Who Gets the Hooch?: Georgia, Florida, and Alabama Battle for Water from the Apalachicola-chattahoochee-flint River Basin - C. Hansell Watt Iv

• Publication year: 2004

Comment

Who Gets the Hooch?: Georgia, Florida, and Alabama Battle for Water From the Apalachicola-Chattahoochee-Flint River Basin

During a time when technology is constantly changing and becoming more advanced, one of the constants that our planet, and all of the creatures on it, will always rely upon is fresh water. Throughout history, rivers have been the lifeblood that supports cities by providing drinking water, irrigation, transportation, trade, recreation, power, and many other industrial and domestic uses. As the human population grows, rivers and lakes are more pressured to support the growing needs of the communities and cities that rely on these bodies of water. Because many rivers in the United States flow across numerous states, problems develop when different states have different needs concerning the same river.

Typically, the western states have had more disputes concerning the usage of rivers because of the scarcity of water in the region and the vast amount of land that relies on that water. The eastern states are located in a more humid environment that receives a larger amount of rainfall; consequently, they have more fresh water at their disposal. However, as the population in the eastern states continues to grow and rivers are more strained, eastern states are beginning to encounter the same water problems as the western states.

The Chattahoochee River, locally referred to as "the Hooch," is one of the Southeast's most important water resources, providing drinking water, hydroelectric power, irrigation, waste treatment, and transportation.¹ More importantly, at least to some, the Hooch and its tributaries provide an escape for hundreds of fly fishermen. The scenic Chattahoochee begins in the mountains of north Georgia, flows through Atlanta, and moves south a distance of over 400 miles, where it joins the Flint River at the borders of Alabama and Florida.² In Florida, the river becomes the Apalachicola River and flows into the Apalachicola Bay on the Gulf of Mexico.³

The Apalachicola-Chattahoochee-Flint ("ACF") River System is a crucial resource for all three states. The rapidly expanding city of Atlanta, with a population of over four million, relies heavily on the Chattahoochee, which feeds Lake Lanier, located just north of Atlanta.⁴ Lake Lanier, which is maintained by the United States Army Corps of Engineers, provides approximately seventy percent of Atlanta's water, as well as much of its hydroelectric power.⁵ Lake Lanier is also used for recreation, bringing millions of dollars to the state each year.⁶ Additionally, Georgia is seeking the flexibility to make withdrawals based on changing conditions because the Chattahoochee provides irrigation to thousands of acres of farmland in Georgia.⁷ Unfortunately, Atlanta is located near the headwaters of the Chattahoochee, so the greatest pressure on the river is on the section with the smallest natural flow.⁸ Alabama also relies on the Chattahoochee for drinking water, irrigation, industrial use, and recreation.⁹ Although southern Alabama is not growing as rapidly as the Atlanta area, the state is impacted by and concerned with the strain that Atlanta and other Georgia cities are putting on the river.¹⁰

Florida relies heavily on the waters from the Chattahoochee to sustain the oyster beds in the nutrient-rich Apalachicola Bay.¹¹ Ninety percent of Florida's oysters, which are a $70 million industry each year, come from the Apalachicola Bay.¹² The fresh water from the ACF River Basin serves the significant role of washing nutrients from the Florida wetlands into the bay so that the salinity of the water remains at the ideal level for oyster bed cultivation.¹³ Florida also relies on the Apalachicola River to provide irrigation to the timber and pulpwood forests in the Florida panhandle.¹⁴ As a result of the increasing demands placed on the river system by all three states, each state is beginning to realize the importance of future control over, and regulation of, the ACF River Basin System.

This Comment examines the current dispute between Georgia, Florida, and Alabama over the use of water from the Chattahoochee, Flint, and Apalachicola rivers. Part one provides an overview of water rights doctrines in general and the means by which water disputes are settled. Part two focuses on the history of the ACF River System dispute. Part three examines other cases that have addressed similar issues. Part four discusses the current state and the future of the dispute.

