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Oct. 19, 2018
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Special Master orders joint memorandum in water lawsuit

By Jane Harrison
 
A court official ordered Georgia and Florida to get their act together to solve a long-running water dispute on the Apalachicola-Chattahoochee-Flint river system. Special Master Paul J. Kelly, Jr., in his first substantive action in the case, ordered the parties to meet and confer by Sept. 18 and produce a joint memorandum by Oct. 2. Public record of their meeting was not available by deadline.
 
The Supreme Court appointee wants the states to address five questions, including one about settlement exploration, in 40 pages or less to determine the future course of legal proceedings. The case originated in 2013 with Florida’s claims that Georgia siphons excess water from Chattahoochee and Flint Rivers and causes harms downstream on the Apalachicola, which nourishes Panhandle oyster fisheries and wildlife. Georgia and Lake Lanier stakeholders have kept watch on the lawsuit’s potential impact on the north Georgia lake. Lanier, the northernmost and largest reservoir on the river system, quenches much of metro Atlanta’s water needs and boosts the economies of surrounding counties.
 
Supreme Court justices remanded the case for further evaluation after ruling that the first special master, Ralph I. Lancaster, Jr., used too strict a standard for Florida to prove that limiting Georgia’s water use would ameliorate its woes. The court named Kelly the special master Aug. 9 in a move legal experts widely presume was to save the states’ money. Kelly, a senior U.S. appeals court judge, is on the federal payroll; Lancaster, a prominent Maine attorney, was privately employed.
 
Kelly, reputed for straight-forwardness and prompt decisions, cut quickly to the issues in his September directive. He expects the states to summarize whether existing evidence can answer questions raised by justices in the June hearing. Kelly wants states to reply whether:
 
• Additional discovery is needed, and if so, what specific issues it would address
• It’s possible to produce stipulations about facts related to economic issues each state faces due to water concerns
• Additional hearings would be beneficial
• Settlement possibilities have been and will be explored fully
• The special master should address any other issues.
 
Kelly ordered the states to submit “a joint memorandum to the extent possible, though it may contain independent statements where the parties are unable to agree to the summary.” He stated he would prepare a scheduling order after submission.
 
Kelly also invited the United States Justice Department, which represents the U.S. Army Corps of Engineers, to indicate by Oct. 2 whether “it can or intends to provide any further information that would bear on any of the issues.” The Corp, which controls five dams on the river system, was not included in Florida’s original lawsuit, and testified as amicus.

Posted online 9/28/18
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