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WATER WARS DOWN SOUTH An Analysis of the Tri State Battle Over the Apalachicola Chattahoochee Flint River Basin BY MARILYN PAYNE A Thesis Submitted to the Division of Social Sciences, Environmental Studies New College of Florida in partial fulfillment of the requirements for the degree Bachelor of Arts Under the sponsorship of Dr. Robert Johnson Sarasota, Florida April, 2011
ii Whiskey is for drinking; water is for fighting over.! Mark Twain
iii Acknowledgements First off I would like to thank Dr. Robert Johnson for his incredible sponsorship and constant support throughout this thesis process. Although often traveling cross country, Bob represented an endless source of thoughtful recommendat ion and attentive commentary. Without him, both my thesis and my experience at New College, would not be what it is today. I would also like to thank my committee members, Dr. Charlene Callahan and Dr. Heidi Harley for their support and willingness to be a part of my baccalaureate exam. Char provided me with a wonderful introduction to the Environmental Studies program at New College and enthusiastically supported a variety of my endeavors over the past several years. Heidi served as a cheery, helpful, and wonderful academic advisor for me the last three years and never ceased to give me guidance or advise in whatever I needed. It is clear that my time at New College would have been much less enjoyable and far less successful had it not been for both Char a nd Heidi's direct involvement and support. I would like to thank my mother and father for giving me the opportunity to come to New College and supporting me throughout my time here. Coming to New College has been one of the best decisions I have ever mad e, and I am so grateful to have been a part of such a wonderful place. Also, I'd like to thank my mother for her wonderful editing and time spent on helping me proofread and "perfect" my thesis. I would like to thank my other half, Michael, for his consta nt support and encouragement. Even on the most stressful and frustrating thesis days, he remained confident in my ability to reach the finish line and never lacked in helping to motivate me to push through to the end.
iv Lastly, but definitely not least, I w ould like to thank all my wonderful friends for their support and encouragement. Being a thesis student may come with its fair share of stress and anxiety but it also comes with a huge support system throughout campus. From my lovely STAR coworkers to my f ellow thesis friends, my wonderful proofing partner, and first, second, and third year buddies, I received an overwhelming amount of love, encouragement, and friendship. Thank you all for being a part of my incredible time at New College and for making a l asting impact on my life.
v Table of Contents Epigraph ..ii Acknowledgements ..iii Table of Contents .....v Abstract ...vi Introduction : The Environmental and Economic Issue s at Stake.1 Chapter 1 : A History of Water Rights in the United States......18 Chapter 2 : A Political Analysis of the ACF River Basin..34 Chapter 3 : A Possible Solution?........55 Conclus ion : The New Oil?.82 References ..84
vi WATER WARS DOWN SOUTH An Analysis of the Tri State Battle Over the Apalachicola Chattahoochee Flint River Basin Marilyn Payne New College of Florida 2011 ABSTRACT This the sis examines the southeastern water war among Alabama, Georgia, and Florida over the Apalachicola Chattahoochee Flint River Basin. It focuses on the political and legal issues at hand, while analyzing the circumstances of each that contributed to the curre nt resource battle. I argue that the political factors associated with the ACF River Basin, coupled with the environmental and economic aspects at stake, have over time led to an inefficient use of water that created the battle over the Apalachicola Chatta hoochee Flint River Basin. Furthermore, this thesis examines the three main possibilities for a resolution: congressional apportionment, judicial apportionment and interstate compact. After analyzing each available resolution options' strengths and weakne sses, I conclude that the interstate compact method is the most promising water allocation resolution option available to Georgia, Alabama, and Florida
vii because it has the highest chance of having each state's impending needs met due to its dependence on th eir direct involvement in the water allocation resolution process. Dr. Robert Johnson Division of Social Sciences
1 Introduction The Environmental and Economic Issues at Stake Water issues are historically associated with the American West. The story of the Western frontier is commonly told as a story of the relentless search for this precious resource in an otherwis e dry, barren landscape of grass and desert. J.B. Ruhl, a law professor at Florida State University who specializes in water law, comments, "It has been said that water litigation is a weed that flowers in the arid West.' Well, the seeds have blown east." 1 If the search for and conflict over water became a symbol of the West, what is less commonly understood is that the conflict over water resources stretches across the Unites States, to the east of the 100th Meridian, and even into the seemingly lush, hu mid, river rich Southeast. Currently, three states in the wet Southeastern United States are in the middle of a forty year battle over the Apalachicola Chattahoochee Flint (ACF) River Basin's water resources. These states, Alabama, Florida, and Georgia h ave, since the 1950s, fought over the ACF River Basin According to Alabama native Joe O'Brady, "Water is extremely important [here]. It is important for us now to sustain us, and its important for our future and our kids future." 2 The power, money, and po litical incentive at stake is tremendous for each of these states, as is the health of the public and the environment. Aaron T. Wolf, a geoscience professor at Oregon State University, comments, "The idea that we're having water wars in a region that gets so much rain is astonishing. But it is definitely the 1 Cynthia Barnett, "Water Wars," Mirage: Florida and the Vanishing Water of the Eastern US (Michigan: University of Michigan Press, 2007)118. 2 Chattahoochee, from Water War to Water Vision DVD. Produced and Directed by Rhett Turner and Jonathan Wickham. Atlanta, GA: Red Sky Productions, 2010
2 shape of things to come." 3 This dispute between Alabama, Florida, and Georgia is an example of the ways in which water has long been an eastern issue, and is only becoming more so as populations increas e and the demand for water continues to grow. The Hydrology and Ecosystems of the Apalachicola Chattahoochee Flint River Basin The Apalachicola Chattahoochee Flint River Basin begins in the North Georgia mountains, and runs southwest through the eastern side of Alabama, through the Florida panhandle, and into the Gulf of Mexico. Cynthia Barnett, author of Mirage: Florida and the Vanishing Water of the Eastern US, writes, "Considering the size and all that it has to do, the Hooch' may be the h ardest working river in America." 4 From recreational uses to environmental biodiversity, even to supporting an economy, the Apalachicola Chattahooche Flint River Basin touches and supports a variety of life in the southeastern United States. Sally Bethea c omments, "It's a liquid lifeline, this river is, for millions of people." 5 The ACF River Basin includes the Apalachicola, Chattahoochee, and Flint Rivers, as well as their surrounding tributaries. The Chattahoochee River's water source is comprised mainly of surface water, and several storage reservoirs that allow the basin's flow to be maintained. The Chattahoochee River is also the smallest river in the United States to provide water supply to a metropolitan area, like Atlanta. 6 In contrast, the Flint Ri ver has almost no reservoir storage capacity and a large ground water flow. Therefore, the type of regulation needed along the ACF River Basin is more complex and multifaceted than one might suspect because it involves several different rivers with 3 Barnett, 119. 4 Ibid, 114. 5 Turner and Wickham. 6 Barnett, 115.
3 differe nt qualities. 7 Leitman, 74 Geographically speaking, the ACF River Basin covers almost 20,000 square miles, and supplies water for over 7 million people, and many ecosystems. Of those vested in the ACF River Basin, Georgia dominates in terms of popu lation, land area, and water withdrawals. Georgia makes up about 90 percent of the population along the ACF River Basin. Georgia also makes up for about 75 percent of the land area covered by the ACF River Basin, with Florida representing about 20 percent, and Alabama, slightly less 7 Steven Leitman, Adaptive Governance and Water Conflict ed. John T. Schol z and Bruce Stiftel (Washington DC: Resources for the Future, 2005), 74.
4 than 5 percent. 8 As far as water withdrawals, Georgia is reponsible for about 82 percent of the water that comes out of the river basin. 9 This number is only continuing to grow due to an exponentially increasing Atlanta populat ion. Between 1980 and 2000, Atlanta experienced collossal growth, expanding from 2.2 million people to 4.1 million. 10 This population growth only heightened the pressure on the ACF River Basin to support it. The ACF River Basin is a complex water system m ade up of multiple different water sources in the region and several ecosystems. The three rivers that make up the basin, the Chattahoochee, Apalachicola, and Flint, combine to create a diverse watershed that is home to a number of endemic and threatened s pecies. The Chattahoochee River begins north of Atlanta and runs for over 400 miles before it ends in Lake Seminole, at the Georgia Florida state line. The majority of the Chattahoochee River is confined by reservoirs, which control the river's flow; there are thirteen in total along the river. The flow of the Chattahoochee is controlled by hydroelectricity plants, which use the water from the river for hydropower purposes. Outside of human uses, the Chattahoochee River is home to almost ten threatened or e ndangered plant species in Georgia, as well as dozens of species of freshwater aquatic turtles, salamanders, frogs, toads, and the American alligator. The second of the three rivers in the ACF River Basin, the Flint River, runs southwest of the Chattahooc hee. The Flint River is one of the longest, wildest rivers in 8 J.B. Ruhl, "Water Wars, Eastern Style: Divvying Up the Apalachicola Chattahoochee Flint River Basin," Journal of Contemporary Water Research & Education 131 ( 2005): 2. 9 Ibid. 10 Jod y W. Lipford, "Averting Water Disputes: A Southeastern Case Study," PERC Policy Series Issue Number PS 30 (2004), 5.
5 the country because it is one of the few remaining rivers that is not constrained by dams. It begins as groundwater seepage in western central Georgia near an Atlanta suburb, and joins multiple tributaries as it flows south. The river supports thousands of acres of water intensive agriculture in Georgia. Glenn Herd, a corn farmer in south Georgia, estimates that he uses about 27,000 gallons of water for every inch of land and about 400 million ga llons of water for corn in his 6 month growing season. That estimate is over half of what Atlanta residents consume in a day. 11 In addition, the Flint River is home to over twenty species of freshwater mussels. The lower part of the river contains several c aves and freshwater springs, which house the cave salamander, and a species of cave crayfish. Flora species of lilies, orchids, and white cedar trees also line the Flint River. The Flint River runs about 200 miles before it joins the Chattahoochee River to create Lake Seminole. The single river that leaves Lake Seminole is known as the Apalachicola River. 12 Almost 90 freshwater fish species, over 300 bird species, and about 50 mammalian species call the Apalachicola River their home. 13 Many of these species are also threatened or endangered. The Apalachicola watershed contains the highest number of endangered plant species of any comparably sized area in Florida, and has the highest density of reptiles and amphibians in the country. It is a biological hotspo t; "a place where species from the Atlantic and the Gulf, the mountains and the coastal plains converge. Many of these are plants, including the largest stand of tupelo tree east of the 11 Turner and Wickham. 12 Ibid. 13 Ruhl, 1.
6 Mississippi, renowned for the honey they produce." 14 In addition, the A palachicola River is responsible for about 35 percent of the total freshwater runoff of the west coast of Florida. 15 Florida s Apalachicola Bay (where the ACF River Basin and the Gulf of Mexico meet) is home to other species of concern as well. The federa lly protected Gulf Sturgeon and two species of mussels rely on certain environmental conditions in the water. The Apachicola Bay plays an important role in the reproduction and foraging for many species. It is an exceptionally important nursery area for sh ellfish and various other fish species in the Gulf of Mexico. Offshore fish species, as well as many migratory birds, rely on the health of the bay for foraging and housing. The Apalachicola Bay, and on a larger scale, the ACF River Basin, affect a number of ecosystems and species, and provide the services that many of them rely on. Ecosystems are built upon a coexistence and reliance of certain species on others. If one species suffers, even if it is a seemingly small species, the ecosystem as a whole is affected by the imbalance. Therefore, the effects of water from the ACF River Basin on the many populations that depend on it, have even larger repercussions than just on those species, not to mention the degradation of the State of Florida's dependent eco nomy. 16 Historical Background While people have fought over the water resources of the Apalachicola 14 Turner and Wickham. 15 Ruhl, 1. 16 Florida Department of Environmental Protection Online, "Lea rn about your Watershed: Apalachicola River and Chipola River Watersheds," http://www.protectingourwater.org/watersheds/map/apalachicola/ (accessed April 13, 2010).
7 Chattahoochee Flint River Basin for decades, the issues at hand took on their modern form in 1956. It was in this year the Army Corps of Engineers built a federal reservoir northeast of Atlanta on the Chattahoochee River. The reservoir, named Lake Lanier after the Georgian poet Sidney Lanier, was built upon completion of the Buford Dam, which connects the lake to the Chattahoochee River. Lake Lanier was buil t for hydroelectricity and flood control purposes in order to supply the city of Atlanta during peak hours. However, higher water demands challenged the traditional purpose of Lake Lanier. In an effort to better understand these rising water demands of gro wing populations, the Army Corps of Engineers was involved in the Metropolitan Atlanta Water Resources Management Study (MAWRS) in the early 1970s. 17 Upon conclusion of the MAWRS Study, the Army Corps of Engineers proposed to build another dam on the Chat tahoochee River between Lake Lanier and Atlanta in order to catch a portion of the hydropower peaks Monday through Friday and release them on the weekend to keep flows up downstream. This proposal went to Congress and was authorized, but due to public back lash over another dam on Lake Lanier, the State of Georgia asked the Army Corps of Engineers to reconsider. At the very bottom of the issue were concerns from Alabama and Florida, as well as stakeholders throughout the river basin, that such a reallocatio n of water from Lake Lanier did not adequately address what the effects would be downstream. 18 In addition, the state of Georgia felt that it had rights to the water source, since the majority of the river does in fact reside in Georgia. However, the Bufo rd damn at Lake Lanier is a federal damn, built and managed with federal taxpayer dollars. Since it is a 17 Turner and Wickham. 18 Ibid.
8 federal project, some of the funding comes from taxpayers in Alabama and Florida downstream. Because each of the three states had technically the same amount of taxes and stake invested in Lake Lanier, Georgia's sole claim to the water resource was vehemently opposed. 19 In the 1980s, after increasing outside pressure from a series of droughts throughout the Southeast, the Army Corps of Engineers came up with the 1989 Post Authorization Study on Lake Lanier. The Army Corps of Engineers then came to the conclusion that building another regulation dam was in fact not the answer. Instead, they concluded that portions of Lake Lanier should be re allocated fro m hydroelectricity uses to drinking water purposes. This decision represented the beginning of the ACF River Basin conflict. The state of Alabama's objection was that Lake Lanier was built for hydropower and flood control purposes and nothing more. Using the lake for drinking water would unnecessarily deplete the water resources and the flow of the river. Based on the traditional riparian rights doctrine the state of Alabama claimed that Georgia was disrupting the natural flow of the water, and therefore negatively effecting downstream states. This was especially important as Georgia's population, and as a result, demand for water, increased exponentially. The primary concern of the State of Alabama was that Georgia was using the lake to support a boomin g population, Atlanta, at the expense of its downstream neighbor. Alabama felt, and still does, that Georgia was consuming more of the water than it should have. According to Alabama, Georgia used more than its share 19 Joe Tanner, interview by Marilyn Payne, Atlanta, July 21, 2010. Transcript in possession of this writer.
