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Nov. 18, 2019
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Special Master’s decision on water war may come this winter

By Jane Harrison 
 
Water law experts expect Special Master Paul J. Kelly, Jr., will be quick to render his opinions in a six-year Florida/Georgia dispute over water in the Apalachicola-Chattahoochee-Flint river basin. The Supreme Court appointee, known for timely case management, might possibly have recommendations out in early winter after questioning attorneys during oral arguments Nov. 7.
 
At stake is potential court-mandated allocation of water in the river system where Lake Lanier is the largest reservoir. The special master’s recommendations are likely to influence a Supreme Court decision that could enforce water policy and affect long term relationships between the states for generations.
 
Kelly granted Florida’s request for a face-to-face hearing in July and originally set the date for Dec. 16, then without explanation moved it to Oct. 17, before changing it to this month after Florida noted a date conflict. Oral argument was set to commence at 10 a.m. Nov. 7, at the U.S. District Courthouse for the District of New Mexico, in Albuquerque.
 
Kelly allotted 45 minutes for each party, with Florida granted extra time for rebuttal. Kevin Jeselnik, chief legal counsel for Chattahoochee Riverkeeper, expected Kelly would drill lawyers after their presentations to get specific information he needs. “Typically there’s a lot of Q&A in appellate level oral arguments,” he said, speculating that Kelly would run the hearing like those often heard in the U.S. 10th Circuit Court of Appeals, where Kelly is a senior judge.
 
“Each side will answer directly to the story they want to tell,” Jeselnik said. Georgia’s storyline asserts it is not to blame for Florida’s water woes and that there is enough water in the basin to reasonably serve its needs. The Peach State also argues that water use restrictions could choke economic development. Florida contends Georgia has been irresponsibly consuming water for years, causing economic and ecological harm downstream in Apalachicola Bay.
 
Jeselnik also guessed that Kelly may have already formulated an opinion and allowed the hearing so he could “dial it in.”
 
Each side will aim “to create shreds of doubt in any previously formulated opinion,” said Chris Manganiello, CRK Water Policy Director. He speculated the brief court session would not “change hearts and minds in the last minute … There’s not going to be a Perry Mason moment with a 180-degree change in the path of the overall case,” he said.
 
New Mexico attorney John B. Draper, who has extensive experience arguing water cases in front of special masters, said that by granting the hearing Kelly “obviously decided having access to the attorneys would be helpful.” He expected Kelly would direct a lot of questions to each side to ensure he’s understanding their positions correctly.
 
Draper’s familiarity with special masters includes his current connection with Kelly in the Santa Fe legal community and his past acquaintance with the initial special master in the case, the late Ralph I. Lancaster. Draper’s office is practically across the street from Kelly’s. He also knew the former special master, whom he described as a very experienced special master and a “really great guy, smart and very able.”
 
Draper said special masters carry a huge responsibility for future relationships between the contending states and thus desire a thorough understanding of both sides. Kelly deliberated months before deciding to grant Florida’s March request for oral arguments. “Even for an experienced judge like Kelly, there’s a lot of (evidence) to go through, even to determine that he needs oral arguments,” Draper said.
 
He speculated that after getting the answers he needs, Kelly will complete his recommendations “in a matter of months.” Jeselnik and Manganiello also think Kelly’s opinion will come in early winter or spring. Then it would be up to Supreme Court justices to put it on their calendar for another hearing.
 
The legal matter centers on Florida’s claim that Georgia consumes more than its share of water from the Chattahoochee and Flint rivers, causing depleted flow on the Apalachicola and devastation to the downstream ecosystem on the Panhandle, where a fishing-dependent economy needs fresh water to nourish oyster beds.
 
Lake Lanier, the ACF’s northernmost reservoir, provides water to much of metro Atlanta and supports local economies through tourism and recreation, marine-related business, and real estate sales. The Flint River waters Georgia crops in its course from south Atlanta down to the state’s southwest corner.
 
Florida initially sought to cap Georgia water consumption at 1992 levels but tweaked that request in its post-remand brief to keep Georgia consumption at current levels until 2050. That brief also referenced a proposed water sharing plan composed by the ACF Stakeholders, an independent non-profit organization of water stakeholders from Georgia, Florida, and Alabama. Florida’s shift gave Kelly more points to ponder than his predecessor.
 
Since his appointment in Aug. 2018, Kelly has had more than a year to pore over voluminous evidence already amassed under Lancaster. In a 5-4 decision, Supreme Court justices remanded Lancaster’s recommendations, saying he required too strict a standard for Florida to prove its case.

Lancaster had required that Florida prove that restricting Georgia’s water use would produce significant benefits downstream. He said that because the U.S. Army Corps of Engineers controls the spigots through dams on the rivers, Florida might not get the relief it sought.

Posted online 10/29/19
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