It takes more than good intentions to transform the South. It takes money.
What the hell is a Scalawag?
This story was published in partnership with Southerly for our Powerlines series, which looks at climate change, justice, and infrastructure in the American South. The series is supported by the Temple Hoyne Buell Center for the Study of American Architecture at Columbia University, and is part of their POWER project.
Casey Cox says the Flint River is part of her soul.
A sixth-generation farmer in southwest Georgia, Cox was told as much by her father, who probably heard the same from the generations preceding him. A 28-year-old University of Florida graduate, Cox hopes to continue her family's tradition by growing the farm's production of peanuts, sweet corn, soybeans, timber, and other staple crops.
But farmers in Georgia have passed down another story — one that's been around longer than Cox has been alive and she says threatens her future as a farmer. For 30 years, Georgia and Florida have been entangled in legal battles over water rights in the Apalachicola Chattahoochee Flint (ACF) river basin. The Chattahoochee River winds through Georgia before joining the Flint River near the Florida state line, and Florida argues its seafood industry — a critical part of its economy — has been crippled by the lack of water coming through the river basin to the coast, largely because of Georgia farmers' irrigation practices. Florida sued Georgia in order to get it to cap its water use, but Georgia argues such limits would destroy its agricultural economy.
Cox's farm borders the Flint River, and she's concerned regulations on top of challenges she already faces. "Tariffs imposed by the trade war coupled with harvest-time destruction from Hurricane Michael have placed seemingly insurmountable obstacles in our path," Cox said. "Any additional regulations or restrictions on our most necessary resource will only push us further over the edge."
But over the state line in Florida, where water from the Flint, Chattahoochee, and Apalachicola rivers flows into Apalachicola Bay and the Gulf of Mexico, the fate Cox fears — a lack of steady fresh water flow — is already a reality for many people. Shannon Hartsfield, the president of the Franklin County Seafood Workers Association, says fresh water diversions from rivers that feed the Gulf of Mexico have hurt the state's oyster industry.
The Chattahoochee River winds through Georgia before joining the Flint River near the Florida state line, and Florida argues its seafood industry — a critical part of its economy — has been crippled by the lack of water coming through the river basin to the coast, largely because of Georgia farmers' irrigation practices.
"If there's no cap put on Georgia's withdrawals we won't have anything in our bay anymore," said Hartsfield. "There are so many local people who have had to move. Tourism lasts six months of the year, and then the rest is the seafood industry. There's no jobs here for people anymore."
Georgia is involved in three major lawsuits that allege the state overuses water, and this one is finally creeping toward a conclusion. This year, it will be reviewed and potentially head back to the Supreme Court for the second time. While Cox and Hartsfield are on opposite sides, they're both in the middle of what could be a precedent-setting water lawsuit in the Southern U.S., an issue becoming more complicated because of climate change effects like stronger storms, drought, and heat waves; politics over water regulation; and the consequences of human engineering of waterways.
Despite dozens of attempts at reconciliation over the years by politicians, judges, environmental, and community groups, the case has not yet gotten close to a solution. Attorneys who have worked the case predict it will be contentious until the end.
"The players that I worked with approached this like it was an SEC football game," said George Sherk, a water resource attorney who worked for Georgia on the case in the 1990s. "'We're gonna win at all costs.'"
It started with a dam.
In the 1950s, the Army Corps of Engineers built the Buford Dam across the Chattahoochee River roughly 30 miles north of Atlanta, in an attempt to regulate the natural flood-drought cycle. It created Lake Sidney Lanier, and Georgia cities and counties, especially Atlanta, quickly took advantage of it for drinking water, sewage, irrigation, electricity, and recreation.
The sprawling capital city relies on the lake for its water supply. As a way to mitigate drought, the Army Corps of Engineers recommended in 1989 to divert 20% of Lake Lanier's water storage to the city — water that would have otherwise trickled down south. Both Alabama and Florida filed suit against the agency, arguing their water rights would be violated if more flows stayed in Georgia. Alabama has always been concerned that Atlanta's water use limits its water for power generation and fisheries, and the state is currently fighting with Georgia over another major river basin in Alabama and Georgia.