9 of water, and in turn, hurt the state o f Alabama's progress. 20 This political competition between Alabama and Georgia existed long before the ACF River Basin dispute, although it was heightened due to the tense struggle over the water resource. In the nineteenth century, and well into the twen tieth century, Alabama was the center of the south. Birmingham was a hub for the region and Atlanta was just a small dot on the map. There were more corporate entities in Birmingham at that time than anywhere else in the south. In 1963, Alabama elected Geo rge Wallace as governor. In the same year, Georgia elected Carl Sanders as governor. Their elections changed the politics, and in turn, the economy in the South. Wallace was elected primarily on a segregationist platform, which he felt very strongly about, and continued to fight for until the end of his political career. He even propositioned the federal government about the right of Alabama to have segregation in the state without any federal intervention. 21 However, not all of the South saw segregation in the same light. Carl Sanders, a young lawyer from Augusta, Georgia, embraced the changing times of the sixties, and felt strongly that both races could work together towards a new integrated country. Sanders did not take the route of defying the federal g overnment, and made that a major point of his platform. Many people believe that in that election, Sanders' political stance in relation to integration, along with other innovative thinkers from Atlanta, led to Atlanta surpassing Birmingham and becoming th e new center of the 20 See Jeffrey Uhlman Beaverstock's article "Learning to Get Along: Alabama, Georgia, Florida, and the Chattahoochee River Compact," from a 1998 Alabama Law Review issue Beaverstock marks the announcement of the 1989 contract as the beginning of a lawsuit where Alabama sought to prohibit the implementation of the contract, and thus the beginning of the political tri state dispute. 21 Joe Tanner, interview by Marilyn Payne, Atlanta, July 21, 2010. Transcript in possession of this writer.
10 south. It was a major shift in power that happened fairly quickly. Today, and throughout the last forty years, Atlanta is much more significant in the business world than Birmingham. There is clearly an underlying competition between th e two states that is both literally, and historically defined. 22 Also noteworthy to understanding the historical significance of the competition between Alabama and Georgia is the other water resource the two states are fighting over, the Alabama Coosa Tal lapoosa (ACT) River Basin. The Coosa and Tallapoosa waters begin in Northeast Georgia, much like the Chattahoochee River. From there the Tallapoosa and Coosa Rivers flow southwest out of Georgia, and into Alabama to form the Alabama River and the Mobile Ri ver, and eventually empty in the Mobile Bay on the coast of Alabama. 23 The dispute over the ACT river basin has for many years often gone alongside the dispute over the ACF river basin. This has meant double the litigation, double the time, and double the h eadache over water division between these two states. Due to these overlapping conflicts, as well as similar water disputes, the tension and competition between the states of Alabama and Georgia have increased and only made matters worse. 22 Ibid. 23 Roy R. Carriker, Water Wars: Water Allocation Law and the Apalachicola Chattahoochee Flint River Basin the Department of Food and Resource Economics, Florida Cooperative Extension Service, Institute of Food and Agri cultural Sciences, University of Florida (2000): 2.
11 Upper Chattahoochee River Keepers, "Sally Bethea," httpp://www.sherpaguides.com/Georgia/Chattahoochee (accessed March 23, 2011). The Economics Jim Phillips from an environmental interest group called the Chattahoochee Riverkeeper comments, I call the Chattaho ochee a blue collar river. And by that I mean
12 this river does a lot of things for many interest groups. 24 Over six million people get their water supply from basin. The ACF River Basin generates electricity, supports agriculture and wastewater treatment, p rovides cooling for coal, gas, and nuclear power stations, as well as supports recreation and aquatic life. Economically, both Alabama and Georgia need the water to support a growing population all over both states, but especially Georgia s capital, Atlant a. Since Alabama uses the ACF River Basin for hydroelectricity purposes, it relies on a certain flow from the river to supply its growing population. The Farley Nuclear Plant draws water from the Chattahoochee River for coolant, and provides the state of Alabama with about 20 percent of its electricity. Although Alabama s population and demand for energy is growing, Alabama does not have a city that is as large, or requires as much energy to sustain, as Atlanta. And with growing population comes growing in dustry, which is water dependent as well. 25 In 1997, Atlanta was expected to reach 3.7 million people by 2010. Now in 2011, Atlanta is home to almost 6 million people. That estimate alone was over 2 million people off. Therefore, in 1997, public official s completely underestimated the amount of water actually needed to sustain this growing population. In the next twenty years, the population of Mero Atlanta is expected to grow another 2.3 million people. 26 As Atlanta, and the state of Georgia s population increases, their demands for water will as well. Metropolitan Atlanta s water use increased from 289 million gallons per day in 1980 to 24 Turner and Wickham. 25 Ibid. 26 Barnett, 116.
13 606 million gallons per day in 2000. In addition, the city of Atlanta relies almost exclusively on surface water. Almost 75 percent of the city s water comes from Lake Lanier and the Chattahoochee River. 27 Therefore, there are few alternative options available to satisfy Atlanta s thirst for water besides the ACF River Basin. In addition, a number of private companies have a vested interest, and often a dependence, on the ACF River Basin. A Kodak plant along the river basin in Columbus, Georgia, uses millions of gallon of water to make printing plates for magazines and newspapers all over the country. In fact, Kodak specifi cally chose the Columbus location for its water supply. Due to the water intensive manufacturing of printing plates, Kodak is Columbus s second largest water user in the city. 28 This plant is only a fraction of the businesses that could lose billions of do llars and hundreds of thousands of jobs if river flows decreased. Further south in Florida the economy is heavily reliant on the health of the local environment. Florida uses the ACF River Basin to supply its ecosystem in order to create a stable economy Due to the geography, the river basin flows down through the Florida panhandel and ends in the Gulf of Mexico. The quality of the ACF River Basin water greatly impacts the tributaries that branch off throughout the basin, as well as the ocean as a whole. The number of species living in and around the basin waters, or even a fraction of the water from the basin that mixes with water from other sources, is high to say the least. Whatever Georgia, and then Alabama, may do to affect the ACF River Basin water, 27 Lipford, 5. 28 Turner and Wickham.
14 Florida, along with the species in the panhandel and the Gulf of Mexico, get it all. Consequently, Florida has been particularly concerned with the health of several species in and around the panhandle in relation to the health of the river basin. 29 Ag riculture is a leading contributor to groundwater pollution along the ACF River Basin. Chicken, hog, and cattle farms produce large amounts of waste that run off into local streams. Agricultural farms also use pesticides, which leach into water supplies as well. Agriculture and animal farms along the Flint River produce large amounts of water pollution that flows into the Chattahoochee River via smaller streams and reservoirs, which are then connected to the ACF River Basin. When pesticides leach into the w aterways from these farm sites, the contaminated water flows down river into the state of Florida, and eventually into the Gulf of Mexico. In Jackson County, Florida, located just south of the Georgia Florida border, the Florida Department of Environmental Protection has found high levels of pesticides in the soil. Although banned in 1983, ethylene dibromide is specifically cited as coming directly from agricultural operations and can be found in private drinking water wells throughout northeastern Florida. 30 The multitude of agricultural farms taking place in and around the ACF River Basin are thought to contribute to the poor water quality that ends up in Florida's Apalachicola Bay. The ACF River Basin water is at its highest contamination level once it r eaches Florida, and it is also at its lowest flow. The biological productivity of the surrounding 29 Ruhl, 1 2. 30 Florida Department of Environmental Protection Online, "Learn about your Watershed: Apalachicola River and Chipola River Watersheds," http://www.protectingourwater.org/watersheds/map/apalachicola/ (accessed April 13, 2010).
15 ecosystems are greatly influenced by the amount and timing of the flow of water from the ACF River Basin. The basin provides local environments with nutrients that many species rely on. Any kind of alteration of the river s flow, or even temperature, can have lasting impacts on food webs and many species. Not only does this impact the state environmentally, but it impacts the economy and the industry as well. Florida s Apalachicola Bay is home to a number of species that the environment and the economy rely on. J.B. Ruhl from Florida State University College of Law notes the importance of the region to conservation. In fact, the area is considered by many ecolo gists as one of the planet s biodiversity hotspots. 31 Since the ACF River Basin is a freshwater source which runs into the Gulf of Mexico, a salt water source, there are three different water systems it is involved in: freshwater, brackish water, and salt water. Past studies have shown that a lack of flow in the river basin depletes oyster populations in Florida because they are dependent on a steady river flow in high salinity water. The oysters need a regulated amount of salinity in freshwater to prote ct them from diseases and predation. Therefore, reduced flow from the ACF River Basin could increase salinity levels in the water, and have devastating effects on oysters and other species throughout the Apalachicola Bay and its surrounding estuaries. 32 How ever, this has been a point of contention over the years. There have been disagreements about what effect the flow of water actually has on oyster populations and other species. In any case, Florida contends that a lack of flow of water negatively affects the ecosystem, and the economy. 31 Ruhl, 1 32 Ibid.
16 Oysters represent a species that is not only vital to the stability of an ecosystem, but to Florida s economy as well. An estimated 10 percent of all oysters consumed in the United States are harvested in the Apalachicola Bay. 33 Bevin Putnal has been harvesting oysters for over fifty years in the Apalachicola Bay. He says, It s important we get water year round to keep this bay going and keep it profitable. 34 The stability of the ecosystems living in and around the bay grea tly affect Florida s economy. Oysters, along with crab, shrimp, and various fish are sensitive to water quality and quantity from the ACF River Basin, and make up a large part of Florida s fishing industry and economy. The total commerical fishing industr y in the Apalachicola Bay makes up about $130 million in economic output in Florida, and an additional $70 million in value added impacts. 35 The tri state battle over the ACF River Basin is without a doubt a political and legal snarl that is difficult to untangle at best. There are a number of environmental and economic interests at stake in all three states. Currently, the risks are higher than ever. As of a July, 2010 ruling by Federal Judge Magnuson, Georgia could lose up to half of its right to access the ACF River Basin by 2013 unless all three parties come to a mutual solution. Although many scholars who write about the tri state water war tend to put the blame solely on Atlanta's excessive water use, this thesis contends that there is much 33 Ibid. 34 Turner and Wickham. 35 Florida Department of Environmental Protection Online, "Apalachicola Chattahoochee F lint River System (ACF) Timeline of Action As of July 727, 2009," http://www.dep.state.fl.us/mainpage/acf/timeline.htm (accessed April 13, 2010).
17 more to the story. While Atlanta's population increase has led to the irresponsible use of the ACF River Basin's resources, a multitude of other environmental and political circumstances greatly contributed to the water dispute we have today. This thesis focuses o n the political and legal issues at hand, while analyzing the inefficiencies of each that contributed to the current resource battle. The first chapter situates the reader with a historical discussion of water rights in the United States in order to better understand the political analysis of the ACF River Basin to follow. The second chapter then analyzes the political factors associated with the ACF River Basin and each of their contributions to the Southern water conflict, while looking at the patterns of inefficiencies specific to previous resolution efforts. Finally, the third chapter examines why a water allocation decision was not reached in the past, and what solutions are possible for the future. This thesis argues that the political factors associat ed with the ACF River Basin, coupled with the environmental and economic aspects at stake, have over time led to an inefficient use of water that created the battle over the Apalachicola Chattahoochee Flint River Basin. This thesis concludes that the inter state compact method is the most promising water allocation resolution option available to Georgia, Alabama, and Florida because it has the highest chance of having each state's impending needs met.
18 Chapter One A History of Water Rights in the United States Gordon Morris Baaken, author of Law in the Western United States writes, "Water was, the mother's milk of the litigation in the West and food for legislative and judicial thought." 36 Water represented the beginning of western law, just as much as gold represented the settlement in the West. As the law developed, water rights in the United States were adapted out of English common law tradition. Eventually, water rights were, and still are, dictated by two main water regimes; the riparian water doct rine and the prior appropriations water doctrine. Prior to the establishment of the particular doctrines there were a series of water rules or guidelines in place. These guidelines originated under the English common law, and gave landowners rights to wa ter use along a river without granting ownership rights to the water itself. Landowners were allowed to use the water for fishing, for example, as long as they did not interrupt the natural flow of the water, thus negatively affecting the water and others downstream. Water was primarily used for home consumption and irrigation. 37 Such water laws were crucial to the development of agriculture, the dominant industry up until the early nineteenth century. Beginning around the turn of the century, this remained true until mills became more of a necessity, and mill power became a coined term. Mill power referred to the amount of water required to drive spindles, which would in turn produce cotton yarn. The use of water for power allowed factories and the companie s 36 Gordon Morris Baaken, Law in the Weste rn United States (Norman: University of Oklahoma Press, 2000), 128. 37 Donald Worster, Rivers of Empire (New York: Oxford University Press, 1985), 31.
19 who owned them to put a price on water and package it for sale. Therefore, by the 1830s, through its relationship with cotton mills, water had become a commodity. It quickly became more precious, and was closely associated with economic growth and prospe rity throughout the United States. 38 As water conflicts intensified in the mid nineteenth century, courts held to a "natural flow rule." This rule merely stated that water had to continue to flow as it had originally, before any person had begun using it Irrigation at this point was merely water flowing directly into the mouths of those who had dug the ditches or created the rock dam; it was merely irrigation into the mouths of those who diverted water from nature itself. 39 Despite it being quite broad, a nd thus ambiguous, this rule had many repercussions. It was hard, in many cases, to know the original or "customary flow" of a water source in order to be able to follow it. River maps were often few and far between, and even when they were available, it w as hard to know their accuracy. Therefore, in the nineteenth century, as water conflicts intensified, and manufacturing companies began to take over the riverbanks throughout the Northeastern United States, the courts saw a need to adapt the withstanding natural flow rule" to something more progressive. 40 In an effort to address growing economy and growing dependency on water, the "reasonable use doctrine" served as a new form of water doctrine in United States. Under this new doctrine, the rules to water use were flexible, depending on the issues at hand and the parties involved. The courts weighed different interests at stake in relation to the use of water, and often sacrificed the wishes of individuals for a larger cause. The 38 Ted Steinberg, Down to Earth (New York: Oxford University Press, 2002), 59 60. 39 Worster, 31. 40 Steinber g, 61.
