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Jan. 22, 2019
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Florida bases hopes on potential revisions of Corps’ Manual

By Jane Harrison
 
Could a court order influence the U.S. Army Corps of Engineers to enter into another lengthy, costly and toilsome revision of its water control manual for Lake Lanier and other lakes downstream? In the latest volley of the Georgia-Florida water war, Florida appears to hinge its legal case for more stream flow on the Corps’ implication that it might consider re-doing the manual that was 10 years in the making.
 
Special Master Paul J. Kelly, Jr. will allow Florida submit evidence already on the record in attempt to show that modifications to the water manual might result in additional streamflow into the Apalachicola River. Florida launched the long running legal battle in Oct. 2013, claiming that Georgia’s water consumption is choking the Apalachicola River and causing environmental and economic harm. Lake Lanier is the largest reservoir on the Apalachicola-Chattahoochee-Flint river system that supplies water to the two states and Alabama.
 
Kelly accepted Florida’s request to amend one of the five questions he wants states to answer by Jan. 31. Kelly’s original fourth question asked “To what extent would additional streamflow into Lake Seminole (at the Georgia-Florida line) result in additional streamflow into the Apalachicola River” under the Corps’ current operational rules for the river system. He granted Florida’s appeal to add “or under reasonable modifications” to the Corps manual.
 
Georgia had no objections to Florida’s plea. Pointing to the 10-year process of churning out the current manual, Georgia attorneys stated a revamp would be just as burdensome and any modifications would be entirely speculative. “Such speculative evidence cannot meet Florida’s heavy burden of proof in this case. That said, if Florida wishes to brief the issue of reasonable modifications in its forthcoming submissions to the Special Master, Georgia does not object,” Georgia’s legal team said.
 
After hearing the case in June 2018, Supreme Court justices sent it back for more consideration. The first Special Master’s report denied Florida’s claims on the basis that a court order could not bring Florida relief because the Corps controls the spigots on five dams that feed into the river system.

Special Master Ralph Lancaster found that Florida showed evidence it suffered harm due to Georgia’s overuse of water, but because the Corps was not a party in the lawsuit it couldn’t be bound by a court order. However, the Corps stated about a month after Lancaster’s report that it could potentially consider a court order and revise the manual. But, it noted such action would require years of research and collection of public comments. The Court replaced Lancaster in August.
 
Florida maintains that if the court concludes that it can get more water through reasonable modifications of the existing manual and that those potential modifications “would substantially outweigh any harm that would result to Georgia from a decree, then Florida would be entitled to a decree even though there is no certainty about how the Corps will respond.” Florida attorneys also stated they realize that any ruling on the issue “would not be directly and formally binding on the Corps.”
 
Kelly’s allowance of Florida’s request for revision follows his previous shutdown of the Sunshine State’s plea to enter more evidence in discovery. He ordered litigants to cite already on-the-record evidence in response to a series of questions by the end of this month. He asked Florida to provide specifics about how it “suffered a substantial invasion of rights” and harm from Georgia’s water use upstream. He 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.

Posted online 12/26/18
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