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Jan. 22, 2019
6:56 pm


Justices consider lawsuit

By Jane Harrison
The culmination of nearly five years of blaming, arguing, evidence collecting, and amassing legal costs will come down to a Supreme Court announcement next month or in July declaring the outcome of a Florida-Georgia water fight.
In the six-month interim between the Jan. 8 hearing and early summer, Justices will have voted behind closed doors at least once and have likely written a rough draft of the majority opinion. In the months before that decision hits the shores of Lake Lanier, judges may have picked apart evidence, scoured related legal developments, and possibly found reason to put a special master back to work on the case.
Florida has asked justices to remand the special master’s February 2017 report that denied its claims that limiting Georgia’s water use would bring relief downstream. After two years of discovery and a month-long hearing, Special Master Ralph Lancaster’s report concluded that Florida did not prove that curtailing Georgia’s consumption would increase flows into Florida. He reasoned that ultimately the Corps decides how much water goes south through its management of dams. Florida’s lawsuit failed to target the Corps.
Justices usually base their decisions on special masters’ recommendations, but occasionally send them back for changes. In the past, the court has occasionally found exceptions to the veteran special master’s recommendations and asked him to reconsider.
The long anticipated decision will culminate a four-year legal battle launched in a 2013 Florida lawsuit accusing Georgia of hoarding water on the Apalachicola-Chattahoochee-Flint river system and causing economic and environmental harm to oyster fisheries and wildlife in Apalachicola Bay. Lake Lanier – a major fount of water supply, recreation, income and property values in North Georgia and Metro Atlanta – is the largest reservoir on the ACF. Buford Dam, which holds Lanier, is one of five dams operated by the U.S. Army Corps of Engineers on the river system.
Justices are sure to scrutinize a major document that came out shortly after Lancaster signed his report. Barely a month later, the Corps released its new water control manual for the ACF that basically granted Georgia all the water it requested. But, therein also lay a key to Florida’s Supreme Court argument. The Corps stated it might consider changes to the manual pending a court order. Florida seized on that possibility, arguing that the court could potentially influence allocation of the water.
A water control manual rewrite could take years of environmental studies, hearings, and public involvement – just as was required in the current manual, the first complete ACF manual since Lake Lanier filled up in 1958. Legal wrangling between Georgia, Florida and Alabama held up completion for years and could possibly put the manual on back on the drawing board.
During the decision-making process, justices consider not just attorney arguments from the one-hour hearing; they also have at their perusal volumes of evidence recorded in discovery. They might also look at other developments that may have taken place after court proceedings.
Edith Roberts, editor of SCOTUS Blog, the Court’s official on-line blog site, explained by email what generally happens after arguments wrap up:
“The justices will have voted on the case in a private conference the same week as the oral argument. Since then, they have presumably been drafting the majority opinion and any separate opinions that may be in the works. They can consider any evidence in the record of the case that is included in the joint appendix.”
A group of tri-state water stakeholders hopes its science-based water-sharing plan lands on justices’ desks. ACF Stakeholders, a non-profit, private organization of people who live and work in the river basin, adopted a consensus-based plan for the states to share the resource in 2015. An ACFS member saw a dog-eared copy of it on Lancaster’s platform during his evidentiary hearing. Lancaster referred to it, asking witnesses if they had heard of it. It is listed in the case appendix and accessible to justices.
ACFS Executive Manager Mark Masters told Lake Lanier advocates in March that regardless of how the court rules, their plan could provide a water-sharing model.
Justices might also look up another court record from Lancaster’s hearing that some ACF observers believe might solve some tri-state water disputes while possibly starting another. The special master posed the question during the evidentiary hearing: “Suppose the Supreme Court ordered that a canal be created between the Tennessee River and the Chattahoochee River. What effect would that have?” The witness, a groundwater expert, had no idea, but the court appointee apparently had looked at the decades-long quest by Georgia to get water from the Tennessee River. The Georgia legislature again this year passed a resolution to study how to realign the Georgia-Tennessee line to correct a historic survey error that mapped the river in Tennessee rather than in Georgia.
Justices could ponder a potential Tennessee River solution and any other recent related legal action or developments that states’ attorneys brought up in court, according to court expert Roberts. Among those might be bills and resolutions from Florida legislators to fight the Corps over its management of the rivers. She added that if attorneys alerted them to other related legal action or developments, they could ponder those as well.
“There is no way to predict when the decision will come down,” Roberts said. Decisions from cases heard in January are usually announced in June or July. She declined to comment on a time frame for a potential reconsideration by the 86-year-old special master or what would happen if the special master could not fulfill an order to reconsider.
Each state has spent in excess of $40 million on the lawsuit so far. 

Posted online 4/30/18
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