20 governing legal rationale w as concerned with what was best for the community as a whole, as opposed to individual property rights. However, with growing needs, growing markets, and growing communities, there was not always an easy answer. Since it was hard to define exactly what the best thing for the community was, the "reasonable use doctrine" often favored large businesses and those who used the water to generate economic growth, i.e. a manufacturing company along the Hudson River which generated jobs for the community as well as revenue through the manufacturing of goods. The primary basis of the "reasonable use doctrine" was, in fact, that water merely supported and allowed for economic growth and prosperity. 41 As the country prospered, the ways in which the country as a whole l ooked at and used water changed as well. As different regions specialized and grew, they began adopting different ways of allocating and enforcing water use. Water laws changed with the times, and soon the country was left with two distinct water rights, r iparian and prior appropriation water rights. Out of prior appropriations in the West, also came the pueblo water right, which many western cities, such as San Diego, adopted to create access to and control over water. Riparian Water Rights Riparian wate r rights in the Eastern United States developed out of English common law and placed great emphasis on land ownership along the banks of streams in relation to water rights. Although some western states temporarily operated under riparian rights before the y developed their own water law, the riparian doctrine is typically an eastern water doctrine. Riparian water rights were developed for landowners 41 Steinberg, 61.
21 who had land along a riverbank, and held that only those who lived on the banks of rivers could use the adjac ent water. 42 Riparian water rights allowed the owners to use water as long as their use did not affect the quality or quantity of water in the stream. In other words, as long as users downstream would have access to the same amount and same condition of wat er, upstream users were allowed to use the water as they pleased. 43 In the case of the tri state battle over the Apalachicola Chattahoochee Flint River Basin in the southeast, where riparian water rights dominate, issues arise over what constitutes the same quality and quantity of water downstream. Although the riparian doctrine does not specifically answer these questions or ambiguities, riparian rights do not grant ownership to water; the doctrine merely allows one the rights to use it. Traditionally, wa ter was thought to be no one's private property, and instead, belonged to only itself, nature, and to God. Riparian water rights were developed under this basis and a principle of noninterference with nature. Therefore, those who lived along the riverbank were granted access to the water but only for "natural" purposes, such as drinking or bathing. Users were also permitted to use the river to water their livestock, as this was considered a natural and necessary need for water. But all of these uses were o nly allowed if the natural state or flow of the river was left unaffected. The idea was that as long as the water was used for necessary purposes, the amount of water used would stay low, thus the actual effect on the water supplies would be minimal. No in dividual was free to use a river for personal purposes, because this led to using up the water source for wants instead of needs, and prevented others from using the supply. Therefore, a river was not owned by anyone and did not belong to anyone, but allow ed 42 Worster, 88. 43 Baaken, 127.
22 others to use its water as needed. 44 Under the earliest form of riparian water rights, no one was able to benefit oneself by overusing the water because of the way the doctrine was written and followed. The riparian doctrine relied on a certain amount of respect between individuals and nature as well as honesty. Even citizens who lived away from streams were satisfied because the riparian doctrine insisted on strict water usage guidelines. Therefore, in theory, riparian water rights supported equality i n relation to water which ensured citizens their "fair share" of water from each river or stream. Because of this, citizens were protected from others who might try to overuse the water source by damming a river and using its water. This was seen as satisf ying uses beyond natural needs and was thus considered wasteful and not tolerated. The earliest form of riparian water doctrine, therefore, allowed for minimal development, as did the economy of the time. The earliest form of the riparian water doctrine wa s also framed under the assumption of a steady abundance of rainfall that was equally distributed. This remained true for several years but eventually led to increasing issues with the original version of the doctrine. 45 The earliest form of the riparian water doctrine was first challenged during the industrial era when development and economic growth were placed at a higher priority than ever before. This took shape in factories and mills across the eastern United States, especially in Lowell, Massachuse tts where a textile industry grew up. The industrial revolution represented a shift in thinking about man and his relationship to nature. Nature was no longer seen as belonging to itself or God, but instead thought of as an avenue for human profit. Nature, and water especially, was considered as a commodity in an 44 Worster, 88 89. 45 Ibid.
23 increasingly economic world. Therefore, the original using water for "needs only" rule that riparian water rights had once thrived on became obsolete, and the definition of the riparian water doctr ine molded alongside the modernizing United States. The riparian water doctrine made the monopolization of water possible if one owned the land along a stream. The doctrine advantaged large companies rather than individual landowners because of the prece dence it placed on owning large plots of land. In return it placed little restrictions on landowners in relation to water use. 46 If a water source was any larger than a creek though, only the upstream landowner had the right to the stream since it was a sma ller water source upstream. Upstream land owners were then left with the possibility of damming the water in order to guarantee a more steady flow, leaving downstream owners with much less water than they had initially. This system created a perpetuation o f downstream landowners selling their land along rivers because of low water flow, and upstream users simply buying more land to support their continued monopolization. 47 The doctrine also allowed for water rights to be transferred alongside the transfer of land. A landowner could, for example, sell his or her land to a close friend, colleague, or business partner, and further create monopolization through land ownership and water rights transfers. 48 Although riparian rights often allowed for monopolization, they did not always apply to every water source in the eastern United States. Riparian rights were specifically made to rule over waters in watercourses, a body of water flowing in a defined channel or above the Earth's surface, such as lakes or streams. They did not, however, apply to 46 Congressional Budget Office, "How Federal Policies Affect the Allocation of Water," The Congress of the United States (August 2006): 2. 47 Marc Reisner, Cadillac Dessert (New York: Penguin Group, 1986), 43. 48 Congressional Budget Office, 2.
24 diffused surface water or any water spread out over the surface of the ground; this includes any water that is not flowing in a defined channel, such as a collection of storm water run off. 49 Riparian water rights dominated the eastern United States water policy for centuries, and continue to be the basis of many water disputes in the East. One of the largest, most publicized, nasty water disputes is that over the Apalachicola Chattahoochee Flint River Basin. The battle over the ACF River Basin, a water war over forty years in the making, and still unresolved, gives western water disputes a run for their money. It has led governors to name calling and senators to finger pointing. According to the riparian water system, which is in place in Georgia, Alabama, and Florida, both Alabama and Florida have the right to clean water, and good water flow in their portions of the ACF River Basin. If Georgia s use of the basin causes harm to the quality or flow of Alabama and Florida s wa ter, then Georgia is going against the riparian water doctrine established 50 Prior Appropriations Water Right In the West, dealing in a decidedly arid region, lawmakers transformed water law and created the prior appropriation water rights to suit the re gion. 51 Because the geography, as well as the demand for water, was different in the West, riparian water rights proved inapplicable to the region. Those who settled the American West came from the East where English common law ruled. However, beginning in 1849 during the 49 Carl Erhardt, "The Battle Over The Hooch': the Federal Interstate Water Compact and the Resolution of Rights in the Chattahoochee River," Stanford Environmental Law Journal 11 (1992): 206. 50 Ibid. 51 Baaken, 127.
25 California Gold Rush, gold miners who used water for mining could claim right to the water under the early form of prior appropriations water rights. The miners created de facto rules that protected their rights to access water since they w ere the initial users, i.e. first in right. As opposed to riparian water rights which hindered most development due to its limitations on water uses through its protection of downstream water flows and supplies, prior appropriations allowed first time wate r users unlimited access to water sources. Therefore, there were no restrictions on water uses because downstream users were not the focus. Instead, expansion in West became a sole priority and prior appropriations helped support that. The prior appropriat ions doctrine was legalized by the federal government in 1866, and then again in the Mining Law of 1872. The Colorado Doctrine however, represented the first distinctive water doctrine from the riparian doctrine. Established in 1876, the Colorado Doctrine legalized a new form of water rights under the "first in line, first in right" rule gold miners had existed under. 52 According to Donald Worster, author of Rivers of Empire under this doctrine, lawmakers sought to create a new water doctrine, one that a llowed a greater freedom to exploit nature, and in turn, promote development. 53 Therefore, the Colorado Doctrine, also known as the prior appropriations doctrine, began as a distinctly western form of water rights. It is clear now that this shift in water r ights represents a shift in thinking about nature, man's relation to the environment, and the commoditization of water. 54 Although it originated as a simple set of judicially created rules for water use in the mining west, by the beginning of the twentieth century, the prior appropriations doctrine 52 Micha Gisser, "Water Markets and the Prior Appropriation Doctrine," Journal of Contemporary Water Research and Education 121 (2002): 24. 53 Worster, 89. 54 Ibid.
26 had developed into a statutory permit system throughout the region. 55 Under the "first in line is first in right" rule that prior appropriations honored, water users could claim rights to a water system on a firs t come first serve basis. Therefore, the first person to come to a stream and claim part of the water supply had an immediate right to exploit it as needed, thus immediately turning water into private property. 56 In the prior appropriations doctrine, it mat tered not how far from the water one lived nor how much one used the water source. It originated out of need to separate small streams from agriculture (i.e. livestock grazing, and later on, irrigation) and mining. 57 Instead, the first person to use a strea m or river was the immediate owner of that such water. Therefore, one could gain ownership over water by merely forming a stream through a pipe or ditch. 58 Although typically ambiguous, not often enforced, and therefore, ineffective in controlling water us e two general limits to water use existed under the prior appropriation doctrine. The first was a limit on the amount of water one could take from the water source. The amount of water one could take was not concretely defined, and thus several different variations and interpretations ensued. The second limit was that the water must be used for a beneficial use. In this case, a water user must prove that he or she was actually benefiting from using the water. As Gordon Baaken notes, the definition of "bene ficial" was so open ended it allowed for loopholes in the system. 59 Under prior appropriations, one person acquired a vested right to the water because water became a 55 A. Dan Tarlock, The Future of Prior Appropriations in the New West," Natural Resources Journal 41 (2001): 770. 56 Worster, 88. 57 Tarlock, 770. 58 Baaken, 127. 59 Ibid.
27 form of personal property in ways that were radically different than riparian water rights 60 The prior appropriations practice came down to the simple fact that Qui prior est in tempore, protior est in jure or "he who is first in time is first in right." 61 Worster notes the most important element of the prior appropriations doctrine was that i t represented a major shift in thinking about water. Whatever its problems, prior appropriations offered settlers and developers in the West the freedom to exploit water and create great potential for economic gain through the monopolization and ownership of water. Prior appropriations allowed large amounts of water for storage, which ensured supplies during times of drought. A. Dan Tarlock, author of "the Future of Prior Appropriation in the West," notes that this system allowed for monopolies because an a ppropriator could easily claim access to a whole stream through the first in right rule. 62 Claiming to be the first person to use a stream proved easier than expected because there was often no documentation citing one way or the other. In these cases the p erson claiming right to a water system was often given the benefit of the doubt. Because of this loosely enforced ownership system, monopolies were easily created and easily sustained through a series of water claims with evidence. Therefore, the instituti ons, or the cities, that controlled the water in the West played a central role in the politics and development of the region. 63 Prior appropriations solved central problems peculiar to the West, but also raised new ones. Baaken discusses several issues, n oting that many water users could claim rights to the same water system, using more than their necessary supply of water and 60 Worster, 88. 61 Ibid 62 Tarlock, 770. 63 Ibid, 769.
28 creating droughts and a shortage of water supplies. Moreover, the federal government failed to create coherent water policies to pr event such conflicts. Therefore, local water management and policy strategies developed, and more variations of prior appropriations water rights ensued. Each state, territory, and town seemed to create their own way of appropriating water based on prior a ppropriations. By drawing upon experiences and local interests, different areas had different priorities when it came to water. However, one fact remained true throughout the West: many still believed that development was the key to realizing the true pote ntial of water. 64 The legacy of the prior appropriations doctrine tends to be one of the commoditization of water in the history of the American West. According to Worster, the doctrine represented a major shift in cultural thinking about nature, and man's relationship to the environment. The prior appropriations doctrine quickly came to be a vested right of landowners in the West, which was closely guarded by the agricultural and economic interests of country. However, the doctrine created a whirlwind of c haos and headache for water policy in the region as well. 65 Worster states that by nature, the prior appropriations doctrine encouraged competition and exploitation of limited resources because it placed emphasis on a first come, first serve. This led to a chaotic war over water, mostly over who had the right to use it and to what end. The prior appropriations doctrine, many industrialists and economists would argue, although meant to promote the growth of the West, in fact stunted and hindered the expansi on of the region because it lead to an overuse of water supplies that could no longer support the growing demand. In other words, the very doctrine that was supposed to encourage the 64 Baaken, 127 129. 65 Worster, 90 95.
29 development of the West turned into an obstacle itself to overcome. 66 Pue blo Water Right In addition to prior appropriation water rights, in the late nineteenth century, California state courts developed a water right known as the "pueblo water right." It originated out of traditional prior appropriations water rights, but it took that doctrine and applied it to cities in the West. The pueblo water right gave southwest cities an absolute and exclusive right to water within the doctrine's original municipal boundaries. The law had its historical origins prior to the American con quest of 1846 when a communal water sharing system had prevailed in the Southwest. The pueblo water right was, in fact, at odds with the communal water sharing system already in place. In order to create a solution to this conflict, judges in the West deve loped a new water doctrine. The doctrine developed after American annexation from Mexico in order to support a separate economic base for the United States. The West was in the midst of a major shift from a predominantly ranching culture to one of commerci al agriculture and real estate. The increasing development naturally put a strain on local resources and infrastructure, especially in Los Angeles. The Los Angeles River was rapidly becoming a more and more important source for trade and an economic hub in the area; the only problem was the limited access to it from the city center. 67 In 1874 the state legislature granted the city of Los Angeles exclusive ownership to the river's water in order to support the city's growing population and economy. Although there were a number of towns located along the river that used its resources as well, the city's needs took precedent, at least in the court's eyes, over the smaller rural 66 Ibid. 67 Baaken, 131 139.
