Posted August 22, 2013

It’s Florida vs. Georgia in a battle with implications for Alabama, and, believe it or not, this time it’s not about football.  It’s about water, and a huge dispute over key resource is escalating.

Florida’s Gov. Rick Scott (R) and Sen. Marco Rubio (R-FL) recently announced that the state will file a lawsuit in the U.S. Supreme Court over an ongoing water dispute with Georgia, according to the Governor’s press release, available here.
According to the press release, “Apalachicola River water levels are directly impacted by upstream withdrawals from the Chattahoochee and Flint Rivers at all times – especially apparent during low-flow summer and fall seasons.”  The Atlanta metro area “primarily gets its water from the Chattahoochee River with withdrawals totaling 360 million gallons per day” and Georgia’s consumption is “expected to nearly double to 705 million gallons per day by 2035.”  Gov. Scott argues that this “excessive consumption” has created “historically low water levels” causing “oysters to die because of higher salinity in the Bay and increased disease and predator intrusion.”
Last September, Gov. Scott asked the U.S. Department of Commerce to declare a Commercial Fisheries Failure for the Apalachicola Bay.  Commerce Secretary Penny Pritzker recently declared the Commercial Fisheries Failure, the NOAA press release is available here. 
The Florida Current reports that Georgia Gov. Nathan Deal stated that “Scott’s announcement was political and Florida had failed to his state’s proposed comprehensive framework for a water agreement.”  According to the Florida Current article, available here, Florida will ask the Supreme Court “directly to decide an equitable allocation of water among Alabama, Florida and Georgia.”  Robin Kundis Craig, a University of Utah law professor, said the “Supreme Court is reluctant to get involved in such cases” with the Court apportioning “water only in three cases, the last being Nebraska versus Wyoming in 1945.”  Craig continued, stating that “even if the Supreme Court decides to get involved”, Florida “will face the challenge of arguing its environmental needs against Georgia’s arguments for water for cities and their thirsty residents.”
The allocation of surface water depends on state law.  Three different allocation systems have developed in the United States: the riparian doctrine, the system of prior appropriation, and a hybrid of riparian and prior appropriation.  For more information on water law and allocation of water under state law, please visit the National Agriculture Law Center’s Water Law Reading Room.