United States: Supreme Court Hears Oral Argument In Long-Running State Water Disputes

Last Updated: January 18 2018
Article by Roger Sims

Roger Sims is a Partner in Holland & Knight's Orlando office

The U.S. Supreme Court heard oral argument on Jan. 8, 2018, regarding two interstate water disputes: Florida v. Georgia and Texas v. New Mexico and Colorado. In Texas v. New Mexico and Colorado, the states are litigating over how much Rio Grande River water New Mexico must pass along to Texas and Colorado. The state of Texas filed a lawsuit against the other two states alleging that New Mexico is violating the Rio Grande Compact, which governs the distribution of Rio Grande water among the three states. In Florida v Georgia, the dispute centers on flows in the Apalachicola, Chattahoochee and Flint (ACF) rivers. The Chattahoochee and Flint Rivers join to form the Apalachicola River in Florida, which flows into Apalachicola Bay.1

The role of the federal government in settling such disputes may impact a state's right to allocate water. Kansas filed an amicus brief in the Rio Grande case and Colorado did so in the Florida-Georgia case, on the basis that the Supreme Court's decisions will set legal precedent relevant to their interests. States across the country are watching these legal developments at the Supreme Court.

Florida-Georgia Oral Argument

In its lawsuit, Florida sought caps on the consumption of water by upstream interests, including the city of Atlanta. Georgia challenged such caps on the basis that the record did not show that they would increase flows downstream.2 During argument, the Supreme Court justices questioned the attorney representing Florida for evidence that the proposed caps would actually increase flows downstream, particularly in drought periods.

Florida failed to include the U.S. Army Corps of Engineers (Corps) in its lawsuit, although the Corps regulates water flows in the ACF river systems. The Special Master3 made this a critical factor in his recommendation: "Without the ability to bind the Corps, I am not persuaded that the Court can assure Florida the relief it seeks."

During the Jan. 8 oral argument, some of the justices indicated that they accepted Florida's argument that any water saved upstream would eventually end up downstream. However, most of the justices appeared to agree that the absence of the Corps in Florida's suit was a substantial problem.

The minimal level of Corps' involvement in the proceedings apparently raised significant concerns for some justices, who questioned Deputy Solicitor General Edwin Kneedler as he defended the Corps' authority over the ACF system. For example, Justice Stephen Breyer asked, "Why don't you just waive the sovereign immunity, get into this and try to help the Special Master reach an equitable solution?"4 Justice Anthony Kennedy also criticized the Corps' indecision. "You say, well, whatever you decide, we'll use our expertise to follow it, but then you don't tell us what to decide and you're the experts."5 Chief Justice John Roberts Jr. questioned whether the government would even take a court-ordered consumption cap into consideration when evaluating its operations.6

Justice Elena Kagan said she was troubled by "a real dearth of record evidence" quantifying the amount of increased water flow and its benefits to Florida.7 However, she also felt that Florida had "common sense" on its side in arguing that a cap should produce a larger downstream water flow in the region.

Conclusion

According to media reports, many Supreme Court observers saw the oral argument as being favorable to Florida. However, there will not be a final ruling by the Court for months, if not years. Although this Supreme Court phase has been visible nationwide, it may not be the final stage of the proceedings.

Footnotes

1. Apalachicola Bay supports major oyster harvesting grounds.

2. Flows in the ACF system are regulated by a complex system of dams, reservoirs and other works operated by the Corps. Water management decisions by the Corps are crucial to the quantity and timing of downstream flows.

3. Ralph Lancaster served as the Special Master in the Florida v. Georgia proceedings. He conducted a seven-week trial and wrote a lengthy report to the Supreme Court. After analyzing extensive factual complications of the case, he concluded that Florida failed to make its case because of the failure to join the Corps in its lawsuit. (See Holland & Knight's alert, " Supreme Court Special Master Recommends Denial of Florida Water Rights Complaint Against Georgia," Feb. 24, 2017.)

4. Transcript of argument, pages 60-61

5. Transcript of argument, page 66

6. Transcript of argument, pages 54-55

7. Transcript of argument, page 7

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