This article appears in the October 2022 issue of The American Prospect magazine. Subscribe here.
Easterners watch the Western megadrought, the worst on the North American continent since the Middle Ages, with something approaching grim relief. Receding lakes and reservoirs, galloping wildfires, and extreme daytime heat that nightfall fails to cool down are slowly forcing tens of millions of Westerners to come to terms with how their 21st-century lifestyles are wildly out of sync with extreme water scarcity in desert habitats.
In the wet, humid lands of the Southeast beyond the Continental Divide, the perils of drought are out of mind for now. As extreme heat surged into the West, Northwest Georgia saw torrential rainfall and flash floods. Summer rains, sudden apocalyptic downpours, and a slow start to the hurricane season make it easy to take water for granted.
But the Southeast can dry up too. The megadrought should be a heads-up for a water-rich region that is occasionally prone to short, intense dry spells that can wreak havoc. Nearly two decades ago, a historic drought followed by a second severe dry period compromised the Apalachicola-Chattahoochee-Flint (ACF) River Basin that supplies water to dozens of Georgia counties, plus areas of Alabama and the Florida Panhandle. The depleted water sources forced state officials to balance the demands of their municipal, agriculture, energy, navigation, and fisheries users.
When dealing with water that flows through several states, one state’s internal logic can have little to do with its neighbors. Drought has been a major, if underappreciated, factor in the decades of lawsuits that became known in the Southeast as the “tristate water wars.”
Americans have feuded over water since the days when English common law was the law of the land. But as the planet heats up, legal wrangling threatens to clog up court dockets. Water allocation in the ACF Basin has produced an encyclopedic amount of litigation ever since Alabama first sued the Army Corps of Engineers, which manages water flows in the basin’s reservoirs, more than three decades ago.
The most notable recent case moved forward in 2013. Arguing that excessive water use by metro Atlanta and South Georgia agriculture had reduced water flows to the Apalachicola River and caused the massive die-off of its very lucrative oysters, then–Florida Gov. Rick Scott (R) went straight to the Supreme Court, in what turned out to be a nearly decade-long losing battle. Florida v. Georgia, one of the few recent interstate water disputes to reach the Supreme Court, looked at the impacts of Georgia’s upstream water allocations on downstream river and bay waters flows into Florida.
Last year, Florida suffered a resounding 9-0 defeat on the narrow ecological questions after failing to prove that excessive water consumption by Georgia had killed off the Apalachicola Bay oysters. The ruling outlined a confluence of factors that did the deed, even backed up by some of Florida’s own data—multiple seasons of drought, saltier water, more predators, shifting rainfall patterns, Army Corps of Engineers operations, and oyster overharvesting. Out of options, Florida closed the bay in 2020.
Outside the West, the Southeast risks the greatest overall climate impacts and periods of drought.
Using concrete, limestone, and recycled oyster shells to create “oyster reefs,” Florida is working to re-establish the oyster populations in Apalachicola Bay through several projects, including a $20 million effort. Yet after two years, there are only the faintest signs of progress. Chad Hanson, a Pew Charitable Trusts science and policy analyst, monitors the work and connects with the people who used to harvest the shellfish. “Some of the fishermen will say the bay essentially closed itself,” he explains. The bay is scheduled to reopen to harvesting in 2025.
But with all the media hype on the metro Atlanta vs. oysters battle, one could be forgiven for losing the thread in Florida v. Georgia. The case demonstrated that the inability of the states to collaborate on solutions to regional water allocations could drag them all down. Florida discovered the hard way that litigating issues as complex as water flows, reservoir releases, irrigation metering, and species preservation is a long, inconclusive slog. Georgia avoided having the high court decide how river waters should be shared.
Back East, the general public is more attuned to the consequences of excessive rainfall—flooding—than to drought’s effects on crops and drinking water sources. Only when farmers hold up shriveled-up husks of corn for the TV cameras and water restrictions begin does the realization sink in that these hazards are not unique to the West.
