Guest Column
Why America’s water wars are futile | Column
Florida’s failed court fight over Apalachicola Bay shows that cooperation and statesmanship are the better ways forward in our era of climate change.
Taxpayer money spent on legal fees to fight Georgia in court would be better invested in larger-scale reef restoration projects across what was once known as the kingdom of oysters.
Taxpayer money spent on legal fees to fight Georgia in court would be better invested in larger-scale reef restoration projects across what was once known as the kingdom of oysters.
Published Apr. 9, 2021|Updated Apr. 9, 2021

When the French explorer Pierre de Charlevoix sailed Florida’s northern Gulf of Mexico in the early 18th century, he declared the region America’s “kingdom of oysters” — with reefs so extensive he and his crew mistook them for a rocky coast.

But by the time a U.S. Navy lieutenant named Franklin Swift surveyed the oysters in Apalachicola Bay in 1896, he found many of the reefs decimated, some by a great hurricane and others by industrious oystermen. Swift believed the oysters would rebound if left alone for a time, and they did. Ever since, the fishery has made spectacular comebacks from one crash after another.

Cynthia Barnett
Cynthia Barnett

Until 2012, when the famed oysters collapsed during an unprecedented drought. That crash was the heart of Florida v. Georgia, the U.S. Supreme Court case that clinched the 30-year “water war” over the freshwater that flows through the Apalachicola-Chattahoochee-Flint River Basin to the historic bay. For decades, Florida politicians blamed sprawling Atlanta’s thirst for withholding freshwater vital to the estuary and its life. The lawyers who filed the Supreme Court case shifted the blame to voracious irrigation by Georgia farmers.

The court’s dismissal last week was a thorough rebuke — the justices voted 9-0 against Florida. It surprised no one who closely followed the case. Florida failed to prove by clear and convincing evidence that Georgia’s overconsumption led to the collapse, Justice Amy Coney Barrett wrote in the opinion, which cited the many additional “confounding factors.”

The truth is that no one thing is broken in the Apalachicola, or in every great estuary in the world. The problem is not only south Georgia’s farmers. It is not only Atlanta’s thirst, quenched by Lake Lanier, created when the U.S. Army Corps dammed the Chattahoochee River in the northern part of the basin. It is not only overharvesting, a crucial fact that is not an indictment of today’s fishers, but predates even Lt. Swift’s 1896 observations. Archaeologists know from measuring archaic half-shells in the last of the indigenous mounds that once lined the Gulf that overharvesting dates to aboriginal people.

And it is not only climate change, which has brought an “unprecedented series of multiyear droughts, as well as changes in seasonal rainfall patterns,” as Barrett wrote. But those climate shifts weaken ecosystems, making them more vulnerable to all the rest. Scientists expect climate change will push saltwater from the ocean into Apalachicola, as into all the world’s bays. They expect more-severe droughts in the region, and more-extreme, more variable rains. They are most certain that warming will mean higher temperatures, says Florida state climatologist David Zierden, which will further limit water availability.

These complexities underscore the futility of the water wars. Twentieth century America viewed freshwater as a prize to be won rather than a treasure to be shared. Our warming, beleaguered water and wildlife need the kind of kind of common-pool water management championed by the late economist Elinor Ostrom.

Spend your days with Hayes

Spend your days with Hayes

Subscribe to our free Stephinitely newsletter

Columnist Stephanie Hayes will share thoughts, feelings and funny business with you every Monday.

You’re all signed up!

Want more of our free, weekly newsletters in your inbox? Let’s get started.

Explore all your options

She won the Nobel Prize in 2009 for challenging the conventional wisdom of the “tragedy of the commons,” that natural resources are doomed to be over-exploited. She showed how water can be managed when people come together — without the litigation, secrecy and political theater that have harmed Apalachicola’s people and oysters and the freshwater they rely on.

The only ones who came out ahead in the case are the lawyers who convinced former Florida Gov. Rick Scott to take it to the U.S. Supreme Court. What the region needs, instead, are statesmen and women who can lead Florida, Georgia and Alabama to share water and plan for the future amid competing demands and climate risks. Five private law firms have billed Florida taxpayers well over $100 million since 2001, when the earliest court battles began. In response to a public-records request, the Florida Department of Environmental Protection reports having spent $65 million on the litigation since filing the Georgia case in 2013. Georgia taxpayers have spent more than $50 million to defend the case.

It’s impossible not to think about what might have been achieved with that time and money, had they been more wisely spent: On the fishers of Apalachicola. On collaborations. On more-extensive reef restoration. Rebuilding the kingdom of oysters would not only benefit the fishery, but restore the natural protection between the people who live in the region and the hurricanes growing stronger in the Gulf.

Indeed, here is a more-recent fact that did not become part of the case: Ever since the drought ended in winter 2013, steady rains, some in the form of great hurricanes, have returned to the river basin. Freshwater flow into the Bay has been close to normal — or higher than normal — compared with previous decades when the oysters always came back.

In other words, over the eight years that Florida v. Georgia wound its way to the court, more water than Florida was asking Georgia to save for the oysters flowed into Apalachicola Bay. And the oysters didn’t come back — just as they won’t come back in Florida or elsewhere until we stop fighting over water and embrace working together to save it.

Cynthia Barnett is the author of four books on water, including “The Sound of the Sea: Seashells and the Fate of the Oceans,” forthcoming in July from W.W. Norton.