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Aug. 14, 2018
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Lawsuit followers await special master’s next move

By Jane Harrison
 
The man chosen by the Supreme Court to divvy the waters between Florida and Georgia wondered aloud years ago if he’d live to see the end of their dispute. Now, a month after the Supreme Court remanded his hard wrought decision, all eyes are on Ralph Lancaster’s docket to see if the 87-year-old veteran court appointee will continue as Special Master over the lawsuit Florida initiated in 2013.
 
Lara Flower, water litigation specialist for Supreme Court blogsite SCOTUSblog.com, said she is among lawsuit followers who check Lancaster’s site and the Court’s docket daily to find out Lancaster’s intentions. “I have not heard of a schedule” for resumption of court proceedings, “it’s all incumbent on the special master, she said. She added that Lancaster may decline to continue or that Florida may request a new special master.
 
Reached by phone in late July, the special master gave no hint about whether he would resume work on the case. “From the beginning I’ve had a policy of not commenting, even on something as innocuous as that,” Lancaster said, politely offering his apology.
 
But Lancaster’s docket discloses for public view his feelings about the case from the get go. Transcripts of teleconferences with states attorneys brim with warnings of future unhappiness. Nearly two-and-a-half years before the court’s remand, the special master voiced a measured prediction of a joyless conclusion:
 
 “I am not very good at predicting things; but at the risk of – at the risk of prognosticating wrong, let me say that I think that when this matter is concluded – and I hope I live long enough to see it happen – when this matter is concluded, at least one and probably both of the parties will be unhappy with the Court’s Order.”
 
Now, the court appointee who repeatedly warned the states of an unhappy conclusion to their long fought battle probably isn’t happy himself with the continuing saga.
 
Fowler, a Pennsylvania State water law professor, water lawyer and mediator, speculated that it might take at least another year of data and evidence collection, plus another evidentiary hearing before the case returns to the Supreme Court. She said it’s Lancaster’s prerogative whether to continue; it’s also  possible that Florida, unhappy with Lancaster’s recommendation, may ask the court to dismiss him.
 
In the meantime, there appears no end in sight for the legal battle over water in the Apalachicola-Chattahoochee-Flint river system where Lake Lanier is the largest reservoir. Florida claims that Georgia hoards water needed to nourish the environment and economy downstream in the panhandle where oyster fisheries depend on fresh water. The Sunshine State sought to limit Georgia’s water use in hopes of sending more water across the state line.
 
After two years of discovery and a month-long evidentiary hearing, Lancaster recommended the Court deny Florida’s claim on the basis that Florida could not prove meaningful benefit from capping Georgia’s consumption. He added that the U.S. Army Corps of Engineers holds the spigot through its control of dams and that the Corps could not be bound by a court order to release more water into Florida.
 
In what both sides thought would be the final word in the case, Supreme Court justices instead sent it back to the Special Master. The 5-4 decision in the complicated, data-heavy case came on June 27, the session’s final day. It was the last ruling of the day and also the final vote for Justice Anthony Kennedy who announced his retirement that afternoon. Kennedy voted with the majority.
 
Writing for the majority, Justice Stephen Breyer stated Lancaster had required “too strict a standard” for Florida to prove it might benefit from capping Georgia’s water consumption. He added that the Corps, in its ACF water management plan signed about a month after Lancaster’s report, indicated that it would consider a court order to revise the plan to potentially increase the flow to Florida.
 
But, the majority also stated that Florida could only be entitled to a decree if it shows the benefits of apportioning the water would outweigh the harm caused to Georgia.
 
Justice Clarence Thomas countered in the minority opinion that Georgia would suffer greater harm than Florida 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.
 
The Court wants the Special Master to answer two questions:

1) would a cap on Georgia’s water use provide a significant increase of stream flow into Florida; and

2) would the amount of extra water significantly redress the ecological and environmental harm that Florida suffered. Breyer affirmed Florida proved it suffered harm from Georgia taking more than its share of water from the Chattahoochee and Flint rivers, which flow into the Apalachicola at the state line.
 
Florida officials and Apalachicola Riverkeeper interpreted the Court ruling as a second shot at getting the water they need, while on the Georgia side, the governor said the state remains confident on its legal position. However, some environmental groups and stakeholders cried for settlement of a lawsuit that has already cost both states upwards of $40 million.    
       
Chattahoochee Riverkeeper supports an interstate compact to equitably apportion the water, increased involvement of the Corps, and greater conservation by all water users. “If a robust culture of conservation does not take hold in Atlanta, the Flint River basin and across all economic sectors, we’ll be back in court again another day,” Water Policy Director Chris Manganiello said in a CRK statement.
 
ACF Stakeholders, a privately funded group of environmentalists, business people, and public works officials that produced a scientific-based plan to share the water, begged for attention. “In 2015, this group unanimously adopted a Sustainable Water Management Plan, which points the way forward for equitable water allocation across the ACF basin, and it’s time for Georgia, Alabama and Florida to collaborate and adopt the recommendations of this plan,” said Deron Davis, The Nature Conservancy in Georgia’s executive director.
 
ACF Stakeholders attending the Special Master’s evidentiary hearing in December 2016 saw a dog-eared, tab marked copy of the SWMP on Lancaster’s desk. He’d apparently read at it, but did not mention it in his recommendations. When contacted by Lakeside News, officials from Georgia and Florida declined to say whether they had seen the plan.
 
Fowler, the SCOTUS.blog water litigation specialist, strongly recommends negotiation over continued legal battles. “Go figure this out,” she advised. “If you negotiate a solution, you’ll like it better.” Coming up with creative solutions to water puzzles takes tough compromise and often political involvement, she added. “It takes both parties willing to sit down and work with each other … it’s hard work,” she said.
 
This is what the Special Master repeatedly urged Florida and Georgia to do from the beginning. And, it is what ACF Stakeholders already did in tension filled rooms where they labored to reach consensus.
 
States’ officials who negotiated with the help of an unnamed mediator failed to reach agreement. Georgia Gov. Nathan Deal told an Atlanta newspaper he regretted he and Fla. Gov. Rick Scott could not settle the case.

Posted online 7/27/18
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