The ignored gorilla in the next room

This has always been where the water talks were going to run aground. The curious thing is how the Supreme Court case pitting Florida against Georgia over the waters of the Apalachicola-Chattahoochee-Flint (ACF) river system got this far before somebody noticed.

That somebody is Ralph Lancaster, the Maine attorney appointed as the Supreme Court’s special master in Florida’s suit claiming Georgia withholds too much water for upriver needs, at Florida’s environmental and economic expense. Lancaster has spent most of the last couple of years urging the two states to come to a water sharing agreement rather than having the matter decided in court.

The trial officially ended on Halloween, and Lancaster issued his final report to the Supreme Court on Valentine’s Day. So who gets the horror and who gets the love?

As it turns out, it might well be that whether the two states had come to an agreement or the issue was decided by the courts is essentially moot. Because a major player — maybe the major player — hasn’t been part of the discussion: The U.S. Army Corps of Engineers, which has been updating its water management plan involving the five dams it operates along the river basin. And the issues batted back and forth between Georgia and Florida were not its official concern.

Lancaster himself acknowledged as much in his final report — which, for the record, recommended that the court rule in Georgia’s favor.

“The evidence presented at trial,” Lancaster wrote, “suggests that the Corps’ reservoir operations are a significant, and perhaps the primary, factor influencing the amount of streamflow crossing the state line during times of drought and low flows … therefore, increased inflow into the [upriver] reservoir system will not necessarily pass downstream to Florida during these times…”

Florida specifically excluded the Corps in its original 2013 filing in the case, perhaps because even though water supply for Atlanta was not among the federally specified purposes of the Buford Dam (Lake Lanier) impoundment, an Atlanta-based federal court has already ruled in Georgia’s (Atlanta’s) favor.

Although the Corps has not been officially involved in the suit, the Justice Department filed a brief in the case noting that the new water plan to be implemented next month will “provide additional water supply storage to Georgia in the Atlanta area” and “enhance the navigational capabilities of the system,” among other changes. Sounds almost like a good news/bad news kind of thing for downstreamers. We’ll see.

Meanwhile, on the subject of the Justice Department: Its new boss, U.S. Attorney General Jeff Sessions of Alabama, has in the past been an active combatant in the water wars, specifically against the water control authority of the Corps. In 2013, Sessions and fellow U.S. Sen. Marco Rubio, R-Fla., unsuccessfully sought federal legislation reining in the Corps’ power to regulate stream flows, which they said inversely affected their respective states. Stay tuned.