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Sep. 22, 2017
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Lawsuit update

By Jane Harrison
 
The U.S. Corps of Engineers could potentially alter its master plan for water control on the Apalachicola-Chattahoochee-Flint River system pending a Supreme Court decision on a Florida v. Georgia water lawsuit. The U.S. Department of Justice stated in a legal brief filed last month that the Corps “will review any final decision from the U.S. Supreme Court and consider any operational adjustments that are appropriate in light of that decision, including modifications to the then-existing (Master Manual), if applicable.” But it also emphasized that since the Corps was not a party in the case, its operations were not at issue and it is not compelled to act.
 
The Justice Department document, as well as briefs submitted by Georgia counties and municipalities and other U.S. states, was the latest round of legal maneuvers following Florida’s plea that justices disregard a Special Master’s report that denies Florida’s request to limit Georgia’s water consumption.

The Sunshine State sued Georgia in Oct. 2013 claiming that the Peach State hoards water upstream and threatens the up Apalachicola region’s oyster-dependent economy and ecology. The lawsuit did not target the Corps, which manages flows from the Chattahoochee and Flint rivers into the Apalachicola River in Florida. After nearly two years of evidentiary proceedings and a two-month courtroom battle, Special Master Ralph Lancaster determined that Florida did not prove that capping Georgia’s water use would solve water woes downstream. He also implied Florida was remiss in not naming the Corps in the lawsuit.
 
In its May 31 exception to Lancaster’s report, Florida cried the Apalachicola region’s survival depends on the court’s denial of the report. Florida attorneys claimed that Lancaster erred in concluding that uncertainties in Corps’ operations prevented him from apportioning water from Georgia to Florida. They pointed to a Corps’ document that stated the Corps would consider adjustments to its water release operations pending a Supreme Court decision.
 
Georgia attorneys rebutted July 31 that Florida selectively quoted and omitted passages from a previous Corps document. The Corps stated it would “review and consider” any final court order, but also noted any changes to its master plan would require another drawn out public process and environmental assessments. Since it was not a party in the lawsuit, the court could not force the Corps to take action.
 
The DOJ brief does not suggest that capping Georgia’s water use would not benefit Florida and the ACF. It states that increased flows could delay onset of drought operations and quicken normal operation after drought. However, the United States takes no position on whether Florida proved limiting Georgia’s water consumption would provide Florida sufficient relief. The brief further stated, “And of course, if, as Florida has argued and as the United States has agreed in principle, a decree capping Georgia’s consumption could result in more water flowing to Florida in some circumstances under existing Corps protocols, then the Corps would likely not need to change its operations in response to such a decree.”
 
Lake Lanier stakeholders have kept an eye on the case, which could have repercussions for the largest reservoir on the ACF. Georgia officials rejoiced at Lancaster’s recommendation. An Atlanta Regional Commission amicus brief further supported it last month. Filing on behalf of Gwinnett, Forsyth, Dekalb, and Fulton counties, plus the cities of Atlanta, Gainesville and the Cobb County-Marietta Water Authority, the ARC document backed up the court official’s ruling.
 
Additionally, the state of Colorado offered its approval. Western states have long battled over water and focused on how the court official would rule in a water war down south. The Colorado brief asserts upstream water rights, stating that “only after a complaining state has clearly proven the effectiveness of its proposed remedy can the court begin to weigh the equities involved with apportionment. The Court should continue to enforce the requirement that a complaining state prove its entire case by clear and convincing evidence.”

Posted online 8/30/17
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