Justices Open New Chapter in Georgia-Florida Water Dispute

Chattahoochee River at Jones Bridge Park in Peachtree Corners, Georgia. (Photo via Wikipedia Commons)

(CN) – The U.S. Supreme Court on Wednesday revived Florida’s request to restrict how much water Georgia can take from the Apalachicola-Chattahoochee-Flint River Basin, continuing the decades-long dispute between the two states.

In a 5-4 decision, the majority declined to dismiss Florida’s 2013 lawsuit against Georgia and gave the Sunshine State another chance to prove Georgia’s water use has harmed Florida’s ecosystems and fishing industry by sending the case back to special master Ralph Lancaster Jr., who will once again take evidence and testimony on the issue.

The Apalachicola-Chattahoochee-Flint River Basin begins in northeast Georgia and flows south into the Florida Panhandle, along a route the straddles the two states’ borders with Alabama, before emptying into the Apalachicola Bay.

Despite repeated attempts to forge an ironclad agreement between the states regarding how much water they are entitled to take from the basin, Georgia has consistently taken more than Florida wishes to meet the growing water needs of metropolitan Atlanta and rural cotton and peanut farmers.

As a result, Florida says, the ecosystem of the panhandle has been devastated and fisheries-related industries on the bay, like oyster harvesting, nearly driven to extinction.

In 2013, the Obama administration declared a fisheries disaster for the area.

Shortly thereafter, Florida Gov. Rick Scott filed the lawsuit directly with the U.S. Supreme Court — a rare “original jurisdiction” case — after “20 years of failed negotiations.” Justices appointed a special master to review the case and propose a ruling.

Lancaster issued a report last year siding with Georgia. Although Georgia’s water use is negatively impacting Florida, Lancaster wrote, the Sunshine State could not prove a cap would “provide a material benefit to Florida.”

Florida disagreed and justices heard oral arguments in January.

In Wednesday’s ruling written by Justice Stephen Breyer, the majority of justices said the special master applied too strict a standard in his analysis when he concluded Florida failed to prove capping Georgia’s water consumption would significantly ally environmental concerns about wetlands and bays that dot the Florida panhandle.

“We believe the [special] master’s standard … is too strict,” Breyer wrote. “In our view, unless and until the special master makes the findings of fact necessary to determine the nature and scope of likely harm caused by the absence of water and the amount of additional water necessary to ameliorate that harm significantly, the complaining state should not have to prove with specificity the details of an eventually workable decree by ‘clear and convincing’ evidence.”

Breyer wrote Florida can use “flexibility” and “approximation” to come up with a water use standard that will benefit the panhandle region while not unfairly burdening Georgia.

The majority – Breyer, Chief Justice John Roberts, and justices Anthony Kennedy, Ruth Bader Ginsburg and Sonia Sotomayor — signaled that if Florida can properly prove its case, all parties can come to an agreement.

The dissenting justices – Clarence Thomas, Samuel Alito, Elena Kagan and Neil Gorsuch – argued Florida did not present “clear and convincing evidence that its proposed cap will benefit Florida more than it harms Georgia.”

Justice Thomas wrote the 37-page dissent and noted the special master’s trial involved dozens of witnesses, nearly 100 depositions and 7.2 million pages of documents.

“Florida thus had a more-than-ample opportunity to gather its evidence and then present it at a one month trial,” he wrote. “Giving Florida another bite at the apple will likely yield no additional evidence, but it will be unfair to Georgia, which has already spent the time and resources to defeat the case that Florida chose to present.”

Florida’s proposed cap on Georgia’s water use would restrict the state’s use to 1992 levels. The Atlanta metro area’s population has increased by 55 percent since then, according to court documents.

Both states emphasize the decision could have major economic ramifications. Florida says the oyster industry and tourism in the area brings in several million dollars a year. In Georgia’s court filings, attorneys claimed the water restrictions could cause the state to lose more than $13 billion.

The “water wars” between the two southern states is further complicated by the U.S. Army Corps of Engineers, which controls the dams along the river basin.

In a brief filed earlier this year, the Corps noted that they control the dams and reservoirs of the disputed river basin by Congressional mandate.

In the majority opinion, Breyer referenced a brief filed by the federal government that “made clear that the Corps will work to accommodate any determinations or obligations the court sets forth if a final decree equitably apportioning the basin’s waters proves justified in this case.”

But in his dissent, Thomas wrote the Corps only agreed to “take … into account” the court’s decision and “there are a host of reasons to doubt that the Corps would voluntarily change its procedures just because this court capped Georgia’s use.”

Florida Gov. Scott’ said in a statement that the ruling “is a huge win for the entire state of Florida.

“As Governor, protecting the families whose livelihoods rely on the Apalachicola Bay has been a top priority. For nearly thirty years and under five governors, Florida has been fighting for its fair share of water from Georgia,” he continued. “After decades of failed negotiations, we took our historic action to protect families all the way to the U.S. Supreme Court. I am glad that the court ruled in Florida’s favor today and we look forward to further securing a healthy Apalachicola Bay while protecting the thousands of jobs that depend on this natural resource.”

Georgia Gov. Nathan Deal said he “remained confident in the state’s legal position.”

“Georgia heeded the special master’s warning and took legislative action, which is now law, to address his concerns,” Deal said in a statement. “I look forward to continuing to defend our position in this case.”

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