Florida filed a lawsuit Tuesday in the U.S. Supreme Court in a long-running battle with Georgia over water withdrawals that have damaged Apalachicola Bay, but it may be too late to help the Franklin County seafood workers who were already struggling to survive.
Gov. Rick Scott and Attorney General Pam Bondi followed through on an August announcement that Florida would seek injunctive relief so more water would flow to the bay, which collapsed last year in the face of a historic drought and dwindling releases of freshwater from Georgia.
The lawsuit is the latest skirmish in a 23-year dispute among Florida, Georgia and Alabama about the water in the Apalachicola-Chattahoochee-Flint River Basin. Since 1990, Florida has argued that water use at the top of the system, in the metro Atlanta area, has cut the flow of freshwater downstream to Apalachicola Bay, which generations of oystermen have depended upon for their livelihoods.
According to the lawsuit filed Tuesday, Georgia is using more than 360 million gallons of water daily and expects that figure to nearly double to 705 million gallons daily by 2040.
"Peak withdrawals, associated with watering lawns, car washing, golf courses, and parks, come when inflow needs are most critical to Florida --- the dry summer months," the lawsuit said. "Conservation efforts in Georgia have been minimal, even though it is the most cost-effective and readily available way to meet Georgia’s growing demands."
But a spokesman for Georgia Gov. Nathan Deal said the state would defend its water rights.
"The only 'unmitigated consumption' going on around here is Florida’s waste of our tax dollars on a frivolous lawsuit," said Deal’s communications director, Brian Robinson. "This lawsuit is political theater and nothing more. We’ve won consistently in court and will defend Georgia's water rights vigorously in the Supreme Court, because our case is the only one with any merit."
Last year, the combination of drought and reduced freshwater from Georgia produced the lowest flows in 89 years --- since records have been kept. The bay's historical productivity has come from its mix of saltwater and freshwater, but without enough freshwater coming from Georgia, the mixture is too salty for oysters and other seafood to thrive.
The result, said U.S. Rep. Steve Southerland, who represents Apalachicola, has been a reduced production of northwest Florida's oyster industry by 90 percent. Historically, the bay produced 90 percent of Florida's oysters and 10 percent of the nation's supply, but no more.
"The oyster houses aren't able to fill their orders," said Dan Tonsmeire, executive director of Apalachicola Riverkeeper. "The people ordering the oysters go somewhere else, so they lose their market."
"I don't know how much longer the oyster houses can stay in business," said Shannon Hartsfield, president of the Franklin County Seafood Workers Association. "Last time I talked to one of them, he's hoping that Texas has a decent year where he can get some Texas oysters. If not, right there he's closing his doors."
Hartsfield said time is running out for the struggling bay, which U.S. Secretary of Commerce Penny Pritzker declared a commercial fishery disaster last month.
Georgia has won a string of legal triumphs in recent years. The U.S. Army Corps of Engineers, which controls the flows down the river basin, relies on a 2011 ruling from a federal appeals court that said Georgia has a legal right to the water from Lake Lanier, near Atlanta. That ruling overturned a federal magistrate's 2009 ruling in favor of Florida and Alabama.
Florida's latest defeat, however, was a political one. It came two weeks ago, when the U.S. House of Representatives refused to take up a measure by Southerland that would have required congressional approval before the Army Corps of Engineers could reallocate more than 5 percent of the water in the river basin from its natural flow.
"The Corps has a lot of answering to do," Southerland, a Republican, said Tuesday. "They do not interpret the law as requiring them to consider the downstream effects of their restricting the flow. I think that's insane."
Southerland said that when a Government Accountability Office study on the effects of the low flows is complete, House Transportation and Infrastructure Chairman Bill Shuster, R-Pa., will require representatives of the Army Corps of Engineers to appear before the panel. He did not know when that would be.
"Right now we've got to make sure people can buy groceries and keep a roof over their head," Southerland said.
Families of oystermen are enduring long separations as fathers and sons go to other states to work.
"None of us qualify for unemployment, because we're all self-employed," Hartsfield said.
Susie Quinn, a spokeswoman for U.S. Sen. Bill Nelson's office, said the Senate Appropriations Committee was in the process of changing the language for fisheries disasters, which could provide economic assistance for the seafood workers.
But long-term, said Apalachicola Riverkeeper's Tonsmeire, the bay will require from three to five years to recover from the droughts in 2011 and 2012, "assuming we continue to get these good flows" from this summer's copious rainfall.
The clock is ticking – and Hartsfield said a lawsuit will take too long.
"It's not going to be a solution if the three governors don't work together," he said.
According to a statement from Scott's office, this lawsuit differs from the previous seven because "those cases addressed the management of the interstate waters by the U.S. Army Corps of Engineers, not depletions by the states. This case goes directly to the source of the harms suffered by Florida and Apalachicola Bay --- upstream consumption and storage of water by Georgia."
Scott's office also said Florida had tried to work with Georgia but got nowhere. Deal's office has said pretty much the same thing about Florida.