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Oct. 17, 2018
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Supreme court dilemma

By Jane Harrison

Would limiting Georgia’s water use produce meaningful benefit to Florida?
A Special Master’s report that seemed to signal a Georgia win in a decades-long water war with Florida came under fire before U.S. Supreme Court justices Jan. 8. The one-hour hearing shook opinions about whether Georgia’s perceived victory is set in stone. It also cast doubt that the court’s decision, likely in June, will be the final toll in the battle among southern states for the precious resource.
 
“It seemed that a number of the justices agreed with the Special Master’s findings that Florida was harmed and that Georgia mismanaged some water supply resources” on the river system that supplies both states, said Kevin Jeselnik, General Counsel for Chattahoochee Riverkeeper. Florida filed suit in 2013 claiming that Georgia hoards water on the Apalachicola-Chattahoochee-Flint river system, causing ecological and economic harm downstream. The legal action seeks to limit Georgia water consumption basically to what it withdrew in the early 1990s.
 
Jeselnik pointed to the dilemma justices confronted during the hearing: “Considering (evidence that Florida suffered harm and that Georgia mismanaged water), some justices made the leap in logic that a cap on Georgia’s water consumption would necessarily lead to more water flowing down to Florida.” But, he added they had difficulty squaring that assumption with the U.S. Army Corps of Engineers’ complicated role in the flow of water from North Georgia into Florida. The Corps manages water through five dams on the Chattahoochee, including Buford Dam which forms Lake Lanier, the largest reservoir on the ACF.
 
Florida encouraged
Dan Tonsmeire, Apalachicola Riverkeeper, expressed a positive outlook for the Sunshine State after attending the hearing. “I’m encouraged for Florida and the Apalachicola side because (justices) seemed like they wanted to get Florida some relief, but they seemed to be having a difficult time finding exactly how to approach it,” he said.
 
Indeed, justices questioned a U.S. Justice Department official about how he would divvy the water. “What would you do?” Justice Stephen Breyer asked repeatedly U.S. Deputy Solicitor General Edwin S. Kneedler, who asserted “the Corps is the expert” on the river system, but maintained the government entity’s neutral status on the stand as an amicus witness.
 
Justice Anthony Kennedy echoed Breyer’s and other judges’ interrogation of Kneedler: “Well, you have said ­– you have said you don’t have any stake in the argument about whether more water would help Florida. Can’t we ask you that question when we’re talking about your expertise? You say, well, whatever you decide, we’ll use our expertise to follow it, but then you don’t tell us what to decide and you’re the experts.”
 
Justices’ inquiries of Kneedler, Florida attorney Gregory G. Garre and Georgia attorney Craig S. Primis indicated a desire to help Florida get more water from the river system, but no quantitative measure emerged about how much water Florida needs to benefit the Apalachicola ecosystem and whether Florida’s proposed remedy, limiting Georgia’s water use, would send enough water down for meaningful improvement.
 
Special Master’s ruling
They confronted the same complexity that influenced Special Master Ralph Lancaster’s recommendation last year to deny Florida’s claims. He found that regardless of a potential court order cutting Georgia’s water use, there is no certainty that water would flow down to redress Florida’s harm because the Corps controls the spigot. Florida did not sue the Corps, but instead went after Georgia, a legal flaw Lancaster referenced in his Feb. 14, 2017 report.
 
At times, justices seemed to question Lancaster’s findings. The court often concurs with Special Master’s reports in their final decision, but occasionally makes exceptions and sends cases back for reconsideration. This is Florida’s hope.
 
Justice Sonia Sotomayor said that despite her interpretation of the Special Master’s report that a consumption cap on Georgia would not send more water into Florida, she found “plenty of evidence” that it would. But she questioned Garre about the benefit. “Where do they quantify it to show that the improvement (from additional water) would be meaningful?”
 
Garre cited legal precedent in a Colorado v. New Mexico case that “absolute precision is not required” to redress harm, only that some benefit would result. He suggested the burden shift to Georgia to show cutting its water use would cost too much and would not be worth much to Florida.
 
Justice Neil M. Gorsuch interjected, “I thought the burden ultimately was for the plaintiff who wishes to alter the status quo to show that the benefits he wishes to obtain significantly outweigh harms that the relief he seeks would cause. Am I wrong about that?”
 
“Well, I think you are,” Garre replied, again citing the Colorado v. New Mexico precedent. Sotomayor asked, “How have you shown that the benefit to you is greater than the cost to them?” To which Garre responded that a Florida witness estimated a water cap would cost Georgia about $35 million, in contrast to a Georgia expert’s calculation of $350 million.
 
Early questioning
 In early questioning of Georgia attorney Primis, Chief Justice John E. Roberts challenged Primis’s opening statement that Florida premised its entire case on a claim that capping Georgia’s water use alone would result in material benefit to Florida without any change to Corps operations. “Well, but I don’t think they’ve premised it entirely on that,” Roberts said. “They’ve premised it on the fact that the Corps may change how it allocates water. That’s what they say in the March decision.”
 
Roberts referred to the ACF Water Control Manual released about a month after Lancaster’s report. The manual grants Georgia all the water it requested and promises no additional flow to Florida; however, it also states the Corps could potentially revise the manual pending a court order. Such a revision could take decades of environmental impact studies and public comment periods, as were invested in the current WCM.
 
“So, I mean, the decree granting Florida greater claims to water will at the very least change the facts on the ground and, according to the Corps itself, cause them to adjust its operations accordingly,” Roberts said. Primis answered that the Corps said it could consider a court order, but is not bound to follow one.
 