States have options for interstate coordination on water scarcity and drought. They can negotiate formal compacts that require signatories to outline how water resources will be allocated, and the steps that will be taken when disputes arise. Or they can set up more complex frameworks, which offer a comprehensive suite of tools to handle everything from data collection to planning and management to dispute resolution. Or they can gamble and set up informal ties during emergencies, as some Northeastern states did during the first year of the COVID pandemic.
The East has yet to meet a drought that it cannot manage, but regional climates are too unpredictable to rely on the way things used to be. “You have to have that plan before it happens, right? And that’s where we’ve been stuck for decades and why we’ve seen lawsuit after lawsuit after lawsuit, because we’ve not come up with an equitable plan for the sharing of the water,” says Georgia Ackerman, executive director of Apalachicola Riverkeeper, a regional environmental advocacy group. “The Apalachicola River is at the end of that system, and so we take the hardest hit during times of drought.”
THE APALACHICOLA RIVER IS THE DOWNSTREAM WATERWAY in a basin system that spreads over some 20,000 square miles, and provides water for nearly seven million people. In North Georgia, the Flint and the Chattahoochee Rivers flow from metro Atlanta and run parallel south through Columbus, the state’s second-largest city, and on to smaller towns and farms until they merge into Lake Seminole. The Apalachicola River emerges on the other side of the lake, along the Georgia-Florida border, and drains into the Gulf of Mexico.
Built and maintained by the Army Corps of Engineers, Lake Lanier sits at the top of the ACF Basin on the Chattahoochee River, 50 miles north of Atlanta. It is the primary water source for the city and the still-growing suburban communities that encircle the ninth-largest metro area in the country. About two-thirds of the area’s water comes from Lake Lanier; the rest comes from either Allatoona Lake, another Army Corps reservoir, or smaller reservoirs built by local communities. For the past decade, the city has made significant strides in reducing water use: When all residential, commercial, and industrial uses are considered, per capita water usage is about 100 gallons per day in metro Atlanta.
The media story line that pitted metro Atlanta residents against the oyster fishermen of Apalachicola is “a caricature,” says Robin Craig of the University of Southern California’s Gould School of Law. The agriculture sector is the biggest user of water in the basin. Producing roughly $2 billion in crops annually, Southwest Georgia farmers rely heavily on the Flint River. The Chattahoochee also provides water for power generators and other municipal and industrial users.
Franklin County, in the Florida Panhandle, is the site of one of the fiercest, longest interstate water fights. Ackerman regularly hears lines like “we can share the water and work this out” from her metro Atlanta members, and from visitors who travel to take in the pristine bays, riverways, and beaches of one of the world’s richest ecosystems. But governors are not as magnanimous as tourists on sharing fresh water, particularly when most of the basin’s downstream stakeholders are at the mercy of upstream activities and environmental impacts.
“See you in court” could be the motto for the three ACF states as they jockey for the upper hand on the basin’s water policymaking. The Army Corps is the major target. The Corps oversees five federal reservoirs in the ACF Basin and controls the basin’s water flows in the system. There are currently five active lawsuits against the Corps. Overall, Florida and Alabama believe that the Army Corps unfairly prioritizes North Georgia’s supply needs and fails to provide them with enough water for their downstream demands.
In 1990, Alabama filed multiple lawsuits against water allocations for Atlanta that the state asserted were having adverse impacts on downstream communities and environments. A 2000 Georgia lawsuit to obtain more water failed, and interstate arrangements also sputtered, stalled, and petered out. More lawsuits and orders churned through the courts until the Supreme Court decided in 2012 that Atlanta could secure more water, setting the stage for Florida’s Supreme Court gambit.
But the 2006-2008 drought compromised the basin’s water resources. There were only five hurricanes in 2006 (compared to the previous year’s 15); it was the third-driest year on record for both Florida and Georgia. The agricultural sector buckled under the extreme aridity, with more than a billion dollars in losses. A nuclear power plant shut down and water restrictions took over, particularly in northern Georgia.
The two-year drought, the worst in the region’s history, coincided with metro Atlanta’s population boom. In 2010, Georgia embarked on a residential and municipal water conservation and management program that sharply curtailed usage. The state legislature passed a Water Stewardship Act that mandated water conservation measures; revised plumbing codes for toilets, urinals, showerheads, and other fixtures; and required water suppliers and water utilities to perform water loss audits. Metro Atlanta’s water usage has dropped substantially while agricultural permitting and metering programs helmed the conservation programs in southern Georgia.
