time,” Graham said in a friend-of-the-court brief filed Dec. 9. “The Corps’ manipulation of freshwater flow into the Apalachicola ecosystem has caused devastating ecological harm.”

Florida, Georgia and Alabama have been involved in a series of legal disputes since at least the 1990s about water flow in the system. Florida has contended that Georgia uses too much water, causing damage downstream to the Apalachicola River and Apalachicola Bay.

The U.S. Supreme Court in 2021 rejected a lawsuit filed by Florida, with justices ruling that Florida did not prove Georgia’s water use had caused damage in the river and bay.

The briefs filed this month at the 11th U.S. Circuit Court of Appeals focus on the Army Corps’ management of water in the system and whether it has properly analyzed effects on the Apalachicola.

“This case arises from the Corps’ longstanding failure to reckon with the devastating environmental impact of its operations on Florida’s Apalachicola River, floodplain and bay, an extraordinary ecosystem of major ecological and economic importance,” wrote attorneys with the Earthjustice legal organization, which represents the environmental groups. “Through its operation of upstream dams and reservoirs along the Chattahoochee River in Georgia and Alabama, the Corps has long controlled the timing and quantity of freshwater reaching the Apalachicola ecosystem, whose health depends on receiving adequate flows at appropriate times. For decades, the Corps has evaded the environmental scrutiny of these operations that federal law requires.”

The case involves what is known as a “master water control manual,” which outlines how the Army Corps will operate the system. The environmental groups’ brief said the Corps produced a master water control manual and a related environmental-impact statement in 2016. 

The groups contend the Army Corps improperly concluded that the 2016 water-control manual “would not meaningfully depart from its current operations and, on that basis, concluded that it would not have a meaningful environmental impact.”

“The record plainly shows that the Corps’ operations have had a significant impact on the Apalachicola ecosystem,” the Dec. 2 brief said. “Denying this incontrovertible fact, the Corps claims that continuing operations it deems comparable (which also starve the river, floodplain, and bay of freshwater), and doing so for years to come, will also have no meaningful impact. But the Corps’ premise is false. And so, the Corps’ EIS (environmental impact statement) cannot stand.”

The Army Corps has not filed a brief responding to the arguments. But U.S. District Judge Thomas W. Thrash last year rejected the environmental groups’ position and ruled for the Army Corps.

“The Corps exhaustively detailed the direct, indirect, and cumulative impacts of its proposed action,” Thrash wrote. “The plaintiffs have not demonstrated that the Corps failed to sufficiently analyze any discrete environmental impact that is subject to the Corps’ control nor have they shown that the agency’s discussion of impacts was arbitrary or capricious. The Corps considered indirect impacts by analyzing indirect impacts of water quality and lake levels. The plaintiffs do not explain any further reasonably foreseeable long-term effects that the Corps should have analyzed here. The Corps considered cumulative impacts, including the ones the plaintiffs complain about. To the extent that the plaintiffs would prefer a more extensive discussion of these issues, that is not a reason to overturn the environmental impact statement.”

Apalachicola Bay has long been known for its oysters, but the oyster fishery collapsed during the past decade. Florida has blamed Georgia’s upstream water use. Georgia has argued, in part, that the oyster industry sustained damage because of overharvesting after the 2010 Deepwater Horizon disaster sent oil spreading through the Gulf of Mexico.

The Florida Fish and Wildlife Conservation Commission in December 2020 suspended wild oyster harvesting in the bay as part of a restoration effort.