United States: Supreme Court Orders Oral Argument On Ga-FL Water Wars

A new chapter opened last week in the perennial water wars between Georgia and Florida.  After briefing by both sides, including amici, relative to whether Special Master Ralph Lancaster correctly decided that Florida had failed to carry its burden in this original jurisdiction action, the Supreme Court in an October 10, 2017 Order granted oral argument in the case to be heard "in due course."  Presumably, that will yield an argument during the Court's October Term which usually completes in June or July.  Spokesmen for Georgia and Florida welcomed the opportunity to address the Court on the merits.

The dispute involves the water of the Apalachicola-Chattahoochee-Flint River Basin ("ACF Basin"), a network of rivers, dams, and reservoirs that begins in northern Georgia and ends in the Florida panhandle.  Georgia and Florida have been disputing the extent of each state's use of the ACF Basin waters for years but recently, in 2014, the dispute made its way to the United States Supreme Court.   There, Florida argued that overconsumption of waters in Georgia, particularly in connection with agribusiness uses on the Flint River, have led to dangerously low flows of waters into Florida from the ACF Basin and the downfall of the Apalachicola Bay's oyster fishery.  Florida requested that the Court cap the amount of water Georgia can use at levels that existed in 1992.

Shortly after arriving in the Supreme Court, this case was assigned to Special Master Lancaster, who, after allowing extensive discovery, held a five-week trial.  Ultimately, the Special Master determined that because the U.S. Army Corps of Engineers controlled a network of dams and reservoirs along the Chattahoochee River, Florida's requested cap on Georgia's consumption of water would not ensure that more water reached Florida.  Specifically, the Special Master concluded that Florida failed to prove by clear and convincing evidence that a consumption cap would provide a material benefit to Florida. Therefore, the Special Master concluded that, when applying a clear and convincing evidence standard, Florida's claims were not redressable by Florida's requested relief.  Florida took exception to the Special Master's findings.  In particular, Florida contends that the Special Master erred in concluding that uncertainty about the way that the Corps would operate projects precluded a finding of redressability.

On August 7, 2017, the Trump Administration filed a brief in the Court as an Amicus Curiae.  The government brief sided with the Special Master's ruling.  The government argued that the Army Corps' reaction to a consumption cap would be speculative and uncertain, particularly in drier periods in the basin.  The government also noted that even if the Supreme Court capped Georgia's consumption, it would not bind the Corps to take any particular action.  While the government acknowledged that a cap on Georgia's use of the ACF Basin would generally benefit the region, it would be speculative to assume that the Army Corps would change its procedures in a way that affected the amount of downstream flow.  Moreover, the government noted that any changes in Corps' procedures set forth in a recently adopted Water Control Manual would require vetting and compliance with environmental laws.

Several other groups also filed Amicus briefs in this matter including, the State of Colorado, and the Atlanta Regional Commission.  In particular, the State of Colorado and the Atlanta Regional Commission agreed that the Special Master used the correct standard of proof.  Colorado also argued that a State has no duty to protect flows for the benefit of a downstream state, absent an interstate compact or equitable apportionment order, which is a nod to arguments Colorado made during its own water disputes with other western states including Wyoming, New Mexico, and Nevada.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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