Georgia considers its 2021 high court win as vindication for its water conservation strategies, while Florida has one of the country’s most well-regarded water management systems to oversee water supply and quality. But Alabama dropped the baton. During the drought, the legislature went all in on water management studies, a precursor to a water management framework championed by former Gov. Robert Bentley.
But Bentley resigned after a sex scandal in 2017, and his successor Kay Ivey abandoned the plan and began conducting “periodic summaries of water use and availability” in 2019. “We have momentum around water planning and water management when we have droughts,” says Cindy Lowry, executive director of Alabama Rivers Alliance, an environmental advocacy group. “[But] the influencers over [the governor] are those large entities that use a lot of water and that don’t want more regulation.”
Alabama excels on the science—for example, investigating how much water the state has in the watersheds within its own borders. But it lags on water management planning. Instead of permits, the state relies on “certificates of use” that simply recognize that a user is using water. Such a deregulated system is no small matter in the courts, where interstate water allotment decision-making unfolds in data-driven environments, and puts Alabama at a distinct disadvantage.
JOHN BAZEMORE/AP PHOTO
Lake Lanier, northeast of Atlanta, Georgia
OUTSIDE THE WEST, THE SOUTHEAST RISKS the greatest overall climate impacts and periods of drought. The spring of 2022 saw abnormally dry conditions in South Georgia; some areas did not see rain for six weeks. Georgia has experienced five consecutive years of warming from 2016 to 2020 (2016, 2017, and 2019 were the hottest years on record), following the droughts of the 2000s and the early teens. Florida’s two-degree increase in temperature since the beginning of the 20th century, compared to Georgia’s 0.8 over the same period, puts the Sunshine State on a path to more severe droughts. Unlike Georgia and Florida, Alabama is one of the few places in the world to experience no new net warming in the last century; but sea level rise has increased faster in the state than in the rest of the world.
The National Oceanic and Atmospheric Administration warns of “increase[d] competition for limited water resources, such as the Apalachicola–Chattahoochee–Flint River basin, which currently supports large population centers in multiple states.” Competition between states without a venue to sort out disputes before they escalate effectively translates into “see you in court.”
“We live in a world of roulette. Where is the water going to fall and where is it not going to fall? Who is going to get hit next?” says Jim Olson, the founder and senior legal adviser of FLOW, a national water advocacy group. “We have the science, but we don’t have the legal frameworks. The law needs to catch up to science and the reality of climate change.”
Water law in the United States rests on two very different legal schools of thought conceived long ago. The English common-law system of riparian rights that informs Eastern water law assumes that there is more than enough water for everyone and for all reasonable uses; it gives rights of water use to all landowners whose properties connect to a particular body of water. Predicated on water scarcity, Western water jurisprudence rests on the doctrine of prior appropriations. The doctrine established a “first in time, first in right” access to water. Senior rights supersede more junior ones; vested (homesteading) rights can cancel out both, while federal reserve rights (tribal, national parks and forests) are determined by date. Certain purposes, such as agriculture, can obtain ranking access when water is scarce.
The doctrine underpins the Law of the River, a body of federal statutes, compacts, and other agreements that pertain to the Colorado. A 1922 interstate compact divides the seven Interior West states into upper and lower basins in order to manage and allocate water flows from the Colorado River. The Colorado River “is very unusual,” says Erin Ryan, director of the Center for Environmental, Energy and Land Use Law at Florida State University’s College of Law. “We talk about the Law of the River because it’s the only one that really has a lot of law attached to it.”
For practically everywhere else, there is little settled law, so the Supreme Court would prefer to take as few of the highly technical interstate cases—which require special masters to analyze the finer points of water flows, sediment deposits, species harms, and the like—as possible. “For all these other states that are fighting about water, Texas and New Mexico, Kansas and Nebraska, Florida and Georgia, their only means of really answering these questions is to work it out by themselves,” says Ryan.
