Supreme Court punts on Florida-Georgia water fight

By Tamar Hallerman, The Atlanta Journal-Constitution June 27, 2018 www.ajc.com

WASHINGTON — 

The U.S. Supreme Court on Wednesday directed an expert judge to revisit key aspects of Florida’s water rights case against Georgia, a disappointing legal outcome for the Peach State after it racked up several recent victories in court related to its long-running water dispute with its neighbors.

The justices in their 5-4 opinion told Ralph Lancaster Jr., the so-called “special master” who recommended last year that the court dismiss Florida’s case, to conduct further legal proceedings in the battle over water from the Apalachicola-Chattahoochee-Flint river basin, which originates in North Georgia and follows along the Alabama border to the Florida Panhandle.

Writing for the majority, Justice Stephen Breyer concluded that Lancaster initially “applied too strict a standard” when he determined the court could not find an “equitable” solution that would lead to more water flowing downstream from Georgia.

“The amount of extra water that reaches the Apalachicola may significantly redress the economic and ecological harm that Florida has suffered,” said Breyer, who was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg and Sonya Sotomayor. “Further findings, however, are needed.”

After hearing five weeks of testimony, Lancaster said in his February 2017 ruling that there were no legal remedies available because Florida did not include the U.S. Army Corps of Engineers, which oversees water flow in the country’s locks and dams, as a party to its case.

Justice Clarence Thomas, a Georgia native, wrote in a blistering dissent that it “makes little sense” to send the case back to Lancaster. The special master, he said, has already sifted through more than 7 million pages of documents and conducted nearly 100 depositions.

“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,” he said.

“In short, we have all the evidence we need to decide this case now,” Thomas added.

‘Huge win’

The court’s opinion — the last to be released from its 2017-2018 term — does not go as far as prescribing a specific solution for the water battle such as limiting Georgia’s water use, nor does it guarantee Florida a future victory against Georgia at the high court. But it does keep Florida’s legal challenge alive.

Florida Gov. Rick Scott quickly declared victory, calling the court’s ruling a “huge win” for his state.

“For nearly thirty years and under five governors, Florida has been fighting for its fair share of water from Georgia,” said Scott, who is running for the U.S. Senate this year. “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 responded with his own press release stating that 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,” the Republican said. “I look forward to continuing to defend our position in this case.”

Deal, Scott and Alabama officials had huddled at various points over the past eight years to strike their own accord outside of court. But those efforts proved to be fruitless, and Deal recently listed the lack of a tri-state agreement as one of his biggest regrets while in office.

Three-decade fight

The Florida-Georgia case marks the first time the Supreme Court has gotten involved in Southeastern water wars, which have raged for nearly three decades. The battles have pitted Georgia against Florida and its frequent ally, Alabama, and have cost the parties involved tens of millions of dollars.

Georgia alone has spent more than $47 million of taxpayer money on litigation over the Apalachicola-Chattahoochee-Flint (ACF) river basin since Deal took office in 2011, said Chris Riley, Deal’s top aide.

Florida filed its case with the Supreme Court five years ago following the collapse of its oyster industry in the Apalachicola Bay. It argued the water usage of metro Atlanta and southwest Georgia farms upstream had aided the bay’s ecological and economic decline. Florida’s attorney argued before the justices that the state “suffered real harm” at the hands of Georgia and that the justices should impose a cap on Georgia’s water usage at roughly 1992 levels — when metro Atlanta was home to only half as many people as it is today — so more water can flow downstream.

Read more:Supreme Court wades into Georgia’s long-running water rights battle

Alabama was not a party to the case but aligned itself with Florida.

Georgia countered that its water use had little to do with the collapse of the oyster industry and argued the justices should uphold Lancaster’s recommendations — which essentially handed Georgia a victory based on a technicality. They said the state has been a responsible steward of its water, cutting down on consumption in metro Atlanta even as the region’s population has exploded. And they warned that capping the state’s water usage would have a devastating impact on Georgia’s economy, costing some $18 billion.

Even though Lancaster suggested that the justices dismiss Florida’s challenge, he did excoriate Georgia for not being a more responsible steward of its water, particularly within its agriculture sector. And he urged the governors of Georgia, Florida and Alabama to strike a congressionally approved compact dictating water usage in order to avoid a costly legal fight.

Katherine Zitsch, manager of natural resources at the Atlanta Regional Commission, said Wednesday that the group is “disappointed this litigation will continue.”

“But we are confident that metro Atlanta’s water use is reasonable,” she said. “Metro Atlanta is a national leader in water conservation and uses on average only 1.3 percent of the water in the ACF basin to support a thriving region of more than 5 million people and 2.5 million jobs.”

Republican U.S. Rep. Neal Dunn, whose coastal Florida district is home to the Apalachicola Bay, said the court’s ruling essentially recognizes that “Florida has been harmed as a result of decreased water flow to the ACF river basin.”

In addition to the Supreme Court battle, three additional cases related to the ACF and the nearby Alabama-Coosa-Tallapoosa river basin are currently winding their way through the federal court system.

A parallel fight on Capitol Hill involving lawmakers from the three states will almost certainly continue to play out, especially now that Alabama’s senior senator is the new chairman of the powerful Senate Appropriations Committee. ###