Water deal might not end Apalachicola fight

Georgia and Alabama have reached a settlement aimed at ending a long-running water war, but environmental groups plan to continue a legal fight because of concerns about Northwest Florida’s Apalachicola River.

A federal appeals court on Monday, Dec. 11 put on hold a case pitting Alabama and Georgia to allow time for the U.S. Army Corps of Engineers to evaluate parts of the settlement, which involves the Apalachicola-Chattahoochee-Flint river basin.

But on Friday, attorneys for the National Wildlife Federation, the Florida Wildlife Federation and Apalachicola Bay and River Keeper asked the 11th U.S. Circuit Court of Appeals to effectively allow the environmental groups to continue pursuing a legal challenge. 

The environmental groups filed a motion to sever their case from an appeal filed by Alabama. The cases had been consolidated.

“Here, the environmental parties are not parties to the Alabama (settlement) agreement, and the Alabama agreement does not address any of the issues raised in the environmental parties’ appeal,” attorneys for the Earthjustice legal organization, which is representing the environmental groups, wrote. “Neither will the Alabama agreement remedy the harms the environmental parties are experiencing as a result of the Corps’ actions.”

The order Monday granting the request by Alabama and Georgia to put the dispute on hold until May 13 did not mention the environmental groups’ motion to sever their case.

Florida, Georgia and Alabama have been involved in a series of legal disputes since at least the 1990s about water flow in the three-state river 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 cases pending at the 11th U.S. Circuit Court of Appeals involve different legal issues about how the Army Corps manages the system, including through dams and reservoirs. The environmental groups filed a lawsuit in 2017, alleging that what is known as a master water control manual and a related environmental-impact statement did not properly analyze effects on the Apalachicola River and Apalachicola Bay.

The environmental groups and Alabama went to the Atlanta-based appeals court in 2021 after a district-court decision backed the Army Corps.

A motion filed last week to hold the Alabama case in “abeyance” said the settlement was reached after negotiations between Alabama, the Army Corps, Georgia and local agencies in Georgia. The settlement includes changes to the water-control manual.

Under the settlement, the Army Corps will consider a proposal to operate dams and reservoirs to “achieve minimum water-flow objectives” in the Chattahoochee River at Columbus, Ga., and Columbia, Ala., and maintain a minimum level at Lake Seminole in Southwest Georgia, according to a news release last week from Georgia Gov. Brian Kemp’s office.

In the news release, Kemp and Alabama Gov. Kay Ivey described the settlement as “win-win.”

“The Chattahoochee River is the lifeblood of Southwest Georgia, and this proposal would give citizens and businesses certainty about the flow of water they need for business and leisure alike,” Kemp said in a prepared statement. “Just as significant, adoption of this proposal would end the current issues related to water supply for metro Atlanta at Lake Lanier, which is crucial to the future of our state.”

But Tania Galloni, managing attorney for the Florida office of Earthjustice based in Miami, issued a statement last week saying the settlement wouldn’t solve issues affecting the Apalachicola.

“This agreement does not address the needs of the Apalachicola River, floodplain, and bay,” Galloni said. “These needs have never been adequately considered by the U.S. (Army) Corps of Engineers. We know it’s critical to protect this world-class … river system, and we will continue to ask the court of appeals to make the Corps comply with federal environmental law to keep the Apalachicola healthy.”

Apalachicola Bay has traditionally 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.