On Florida's 'Forgotten Coast,' a Supreme Court fight over fresh water

James Creamer, right, and Victor Causey tong oysters from the cat point oyster reef in Apalachicola Bay, Florida. Photo for The Washington Post by Mark Wallheiser
James Creamer, right, and Victor Causey tong oysters from the cat point oyster reef in Apalachicola Bay, Florida. Photo for The Washington Post by Mark Wallheiser
Published Jan. 8, 2018

Every 45 seconds or so, oystermen plunge their long-handled tongs into the shallow blue-gray waters of Apalachicola Bay, rake the bottom and deposit meager-looking piles on the bow of their flat-bottomed boat. A gloved co-worker culls the keepers from the empty shells and immature oysters, which are tossed back.

"See these guys here?" asked Shannon Hartsfield, whose family has fished and oystered and crabbed and shrimped here for four generations. He pointed to a nearby boat.

"Three tongers and one culler? Usually you'd have one tonger and two or three cullers. That's the flip-flop. Used to, that man right there'd keep two cullers busy all day long."

Apalachicola Bay, an estuary recognized by the United Nations for its uniqueness, once produced 10 percent of the nation's oysters and 90 percent of those from Florida. Why it doesn't anymore - why its oyster production has fallen so dramatically - has been the subject of decades of litigation, which now has landed before the Supreme Court.

Florida v. Georgia, which is to be argued Monday, is a water fight that pits the thirsty megalopolis of Atlanta and the farmers of southeastern Georgia against conservationists and seafood producers in this stretch of the Florida Panhandle called the Forgotten Coast. Both states need the fresh water that starts in the foothills of the Blue Ridge Mountains - as well as in a spring just south of the Atlanta airport - and meanders hundreds of miles before finding its way into the Gulf of Mexico via the Apalachicola River.

So far, Georgia has been the big winner, aided by decisions from the U.S. Army Corps of Engineers that allow it to keep the lion's share of the water.

Often in such Supreme Court fights, each state wants water for growth. But in Apalachicola, leaders say getting a greater share is necessary to allow the place to stay as it is. The fresh water provides the perfect degree of bay salinity required to sustain the seafood industry, they say, and thus a way of life.

Rural Franklin County has as much coastline as the state of Alabama but fewer than 12,000 residents, "and only one traffic light that changes color," said county Commissioner Joseph "Smokey" Parrish.

"There's no theme parks, there's no movie theaters, there's no shopping malls. There's no 10-story condominiums," said Parrish, whose day job is overseeing the processing of shrimp at Buddy Ward & Sons Seafood in the town of Apalachicola. "Everybody who comes here says, 'Man, keep it just the way you have it.' "

Dan Tonsmeire of the conservation group Apalachicola Riverkeeper noted that the area's significance has received international, national and state accolades. If state and local officials in Florida have often squandered its natural resources in the name of growth, they've done the opposite here, he said.

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"You can't come up with an area that has more designations of its ecological importance," Tonsmeire said. "And we're going to lose it, knowingly. That's what's at stake here for the Supreme Court."

The legal fight has been raging for three decades; Florida has spent nearly $57 million in legal fees on the current lawsuit alone. Georgia has spent upward of $40 million and says it is time for the Supreme Court to end the fight.

"Florida would have this court put at risk the economic foundation of the country's ninth largest metropolitan area, as well as a multi-billion dollar agricultural sector that provides key crops and generates thousands of jobs," Georgia says in one of its filings with the justices.

Florida has not proved that dramatic cutbacks in Georgia's water usage are necessary to save the bay, Georgia's lawyers said.

"It is one thing to make allegations - and Florida has made plenty of them - but it is another thing altogether to back them up," the brief states. "On that score, Florida's case fell woefully short."

At stake is the water in the Apalachicola-Chattahoochee-Flint river basin, which drains roughly 19,600 square miles in parts of Georgia, Florida and Alabama.

The Chattahoochee River flows from north of Atlanta, and there are five federal dams that provide flood control, hydropower and recreation. Especially important is Lake Sidney Lanier, which provides drinking water for many of the nearly 6 million residents of metro Atlanta.

The Flint flows from a spring near Atlanta's Hartsfield-Jackson International Airport, the busiest in the world, and sweeps through southwestern Georgia, where farmers depend on irrigation for growing cotton, corn, soybeans, peanuts and pecans, among other crops in a more than $4 billion industry.

