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May. 21, 2019
11:42 am


Existing record is sufficient to resolve water dispute

By Jane Harrison
Special Master Paul J. Kelly, Jr. displayed the expedience and dispatch he’s known for in his November case management order to two long-time water foes. His Nov. 6 order not only informs Georgia and Florida he needs no additional discovery to resolve the long-time water dispute, he also instructs their attorneys how to format footnotes, headings and quotations in responses to his queries.
The Special Master’s latest public entry in the official case docket scuttles Florida’s request to submit more evidence that it suffered harm due to Georgia’s alleged over-consumption of water in the Apalachicola-Chattahoochee-Flint river system, on which Lake Lanier is the largest reservoir. Instead, Kelly insists that the existing record is sufficient. He adds that the “likely additional value of such evidence is outweighed by the significant cost and delay that will accompany producing and presenting it.”
Kelly’s halt on evidence-gathering is just what Georgia attorneys sought in an earlier brief which summarized the case begun when Florida sued Georgia in Oct. 2013. An 18-month discovery period produced 7.2 million pages of documents, 90 interrogatories, 400 requests for evidence admission, 130 subpoenas, and 69 depositions, according to Georgia attorneys. They assert that “no additional discovery is needed because the voluminous record in this case is more than sufficient to answer all questions posed by the Supreme Court.” Kelly agreed.
He ordered litigants to cite already recorded evidence and testimony to answer a series of questions by Jan. 31. He wants states’ responses to come from evidence submitted under his predecessor, Ralph Lancaster, who recommended the Supreme Court deny Florida’s claims. Instead, the court in June remanded the case back to the special master and chose Kelly to take it on.
“Given the voluminous record in the case resulting from virtually unlimited discovery and a lengthy trial, additional discovery will only lengthen the proceedings, delay the outcome, and increase litigation costs. There is ample evidence in the record pertaining to Georgia’s water use in the ACF basin,” Kelly writes.
He wants Florida to provide specifics about how it “suffered a substantial invasion of rights” and harm from Georgia’s water use upstream. He, like Lancaster, put the burden of proof on Florida to produce “clear and convincing evidence that the benefits of an equitable apportionment decree substantially outweigh any harm that might result.” He wants facts about what caused salinity in Apalachicola Bay, which requires fresh water to nourish oyster fisheries that support the region’s economy. Additionally, he wants numbers on stream flow volume, costs, and conservation measures from both states.
He limits the number of pages each state can submit: 20 pages of findings and conclusions, 40 pages of supplemental papers, due by the end of this month, and another potential 20 pages of response briefs by Feb. 28. The homework assignment gets more specific: “All text must be double-spaced, but quotations more than two lines long may be indented and single-spaced, and headings and footnotes may be single spaced. Font size should be 13-point type.”    

Posted online 11/30/18
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