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Aug. 6, 2020
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Georgia urges court to shut down water lawsuit

By Jane Harrison 
 
Georgia accuses Florida of spewing rhetoric and questionable data in the latest volley in the water wars between the two states. “After more than six years of litigation, it is now clear that Florida’s case was built on rhetoric and not on facts,” wrote Georgia attorney Craig S. Primus in a June 26 filing that strongly refutes Florida’s arguments. “On this comprehensive record, Florida has failed to prove its case,” Georgia declares in the document urging justices to shut down Florida’s claims.
 
In the June filing, Georgia attorneys defend a special master’s report that ruled in Georgia’s favor, denying Florida’s claims that Georgia caused harm downstream by using too much water from the Flint and Chattahoochee rivers. The two Georgia rivers merge near the state line at Lake Seminole and flow out as the Apalachicola River in the Florida Panhandle.
 
Florida filed suit in Oct. 2013 asking the Supreme Court to allocate water in hopes of salvaging the Apalachicola Bay oyster industry, which needs fresh river water to nourish oyster beds. Oyster fisheries collapsed after a 2012 drought hit both states. Initially, stakeholders on Lake Lanier feared the legal action would threaten the level and usages of the largest reservoir on the river system. Lanier supplies water to metro Atlanta and supports lake-related business and tourism-related economies in counties it touches.
 
Instead, Florida’s suit targeted Georgia agriculture along the Flint River, which uses more water than all other entities combined.
 
The Supreme Court in June 2018 voted 5-4 to give Florida another chance to prove its case after the initial special master denied Florida’s claims on a technicality. The second special master, Paul J. Kelly, also denied Florida’s claims in his recommendations to the court in Dec. 2019. Kelly stated that Georgia’s water use is reasonable. He noted Georgia conservation efforts and contrasted Georgia’s larger economy and population with the tiny region at stake on the gulf.
 
He also quoted witnesses who blamed Apalachicola’s woes on Florida's mismanagement of resources. In the end, he cited evidence that the cost to Georgia of limiting water consumption would be greater than the benefit of potential additional flow into Florida.
 
Since his report, both states have batted replies and sur-replies.
 
Georgia’s recent filing responded to Florida’s accusations that Kelly did not invest sufficient time and effort into the case and contrasted his work with that of 2014-2018 special master Ralph I. Lancaster, who has since passed away.
 
“Special Master Kelly thoroughly canvassed the extensive trial record and answered every question necessary for the Court to determine whether Florida is entitled to an equitable apportionment,” said the Georgia sur-reply. “His 81-page report carefully details how Florida’s case fails in every respect.

Indeed, Florida’s evidentiary failings were so glaring that Special Master Kelly concluded that Florida had failed to prove its case even after giving Florida the benefit of the doubt on several key legal and factual disputes. This Court should accept the Special Master’s reasoned recommendations.”
 
With both replies and sur-replies on record, the next step in the legal action was still uncertain as of mid-July. The case did not appear on the Supreme Court’s October term calendar. Both states have spent an excess of $40 million in litigation costs.

Gainesville, lake counties sign on to ‘friend of court’ brief
The city of Gainesville, Gwinnett County and Forsyth County are among a group of water suppliers who want the Supreme Court to note that Florida is not targeting Lake Lanier in its lawsuit over water in a river system that flows from north Georgia into the Florida Panhandle.
 
“Florida has abandoned any claim that water use in Metro Atlanta is excessive, inefficient, or unreasonable,” states the July 2 Amicus Brief filed by King & Spaulding on behalf of the Atlanta Regional Commission and nine counties and municipalities that get their water from the Apalachicola-Chattahoochee-Flint river system. Lake Lanier, metro Atlanta’s major water supplier, is the largest ACF reservoir. An Amicus Brief is a legal document filed in a case by non-litigants with what they believe is relevant information in the case. Such documents are commonly referred to as “friend of the court” briefs.
 
The brief responds to Florida’s exceptions to a court official’s report that deems Georgia’s water use reasonable and commends Georgia’s conservation efforts. Florida’s 2013 lawsuit initially attacked metro-Atlanta’s water use, but later targeted Georgia farmers along the Flint River, who use substantially more water to irrigate crops.
 
“Florida does not meaningfully challenge the Special Master’s detailed findings and recommendations regarding municipal and industrial water use by Metro Atlanta,” the brief states. “The words ‘municipal and industrial’ do not appear” in Florida’s arguments with the special master’s report. The word ‘Atlanta’ appears only once – and even then not in reference to any claim by Florida that Metro Atlanta’s water use is unreasonable.”
 
The water users’ group concludes that the court should “hold that water use in Metro Atlanta and the State of Georgia is reasonable, and deny Florida’s request for relief.”
 
Other signers include the counties of Dekalb, Fulton, Atlanta, and Bartow, plus Cartersville and Cobb County-Marietta. 

Posted online 7.30.20
 
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