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Feb. 21, 2019
9:07 pm


Georgia-Florida lawsuit sent back to special master

By Jane Harrison
There remains no end in sight to a long-fought battle over water between Florida and Georgia after the Supreme Court said last month it wants more facts in the latest duel. In a narrow decision, the Court sent Florida v. Georgia back to the Special Master to “address evidentiary and legal questions” to help resolve the case.
Florida officials hailed the remand as “a huge win” in the state’s legal quest to cap Georgia’s water use and send more water downstream into the Florida Panhandle. Georgia Gov. Nathan Deal issued a statement that he looks forward to continuing to defend the state’s legal position.
In the 2013 lawsuit, Florida argues that Georgia is hoarding water on the Chattahoochee and Flint Rivers, causing ecological and economic harm to Apalachicola Bay, seat of the state’s oyster fisheries. Lake Lanier, the largest of five Army Corps reservoirs on the river system, is the major water supplier for metro Atlanta and an economic engine for a swath of Northeast Georgia.
Writing for the majority in the 5-4 opinion, Justice Stephen Breyer stated that Special Master Ralph Lancaster used too strict a standard for Florida to prove its argument to limit Georgia’s water use. Lancaster, who presided over two years of discovery and a month long trial, required that Florida provide “clear and convincing evidence” that any additional stream flow coming down would be released from dams on the river to benefit Florida.
Said Breyer, “We believe the Master’s standard … is too strict. In our view, unless and until the Special Master makes the findings of fact necessary to determine the nature and scope of likely harm caused by the absence of water and the amount of additional water necessary to ameliorate that harm significantly, the complaining State should not have to prove with specificity the details of an eventually workable decree by ‘clear and convincing’ evidence.”
But, the majority also states that Florida could only be entitled to a decree if it shows the benefits of apportioning the water would outweigh the harm it could cause Georgia. The court said the Special Master may find it necessary to get specific facts about the extent of Georgia’s alleged overuse of water, Florida’s sustained injuries, and how exactly how much more water would benefit Florida.
The majority likened Lancaster’s requirement of “clear and convincing evidence” before getting specific facts about “harms and amelioration” to putting the cart before the horse. It also disputed the Special Master’s conclusion that any court ruling on water allocation would hinge on Corps’ management of the dams. Breyer states that the Corps makes clear it would work to accommodate a court order equitably apportioning the waters.
Breyer further stated that there is evidence that the amount of water that a consumption cap on Georgia would send to Apalachicola would “significantly redress the economic and ecological harm that Florida has suffered.” The question is, how much. Justices John Roberts, Anthony Kennedy, Ruth Bader Ginsburg, and Sonia Sotomayor voted in the majority.
In his dissenting opinion, Justice Clarence Thomas writes, “In short, we have all the evidence we need to decide this case now.” He said that the Special Master’s “balance-of-harms standard” involving 40 witnesses and more than 2,000 exhibits found that Florida had not proven its case.
“It is incredibly odd to conclude that a Special Master’s merits determination is ‘premature’ after a full trial,” he states. He adds that although both states depend on the river basin, Georgia stands to suffer greater harm if its water use is cut. He contrasted a Georgia regional population of more than 5 million and an annual gross regional product of $283 billion with Florida’s regional count of fewer than 100,000 people and an annual $2 billion regional product. Justices Samuel Alito, Elena Kegan, and Neil Gorsuch voted with Thomas.
It is not known how long the Special Master’s reconsideration of the case will take. Both states have already spent more than $40 million each on the lawsuit.
Reactions to Supreme Court Opinion:
  • Ga. Gov Nathan Deal: Though the Court remanded this case back to the Special Master following a five-week trial, during which the ineffectiveness of draconian caps placed on Georgia’s water use as a solution was demonstrated, I remain confident in the state’s legal position. Georgia heeded the Special Master’s warning and took legislative action, which is now law, to address his concerns. I look forward to continuing to defend our position in this case.  
  • Fla. Gov. Rick Scott: (The) ruling is a huge win for the entire state of Florida. As Governor, protecting the families whose livelihoods rely on the Apalachicola Bay has been a top priority. For nearly thirty years and under five governors, Florida has been fighting for its fair share of water from Georgia. After decades of failed negotiations, we took our historic action to protect families all the way to the U.S. Supreme Court. I am glad that the court ruled in Florida’s favor today and we look forward to further securing a healthy Apalachicola Bay while protecting the thousands of jobs that depend on this natural resource. 
  • Wilton Rooks, Lake Lanier Association President, ACF Stakeholders Governing Board Member: We encourage the Special Master to look into more details and consider the solution proposed by the Stakeholders for a three-state plan that would deal with the issues the Court raised. We look forward to cooperating with the Special Master and encourage him to give more consideration to the Stakeholders’ Sustainable Water Management Plan.
  • Tania Galloni, Earthjustice Attorney representing Apalachicola Riverkeeper, Florida Wildlilfe Federation and National Wildlife Federation: The ruling is great news for Florida’s environment, drinking water supply and wildlife. We’re confident that Florida will be able to meet the Supreme Court’s test to show that reining in Georgia’s wasteful water consumption upstream will provide much needed freshwater to Florida downstream.

Posted online 6/28/18
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