"Congress wasn't going to let Atlanta go without a secure water supply," said Robert Abrams, a law professor at Florida Agricultural and Mechanical University. He said cities return 90% of the water they divert through sewers, drains, and sanitation systems, so instead of trying to make a case against Atlanta, Florida lawyers focused on Georgia's irrigation techniques, which Abrams says is now the state's only chance to convince the courts to instate a water cap. Water for agricultural uses is returned to the environment at only about 50%, meaning less for those downstream.
"If there's no cap put on Georgia's withdrawals we won't have anything in our bay anymore," said Hartsfield.
Over the last two decades, there have been multiple failed attempts at reconciliation, including a 2009 federal court ruling that would have cut Atlanta's water supply in half; it was later overturned. In 2013, Florida asked the Supreme Court for permission to sue Georgia over the river basin, essentially asking to divide water between the two state, which is the case currently under review. There have been mediation efforts over the years, including several agreements in the 1990s between the two states and a 2006 operations plan from the Army Corps, but no official changes. Former Georgia Gov. Nathan Deal told reporters in 2018 the failure to resolve the water wars was one of his biggest regrets upon leaving office.
One of Florida's chief concerns has always been the health of the Apalachicola Bay, a mainstay of its oyster industry. The state says Georgia's irrigation use has disrupted freshwater flows in the river basin, upsetting the delicate salinity balance oysters need to survive and harming the state's seafood industry. Some officials have stated that it started collapsing in 2012, partially because of Georgia's overuse of water. According to state data, one oyster reef went from boasting 430 oysters per square meter to 64. In 2013, the federal secretary of commerce declared a fishery disaster for oysters in the bay.
"There's no industry now," said Hartsfield, the seafood industry organization president. "In 2009 there were probably 200 vessels out there on a regular basis. Today, there's like two."
The state's lawyers further argue Georgia farmers are illegally irrigating some 90,000 acres of farmland without the state's permission. But Georgia lawyers say farmers aren't at fault for the health of Florida's oyster industry, which was hurt by the 2010 Deepwater Horizon oil spill. They claim a cap on water would cause $18 billion in negative economic impact.
The areas impacted most by the water rights case are among the poorest in each state. According to the U.S. Census Bureau, about 21% of Franklin County, Florida's population lives below the poverty line — much higher than the state average. In Mitchell County, Georgia, where Casey Cox lives, over 27% of the population falls below the poverty line.
This longstanding fight has drawn in other parties throughout the Southern U.S. that share connected waterways. Worried about how much water reaches its borders, Alabama has sided with Florida, as have, at times, some southern Georgia cities like Columbus. Alabama sued the Army Corps in 2015 to block its management plan for the Alabama-Coosa-Tallapoosa basin, alleging Georgia retains too much water in Georgia's Lake Allatoona and the agency didn't address its environmental concerns.
Georgia is still seeking other sources of water: the state recently restarted a disagreement over its border with Tennessee, alleging it was inaccurately drawn in 1818 and should be moved slightly north. The redrawn state line would bring access to Lake Nickajack within Georgia's reach — and with it, a billion gallons of water per day from the Tennessee River. Georgia Governor Brian Kemp vetoed a bill seeking to redraw the border earlier this year.
Over the last two decades, there have been multiple failed attempts at reconciliation, including a 2009 federal court ruling that would have cut Atlanta's water supply in half; it was overturned.
In 2018, the U.S. Supreme Court sent the Florida-Georgia case back to a special master, who reviews the case, and both states' lawyers will make oral arguments on Nov. 7 in New Mexico. Last year, associate justice and Georgia native Clarence Thomas noted the case spanned some 7.2 million pages of legal documents. Florida and Georgia combined have spent well over $100 million litigating since 2014, and according to the Atlanta Journal-Constitution, Georgia keeps 70 attorneys on retainer for the case.
This is far from the first time states have sued each other over water rights, and it won't be the last. Kansas and Colorado fought in court about whether Colorado was taking too much water from the Arkansas River for more than a century, with seven Supreme Court rulings between 1902 and 2009. The final ruling was in Colorado's favor, but created a compact where computer models would be used to determine how much water Kansas gets, to prevent further problems. For 13 years, Mississippi has been in a lawsuit against Memphis, Tennessee, alleging the city is unlawfully pumping water from the Mississippi side of an aquifer.