I. Water Rights Doctrines and Methods of Conflict Resolution

A. Water Rights Disputes

Water rights disputes have traditionally been associated with states west of the Mississippi River. These states have utilized the doctrine of prior appropriation to solve such disputes.¹⁵ Under the doctrine of prior appropriation, water rights are acquired "when three requirements have been met: (1) an intent to divert water for a beneficial use, (2) an actual diversion of water, and (3) application of the water to the beneficial use intended."¹⁶ Appropriative rights are fixed in quantity and do not depend on land ownership because they are acquired and maintained by actual use.¹⁷ one of the drawbacks to prior appropriation is that when there is a conflict over water use, whoever has the senior claim to the rights will prevail.¹⁸ Under this rule of priority, seniority, rather than the need for or reasonable use of the water, controls water use in such a system.¹⁹ However, water rights may be bought and sold under this system; so, theoretically, water rights may be put to the most economically efficient use.²⁰

The eastern states, on the other hand, settled water disputes by using a strict system of allocation because of the historically abundant rainfall in the region. Instead, the eastern states have traditionally used a riparian system of water rights.²¹ Under this doctrine, the owner of land contiguous to a river is entitled to a flow of the river that is undiminished in quantity and unpolluted in quality.²² The "eastern" doctrine is composed of two sub-doctrines: (a) the natural flow sub-doctrine and (b) the reasonable use sub-doctrine. Under the "natural flow" sub-doctrine, a landowner who has land adjacent to a river is entitled to an undiminished flow of water, both in quantity and quality.²³ The more widely used system in the eastern United States, however, is the "reasonable use" sub-doctrine. Under this system, riparian landowners may reasonably use the water running adjacent to their land as long as the rights of other (upper and lower) landowners on the same natural watercourse are not adversely affected.²⁴ Also, downstream landowners have the right to a continuous flow of unpolluted water.²⁵ In addition to the fact that riparian rights originate from land ownership and remain vested even if they are not exercised,

[o]ne of the significant features of a riparian system is its relative self-governance. Riparian systems generally require very little control from a centralized authority. While this system keeps cost and regulation to a minimum, the resulting riparian rights are very generalized, increasing uncertainty and creating enforcement problems. Also problematic is an imprecise definition of the term "reasonable use." These shortcomings often force riparians to look to the courts — the most inefficient and costly method possible — for dispute resolution and clarification of rights.²⁶

Pure riparianism assumes that there is enough water to accommodate the needs of everyone; however, as the population grows, pressuring the rivers more, the water supply in the East is quickly becoming limited.²⁷ As a result, eastern states have begun to use a hybrid system that combines the prior appropriations system and the riparian rights system. For example, in Georgia, riparianism is regulated by requiring a permit for the withdrawal, diversion, or impoundment of more than 100,000 gallons per day on a monthly average.²⁸ Florida uses a hybrid system that focuses on a "'reasonable beneficial use' standard of water rights allocation."²⁹ In Florida those applying for a water-use permit must show that their proposed use is reasonably beneficial, not harmful to other riparian users, and consistent with the public interest.³⁰

B. Methods of Conflict Resolution

Three ways exist to solve interstate disputes over water rights: (1) legislative apportionment, (2) judicial apportionment, and (3) interstate compacts. Although Congress has the power under the Commerce Clause³¹ to apportion interstate waters, legislative apportionment is used sparingly due to "politics, limited information, and lack of interest."³² The issues surrounding a water rights dispute are highly technical, requiring more specialized knowledge than can be gained from a few speeches and hearings.³³

The second way to solve an interstate water dispute, judicial apportionment, is utilized more often than legislative apportionment but has similar drawbacks. one of the major drawbacks is that courts are not able to handle the large quantity of technical information introduced into evidence.³⁴ Because courts lack the resources and expertise to evaluate most interstate water rights disputes, a Special Master is usually assigned "to hear evidence, preside over hearings, report findings, and recommend a solution."³⁵ Another drawback to judicial apportionment is the exorbitant cost of litigation.³⁶ In addition to the time spent litigating, collecting the technical data necessary to litigate a water-rights dispute can be extremely expensive.³⁷ The final, major drawback to judicial apportionment is enforcement; courts are unable to follow-up on the resolution of the conflict to be certain the parties are complying, because policing the water withdrawals of each state is prohibitively difficult and expensive.³⁸ As a result, parties have an incentive to stretch the rules. Furthermore, because further litigation is the only way to address a breach...