The two rivers converge at the state border to become the Apalachicola, which runs for 106 miles to the bay. Its wide flood plain through the Florida Panhandle serves as a spawning ground for crabs and Gulf fish, and it nourishes the largest stand of tupelo trees in the world. In the spring, beekeepers bring their hives upriver to collect tupelo honey, which is prized not only for its unique taste but because it does not crystallize.

Florida argues that the ever-increasing water consumption by its neighbor to the north endangers an estuary that is home to the highest density of amphibian and reptile species in North America, and which supports hundreds of endangered or threatened animal and plant species.

The state blames the lack of fresh water for leading to a collapse of the Apalachicola Bay oyster fishery in 2012. A higher degree of salinity in the bay supported predators, such as conchs, that devastated the oysters.

Georgia says Florida made its own mess, by allowing the bay to be over-harvested, and says studies question the role the reduced fresh water played in the declining oyster population.

Disputes between states are called cases of original jurisdiction at the Supreme Court. Having the high court decide the equitable apportionment of natural resources, Justice Oliver Wendell Holmes Jr. once said, was the alternative to the states taking up arms against each other. Before hearing the dispute between Florida and Georgia on Monday, the justices will review a fight that pits Texas against Colorado and New Mexico.

To hear Florida's complaint, the court assigned Ralph Lancaster of Maine to be special master. He processed years of conflicting expert reports, conducted a five-week trial and begged the states to settle the fight themselves. Seventy lawyers converged; no compromise emerged.

Lancaster ultimately delivered, from Florida's perspective, a good news/(very) bad news decision.

"As the evidentiary hearing made clear, Florida points to real harm and, at the very least, likely misuse of resources by Georgia," Lancaster wrote. "There is little question that Florida has suffered harm from decreased flows in the river" and "Georgia's upstream agricultural water use has been - and continues to be - largely unrestrained."

Lancaster followed that with a big but. Even if he ruled for Florida, Lancaster said, there was no guarantee that reduced consumption in Georgia would result in more water in Florida. That decision would be made by the Corps of Engineers. And because the Corps enjoys sovereign immunity, Florida could not force it to be a party to the lawsuit.

Georgia tells the Supreme Court to accept the special master's bottom line.

"Florida failed to prove, by clear and convincing evidence (or any other plausible standard), that the relief requested would effectively redress its alleged injuries," its brief states.

Because it is the Corps that regulates the water in the basin, it said, "any potential benefits to Florida from a consumption cap on Georgia would be either speculative or nonexistent."

Florida tells the justices it is only common sense that restrictions in Georgia would yield more water downstream. It contends the special master made a mistake of law by requiring Florida to "guarantee" its proposed remedies would work, and asks the court to send the case back for more work.

In an amicus brief, the U.S. government sides with Georgia. But Florida points to somewhat vague language in the brief to argue that the Supreme Court's decision could influence the federal regulation of the riverflow.

Back on the river, a bald eagle glided overhead, and the marshes appeared lush and wild. But Tonsmeire spots plants that tolerate salt water too far upstream, and remembers the loss of tupelo trees. He has been the Apalachicola "riverkeeper" since 2004, and will soon retire with its future in doubt.

"I know we can get better conditions in the bay without having to starve the farmers off the face of the Earth up there and without having Atlanta having to stop growth," he said. "It's possible to do."

Hartsfield, president of the Franklin County Seafood Workers Association, knows that it is not as simple as getting more fresh water.

It used to be that 90 percent of Apalachicola's oysters were shucked in the processing plants, and their shells returned to the bay where they formed a bed for the next generation. But Americans now want their oysters raw, not fried or stewed, and the oysters leave here with their shells.

The oystermen on the bay were once limited to 20 bushels a day - about 250 oysters in each. "The limit now is three bags per person" and each bag brings about $70, he said. "Nobody catches their limit."

Hartsfield believes the bay should be closed to oystering for a couple of years, a view that is not popular with all of his peers. Maybe that would show whether the bay could recover on its own.

But Apalachicola is used to talking in superlatives about its most famous product, and Hartsfield said: "We have the fastest-growing oyster in the world, with the right conditions."