30 populations. At the end of the nineteenth century, the city of Los Angeles was expe riencing periodic droughts and additional pressure from population growth. In the 1886 Supreme Court case Lux v. Haggin a disagreement between prior water users in the San Joaquin Valley and riparian landowners in LA, encouraged courts to clarify the esta blished pueblo water right doctrine's rule in the West. The court concluded that historically Hispanic towns had a prior right to consume water in the area, thus upholding the pueblo water right. 68 The legacy of the pueblo water right continues today, as it has permanently since 1975, when the California Supreme Court affirmed it as an official water doctrine of the state. The state of New Mexico affirmed it as well until 1994, when New Mexican courts ruled that the pueblo water right was no longer valid or applicable to present water systems. 69 In later Supreme Court cases involving water disputes in California, the pueblo water right continued to dominate. The court held that previously Hispanic pueblos, as well as their successors (i.e. LA) had a superior right to the water supplies for its inhabitants and municipal purposes. Therefore, the wants and needs of the city and pueblos were given priority over those of individual water users. The only limitation in Los Angeles' access to the water was that the c ity was only supposed to use as much of the supply as it needed to support its inhabitants. However, this limitation was kept very general and open ended, therefore, serving less as a limitation and more as a casual guideline. The ruling on the limitation was left to the court's discretion as well which caused further ambiguity and less likelihood the city of Los Angeles would be challenged at all. One thing the guideline did ensure was the barring of sales of the water surplus to 68 Ibid, 132. 69 Ibid, 131 139.
31 outside parties. This in t urn gave Los Angeles exclusive power over the water. 70 The doctrine, in a sense, gave large cities in California, like Los Angeles and San Diego, an absolute and exclusive right to water. The state's highest court had in fact ruled that Los Angeles had an absolute pueblo water right to the local water supplies. The pueblo water right therefore served as a vital part of the expansion of the city of Los Angeles. This right, supposedly sanctioned by history, allowed Los Angeles interests to be put above those of all other water users, both upstream and downstream. Landowners often got their own water rights taken away due to the inherent right of the city to the water. This created frustration among many citizens outside of large cities who were seeing their r ights to water disappear and the smaller towns, where the water was initially taken from, began fighting for what they felt was their right to local water sources. 71 In the 1950s, the San Fernando Valley was in the midst of a brewing water dispute. The ci ties in and around the valley were given permission to pump underground water from the Los Angeles River to support population demands. However, after several droughts, the city of Los Angeles began to feel the pressure of decreasing water supplies and inc reasing populations, and took the ruling to court once again, hoping to end the San Fernando Valley's underground water pumping. Los Angeles claimed its pueblo water right to the river in order to sustain its own population. The litigation between Los Ang eles and the several cities in the San Fernando Valley including Burbank, Glendale, and San Fernando lasted for over two decades. Finally, in 1968, the court rejected Los Angeles's claim to a pueblo water right to the Los Angeles River. The judge then cont radicted the ruling and concluded that the information present, "While not 70 Ibid, 133. 71 Ibid, 131 140.
32 conclusively demonstrating the existence of the pueblo right, does not conclusively demonstrate its non existence but on the contrary provides a reasonable basis for a judicial dete rmination that the right did and still does exist." 72 For the most part this ruling did little to help the water dispute in California between large cities and smaller towns over the same water resource. In this case the court failed to come to a conclusion as to whether or not the pueblo water right was still in effect. Despite the many challenges the doctrine tends to cause, the lack of a conclusive court ruling resulted in the continuation of the pueblo water right as a valid water doctrine in the state o f California law. However, it remains to be true that Los Angeles and San Diego are the only cities in the state where the doctrine has been applied. 73 The legacy of the pueblo water right remains a constant figure throughout the history of water in Cali fornia. Despite issues of unfair prioritization of power over and distribution of water, the doctrine has withstood over a century of rule. The pueblo water right not only gave absolute right to Californian cities, but it also provided a justification for urban expansion and growth in the West. Unlike more traditional water rights, like riparian rights, that put emphasis on individual ownership of water, the pueblo water doctrine ensured water access to Californian cities, thus supporting and allowing for the development of some of the major cities in the United States today. 74 Conclusion This chapter looked at the history of the three main water rights in the United States, and the process by which each one developed. A common theme throughout each 72 Ibid, 136. 73 Ibid, 131 140. 74 Ibid, 133 139.
33 of thes e water doctrines is the fear of monopolization and power over a natural resource. Each water right dealt with the issue of monopolization of water, or the prevention of such, at some level. Issues of how to divide up a commodity that is in a constant stat e of motion give rise to questions of equal use; specifically in relation to what constitutes needs and wants. Furthermore, the struggle between an individual's water use and the water use of larger towns, cities, and states serves as a constant point of c ontention in these water doctrines. The decision over who's right to water takes precedent, and which court rules over such a decision is often a point of ambiguity in water disputes. The tri state battle over the Apalachicola Chattahoochee Flint River Bas in serves as a representation of the struggle between valuing one population's water needs over those of another's. Although the riparian water doctrine rules in this case, establishing a basic knowledge of the history of water rights in the United States as a whole is necessary to understanding the analysis of water policy to come later in this thesis.
34 Chapter Two A Political Analysis of the ACF River Basin The debate over the Apalachicola Chattahoochee Flint River Basin centers on t he colossal growth of Atlanta as a center of the South The city has grown exponentially in the last sixty years and continues to require more and more water to support such a large population. Extreme droughts in the Southeast have only intensified this c ompetition for resources and heightened the urgency of resolving it. Due to the economic and environmental factors at stake, the tri state battle over the Apalachicola Chattahoochee Flint River Basin has become one of political tension to say the least. Former Alabama Governor Bob Riley has accused the state of Georgia and its former governor, Sonny Purdue, of taking Alabama's water and hindering its economic growth; meanwhile former Governor Charlie Christ and the state of Florida have blamed their deple ting environment and seafood industry on Georgia's water use. All the while, Georgia claims its inherent right to the ACF River Basin's water supplies to support its population. Beneath the name calling and finger pointing, however, is an inefficient polit ical system that has failed for over forty years to resolve this water crisis. This chapter aims to examine the three points of conflict in the tri state battle over the ACF River Basin that emerge out of the fragmented legal basis of water disputes in the United States: the lack of a sovereign water institution, ambiguities in dividing up the water resource, and tensions between the environment and development.
35 The Lack of a Sovereign Water Institution Historically, water disputes in the United States h ave had several options for resolutions. As will further be discussed in the following chapter, water disputes in the United States have been resolved through four legal mechanisms. These four options are: "1) congressional allocation over interstate comme rce between the states; 2) interstate compact approved by Congress; 3) United States Supreme Court jurisdiction to resolve disputes between the states; or 4) litigation under federal laws which apply to the states, such as the Endangered Species Act." 75 Wit h so many legal resolution options, there is a lack of consistency in water dispute resolution efforts especially since water disputes can go through multiple resolution options that may have conflicting results. In addition, legal authorities such as Cong ress and the Supreme Court are often tied down with their own primary responsibilities. Expecting these groups to be able to take on more tasks is unreasonable and seemingly unhelpful to resolving water disputes in general. Specifically related to the tr i state battle over the ACF River Basin, since the year 1989 which marked the beginning of the tri state litigation, Alabama, Georgia, and Florida have traversed through several legal avenues in an attempt to reach an agreement. Initially, after recognizin g Atlanta's population increase and quickly diminishing water supplies, the Army Corps of Engineers proposed to almost double the amount of water Atlanta could draw from Lake Lanier. Jody W. Lipford comments on what was on the line, "Without sufficient wat er, Georgia officials feared the loss of 680,000 jobs and $127 billion in wages through 2010." 76 Thousands of lives and billions of dollars were, and still are, at stake. 75 Ruhl, 47. 76 Lipford, 6.
36 In response to the Army Corps of Engineers' decision, the state of Alabama filed a la wsuit in the United States District Court seeking an injunction to prohibit the new allocation of Lake Lanier, fearing that this new water division would stunt their own economic growth by limiting the water they needed for industrial and commercial uses. In this case, Alabama directly sued the Army Corps of Engineers for its involvement and sought to prevent any different allocation of the reservoir. The state of Florida soon joined forces with Alabama, fearing that reduced water flows could have harmful i mpacts on their oyster rich and biodiverse Apalachicola Bay. In addition, the state of Georgia joined the lawsuit, siding with the Army Corps of Engineers, in an effort to defend its water withdrawal. 77 In an effort to keep Congress out of the water disput e surrounding the ACF River Basin and to avoid litigation in interstate water allocations, Georgia, Alabama, and Florida entered into a novel compact in 1997. In this promising agreement, the three states, along with the Army Corps of Engineers, settled on a delay of the case, pending completion of a five year study to be conducted by the Army Corps of Engineers. The study, expected to be completed in October 1996, would estimate and analyze the impact of the proposed water allocation for the ACF River Basi n in its entirety. While the study was conducted, Alabama, Georgia, and Florida signed an agreement to come to a regional water allocation plan. Congress, along with then President Bill Clinton, signed on in support of a tri state agreement. The document g uaranteed each state at least a minimal flow, but did not specify the exact water division for each state to achieve the referenced minimal flow. Representatives from each state and a Federal representative appointed by 77 Ibid.
37 President Clinton would make up a pl anning authority to negotiate the exact terms of the agreement. 78 The plan was to begin this process after the completion of the Army Corps of Engineers' study, and keep a deadline for the agreement to be reached by December, 1998. 79 Lipford writes, "The g oal of the compact was to assign property rights to water in such a way as to be fair and avoid future conflicts. This goal proved elusive, however." 80 The December 1998 deadline proved much too optimistic, as it was not enough time for all three states to work out their individual needs, much less agree upon some sort of compromise. Neither state wanted to settle for minimum flow guarantees if all of the involved parties did not receive the same. Water allocation and specific definitions became points of di sagreement. For example, none of the states could come to terms on how to define "severe drought." Each had their own definitions based on their own benefits at the expense of the other parties. Understanding that time was running out, and they were no clo ser to an agreement, the three states decided on a new deadline of January 1, 2000. Finally, in July 2003 after yet another deadline extension, the three states signed a Memorandum of Understanding that outlined water allocation of the ACF River Basin. T his memorandum authorized 705 million gallons of water per day from Lake Lanier for Atlanta, and left the possibility of greater future withdrawals open. It also established minimum flow requirements downstream of Atlanta in the hopes of protecting Alabama and Florida's concerns. Mere weeks before the agreement was to take into effect, the then 78 Ibid, 6 8. 79 Jeffrey Uhlman, "Learning to Get Along: Alabama, Georgia, Florida and the Chattahoochee River Compact," Alabama Law Review Volume 49 (1997), 993 998. 80 Lipford, 8.
38 governor of Florida, Jeb Bush, and other Florida officials were uneasy. They wanted the minimum flow requirements to be worst case scenarios. They felt that more wat er should be included in the estimates and feared that their ecosystems were still unprotected. Lipford writes, "Florida feared the minimum flows, which had been less than 5,000 cubic feet per second only twice during the recent droughts, might become the norm. Thus, Florida officials again raised the issue of Georgia's withdrawals from Lake Lanier." 81 In response, Georgia officials accused Florida of trying to "micro manage" its waters. Although close to an agreement, the three states failed to sign the Mem orandum of Understanding and reactivated their original lawsuits. 82 Since this failure to sign an agreement in 2003, the tri state battle over the ACF River Basin has raged on. After more hearings, court cases, and attempted solutions, the three states we re assigned a federal judge as a mediator. Federal Judge Paul A. Magnuson, a United States District Judge from Minnesota, was chosen as an impartial party to help the three states come to some sort of compromise. On July 2, 2010, Judge Magnuson released a Memorandum that gave the states an ultimatum. In the Memorandum, Judge Magnuson ruled that if the three states cannot come to some sort of compact by 2013, then Atlanta's withdrawals from Lake Lanier will go back to the amount of the 1970s. 83 In addition t o disagreements about tri state compacts and how exactly to go about resolving this water dispute, another point of contention throughout has been the Army 81 Ibid, 10. 82 Ibid, 7 11. 83 Federal Judge Paul A. Magnuson, "In re Tri State Water Rights Litigation," United States District Court Middle District of Florida Case No. 3:07 md 01 (PAM/JRK): July 21, 2010, 25 26.
39 Corps of Engineers' involvement. Although there is no sovereign water institution to resolve water d isputes, the Army Corps of Engineers represents one of the closest, constant agencies to such a party. However, the Corps' involvement in the ACF River Basin dispute has been controversial, and has led to Florida and Alabama's distrust in the Corps' abilit y to effectively manage the water resource, and in general, the federal government's capability. Even though the Corps originally built and now currently manages the Lake Lanier reservoir, the limits to its power over water supplies have been debated. Th roughout the court cases surrounding the tri state dispute over the ACF River Basin, Alabama, Georgia, and Florida have argued that the Corps overstepped its power regarding water allocation. It first began when the Corps agreed to let Georgia withdraw mor e water from the federal reservoir in 1989. Out of that decision, Alabama and Florida began distrusting the Corps, and Georgia followed when the increased water supplies it was promised by the Corps' were detracted. Distrust in the Corps to act honorably, honestly, and accurately in regards to the ACF River Basin management has only continued as this water dispute has evolved. 84 The Army Corps of Engineers conducted several environmental assessment studies in order to better understand the affected ecosys tems and their responses to different flow rates and salinity levels of the basin. All three states, however, have felt that these studies, for one reason or another, did not accurately reflect the truth. More specifically, Florida often contended that cer tain species were left out of the equation, while Georgia has argued that the Corps failed to incorporate other aspects of the 84 Ibid, 22 26.
40 population's water needs. Federal Judge Magnuson, the current ruling federal judge in the tri state water war case, comments on t he Army Corps of Engineers performance, "Given the contentious history in the ACF basin, it is not surprising that no party is willing to trust the Corps to do its job in accordance with the law. 85 Although the Army Corps of Engineers represents a federal a gency in charge of a number of water management projects throughout the United States, and more specifically, heavily involved in the supervision of the ACF River Basin, it also represents a point of heavy controversy and distrust. It is not solely in char ge of ACF River Basin management, but its actions greatly affect the basin as a whole. In addition, the Army Corps of Engineers has the authority to rule on water allocation decisions along the river basin. Georgia, Alabama, and Florida all contend that the Army Corps of Engineers is unreliable and untrustworthy in taking the best course of action regarding the ACF River Basin. Because the three states, along with Federal Judge Magnuson, feel that the Corps is unable to perform its job successfully, the C orps's involvement in the dispute heightens the tension and confusion over how the ACF River Basin should be dealt with, and who has the right to decide so. The Corps is probably the closest thing to an agency acting solely on the ACF River Basin water iss ues. Since the three states see it as failing to do its job, they feel pessimistic that anyone else may be able to. 86 Without one sovereign agency solely responsible for water regulations, disputes, and laws in the United States, contesting parties are le ft uncertain about the most effective, timely, and fair avenue to resolve contentions. More importantly, the parties are left with many legal agencies that are half heartedly involved due to other obligations, as 85 Ibid, 23 25. 86 Ibid.
