High Court Calls in Help to Resolve Water Dispute

     (CN) – A decades-long dispute that pits the water needs of the ever-expanding Atlanta metroplex against those of farmers, sportsmen and more modestly-sized communities in the Florida panhandle may have come a step closer to resolution this week.
     On Wednesday, the Supreme County named Ralph Lancaster Jr. as special master to review and propose a ruling to the court in the recently filed Florida v. Georgia.
     The appointment of Lancaster, who holds the title “Of Counsel” with the Portland, Maine firm of Pierce Atwood LLP, came just two weeks after the justices gave Florida permission to sue Georgia directly in the Supreme Court over their rights to water flowing from the Chattahoochee and Flint rivers in Georgia into Florida’s Apalachicola River.
     Lancaster is something of a specialist in complex litigation and has previously been appointed a special master by the Supreme Court on four other occasions. He also served as independent counsel by appointment of the D.C. Circuit to investigate corruption allegations against Alexis Herman, who was Secretary of Labor during President Bill Clinton’s second term. Lancaster cleared Herman of all charges in 2000.
     He also served as trial counsel for the United States in a dispute with Canada that was tried before the International Court of Justice at the Hague.
     His latest assignment this time is to recommend a solution to an issue that has defied resolution for nearly 25 years.
     The U.S. Army Corps of Engineers has managed the three-river system that culminates in a basin encompassing portions of Florida, Georgia and Alabama since 1939. In the decades since, it has regularly revised its strategy, largely to keep pace with the growth of Atlanta.
     Over the years, these changes have included the construction of dams both in Georgia and Florida to create reservoirs and hold back enough water to get the population centers in both states through the droughts that regularly inflict the deep south.
     Federal law mandates that when a river flows between two or more states, each state has a right to an equal share of the water. A host of environmental regulations, such as the Endangered Species Act, also require that water be available for threatened and endangered species living in or around the Chattahoochee River and the Apalachicola Bay, a lagoon system in northwest Florida.
     The Corps’ management of the system first became a matter for the courts to deal with in 1990, when Alabama sued to prevent the proposed reallocation of water to which it felt entitled from a reservoir north of Atlanta to parched areas in southern Georgia.
     Georgia and Florida both intervened in the case, and the parties ultimately agreed to stay the litigation while a comprehensive study of the water issues was undertaken.
     The agreement also contained a “live and let live” provision under which the states could continue to draw water from the basin and even marginally increase those withdrawals.
     Once the study was completed, the states entered into a compact that established a framework for negotiating the equitable allocation of water going forward. Despite this, in 2000, Georgia asked the Corps. for additional water from the supplies then held in storage, and sued the Corps. to compel it to act on that request.
     A short time later, the Southeastern Federal Power Customers, a group that buys electric power from one of the dams built on the river sued the Corps. claiming Georgia’s apparently insatiable thirst was depriving it of water that should have been generating electricity.
     This case was settled, but on appeal by Alabama and Florida, which had intervened, the D.C. Circuit concluded the settlement violated federal law because the settlement pre-empted congressional authority on water management issues.
     Ultimately, on remand, the case was transferred to the Middle District of Florida, along with the Alabama and Georgia cases for consolidated proceedings. The court decided that the settlement provisions would indeed need congressional approval, and that the Corps. had correctly denied Georgia’s request for more water.
     But the 11th Circuit reversed the ruling, holding that the Middle District of Florida lacked jurisdiction over some of the claims presented. The three-judge panel then gave the Corps. one year to come up with a definitive, final plan for dealing with water reallocation requests.
     The agency fulfilled the court’s order in 2012, deciding it did indeed have the power to make such decisions, but clarifying little else.
     In the latest chapter of the controversy, Florida claims that it is not receiving its fair share of the water, and that as a result, the Apalachicola region and its ecosystem “are suffering serious harm.” Among the harms it claims are a collapse in the oyster industry due to rising salinity levels, and the deaths of thousands of threatened and endangered mussels.
     Florida also claims that Georgia’s water consumption is expected to double by 2040, a situation which will further jeopardize the “ecology, economy and way of life” in the Apalachicola region.
     Georgia has responded by arguing Florida’s complaint is premature because Florida’s alleged injury stems from the operation of a specific dam, and the Corps. is currently evaluating what the water flows from that dam should be.
     Until the Corps.’ analysis is done, Georgia says, no one can say how much water will flow into Florida in the future and what, if any, damage might occur.

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