But the regulation of rivers, waterways, and aquifers are complicated: state and federal agencies both manage them. In the case of the Florida and Georgia, the Army Corps — which operates the dams that control water flow along the Chattahoochee — is also in the middle of the conflict. What complicates it further, said Michael Hanemann, a resource economics professor at the University of California Berkeley, is that it's difficult to put a value and price on water.
"Water is a highly controversial commodity," he said. "There's no human life without access to water. There's no agriculture. There's no industrial economy. People are concerned about equity and fairness in the provision of water to a degree that's very different than how they feel about wine, bread, milk, or clothing."
Calvin Perry, a public service assistant with the University of Georgia Cooperative Extension, coaches farmers around the state nearly every day on the latest irrigation tactics, like methods to better schedule when farmers irrigate using sensors and smartphone apps to help them know when and how much water they'll need. In 2012, Georgia stopped accepting applications for new permits in the ACF basin because of pressure from the lawsuits. Two years later, legislation passed mandating that all center pivot irrigation systems, a common method of crop irrigation, achieve 80% efficiency by 2020.
"The case is always in the back of the mind every time a Georgia farmer turns on their irrigation system," Perry said, adding that the previous special master put in "pretty stark words that Georgia really needs to look at its water use and do the best job it can."
Perry is trying to help farmers improve irrigation habits without more regulation. New technology allows greater control over water flows and can reduce usage by up to 15% on average — but it's expensive, between $5,000 and $30,000 per pivot, and some farms need 100 or more. The equipment is also susceptible to weather-related damage; many were damaged during Hurricane Michael last year.
In 2012, because of the need for limits on water use, Georgia stopped accepting applications for new permits in the ACF basin. Two years later, legislation passed mandating that all center pivot irrigation systems, a common method of crop irrigation, achieve 80% efficiency by 2020.
"Common sense says we're under pressure and we better do a good job, and I think our growers understand that," Perry said. "They're not under regulatory pressure at the moment saying, 'Farmer A has XX water to use,' and I hope we never come to that. But farmers out West face it, so who knows what the future holds."
That becomes more difficult with a changing climate. Both Georgia and Florida, along with the rest of the Southern U.S., are seeing more frequent, extreme weather, more rainfall, and record high temperatures. Amid efforts to reduce their water usage, many Georgia farmers are struggling to recover from Hurricane Michael, which hurt crop yields and caused some to lose an entire harvest. The storm left more than $1.3 billion worth of agricultural damage in the Southeast.
Cox's family's 2,400-acre farm and countless others like it were hit hard, and she said promised federal disaster relief money has been slow in coming. Her property suffered structural damage, including the loss of the farm's office, a $100,000 irrigation system, and trees they could otherwise have harvested. She and her family gave fallen wood to anyone who would take it, just to clear it from the ground.
"Seeing a beautiful, 60-year-old pine tree snapped in half and sold for $1 a ton," Cox said, "it's heartbreaking."
Experts say more complex cases like this will appear as the climate changes and brings more frequent and extreme storms, droughts, and rainfall. According to a 2014 study of climate change impacts from the U.S. Global Change Research Program, by 2050 much of the U.S. could suffer water sustainability issues. Researchers predict much of Georgia and most of Florida will face either high or extreme drought risk levels if greenhouse gas emissions aren't reduced.
"Even after the decision from the court, Georgia and Florida will remain neighbors," [Wechsler] said. "They share this resource. Whatever the court decides about what's a fair amount for each state, the states will continue to share that water."
When the Supreme Court took up the case last year, associate justice Ruth Bader Ginsburg asked if everyone could "agree that a cap [on Georgia water use] at the very least would prevent the situation in Florida from getting worse." But many lawyers and other officials say that while Florida has a solid case, Georgia will likely win. Santa Fe, N.M.-based attorney Jeffrey J. Wechsler, who attended the Supreme Court hearing last year, has worked on five other interstate water disputes and says Florida faces a major hurdle in proving the need for a cap.
Still, the results won't change geography. "Even after the decision from the court, Georgia and Florida will remain neighbors," Wechsler said. "They share this resource. Whatever the court decides about what's a fair amount for each state, the states will continue to share that water."