Florida and Georgia Face Off at Supreme Court Over Water Rights

Florida asked the justices to cap Georgia’s use of water in the Apalachicola-Chattahoochee-Flint River Basin, arguing the Peach State is using more than its fair share and causing devastation to its southern neighbor’s oyster fisheries. 

Oyster harvesters set out early in the Florida Panhandle’s Apalachicola Bay in 2016. (Taimy Alvarez/South Florida Sun-Sentinel via AP, File)

(CN) — The U.S. Supreme Court heard arguments Monday in a dispute between Florida and Georgia over whether the Peach State’s use of water in the Apalachicola-Chattahoochee-Flint River Basin should be limited, leaving justices weighing the interests of Florida’s oystermen against those of Georgia’s farmers. 

During a hearing conducted virtually due to the coronavirus pandemic, an attorney for Florida told the court that Georgia’s “unrestrained” water usage has caused the collapse of the Apalachicola Bay oyster industry. 

The Sunshine State is asking the Supreme Court to impose water usage limits on Georgia, particularly during drought years, so more freshwater from the basin can flow to Apalachicola. 

An attorney for Georgia called the proposed water cap “draconian” and claimed that it would cost the state’s agricultural sector hundreds of millions of dollars while providing “negligible relief” to Florida. 

Florida filed an original jurisdiction proceeding with the Supreme Court in 2013, claiming its northern neighbor’s use of water has depleted freshwater flows into the Apalachicola Bay and devastated the bay’s oyster beds. 

As freshwater flow from the basin decreased, the bay’s salinity increased and the oysters’ predators began to thrive. 

After a lengthy trial overseen by a court-appointed special master, the Supreme Court issued a 5-4 decision in June 2018 finding that the judge had applied too strict a standard in determining that Florida did not meet the legal bar for equitable apportionment of the water.

In a 2019 report, a new special master sided with Georgia. 

Arguing that limitations on Georgia’s water use would cost the state little to no money while conferring “meaningful” benefits on the bay, Florida’s attorney Gregory Garre of Latham & Watkins asked the high court Monday to issue a decree halting “exploding” irrigation use by Georgia’s farmers. 

“A decree would simply require them to prevent outright waste and adopt more efficient measures to save water while still irrigating. That’s hardly asking too much,” he said.  

Garre argued that the court’s refusal to grant Florida’s request for relief would be a “death sentence” for Apalachicola Bay, which used to produce 10% of the nation’s oysters. The Florida Fish and Wildlife Conservation Commission ordered a five-year oyster harvesting ban last year to help the bay’s population recover. 

“It’s hard to imagine New England without lobsters and the Chesapeake Bay without crabs. But, in effect, that’s the future that Apalachicola now faces when it comes to its oysters and other species,” Garre said. 

Arguing on behalf of Georgia, attorney Craig Primis of Kirkland & Ellis pointed the finger back at Florida officials and told the court that poor resource management is to blame for the bay’s fishery collapse. 

“Florida failed to demonstrate that Georgia’s water use caused the oyster collapse,” he said. 

Primis blamed Florida’s wildlife officials for failing to regulate oyster harvesting, saying that Florida “allowed oyster fishing at unprecedented levels in the years preceding the collapse” and is now attempting to fix a “self-inflicted wound.” 

Chief Justice John Roberts suggested that figuring out who is to blame for the situation in Apalachicola Bay was a bit like “Murder on the Orient Express,” the Agatha Christie novel in which a group of train passengers collaborate to commit a murder. 

“A lot of things took a stab at the fishery – drought, overharvesting, Florida regulatory policies. But also lower salinity was caused by Georgia’s use of the water. But you can’t say that any one of those things is responsible for killing the fishery,” Roberts said. 

But Garre argued that the existence of other contributing causes does not erase evidence that Georgia’s water consumption caused harm to the bay. 

Justice Neil Gorsuch weighed the monetary cost of the decree against the potential benefits Monday, pointing out that the special master found the decree would cost about $100 million per drought year in Georgia.  

According to court documents, the bay’s oyster industry generated just $6.6 million in annual revenue before the collapse. 

Garre countered with a reminder that Florida “has invested hundreds of millions of dollars in preserving this ecological treasure.”

The Supreme Court is expected to rule on the issue by late June.

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