Breyer followed up, “Now, what reason is there to think (the Corps) won’t give a teaspoonful, they won’t give a little bit at least to help the mussels and the oysters and the others down in Florida? ... You’d think that if we’re being equitable here, it would be equitable to give at least a little bit to Florida. Now, what’s wrong with that?”
 
Primis explained that a “panoply of federal statutes, congressional dictates and mandates” govern how the Corps controls the water and reiterated that it “may not do anything” with a court order. Breyer earlier asked Primis about whether it would be helpful to a gather a panel of experts from the region, hold a hearing, and focus on “what’s best for the region” in order to advise the Special Master. Primis responded the Corps, by way of its public process in writing the WCM, had already done that.
 
More Georgia questions
During late questioning of Deputy Solicitor General Kneedler, Roberts interrupted Kneedler with what he called a “fairly important” point. “You say we can’t order you to do something, but you’ve told us that you will take (an order) into account. And it seems to me that that’s arguably real redress to Florida, that you’re going to take into account a decision saying that, equitably, they’re entitled to more water, that Georgia is improperly taking its water.”
 
Kneedler responded that the case was premised “on the fact that (Corps) protocols would not have to be changed,” but added the court could decide to “do it anyway.” When pressed about what he would do, Kneedler answered that if the Court agrees that Florida has not shown it would materially benefit from increased flows, then Florida could challenge the WCM and petition for a new manual.
 
An association of Florida environmental groups and the state of Alabama have already filed lawsuits challenging Corps WCMs. Alabama’s targets Corps operation of a separate river basin. However, the state of Florida has not sued the Corps over its ACF management, as Georgia attorney Primis pointed out. These legal actions, the possibility that justices will send the case back to the Special Master, and another potential lawsuit by Florida could extend the water war beyond a Supreme Court decision this summer.

 
Not the end of the Water Wars; Riverkeepers, LLA weigh in on Supreme Court hearing
River and lake watchdogs in two states are skeptical a Supreme Court ruling this summer will end the decades-long water conflict in the Southeast. Representatives from Chattahoochee Riverkeeper, Apalachicola Riverkeeper and the Lake Lanier Association offered comments about the court hearing last month that some thought might at least settle the fight between Florida and Georgia over water in the Apalachicola-Chattahoochee-Flint river system shared by both states. Alabama, which also gets water from the river system, was not a party in the Florida v. Georgia battle, but has filed a separate lawsuit challenging the U.S. Army Corps of Engineers Water Control Manual for another river system.
 
Question: Did justices seem particularly sympathetic to either side?
 
Kevin Jeselnik, General Counsel, Chattahoochee Riverkeeper:
Some of the justices seemed interested in going beyond the Special Master’s recommendation to dismiss Florida’s case and get to the merits of the case – how much water does Florida need to redress its harm? It seems like the justices felt frustration that no one – whether it was Florida in making its case or the Special Master in his recommendation – quantified just how much more water needed to be saved in Georgia and how much needed to reach Florida to redress the harms. But the justices revealed a clear desire to find some solution that would bring Florida relief, or at least prevent the conditions in Apalachicola Bay from getting worse.
 
Dan Tonsmeire, Apalachicola Riverkeeeper:
I’m encouraged for Florida and the Apalachicola side because (justices) seemed like they wanted to get Florida some relief. It seemed clear to them that Florida at least made a case there was harm and things could be done that could give them some relief. The question now is the best way to get relief and ensure it may happen.”
 
Question: What’s your opinion that the court’s decision could end the water wars?
 
Jeselnik: This is not the end of the water wars. A number of parties have filed administrative appeals to the Corps’ recently updated Water Control Manual for the basin. While Florida has not yet lodged such a challenge, it still could if the Supreme Court failed to alter conditions in the ACF in a way that Florida feels will bring it relief. And this may not be the end of this specific dispute. The Court can send the case back to the Special Master for further findings or issue an order that requires the two states to change their operations in the basin.
 
Tonsmeire: There are three possible outcomes. 1) Do what the Special Master said and offer no relief for Florida; 2) Give Florida relief, but leave the Corps out in the wind about how much water to release, or 3) Remand the Special Master’s report, have the states come together and come up with a number. “These guys can’t agree … they’re not likely to come up with a number. I don’t see Georgia has any interest in settling.” The conflict continues on another front, with a lawsuit challenging the Water Control Manual on behalf of Apalachicola Riverkeeper and other Florida environmental groups.
 
The week of the Supreme Court hearing, Lake Lanier advocates reiterated their goal to pursue funding for a study to add two feet to Lake Lanier’s full pool. In a press release, LLA Executive Director Joanna Cloud mentioned that raising the lake level was among recommendations agreed upon by a tri-state organization of water stakeholders more than two years ago. LLA was a founding member of the ACF Stakeholders, a private, non-profit group that raised funds for an extensive study to formulize a Sustainable Water Management Plan as an option the three states could consider to manage waters on the ACF.
 
“The additional two feet of water storage adds 26 billion gallons of water to useable water for all water needs of the entire ACF Basin, increasing the total available water in the basin by 7 percent. This is a relatively minor cost that has major benefits from Lake Lanier to Apalachicola,” she wrote.
 
LLA is encouraging members and government officials to contact congressional representatives about funding a Corps Environmental Impact Study to determine the impact and costs of raising Lanier’s full pool designation to 1,073 feet. 

Posted online 1/29/18
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