Ga. AG picks lawyers for water lawsuit

ATLANTA (Legal Newsline) -- Georgia Gov. Nathan Deal and Attorney General Sam Olens announced this week the appointment of special assistant attorneys general to help defend the state in a lawsuit filed by neighboring Florida in the U.S. Supreme Court.

Seth Waxman of WilmerHale and Chris Landau and Craig Primis of Kirkland & Ellis LLP will lead the litigation team, which also will include longtime Georgia water litigators Bruce Brown, Todd Silliman and John Allen.

"We did not seek this lawsuit, but we will defend Georgia vigorously," Olens said in a statement Monday.

"I have great faith in every member of this excellent legal team, and Georgians should be confident that their interests are being well-represented."

Meanwhile, Deal called on Florida to dismiss the lawsuit and return to the negotiating table.

"It is time for Florida to stop playing politics and start negotiating in good faith," the governor said Monday. "Scarcely one year has passed since the U.S. Supreme Court ended Florida's last unsuccessful lawsuit, which lasted more than 20 years.

"That lawsuit cost all three states millions of dollars and obstructed meaningful natural resource planning for decades."

Last month, Olens released an invitation to submit Statements of Interest and Qualifications in the lawsuit over Georgia's water consumption.

Lawyers reportedly "flooded" the Attorney General's Office with offers to defend the state -- including a former U.S. solicitor general and a recent law school graduate.

Florida Gov. Rick Scott, who announced in August the state would file its lawsuit in the nation's high court, argues Georgia's "unchecked" and "growing consumption of water" is threatening the economic future of the city of Apalachicola, Fla.

"This lawsuit will be targeted toward one thing -- fighting for the future of Apalachicola," Scott said at the time. "This is a bold, historic legal action for our state. But this is our only way forward after 20 years of failed negotiations with Georgia.

"We must fight for the people of this region. The economic future of Apalachicola Bay and Northwest Florida is at stake."

Over the past 20 years, Florida and Alabama each have sought relief from harms caused by reduced flows and increased Georgia consumption in the Apalachicola-Chattahoochee-Flint, or ACF, River Basins through legal challenges to the Army Corps of Engineers' water management practices, but without success.

This time, Florida proposes to address the problem at its source -- an original action filed with the Supreme Court seeking injunctive relief against Georgia's "unmitigated and unsustainable" upstream consumption of water from the Chattahoochee and Flint River Basins.

Scott explained that after years of attempting to negotiate an equitable apportionment of the waters that flow through the states, the collapse of the ACF Compact in 2003 left his state and Alabama in the same disadvantaged position.

Meanwhile, Georgia improved its standing at the expense of its neighbors by staking increased claims to the river waters for itself, the governor contends.

Apalachicola River water levels are directly impacted by upstream withdrawals from the Chattahoochee and Flint Rivers at all times -- especially apparent during low-flow summer and fall seasons. The Metro-Atlanta area primarily gets its water from the Chattahoochee River, with withdrawals totaling 360 million gallons per day.

Georgia's consumption is expected to nearly double to 705 million gallons per day by 2035, as Atlanta's population and water consumption grows unchecked, Scott said. That estimated daily consumption represents the approximate water volume of the entire Apalachicola Bay.

The Florida governor argues that historically low water levels brought about by Georgia's excessive consumption also have caused oysters to die because of higher salinity in the bay and increased disease and predator intrusion.

Oysters in the bay account for 90 percent of Florida's oyster supply and 10 percent of the nation's oyster supply, Scott noted.

Florida Attorney General Pam Bondi has said she's on board with the lawsuit.

"This lawsuit is our last and best chance to save Apalachicola and the surrounding region from the devastation caused by Georgia's overconsumption of water," she said in a statement last month.

"I look forward to fighting for our state in the U.S. Supreme Court."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.