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Jun. 5, 2020
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Florida blasts judge’s water lawsuit report

By Jane Harrison
 
Florida attorneys ripped a special master’s report that put Georgia on the winning end of a seven-year water battle. In its April 13 reply to Special Master Paul J. Kelly’s Supreme Court recommendations, Florida blasted the court official for hearing no witnesses, taking no new evidence, and denying statements from a former special master’s nearly four-year reign.
 
Kelly recommended the Supreme Court drop the lawsuit in his Dec. 11 report which stated that he believed evidence that Georgia’s water use is reasonable and downstream woes in Florida were caused by drought and mismanagement rather than Georgia’s consumption. He also concurred with Georgia’s argument that the cost of cutting water use and imposing more conservation measures in its larger economy would outweigh any potential benefits downstream in the smaller communities on the Apalachicola.
 
The states’ skirmish over water in the Apalachicola-Chattahoochee-Flint river system started after a 2012 drought during which low freshwater flow on the Apalachicola River allowed excess ocean water to intrude into oyster fisheries on the Panhandle. Florida blamed Georgia’s upstream taps on the Flint and Chattahoochee rivers for collapse of the oyster industry and ecological damage along the Apalachicola.
 
The 2013 lawsuit accuses Georgia of overconsumption and asks the court to equitably allocate water between the states. Initially, lawsuit followers feared Lake Lanier, the largest reservoir on the ACF and a major Georgia water supplier, might be impacted; however, Florida instead targeted Georgia agricultural irrigation on the Flint. The state’s farmers use more water than all other Georgia water consumers combined.
 
In the April reply, Florida argues that Kelly’s “single hour-and-a-half hearing” with the states should not flip the first special master’s “core conclusions” following lengthy discovery and a five-week trial. “Special Master Ralph Lancaster placed great weight on live testimony and generally refused to consider testimony from anyone who did not appear and subject themselves to cross examination. During key junctures at trial, he frequently questioned witnesses himself,” Florida attorneys said.
 
 Lancaster concluded that Florida had suffered harm and that Georgia’s consumption was irresponsible; but he recommended the Supreme Court dismiss the case because the U.S. Army Corps of Engineers controls the flow through federal dams on the rivers. Thus, he reasoned, court action could not guarantee relief on the Apalachicola. The court remanded Lancaster’s report. He retired from the case and died a few months later. Kelly got the nod in Aug. 2018.
 
Florida accuses Kelly of improperly throwing out Lancaster’s conclusions about harm and inequitable conduct and dismissing evidence “including the admissions of Georgia’s own officials that their consumption was dangerously depleting flows, and the testimony of those who witnessed the decimation of the oyster fisheries firsthand.” Furthermore, it says Kelly “disregarded Florida’s equal right to the reasonable use of the waters at issue – granting Georgia carte blanche to use much as it wants.”
 
Florida attorneys, led by Gregory G. Garre, a former U.S. Solicitor General who has argued in 44 Supreme Court cases, claim the case culminates “decades of effort by Florida to save the Apalachicola.” He argues that Kelly’s report denies Florida the right to “just and equitable apportionment” of a shared resource under the Constitution.
 
Georgia has until June 12 to reply to Florida’s arguments. Another round of sur-replies are due a month later. The case could potentially appear on the court’s October calendar.
 
Both states have spent in excess of $40 million in litigation costs. 

Posted online 4/30/20
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