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Dec. 17, 2018
12:12 am


High court lists water lawsuit on term calendar

By Jane Harrison
The U.S. Supreme Court put the Florida verses Georgia lawsuit over water on its October 2017 calendar, but as of late October had not set a hearing date. Justices listed 45 cases for the calendar, which extends into June 2018. Arguments in several cases began last month and the court schedule showed no date for water war arguments through the rest of this year. The court’s “Granted and Noted List” stated it is “set for oral argument in due course.”
No one from either state’s attorney general’s office will comment on the case, except that each retains the same outside legal counsel. Both rely on Washington, DC attorneys to carry on. Lake Lanier Caucus Chair Renee Unterman told officials gathered in Gainesville last month that Ga. Attorney General Chris Carr declined to send a representative to the meeting for an update. Clyde Morris, legal representative for the Lake Lanier Association, complained that the state’s office could have at least sent a staff member to say “we can’t comment.”
The deep south water battle is one of two legal contests on the Supreme Court calendar pitting states against their neighbors for the precious resource. Florida fired off against the Peach State in an Oct. 2013 lawsuit accusing Georgia of draining more than its share from the river system that supplies Florida, Georgia and Alabama. Earlier that year, Texas targeted New Mexico and Colorado, accusing them of violating Rio Grande water compact.
Although disagreements over water, a valuable life-sustaining, economic commodity, have been ongoing since civilization began, the U.S. Supreme Court has rarely granted state water squabbles a hearing. The Texas and Georgia legal actions, titled 141 Original and 142 Original, represent the 141st and 142nd such cases ever appearing on the federal court calendar.
Federal justices will hear Florida’s pleas to throw out a Special Master’s recommendations to deny its claims. Georgia won a pre-hearing victory in February this year when Special Master Ralph Lancaster concluded Florida could not prove that limiting Georgia’s water supply would remedy its downstream woes. Lancaster rendered his recommendation after more than two years of discovery and a five-week evidentiary hearing in a Portland, Maine courtroom.
Lake Lanier area residents and water users have particular interest in the case which involves a primary resource and amenity. The 39,000-acre lake is the largest reservoir on the Apalachicola-Chattahoochee-Flint river system that extends from north Georgia to the Gulf of Mexico. Lanier is the northernmost of five impoundments the U.S. Army Corps of Engineers operates on the rivers.
The Special Master based his denial of Florida’s claims on evidence Georgia produced that no matter what happens with upstream water use, it is the Corps that holds the spigot. Florida’s lawsuit did not target the Corps, which would have required Florida to get a waiver of sovereign immunity to sue a federal agency. Georgia attorneys anchored their case on the Corps’ control of water flow.
Lancaster concurred. “Without the ability to bind the Corps, I am not persuaded that the court can assure Florida the relief it seeks. I conclude that Florida has not proven by clear and convincing evidence that its injury can be redressed by an order equitably apportioning the waters,” he wrote.
In a series of exceptions and replies submitted after the Special Master’s submission, Florida claimed that the Corps’ operation manual for the rivers states it could consider potential changes for water flow pending a court decision. But, the Corps also noted that since it is not a party in the lawsuit its operations are not an issue and it is not compelled to act. Georgia’s replies support the Special Master’s conclusions.
Florida offered its exceptions as a final cry for the Apalachicola region’s survival. Its livelihood is based on oyster fisheries, which need fresh water to thrive. Lancaster indicated he did not find Georgia completely blameless for troubles downstream. He wrote that evidence showed farmers along the Flint River watered crops nearly without restriction and the metropolitan Atlanta was slow to cut back on water use during drought. During pre-trial activity, Georgia Gov. Nathan Deal set up an agricultural water permitting task force and in June allotted $10.5 million for the Georgia Environmental Protection Division to oversee the state water metering program.
Each state has spent upward of $40 million in the legal action. Some Florida water watchdogs have mourned their state’s investment in a lawsuit rather than in propping up the infrastructure of Apalachicola’s oyster industry.
Craig Primis, of Kirkland & Ellis, has Georgia’s nod to argue before the Supreme Court. He won “Litigator of the Week” in February from the National Law Journal, which declared him as “winning the water year” after the Special Master’s recommendation. Georgia Solicitor General Sarah Hawkins Warren, who formerly worked with Kirkland & Ellis as outside counsel on the water case, is leading the effort from the Georgia office.
Gregory G. Garre, of Lathem & Watkins, is counsel of record for Florida. Also a former Litigator of the Week and U.S. Solicitor General, he has argued 41 cases before the Supreme Court, according to his law firm’s website. 

Posted Online 10/30/17
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