41 with the Congress and the Supreme Court. In the case of the ACF River Basin, the lack of one clear, sovereign water institution, and a strong distrust in the closest thing to it, has left the disputing parties, and the conflict itself, more tangled and muddled than ever. Ambiguities in Water Alloc ation The second point of conflict that heightened the political snarl of the tri state battle over the ACF River Basin are the ambiguities in water allocation. This point of conflict stems from two main sources: the possible introduction of prior appropr iations in a riparian based system and the inconsistency of boundary rulings in relation to the Georgia Alabama state line. Because of these two points of contentions, the three states, as well as the involved federal courts, have ruled contradictorily to one another as to how to allocate the ACF River Basin. Although the South, specifically Georgia and Alabama, historically used a riparian based system in order to deal with water disputes, there has been discussion of a possible introduction of the prior appropriations which has lead to confusion over which system is the most appropriate to use. In 1946, riparian rights in the South were effectively overridden when Congress allowed the U.S. Army Corps of Engineers to construct dams in order to control flo ods, navigation, and hydroelectricity along the ACF River Basin. Not long after, the Corps transformed the water supply from storage to recreational use. This turned the previously private ACF River Basin governed by riparian rights into public property, w here prior appropriations were more valid. This demonstrates that although riparian rights are common in the South, such as in Georgia
42 and Alabama, the more western way of dealing with water disputes (prior appropriations) has entered into the conversatio n instead. 87 Under the prior appropriations system, priority is given to the party with the oldest use of the water. I n the case of the ACF River Basin, where three parties claim the rights to the water, Georgia would be given priority over Alabama and Fl orida because it has had the longest use of the water source. 88 This causes an unequal distribution of water rights and places a higher priority with one party. The major issue of this type of water management is its lack of equal distribution of rights. Pr ior appropriations can leave the party who has used the water resource the longest completely fulfilled, and others, in this case, Florida and Alabama, unsatisfied. In his article, Learning to Get Along, Alabama, Georgia, Florida, and the Chattahoochee River Compact, Uhlman argues that prior appropriations, although typically a western strategy, are important to look at when examining the ACF River Basin, and the tri state battle over the water it provides. According to Uhlman, The Chattahoochee River dispute could present an interesting clash of the riparian and prior appropriations doctrines, at least in theory. Both Alabama and Georgia are riparian states Although the discussions appear to be directed towards a riparian analysis, some comments by Geo rgians hint at prior appropriations like arguments. 89 There is an overall lack of clarity in how the dispute over the ACF River Basin should be dealt with in the first place. In addition, Georgia allowed prior appropriations to enter into the 87 Lipford, 4. 88 Uhlman, 999. 89 Ibid.
43 discussion of water allocation of the ACF River Basin because it would be beneficial to the state. However, simply introducing the possibility of prior appropriations into the ACF River Basin discussion exposes the lack of security and establishment of the riparian s ystem. In other words, it shows that there is a lack of an established system when dealing with water disputes in general. This discrepancy leads and adds to the ambiguity that arises when examining the lack of clarity surrounding the dispute over the ACF River Basin. Without a clear foundation, the battle over the ACF River Basin will not be resolved. Although confusion surrounding the possible introduction of prior appropriation water rights in a riparian based eastern water dispute exists, there is ano ther point of ambiguity in relation to the water allocation of the ACF River Basin. A second point of ambiguity has been the border of Alabama and Georgia in relation to the river basin, which in turn caused greater confusion as to how to allocate the wat er resource. In 1990, the United States Supreme Court s decision in the Alabama v. Georgia case further confused the involved parties. The Supreme Court ruled inconsistently on each state's claim to the ACF River Basin because there was disagreement about the location of the border between Georgia and Alabama. Since the Chattahoochee River portion of the basin flows through Georgia and along the border of Georgia and Alabama, the Supreme Court felt that the Chattahoochee River actually flowed through Georg ia, not both states. The Court based this decision off of choosing the boundary of the river to be the west bank, which is in Georgia and not Alabama. Therefore, usage of and control of the Chattahoochee River went to the state of Georgia.
44 Although the Su preme Court ruled that the Chattahoochee River was entirely within the state of Georgia, the Court also noted that Alabama had unlimited use of the river. 90 In other cases, however, the Supreme Court has ruled that the river served as the boundary for th e two states, and therefore, Alabama and Georgia had a shared stake in the resource. However, for this particular ruling, the Court ruled in favor of Georgia in relation to the river s boundary. J.B. Ruhl writes, The effective location of the boundary bet ween Georgia and Alabama may be debatable today. In numerous cases, the United States Supreme Court has held that the thalweg or center line of the river is the actual border between the states. 91 The Supreme Court has been inconsistent in its rulings in volving boundary disputes between the two states, including where the Chattahoochee River lies in relation to that boundary. This inconsistency has further hindered the Court s ability, and the three disputing states ability, to reach an accurate water al location decision because there is confusion over the facts of the river basin in general. The specific boundary to the two states could effectively change the water allocation rulings due to the location of the river in relation to each state. A ruling in favor of Georgia gives the state more power in deliberations because it has a greater portion of the river within its border. Historically, under the riparian water doctrine, issues with state boundaries in relation to rivers have allowed both states to share control of the said waterway by granting both states property rights extending from the center of the river to their respective shorelines. Erhardt argues that, It would thus appear that, where it 90 Ibid, 997 998. 91 Ibid.
45 compromises their border, Georgia and Alabama have e qual claim to the Chattahoochee River. 92 However, after the Supreme Court ruling in Alabama v. Georgi a that gave Georgia exclusive rights to the Chattahoochee River, Erhardt concludes that, While Alabama borders on the Chattahoochee River, the decision in Alabama v. Georgia may preclude Alabama from now claiming any riparian rights to the Chattahoochee River. This warrants a study of Alabama s status as riparian to the Chattahoochee River. 93 Clearly the Alabama Georgia state boundary in relation to the Cha ttahoochee has great significance in the issue of water allocation of the ACF River Basin. But past rulings in relation to this border have created a web of contradiction. This inconsistency in the Supreme Court s ruling about the boundary causes ambiguity in geographical boundary, and therefore, irregularity in division of the ACF River Basin, which has had long lasting, drastic impacts on the dispute as a whole. This in turn creates more confusion in an already hazy system of water rights. Water Laws and the Tension Between the Environment and Development In the tri state water dispute over the ACF River Basin, the third major point of contention is the often contradictory relationship between the needs of the environment and the continued development o f the states involved. Effectively, there is a struggle between prioritizing environmental conservation related to water and growing population demands. More specifically, the water laws themselves serve as specific points of confusion because they often f ail to clarify how to resolve the issue of choosing to protect 92 Erhardt, 207. 93 Ibid, 208.
46 the environment or population demands. The laws themselves often fail to clarify exactly what procedures and rules apply to disputes over water rights. Although many water laws were originall y established in response to western water disputes, the same laws were often later applied to water conflicts in the South. This application of western water laws created water laws that not only lacked applicability to the South, but also generated contr adiction for how to resolve water conflicts. Furthermore, western environmental issues and conservation is very different from that in the eastern United States. Therefore, confusion as to how the laws actually apply in eastern water laws in still prevalen t today. In the 1983 case of Idaho v. Oregon, the Supreme Court laid out the following foundational principles about the water rights of individuals and states. J.B. Ruhl writes, First, a state may not preserve solely for its own inhabitants the natural r esources located within its borders. Second, no state has inherent priority, absolute or presumptive, over another state in the use of water from an interstate stream. Third, all states have the affirmative duty to take reasonable steps to conserve prospec tive water use, and even to augment water supply, as a condition to making a successful claim to a fair share of an interstate water. 94 Under these principles, specifically the second, Georgia has no right to use the ACF River Basin over Alabama or Florid a. That also means that Georgia has no right to pollute it, because that would inhibit Alabama and Florida s right to use it. Therefore, all three states must make it their affirmative duty to use the water supplies in a reasonable way, without inhibitin g the other parties ability to do the same, or as the law puts it, making a successful claim to a fair share of an interstate water supply. The Idaho v. Oregon 94 Ruhl, 6.
47 court case shows the interplay between environmental conservation and using water for populat ion needs, as well as the importance of preserving waterways. More specifically, the intentional attention the law gives to protecting the health of water sources for reasons other than human needs is important to note as well. Another legal avenue of wa ter resource protection is the Clean Water Act. Passed by Congress in 1972, the Clean Water Act aims to reduce pollution in U.S. waters for both environmental and health related purposes. Today it consists of mainly two parts, one that authorizes federal financial assistance for municipal sewage treatments plant construction, and a second part that consists of regulatory requirements for industrial and municipal dischargers. 95 In relation to the tri state dispute over the ACF River Basin, Alabama and Flori da argue that they have a right to clean, healthy water downstream of Atlanta under the Clean Water Act in order to ensure the protection of both environmental and human health. Therefore, Georgia, by using too much of the ACF River Basin, and Atlanta, by polluting the Chattahoochee River, have no inherent right to deplete the flow or health of the water flowing downstream to Alabama and Florida. 96 However, in order to take action against Georgia, Florida and Alabama, must prove that the accused state (Geo rgia) is acting against the Clean Water Act and the riparian water doctrine in general. Therefore, the complaining states, Alabama and Florida, must show clear evidence that Georgia is irresponsibly using the resource, and thus 95 Claudia Copeland, "Clean Water Act," in Summaries of Statutes Administered by the Environmental Protection Agency e d. V.A. Silyok (Huntington, New York: Nova Science Publishers, Inc., 2001), 29 30. 96 Ruhl, 6.
48 dipping into Alabama and Flo rida s share. Unfortunately for Florida s sake, in the South and the East, although there has been some talk of introducing the prior appropriations system, the riparian rights water system still dominates in state water law. According to and under the rip arian rights system, development is given precedence over all other claims. Therefore, Florida, which is interested in water conservation and promoting ecological resources, is at an immediate disadvantage to Georgia, which is focused on development to sup port growing urban and agricultural sectors for a demanding population. As previously mentioned, it is especially difficult to determine the source of the problem when it comes to water issues, especially in a case like this where the sources are from many different sectors and locations. It is hard for Florida to pinpoint the nature and magnitude of injury needed to open the Court s door under the conventional burden of proof that the riparian rights system and the state rely on. 97 In other words, it is hard for the state of Florida to prove exactly how much Georgia s water use is affecting the overall health of the Apalachicola Bay. Also central to the ACF River Basin dispute, however, is the role that the Endangered Species Act of 1973 plays in the dis cussion of water allocation. Signed into law under President Richard Nixon, the ESA provided for the conservation of ecosystems upon which threatened and endangered species of fish, wildlife, and plants depend. 98 Florida s biodiverse Apalachicola Bay is h ome to several federally protected, threatened, and endangered species, including species of gulf sturgeon, snail guard, and 97 Ibid. 98 Endangered Species Act of 1973.
49 mussels. Ecologists all over the country recognize the Apalachicola Bay as one of the most biodiverse hotspots in the world, and se e the protection of the health of this region as essential. With so many species of marine life as well as Florida s fishing industry at stake, the state of Florida sees the Endangered Species Act as a crucial element in protecting its economy and environm ent. However, the use of this act has become a controversial point in the tri state battle over the ACF River Basin. According to a CRS Report for Congress regarding the ACF River Basin, because other laws often lack ESA s strict substantive provisions, the act often becomes a surrogate battleground in such disputes, as it does in the ACF management. 99 Although the Endangered Species Act has good intentions, it often times gets caught up in the political snarl of water disputes. For instance, it can be u sed for political leverage rather than its intended purpose, which is to protect the environment. Throughout the ACF water dispute, the question has remained: should human development and progress take precedent over the environment? More specifically, h ow to manage federal reservoirs in way that meets agricultural, industrial, and municipal needs for all three states while minimizing harm on the environment and maintaining compliance with the Endanger Species Act. 100 The involvement of the Endangered Speci es Act in the ACF River Basin dispute has been controversial because it effectively presents a certain amount of water use based on environmental protection. On October 24, 2006, in a hearing before the United States Senate, the former Governor of Georgia, Perdue, closed 99 Nicole T. Carter, et al, 3. 100 Ibid.
50 his argument against Florida s use of the Endangered Species Act in the tri state dispute by saying: In closing, I would like to say that I cannot believe Congress passed the Endangered Species Act with the intention of providing substantia lly more protection for the species than for human beings I do not believe that Congress intended that the Corps provide the species with more water than even the natural environment would support, particularly when it comes at such a great cost upstream. 101 In the case of the ACF River Basin, the protection of the environment is often seen as threatening to, and in contradiction with, the economic growth and overall prosperity of humanity. Former Governor Sonny Perdue clearly feels that Florida s use of the Endangered Species Act in support of protecting the state of Florida s water supplies and water cleanliness goes against the state of Georgia s ability to a certain amount of water to support its own population s needs. In fact, Governor Purdue believes t hat the Endangered Species Act would give Florida and its ecosystems a greater supply of water than it would have naturally. Although the exact amount of water Florida s ecosystems needs to survive is arguable, Governor Purdue s perspective on the Endanger ed Species Act pins Georgia s economic reliability on the river basin against Florida s ecosystem s dependence on the health of the water. In this instance, the Endangered Species Act becomes a main point in the struggle for political power, rather than a way to ensure protection of Florida s threatened species. In addition, the state of Georgia argues that, any mortality of the protected 101 "Field hearing to consider the effect of the Corps of Engineers' operation o f the Apalachicola Chattahoochee Flint and Alabama Coosa Tallapoosa River Basins on Georgia's Agricultural Community," before the Committee on Agriculture, Nutrition, and Forestry United State Senate on October 34, 2006, 11.