Interstate disputes proceed on a special pathway. Under the doctrine of original jurisdiction, states can bypass lower courts and go straight to the high court for a ruling. The rationale underpinning these original jurisdiction cases is that these disputes could lead to more serious conflicts. In the early 20th century, Missouri sought to stop Illinois from dumping sewage into waterways that ultimately emptied into the Mississippi River, near St. Louis. As Justice Oliver Wendell Holmes explained in the 1906 case Missouri v. Illinois, “the only question presented was whether, as between the states of the Union, this court was competent to deal with a situation which, if it arose between independent sovereignties, might lead to war.”
In 2021, the Roberts Court also decided Mississippi v. Tennessee. Mississippi wanted the Court to declare that Mississippi “owned” the Middle Claiborne Aquifer, and that Tennessee was, in effect, stealing its water. The Court ruled that Mississippi had no such exclusive right, and that one state could not claim exclusive access to groundwater that (like surface water) spanned several states. Mississippi must consult another water use doctrine, equitable apportionment, to guide its determination of what a fair division of the water could be. In other words, Mississippi has to share.
In 1961, President Kennedy signed the Delaware River Basin Compact, establishing the first regional commission to manage water resources.
THE DELAWARE RIVER BASIN COMMISSION got lucky. On September 8, the DRBC planned to set in motion a mid-October drought watch operation that would include a water supply emergency declaration. New Jersey, New York City and its surrounding areas, some three dozen Pennsylvania counties, and the city of Philadelphia had already asked residents to conserve water. But the commission paused the plan after a stretch of rain and a forecast of additional precipitation.
President John F. Kennedy and the governors of Delaware, New York, New Jersey, and Pennsylvania signed an agreement in 1961 creating the DRBC, the country’s first regional compact to manage freshwater resources. A 1954 Supreme Court decision compelled the state of New York and the city of New York to guarantee water allocations to meet downstream needs of New Jersey, Pennsylvania, and Delaware. When the most severe drought in its recorded history hit the Delaware Valley the following year, the DRBC took steps to reduce water allocations, and had the tools to declare a water supply emergency that allowed the commission to take over management of the major reservoirs in the basin, operating them in a coordinated fashion to conserve water.
The most striking feature of the commission? The DRBC signatories could not take disputes to the Supreme Court for 100 years. There are now 39 to go.
The ACF Stakeholders, a tristate group of agriculture, municipal, industry, environmental, and other interests, stepped into the leadership vacuum in the ACF Basin after the drought of the 2010s. In 2015, they published a sustainable water management plan for the ACF Basin that held up the DRBC as a model. Their proposal calls for a “transboundary water management institution,” an entity that would assemble good data, consult reputable planners and other experts, prioritize water drought management, and set up strong mediation components.
The DRBC can command the room, since the commission members are the four governors of the participating states (who appoint alternates) and the Army Corps’s North Atlantic Division commander. The three Southern states’ effort to chart their way out of what seems to be a near-permanent state of litigation stands to benefit the Army Corps, which needs to be at the table, for starters. As long as it is consistent with the Corps’s own mission and congressional directives, there “is a willingness from the Corps to participate in any compact that the states come to an agreement on,” explains James Hathorn Jr., the Corps’s chief of water management.
In recent years, Georgia and Alabama’s governors have been engaged in informal conversations about creating a framework to support more permanent allocations of water in the ACF Basin. But despite Republican trifecta control in all three states, there appears to be no movement beyond these kinds of preliminaries. A spokesman for Georgia Gov. Brian Kemp declined to comment, citing active litigation. An attorney for the state of Alabama declined to comment. Both states are involved in pending lawsuits against the Army Corps. (The Florida Department of Environmental Protection did not immediately respond to a request for comment.)
With water scarcity and drought at the top of the climate threat matrix, Georgia came out of the Supreme Court with a Pyrrhic victory. It has the upper hand in the uneasy status quo that remains in place on water flows and storage in the ACF Basin. But the win did not move the states any closer to the substantive agreement on water sharing that will ultimately be necessary. As control over the Apalachicola-Chattahoochee-Flint River Basin water is sure to intensify, a commission appears to be the least worst alternative to another decade of futile litigation.