51 mussels results not from the Corps operations, but from nature. 102 Georgia argues that low flows, which deplete many threatened species populations, are a natural occurrence, not necessarily caused by human water use upstream. Each state has a different take on the exact effects of human water use, and what that actually means in relation to the environment. However, in conclusive scientific studies have made little progress in determining how species react to different water conditions, and what natural circumstances actually entail. Therefore, the availability of reputable, accurate, scientific data to truthfully refl ect and understand the effects on the ecosystems is missing in the discussion of the Endangered Species Act in relation to water allocation of the ACF River Basin. In the 1990s, in an effort to protect the Apalachicola Bay, Florida urged the Environmental Protection Agency to list several species in the Apalachicola River as vulnerable. The EPA moved forward and listed four species as threatened or endangered: the Chipola slabshell muscle, the purple bankclimber mussel, and the Gulf sturgeon as threatened and the fat threeridge mussel as endangered. The listing of these species by the EPA is noteworthy because it meant that the Army Corps of Engineers was required to follow certain flow rates in accordance with guidelines to protect the listed species as we ll as stay within the allotted limits. For example, in the spring of 2006, regulations required the Corps to release 70 percent to 90 percent more water in order to support the spawning of the Gulf sturgeon. This increase in the amount of water released me ant less 102 Ibid.
52 water available for human use. 103 More recently, however, Federal Judge Magnuson ruled that the Endangered Species Act is irrelevant to the battle over the ACF River Basin, effectively giving economic growth and development precedent over environmen tal protection and ending the dispute over the role the Endangered Species Act should have altogether. In addition to the Endangered Species Act, the Environmental Assessment Study by the Army Corps of Engineers represents a point of contention regarding the protection of the environment in the ACF River Basin. T here was controversy that the Army Corps of Engineers improperly and inaccurately followed the guidelines for measuring environmental effects of different conditions of water. Federal Judge Magnus on comments, "Every party argues that the Corps's failure to conduct an environmental review of the plan by which the Corps continues to operate its projects in the ACF River Basin is contrary to the National Environmental Policy Act (NEPA)." 104 NEPA serves as a required guideline for environmental policy that the Corps was expected to follow when conducting environmental assessment studies. With all three states arguing that the Army Corps of Engineers did not follow such guidelines it further depletes the C orps as a reputable source, as previously discussed, and hinders the collection of research on the true environmental effects of water conditions throughout the ACF River Basin. Furthermore, Judge Magnuson notes that, "The parties also assert that the Corp s used the wrong environmental baseline' in examining the Interim Operations Plan." 105 All parties agree that the Corps failed to conduct accurate research of the environmental effects of 103 Magnuson, 2 3. 104 Mag nuson, 10. 105 Ibid, 13.
53 human water use in relation to the ACF River Basin. Without a trustwo rthy agency able to conduct research, it is still unknown how human actions affects species along the river basin, and thus, it is impossible to reach a helpful solution; in turn only heightening the tension between the environmental and developmental issu es that occur so often in the tri state battle over the ACF River Basin Conclusion The political snarl of the tri state battle over the ACF River Basin stems from three main points of contention. Firstly, there is no sovereign water institution that is so lely responsible for resolving water disputes in the United States. The ACF River Basin dispute in particular has traversed through Congress and the Supreme Court, in addition to several interstate compact attempts. Furthermore, involvement of the Army Cor ps of Engineers, and its authority, has continued to complicate the legality of the dispute. Without one clear, sovereign water institution to resolve this type of water conflict, the established political system is inefficient. The second point of conte ntion is that there is a lack of clarification in how exactly to allocate the river basin. Confusion over which water right takes precedent in this case, as well as where the boundary of Georgia and Alabama sits in relation to the river basin, have led to heightened tension, and complete ambiguity over how to legally and accurately divvy up the water resource. The third and final point that the political battle over the ACF River Basin dispute stems from the often contradictory and combative relationship between protecting the environment and supporting development and economic growth. This struggle centers around the inclusion of the Endangered Species Act, but also includes how states plan to
54 use the water. Certain laws give states using rights if they p lan to use the water for development. Often times in the water laws, environmental protection of threatened species, even federally protected species, is seen as less important than national growth. Altogether, the tri state battle over the ACF River Basin stems from an overall lack of an efficient, organized legal system to support arising water disputes. More importantly, however, is the need for a timely, impartial, permanent solution for this current water war.
55 Chapter Th ree A Plausible Solution? Since the tri state battle over the Apalachicola Chattahoochee Flint River Basin began over forty years ago, much has been written about how to resolve this water dispute Due to the multitude of avenues that water conflicts ca n traverse, there is confusion and disagreement over how to solve the water dispute. Without one clear, sovereign water institution, discrepancies over such disagreements often lead to heightened water conflicts, as is the case with the ACF River Basin. Wi th the exception of the 1989 Army Corps of Engineers reallocation, a lack of government intervention in the conflict over the ACF River Basin was longstanding for almost two decades. However, when the involved parties could not reach an agreement, they tur ned to the government to resolve their water dispute. The Constitution gives guidance as to how these interstate water disputes can be decided. It allows for action by the federal government, either through the legislative branch or the judicial branch. Th e Constitution also allows the disputing states themselves the ability to settle their differences This chapter examines the three interstate dispute resolution options allowed under the Constitution that are available to solve the ACF River Basin dispu te. It looks at the disadvantages and advantages of each in relation to water policy disputes and then discusses the applicability of each resolution option in relation to the ACF River Basin. After assessing the three main political opportunities for a re solution, I argue, in agreement with most experts of the case, that an interstate compact is the best case
56 solution. I then identify the key obstacles to reaching an interstate compact that avoids the mistakes made in the past. Congressional Apportionment Although rarely used, congressional apportionment is one of the three main legal options available for states disputing the allocation of their shared water resources. This political method awards Congress the power to rule on water allocation as it sees fit. Congressional apportionment stems from the Compact Clause in the United States Constitution which prohibits states from entering into an interstate agreement or interstate compact without congressional consent. 106 Although Congress has the power to res olve water conflicts, congressional apportionment has only been used twice: in the lower Colorado River Basin in 1963 and in the Truckee Carson Pyramid Lake Water Rights Settlement Act of 1990. 107 Congress has proved reluctant to rule on the majority of wate r disputes in the US due to the complex nature of the issues, as well as the political tension that surrounds them. Although Congress acts as one body, it rarely speaks with one voice because it is made up of several hundred individuals representing the un ique interests of their individual states and districts. Congress as a whole is unwilling to get involved in water disputes in general because the very act of doing so adds to the political strain that already exists. It was not until the mid twentieth c entury that Congress first used its congressional apportionment power to rule on the allocation of the lower Colorado River 106 Duncan B. Hollis, "Unpacking the Compact Clause," Texas Law Review Association 741 (2010) 1. 107 Dustin S. Stephenson, "The Tri State Compact: Falling Water and Fading Opportunities," Land Use and Environmental Law Journal 83 (200 0): 93.
57 Basin. Since the 1930s, Colorado, Arizona, New Mexico, Nevada, California, and Utah had fought over how much water each state had a legal right to take from the Colorado River Basin. The dispute began in 1934 when Arizona first sued California for using more than its share of the resource. However, the dispute continued for over thirty years until Congress intervened. Through water al location attempts in the 1950s, an interstate compact was made for the upper Colorado River Basin, but the disputing states failed to reach an agreement on the water allocation of the lower basin. Since California, Arizona, and Nevada could not come to a m utual water allocation plan, Arizona once again took the matter to the Supreme Court. In Arizona v. California in 1963, the state of Arizona contended its right to the river basin water was more than it was given under the Colorado River Basin Compact. At this point, Congress, noticing the states could not come to a compact on their own, decided to intervene and help delegate a new water allocation plan. This action signaled the beginning of congressional apportionment in water disputes in the United States However, Congress's involvement in the Colorado River dispute was not random; Congress had years of association with the basin at this point, and felt knowledgeable enough on the issues at hand to reenter into the equation. 108 Part of the reason congress ional apportionment worked in the case is due to Congress' previous involvement in the Colorado River Basin which can be traced back to 1928. At this time, Congress authorized the Boulder Canyon Project Act, which is now known as the Hoover Dam. The dam is in the Black Canyon of the Colorado River, and sits on the border of Arizona and Nevada. In the Boulder Canyon Project Act, authority 108 Ira G. Clark, Water in New Mexico: a History of its Management and Use (University of New Mexico Press, 1987) 562 566.
58 to oversee water management in the Lower Colorado River Basin was given to the Secretary of Interior. Therefore, when an interstate compact for the Lower Colorado River Basin was not met, Congress, along with the Secretary of Interior, attempted to help the states reach a water allocation plan through congressional meetings and negotiations. Since Congress was involved in th e initial Boulder Canyon Project, and therefore, already had a stake in and knowledge of the Lower Colorado River Basin, their continued involvement in a final water allocation resolution in 1963 seemed a clear next step 109 However, it is important to not e that the dispute over the lower Colorado River Basin continued for decades even after Congress ruled on a water allocation plan. Well into 2000 both Arizona and California were still in disagreement on exactly how much water each state was allowed to use As will be discussed in more depth later in this section, this is a good example of why Congress is reluctant to get involved in water disputes. As with the lower Colorado River Basin dispute, most water allocation disagreements are extremely complex. Of ten times they are not black and white issues that require simple solutions. State's economies, ecosystems, and population dependencies are closely tied to their water supplies. Therefore, water disputes are typically ongoing struggles that require constan t attention and tweaking to suit growing needs. Although Congress ruled in 1963 on the allocation of the lower Colorado River Basin, the issue continued for the years to follow due to the complex nature of the issue and the growing factors (i.e. population and water demands) associated with it. 109 Dale Pontius, "Colorado River Basin Study: Final Report," Western Water Policy Review Advisory Commission August (1997): 20 22.
59 As with the Lower Colorado River Basin dispute, the congressional apportionment with the Truckee and Carson Rivers took place after the disputing states, California and Nevada, were unable to reach an interstate co mpact for the two rivers. The Truckee and Carson Rivers begin at Pyramid Lake in Nevada and later break off into two separate rivers that eventually run into California. Because the dispute involved Pyramid Lake, a federal reservoir project, and there was no suit filed to the Supreme Court among the disputing states, the dispute went to Congress for resolution. In this case, Congress was able to intervene and rule on a water allocation plan under congressional apportionment because Congress also has the pow er to rule over such water allocation decisions when the disputes are over navigable water or when they involve releasing water from federal reservoir projects. 110 The advantage to congressional apportionment is that it gives a fairly immediate solution to the water dispute at hand. Unlike interstate compacts, which often involve complex and lengthy negotiations, congressional apportionment is timely, and gives a resolution, without the costly fuss associated with interstate compacts. In addition, it leaves the disputing states out of the solution process, which can avoid further political tension that is often an obstacle with interstate deliberations. However, there are three main disadvantages to using congressional apportionment for water allocation re solutions. The first of these disadvantages stems from the intense political nature of water disputes between states. Congress prefers to stay out of water disputes altogether because it is busy enough and does not have the time 110 David Lewis Feldman and Julia O. Elmendorf, "Final Report, Water Supply Challenges Facing Tennessee: Case Study Analyses and the Need for Long Term Planning," Energy, Environment and Resources Center, The University of Tennessee June (2000): 43.
60 or resources available to a dd on more responsibility. 111 Congress also prefers to stay out of water disputes because of the political tension. Due to the political nature of water disputes, individual members of Congress are often hesitant to get involved out of fear of creating polit ical enemies. 112 In congressional apportionment, Congress has the duty of deciding on water allocation plans that may not please all parties involved. Water disputes are also often highly publicized, which further increases Congress's hesitancy in getting in volved in disputes that they themselves have no stake in, i.e. the water dispute takes place in states that are not the member's own home state. 113 Therefore, Congress runs the risk of being blamed for less popular rulings. In an effort to "keep the peace," Congress typically chooses to stay out of deciding on water disputes. The second disadvantage to using congressional apportionment stems from the third party role Congress plays in water allocation disputes. As later discussed in relation to judicial app ortionment, because Congress rules on water disputes most likely outside of most congressional member's region, Congress as a whole is unable to fully master the technical, economic, environmental, and political aspects of the dispute in order to make an a ccurate and effective decision. Furthermore, there is a lack of vested interest for a vast majority of congressional members in regional water disputes. There is little motive to expending political capital and valuable time on issues that are irrelevant t o most congressional members and their constituents. 114 Finally, the third and related disadvantage to congressional apportionment is the issue of time sensitivity. If Congress were to rule on water disputes through congressional 111 B eaverstock, 1006. 112 Pontius, 20 22. 113 Stephenson, 94. 114 Stephenson, 93.
61 apportionment, there is typ ically not enough time to present all the facts and understand all the implications associated with each issue, due to Congress's already demanding schedule. Therefore, there is a risk of a decision being based on incorrect or incomplete information when u sing congressional apportionment for resolving resource disputes. Because of these disadvantages, congressional apportionment has the possibility of further complicating resource disputes between multiple states rather than resolving them. 115 In relatio n specifically to the tri state dispute over the ACF River Basin, the use of congressional apportionment is both unlikely and undesirable. Beaverstock sums up the consensus among scholars familiar with this case, arguing that congressional apportionment is the least promising water allocation resolution option available to Georgia, Alabama, and Florida due to a lack of congressional involvement in the issue thus far, a lack of Congressional experience in water allocation disputes, and most importantly, tigh t time constraints in Congress. Based on the analysis above of congressional apportionment, it is apparent there are more effective avenues through which water allocation of the ACF River Basin can be achieved. Judicial Apportionment The second resolutio n option, judicial apportionment, turns to the Supreme Court to rule on water disputes instead of Congress or the disputing states themselves. According to the US Constitution, the Supreme Court can rule on resource allocation disputes if the feuding stat es fail to reach an agreement among themselves. As the following analysis suggests, judicial apportionment often arises out of a federal lawsuit 115 Ibid.
62 sought by one of the disputing states over the resource at hand. Although it is currently being used for more w ater allocation disputes than in the past, the judicial apportionment mechanism arises historically out of the need for an outside party to resolve resource disputes that failed to reach an interstate compact. Since its initial involvement in the 1838 Rh ode Island v. Massachusetts case, the Supreme Court has maintained its jurisdiction over interstate resource disputes. In this original case which has nothing to do with water, Rhode Island and Massachusetts disputed the boundary of the two states. The Cou rt ruled that because the two disputing states failed to resolve their issues on the location of their border, the responsibility of solving the dispute rest in the hands of the Supreme Court, as a knowledgeable third party. 116 Since its debut in Rhode Isl and v. Massachusetts judicial apportionment has been used to resolve resource disputes over water allocation as well as land boundaries. In 1907, the Court adopted the equitable apportionment method to resolve a dispute between Kansas and Colorado over th e Arkansas River. This case was brought to the Supreme Court by the state of Kansas, which claimed Colorado was using more than its share of water from the Arkansas River. In this case the Court ruled under the equitable apportionment method, which involve s the abandonment of traditional common law, and serves as an aid to the Court in resource disputes. In relation to water law, as the name implies, equitable apportionment includes throwing out the riparian rights and prior appropriations doctrines, and in stead, attempting to equally or fairly distribute water among the disputing parties based on state boundaries and water use. Since its original 116 Beaverstock, 1000 1001.
63 use in 1907, equitable apportionment has been adopted by the judicial apportionment process and is the method th e Supreme Court uses in water allocation resolutions. 117 The case of New Jersey v. New York is an example of the equitable apportionment doctrine at work. In three different cases in 1931, 1954, and 1998, New Jersey claimed New York was using more than its fair share of the Delaware River, thus diminishing New Jersey's supply of water downstream. New York, in turn, claimed it needed a large amount of water to sustain its growing population. Although it was impossible to give both states exactly what they wa nted, the Court worked out a plan, through equitable apportionment, that represented a compromise. The Court's decision allowed New York to continue supporting its population, but prohibited the state from increasing its withdrawals from the Delaware River In turn, New York had to comply with water quality and quantity regulations to ensure New Jersey's access to a certain amount and health of water. Therefore, the Supreme Court was able to use equitable apportionment to effectively, and fairly, rule on th e water dispute between New York and New Jersey. 118 Overall, there are several advantages and disadvantages to using the judicial apportionment method as a way to resolve resource disputes. Perhaps the biggest advantage to judicial apportionment has to do w ith its finality. As discussed in the previous congressional apportionment section, both apportionment methods produce fairly quick results, unlike interstate compacts. Josh Clemons, author of "Interstate Water Disputes: A Road Map for States" writes, Equ itable apportionment by the Supreme 117 Beaverstock, 1001 1002. 118 Stephenson, 95.
64 Court has the advantage of being certain to provide an answer." 119 Because there is one executive decision maker, there is a clear, definitive answer given at the end of the apportionment process. In addition, the use of j udicial apportionment in water disputes relieves the disputing parties of the responsibility of coming to some sort of agreement among themselves. It allows them to focus their attention on adapting their own policies to meet the needs of the resource allo cation ruled on by the Supreme Court. Therefore, judicial apportionment saves the individual disputing states time and money they would otherwise be spending on interstate compact efforts. However, much like congressional apportionment, judicial apportio nment has three major drawbacks: extremely high costs, a lack of technical expertise, and a lack of ability to monitor the solution. 120 Judicial apportionment is incredibly expensive and time consuming due to the fact that it requires the Supreme Court to ru le on the dispute at hand. 121 It is extremely expensive to collect the technical data needed to litigate water disputes, and rulings often produce re litigation, or further lawsuits, due to the product of unfavorable results. In addition, judicial apporti onment forces disputing states to leave the solution up to a third party that has no stake in the issue either way. This can be dangerous because the Supreme Court may or may not fully understand all of the facts associated with a water disputes, or it may not fully understand the implications of each possible water allocation decision. Stephenson notes that critics of judicial apportionment contend that the Court is ill equipped to deal with the large amount of technical data evaluated in such 119 Josh Clemons, "Interstate Water Disputes: A Road Map for States," Southeastern Environmental Law Jo urnal 12 (2004): 142. 120 Stephenson, 96. 121 Clemons, 142.
65 water disput e cases. 122 Furthermore, those who reside in the disputing states are directly involved in the matter and what the possible effects are for each situation. Because there is one decision maker in judicial apportionment, further conflict can arise if the execu tive decision is not a popular one, as discussed in the previous congressional apportionment section. Leaving the decision solely up to an unrelated federal court has the potential to leave disputing states with an undesirable outcome. T he Court is often r eluctant to take on such water disputes because it feels it is not the most knowledgeable forum to decide on the resolution of the issues at hand. As with congressional apportionment, the Court acknowledges its lack of expertise in water allocation dispute s and agrees that there are other political options available that will produce more favorably results. 123 The third drawback to judicial apportionment comes once the Court does in fact reach a decision on water allocation disputes. At this point, the Court 124 as Stephenson points out, "simply does not have the resources to monitor the parties' compliance with the resolution." 125 Because of this, involved parties are often able to cheat or get away with not following the rules since the only way to enforce the resolution is through further litigation, which costs more money. In relation to the tri state dispute over the ACF River Basin dispute, there is a concern among representatives from Georgia, Florida, and Alabama, that the Supreme Court has too many curr ent responsibilities to have the time or desire, to take on more, as would be the case with judicial apportionment. In addition, it is a common fear among all 122 Stephenson, 96. 123 Ibid. 124 Although Stephenson directly notes the Court as having difficulties with monitoring compliance, implementation of the Court's allocation decision is the responsibility of the Executive branch. 125 Ibid.
66 three states that the Supreme Court is unfit to make decisions under equitable apportionment beca use they are an outside party, and therefore, divorced from the effects of such a decision. Officials from all three disputing states are concerned that Supreme Court officials, just like members of Congress, residing outside of Georgia, Florida, and Alaba ma, will be unable to understand each state's needs in relation to the ACF River Basin. 126 States also tend to distrust this transference of decision making. The three states think they stand a better chance of getting what they want out of a water allocatio n plan if they decide amongst themselves, and keep the Supreme Court out of it. Florida in particular worries that with judicial apportionment, its ecosystems will not be given the same weight as the city of Atlanta's demand for water 127 Some critics argu e that judicial apportionment could work in this case. Dustin Stephenson argues that if judicial apportionment is used in the ACF River Basin dispute, it could produce results very similar to those of New Jersey v. New York. Therefore, through the use of j udicial apportionment, and thus equitable apportionment, the city of Atlanta could experience water regulations standards, as well as a cap on an increase in water withdrawals, as the Court ruled in relation to the state of New York. In turn, Alabama and F lorida downstream would have some support in protecting their individual rights to a healthy supply of clean water. 128 J.B. Ruhl also sees judicial apportionment as an opportunity to address Florida's concerns and modify equitable apportionment to a more cur rent application. Ruhl comments, "the ACF case presents an opportunity for the 126 Joe Tanner, interview by Marilyn Payne, Atlanta, July 21, 2010. Transcript in possession of this writer. 127 Beaverstock, 1003. 128 Stephenson, 95.
67 Court to update its law of interstate water allocation with a dose of ecological reality." 129 Ruhl sees room in the ACF River Basin dispute to include not only economic, but envir onmental factors as well, equally in the decision making process. The use of the Supreme Court and equitable apportionment could allow for a more accurate representation of the environmental value of Florida's panhandle. It is important to point out here that this suggested value of the Apalachicola Bay and its floodplain basin, comes from the estimated value of the ecosystem services these natural environments provide the region. By defining the Apalachicola Bay's worth through its ecosystems services, R uhl argues its economic and environmental value is recognized, and therefore, accurately represented in the water allocations process. Ruhl sees the doctrine of equitable apportionment as the best case scenario under the use of ecosystem services to level the playing field. However, the introduction of ecosystem services through equitable apportionment could present a tricky juggling act among the disputing states. On one hand, there is the state of Georgia with the city of Atlanta that represent insurmou ntable economic injury if the water allocation decision does not give preference to supporting the city; while on the other hand, there is the Apalachicola Bay, which economists estimate to be "more economically valuable than the Lake Lanier based recreati onal economy" 130 often closely linked to the economic value associated with Atlanta. Issues of how exactly to value these places, without showing bias towards one over the other, easily arise when trying to reconcile something so subjective. 129 Clemons, 51. 130 Ibid.
68 Although judi cial apportionment shows some promise in resolving the ACF River Basin dispute, Georgia, Alabama, and Florida are at risk of succumbing to the equitable apportionment method, and losing their riparian doctrine rights and individual power in the decision ma king process. Beaverstock agrees and comments on the implications of using the Supreme Court for this particular water resolution, "Alabama, Georgia, and Florida stand a better chance of getting what they want out of the water allocation if they can keep t he case out of the Supreme Court and agree among themselves." 131 Although the Supreme Court may intend to rule as equally as possible in relation to water disputes, their rulings may not have the best outcomes for the involved parties, especially when compar ed to a tri state compact. Much like with congressional apportionment, the use of judicial apportionment in the ACF River Basin dispute could produce unfavorable results for all three states. Overall, the expense of litigation, the lack of expertise, and t he inability to monitor the parties make judicial apportionment a problematic political option for water dispute resolutions. Instead of judicial apportionment, the Supreme Court itself openly favors the use of interstate compacts as a resolution mechanism because it prefers to stay out of the allocation decisions and have the disputing states work out a water allocation plan among themselves. 132 Interstate Compacts The interstate compact method represents the most promising political option for resolving wa ter allocation disputes among states. As a type of negotiated settlement, the interstate compact requires a mutual agreement among the disputing parties. Although interstate compacts are most commonly used in water disputes, the method can be used to 131 Beaverstock, 1003. 132 Stephenson, 97.
69 resol ve disputes over any shared resource between two or more states. The majority of interstate compacts have occurred in the western United States, rather than the eastern part of the country, most likely due to the historical nature of water issues in the We st. 133 The process of beginning an interstate compact often starts with the disputing states requesting congressional authorization to begin the negotiation process among themselves. According to the US Constitution under the Compact Clause Method, upon C ongress's authorization, the disputing states are allowed to begin the deliberation process. After the states reach an agreement, they must also seek congressional approval of the agreement itself. And it is only after Congress gives the final consent that the compact becomes a federally mandated law. However, because the compact is an agreement among the states, Congress assumes that the terms of the agreement are in fact suitable for the states involved. Therefore, once the disputing states reach their ow n interstate compact, Congress is likely to ratify it because it is how the states have chosen to resolve their dispute. 134 Historically, the interstate compact method was originally meant to resolve "disputes over navigation, boundaries, and fishing right s." 135 The method was first used in 1922 to resolve a water dispute over the upper Colorado River Basin. The process of interstate compacts requires intensive, often lengthy deliberation sessions in which the disputing states attempt to compromise on various points of contention. In the last ninety years, along with increasingly complex water issues all over the country, interstate compacts have evolved into more detailed, rigorous negotiations processes. Presently 133 Beaversto ck, 1003 1004. 134 Stephenson, 97. 135 Ibid.
70 they often incorporate management strategies and tend to take a more holistic approach to analyzing the water dispute than ever before. The biggest overall advantage to the interstate compact method, however, is its dependence on direct involvement between the disputing states in order to work to wards a mutual solution. Scholars like Beaverstock, Clemons, Leitman, and Stephenson cite interstate compacts as the most preferable water allocation option because of this very reason. Since it is the only legal method available that relies on the parties directly involved in the issue to come up with a water allocation plan, these scholars argue that the interstate compact method produces resolutions that are longer lasting, and therefore more effective, than the other apportionment options available. Sin ce water disputes are so complex, the disputing states often have a better understanding of the technical information and the details of the issue than an outside party might. In addition the disputing parties do not have the same time constraints that Con gress and the Supreme Court have when deciding on a water allocation solution. 136 Furthermore, each interstate compact is unique and tailored to each resource dispute's needs. 137 The specific nature of each compact in relation to each distinct dispute often appeals to involved states more than congressional and judicial apportionment because all aspects of the dispute are included in the negotiation process. Clemons writes "States are likely to continue trying the compact method of allocating water because t hey retain more autonomy with compact negotiations than they do with the other two methods [Judicial and Congressional Apportionment]." 138 Because of its overall 136 Beaverstock, 1003 1004. 137 Ibid, 1004. 138 Clemons, 142.
71 flexibility, the interstate compact method allows disputing states more power and direct involve ment in the decision making process than congressional or judicial apportionment. In addition, this method gives feuding states the freedom to explore a number of resolution options, while taking into consideration each party's individual needs. Furthermor e, water allocation plans that come out of interstate compacts have the ability to be continually adjusted to meet changing conditions. Therefore, as populations grow, and economies shift, the interstate compact can work to adapt more effective water alloc ation plans. 139 Another advantage to using the interstate compact method to resolve water allocation disputes is that it inherently involves a wider variety of water management experts than congressional and judicial apportionment have the ability to. A n umber of technical experts are required to present all the data in order for the parties involved to fully understand the issues at hand. Although technical experts are involved in judicial apportionment, there is more time in an interstate compact to incl ude a variety of experts from each involved state. The decision makers, i.e. the disputing states and the negotiators, have a better understanding of the information and the long term ramifications of different solution options. 140 The interstate compact met hod supports more qualified and knowledgeable decision makers, which in turn, results in more accurate, effective water management plans. Although the interstate compact method is the most favored resolution method by a number of scholars, it does contain several potential obstacles, such as difficulty in organizing all disputing parties, an often overwhelming number of stakeholders involved, 139 Stephenson, 97. 140 Ibid.
72 and no real incentive to reach a resolution except to protect the interests at stake. Since the disputing parties c ome to mutual agreements among themselves, it can be difficult for those involved to negotiate among themselves due to political tension that arises out of competition over resources. Water allocation disputes among states typically involve a number of sta keholders, and can have a number of economic and political implications associated with them. With so much at stake, disputing states are often pinned against each other in an effort to have their individual needs met. If a state is in danger of losing acc ess to water that it depends on to support its population and its economy, like with the state of Georgia in relation to the ACF River Basin, political tension will arise. Because the interstate compact method directly involves the active participation o f the involved parties in the decision making process, it has the potential to be problematic if not organized, and effectively planned out to avoid further tension between disputing states. In an interstate compact negotiation it is important for disputin g states to set aside political differences and focus on effectively, and equally allocating the disputed resource 141 Although the interstate compact method has the potential to be challenging due to the issues that can arise when attempting a mutual agreem ent between disputing states, it represents the best overall political option for most resource disputes because of its negotiations based nature. With careful planning and organized deliberations, the interstate compact method has much to offer for a succ essful resource dispute resolution. In relation to the tri state battle over the ACF River Basin, the interstate compact method has played a continuous role in the attempt to reach a resolution among the three states. Georgia, Alabama, and Florida attempt ed some sort of mutual allocation beginning 141 Clemons, 142.
73 as early as 1983. Since then, there have been a number of efforts to reach a mutual compromise between the three states. 1997 marked a hopeful year when cooperation between the disputing parties reached a high po int. However, as discussed in the previous chapter, after years of extensions, and multiple drafts, the attempted interstate compact failed to take shape. Joe Tanner, a former Commissioner of the Department of Natural Resources of the State of Georgia, h as been involved in the tri state battle over the ACF River Basin for over thirty years. He worked directly revising the state's environmental and water resource laws, and helped negotiate the first attempted interstate compact in the 1990s. Much like Beav erstock, Tanner sees an interstate compact as the best possible solution. Tanner, like many others, believes that leaving it up to the courts to decide will result in less than desirable implications. 142 However, in order to be effective, the interstate comp act process needs to be improved, so that past mistakes are not repeated. How can the negotiation process be revised to decrease further tension between states, and end in a successful interstate resolution? Past Interstate Compact Mistakes The tri state battle over the ACF River Basin is without a doubt complicated. It involves three states, multiple private businesses, millions of people, and several ecosystems. With so many stakeholders involved in possible interstate compact negotiations, things only g et more tangled. Steven Leitman, author of "Apalachicola Chattahoochee Flint River Basin: Tri State Negotiations of a Water Allocation Formula," believes that the attempted compact failed because "the limited level of communication 142 Joe Tanner, interview by Marilyn Payne, Atlanta, July 21, 2010. Transcript in possession of this writer.
74 and interaction among th e spheres of influence among the stakeholders." 143 There was an excess of "representatives" or people involved in the decision making process that clouded the actual compact process. With too many perspectives, and too many sides of the story, past interstat e compacts between Georgia, Florida, and Alabama were thrown off track by political tension and distracted from the overall water allocation goal. 144 According to Leitman, there were six major points of inefficiency in the past interstate compact process of the ACF negotiations. The first of these six points has to do with the involved parties making several key decisions prior to negotiations that had much larger effects on the process as a whole down the road. To begin with, representatives from Georgia, Alabama, and Florida all agreed there was no need for an outside mediator. This decision seemed positive in the beginning of the negotiations process, but as deliberations became unproductive and sidetracked by political tension between the three parties, an outside mediator could have been useful in redirecting negotiations to more productive topics. In addition, representatives from Georgia, Alabama, and Florida failed to identify specific criteria that marked an acceptable or unacceptable interstate com pact. Because of this, the negotiations process began without each state fully understanding what the others wanted out of the process as a whole. Furthermore, negotiators from all three states argued as both policy and technical negotiators. Instead of as signing either policy or technical subjects for negotiators prior to the deliberation process, all of the involved negotiators blended together. This created confusion throughout the three states' teams because no one could tell who was arguing what point. Finally, instead of planning out proposals between states prior to any kind of 143 Leit man, 78. 144 Ibid, 79.
75 negotiations began, the three disputing states sent lengthy, detailed proposals amongst each other. It would have been more effective and more productive to focus on each indiv idual point separately, rather than tackling the tri state river basin dispute as a whole at one time. As apparent from the examples listed above, the three states failed to effectively plan the negotiations process. Prior to the start of deliberations, Al abama, Georgia, and Florida made crucial decisions that set the negotiations process up for failure. A lack of planning and lack of communication created a scene of confusion and disorganization and set the tone for the negotiations process to follow. 145 The second point of contention that eventually contributed to the failure of the interstate compact was the inconsistency in mediators. In November, 2000, when the three states were having difficulty making any progress in negotiations, an outside mediato r was appointed to redirect rising political tension to more productive and successful negotiations. Although helpful in "keeping the peace" between the three states during meetings, the use of an outside mediator became more time intensive. The newly appo inted mediator had missed years of negotiation meetings thus far. There was a need for playing catch up and making sure that everyone was on the same page. Although rehashing previously discussed details was helpful in updating the outside mediator, it cre ated frustration for the involved states because it further highlighted points of contention between them. Instead of exploring how to improve the process and make steps forwards, the rehashing of past negotiation points ended with parties arguing for days over things they did no agree on. 146 145 Ibid, 80 81. 146 Ibid.
76 In the ACF negotiations, the primary negotiators for each side changed several times over the course of the negotiations. This caused discontinuity in the negotiations process, due to new negotiators needing to get caug ht up when the power shifted. In addition, the governors of Alabama and Georgia changed in 2002, which not only led to new political powers leading both states, but also had enormous effects on the ACF negotiations. Alabama, in particular, experienced majo r revamping on their negotiations team under the new governor. Alabama's new governor chose several new negotiators with more law background than past negotiators which shifted the major focus of the state's team as a whole. With new representation came ne w ideas, positions, and demands. In addition, when Florida changed governors, they also switched their proposals demands. Instead of focusing on demand limitations for upstream users as they had with the previous governor, the state of Florida concentrated on minimum flow guarantees at the border of the state and the beginning of the Apalachicola River. 147 Unfortunately not all downstream users were notified of Florida's change, and many private groups, in both southern Georgia and the Florida panhandle, were disappointed in the sudden modification that affected all parties downstream of Atlanta. This situation only furthered the already tense negotiation process. 148 The third point of inefficiency in the interstate compact process was the lack of specific cri teria being established before the negotiation process began. For example, the three states did not establish definitions for basic terms used throughout the negotiations, such as "water shortage" and "drought." Each party used their own definitions for wh at a water shortage meant in actual numbers, rather than having a single constant definition 147 Ibid, 79. 148 Ibid.
77 used throughout the process. Leitman writes, "They [Georgia, Alabama, and Florida] wound up debating the acceptability of technical details without agreeing what t hese details were intended to accomplish." 149 Without establishing criteria before the start of the negotiation process, the three states set themselves up for failure. This environment was not conducive to achieving an agreement between the parties, and eve ntually led to the demise of any interstate compact prospect. In addition to failing to define crucial terms prior to the beginning of the negotiations, the fourth point of inefficiency in the negotiations was that the parties attempted to tackle the all ocation process as a whole, rather than focus on individual points of deliberation one by one. By looking at the issues altogether, Georgia, Alabama, and Florida created an overwhelming situation filled with contentious issues. They should have pre establi shed the issues they disagreed on, and worked from a common ground on each point. Failing to do so made the negotiations far more complex and increasingly frustrating for each stakeholder. It became difficult for stakeholders to understand each state's pos ition because the issues begin to fuse together, rather than stand out separately. It was therefore easier for negotiators to avoid more difficult decisions and avoid being accountable for their work. 150 Those who were involved became so confused as to what was being argued on each side, that accountability and organization became secondary points to the rising political tension between Georgia, Alabama, and Florida. Along with the break down of the negotiation process, the fifth major point of inefficiency with the ACF River Basin interstate compact process stemmed from the constant delaying of deadlines for certain aspects of the decisions until they no longer 149 Ibid, 81. 150 Ibid.
78 existed. When difficult decisions needed to be made, negotiators chose to extend deadlines, proba bly because they were so overwhelmed with the complexity of the negotiations process. This negatively impacted the deliberation process as a whole because it resulted in a failure to reach conclusions on crucial points in the water allocation dispute. In a ddition, it failed to move the negotiation forward, and instead, perpetuated the static nature of the process. These extensions did not serve any purpose for the negotiation process except that they forced the negotiations to continue, costing more time an d money for the three states, and all of the parties involved. The sixth and final point that led to a failed interstate compact is the issue of negotiators taking both policy and technical roles when they were unqualified to do so. 151 Although negotiating teams were made up of mainly technical and policy experts in the beginning, they shifted throughout the process, and were made mostly of lawyers by 2000. This change in experts created a system where negotiators were forced to make decisions on issues the y had only a cursory understanding, and led to a brewing distrust in the negotiators' ability to accurately and effectively do their jobs. Instead, negotiators should have defined policy boundaries prior to the beginning of the process itself and let the t echnical experts work separately on the details. For example, defining what a "drought" meant in relation to flow levels of the ACF River Basin was a constant issue. Prior to negotiations, the three states should have agreed on a definition of drought so i t would not slow them down further down the process. Then they could have let the water expects work out the details on how exactly to deal with drought along the river basin in relation to human water consumption levels and environmental protection. These types of 151 Ibid.
79 issues are best suited for technical experts to figure out, rather than lawyers and legal experts. However, because there was an inaccurate distribution of knowledge and understanding among each of the negotiation parties, it eventually impacted their abilities to accurately express each state's needs for the negotiating process. 152 Overall, the attempted tri state negotiations failed due to poor planning, a multitude of inconsistencies and changes, and the refusal of the involved parties to tak e responsibility for their own roles in the water dispute. Lawyers, engineers, policy experts, and scientists all contributed to negotiation teams from all three states. Each professional came from a different background and different perspective. This onl y further complicated the tangled web of information surrounding the ACF River Basin dispute. In addition, the involved parties lacked the willingness to work together through their differences towards a common compact. The ACF River Basin interstate compa cts failed largely due to the lack of trust among negotiation teams, and the lack of an efficient process to deliberate the water allocation effectively. 153 Because the ACF negotiations began on such a wrong foot, the negotiations continued to go downhill fr om that point forward. Perhaps if the negotiations had begun from an organized, clear point, we would not have the costly, urgent water war we have today. Improving the Interstate Compact Process Although the case can be made against using the intersta te compact method to resolve the tri state battle over the ACF River Basin, it remains the overall best possible process by which a solution can be reached. It is clear that past issues have had more to do with inefficiencies of the process than the inters tate compact avenue itself. In order for 152 Ibid. 153 Ibid.
80 the interstate compact method to be effective in the ACF River Basin dispute, the process as a whole needs to be reinvented to combat the possible inefficiencies that arose in the past between Georgia, Florida, and Alabama. 154 To be helpful, the interstate compact must be used in an organized, clear manner with each party recognizing the importance of pre established guidelines and definitions. To be successful, each party should organize its negotiating teams based on criteria, process, and deadlines for the negotiations. By working out these specifics prior to the start of the negotiation process, political differences have a better chance of being minimized. Furthermore, choosing knowledgeable, experienced represen tatives from each state for the negotiations is a critical part of successful future ACF River Basin interstate compacts. These chosen experts have a large responsibility in the deliberation process as a whole, as well as the representation of each state's needs. Negotiators should be made up of a variety of technical, legal, environmental, political, and water experts. They should each be able to contribute different ideas and accurately represent the needs and desires of both the public and private partie s involved. Although expert and stakeholder involvement is at the foundation of difficulties with past interstate compacts, this thesis merely acknowledges them as part of the points of contention, rather than attempt to resolve them. Conclusion This c hapter examined the three available political avenues with which water allocation disputes, and resource disputes in general, can be resolved. It concluded that, although congressional and judicial apportionment are available, they lack the 154 Ibid, 88.
81 deliberation pr ocess and direct stakeholder involvement that makes the interstate compact method superior. Furthermore, Congress and the Supreme Court prefer to stay out of interstate water disputes altogether. Congressional apportionment and judicial apportionment are o ften costly processes that lack the technical expertise necessary to rule on the tri state battle over the ACF River Basin An interstate compact between disputing states, however, is considered more financial and time sensitive. The interstate compact is the best option because it directly involves the disputing parties and keeps Congress and the Supreme Court out of the issue altogether. After establishing the interstate compact method as the most promising of the three political options available, this chapter examined past mistakes surrounding attempted interstate compacts. It concluded that the process by which Georgia, Alabama, and Florida attempted to reach an agreement was inefficient, rather than the method of an interstate compact itself. In orde r to reach a future resolution through the interstate compact method, major alterations need to take place in the way the negotiation process is handled. More organization, consistency, and thoughtful planning will allow for a more successful, timely outco me in future interstate compact attempts. In conclusion, although the tri state battle over the ACF River Basin and its resources is complex to say the least, there is hope for a future resolution through a revised, improved interstate compact negotiation process.
82 Conclusion The New Oil? Susan Mark writes, "Water is the new oil a precious and diminishing natural resource, one ultimately far more important and far less replaceable." 155 All over the world populations and the demand for water are rapidl y increasing while the supply of fresh, potable water diminishes. Water is responsible for life on Earth, but is also closely tied to economic prosperity, environmental health, and as a result, politics. Consequently, water disputes, like the tri state bat tle over the Apalachicola Chattahoochee Flint River Basin, are becoming more common and more pressing. In order to handle the future heightened water crisis, several lessons as to how these disputes can be resolved can be taken from the battle over the ACF River Basin. To begin with, the most important aspect of water dispute resolutions is the involvement of the quarreling parties themselves in the decision making process. As discussed in chapter three, the benefits to using an interstate compact method for such water disputes are unparalleled to those of congressional and judicial apportionment. Secondly, water laws and water rights in the United States must be clarified and revised for modern needs and relevance. As shown in chapter one and two, many wa ter laws followed today are inapplicable to present conflicts, contradictory with one another, or ambiguous at best. There is a clear need for a revised system, including laws, rights, and processes, by which water disputes seek resolution. 155 Susan Marks, Aqua Shock: The Water Crisis in America (New York: Bloomberg Press, 2009) 1.
83 Perhaps the most significant take home point of the ACF River Basin dispute is what not to do with a water conflict. After numerous failed compact attempts, dozens of court cases, countless judges, lawyers, and experts, millions of dollars, and almost fifty years, the water dispute remains unanswered with little progress made towards a resolution. In the mean time, Atlanta's population, as well as Alabama and Florida's, continues to grow, in addition to the increasing commonality of droughts, which further complicates the water allocation concern. Most recently, Atlanta is in danger of losing its access to the federal Lake Lanier reservoir, and the ACF River Basin. Federal Judge Magnuson ruled that if a compact between the three states is not reach by July 2013, Atlanta 's withdrawals from the Lake Lanier reservoir would go back to its withdrawals in the 1970s. Per Georgia's request, however, the federal court of appeals is currently in the process of deliberating the possibility of overturning Judge Magnuson's ruling. If the ruling is overturned, it may be a victory for Georgia, but it would only be temporary fix. This water dispute will only get more critical the more time passes. The only thing that is clear is that Georgia, Alabama, and Florida all agree a resolution i s essential at this point.
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