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Dec. 1, 2020
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Supreme Court makeup has changed since first water war arguments

By Jane Harrison 
 
The U.S. Supreme Court that hears the next round of arguments in a long-standing Florida-Georgia water dispute will not be the same one that granted Florida another day in court in 2018. Justices agreed last month to listen to Florida’s criticisms of a second Special Master’s report that basically supports Georgia’s heavy water consumption on a river system shared by the states.
 
Water users, real estate agents, and recreators on Lake Lanier, the largest reservoir on the Apalachicola-Chattahoochee-Flint rivers, originally feared the 2013 lawsuit would threaten metro Atlanta’s main water supply and slow the region’s economic growth by potentially lowering the lake level. However, Florida’s tactic shifted toward South Georgia along the Flint River where farmers tap more water than all other entities combined. At least one indicator in recent months might foretell another angle the Sunshine State might pose in court chambers.
 
As of mid-October, justices had not set a date for the next showdown. They scheduled another marathon water dispute, Texas v. New Mexico, for April 21, 2021.  The Southwestern battle over the Pecos River, on and off the docket since 1974, appears just ahead of Fla. v. Georgia on the court’s Granted and Noted List filed Oct. 13. The Oct. 2020 Supreme Court Term continues through April 2021. The Deep South legal battle may be one of the final cases justices hear this session.
 
The composition of the court has changed significantly since justices first heard the case in January 2018. In that 5-4 decision, announced June 27, 2018, the majority indicated some sympathy for Florida’s woes and remanded the initial Special Master’s report, which denied Florida’s claims on a technicality, for further consideration. Two of that majority are no longer on the court. Justice Anthony Kennedy announced his retirement the same day the court declared the remand and has since been replaced by Brett Cavanaugh. In mid-October, senators began confirmation hearings on Amy Coney Barrett, nominated by President Donald Trump to fill the vacancy left by Ruth Bader Ginsburg, who died in September. Both Kennedy and Ginsburg voted with the majority in 2018, along with Justices Stephen Breyer, John Roberts, and Sonia Sotomayor.
 
Writing for the majority, Breyer wrote that the Special Master held Florida to “too strict” a standard to prove its case. Florida claims that Georgia uses more than its share of ACF water and inflicts economic and ecological harm on Apalachicola Bay, which needs freshwater flow for oyster fisheries. Florida blamed Georgia for collapse of the bay’s oyster industry during the 2012 drought. Georgia alleges Florida caused its own problems by over-harvesting, lack of conservation, and mismanagement.
 
During the January 2018 hearing, several justices’ questions hinted a desire to help Florida get more water from the river system, but also indicated they lacked a clear quantitative measure about how much water Florida needs for meaningful improvement and how limiting Georgia’s water use could harm Georgia’s economy. Breyer posed the question, “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?”
 
Justice Clarence Thomas, writing for the minority, gave Georgia’s larger economy priority over the smaller region at stake in Apalachicola. He stated that although both states depend on the river basin, Georgia stands to suffer greater harm 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. Justices Samuel Alito, Elena Kegan, and Neil Gorsuch voted with Thomas.
 
The court’s close decision put the case on hold. Justices remanded the case to the special master for specific answers about the volume of water Florida needs and the potential economic impact Georgia might suffer from cutting water use. In August 2018, a new special master, Judge Paul J. Kelly, Jr., began considering the case. He delivered his report in December last year, recommending the court deny Florida’s claims and drop the lawsuit. 
 
Kelly’s report included much of the same rationale Thomas expressed in his dissent, favoring Georgia’s larger economy over the smaller slice of Florida’s Panhandle. Kelly stated that he believed evidence that Georgia’s water use is reasonable and downstream woes in Florida were caused by drought and mismanagement rather than Georgia’s consumption.
 
Since the first of the year, both states continued their attacks in replies and sur-replies to the Special Master’s report. Florida accuses Kelly of disregarding evidence about Georgia water use and ignoring “Florida’s equal right to the reasonable use of the waters at issue – granting Georgia carte blanche to use much as it wants.”
 
Georgia counters that it has implemented conservation measures and alleges that Florida caused its own woes by mismanaging resources.
 
In its most recent appeals to the Court, Florida pleads for justices to rule in its favor in order to save Apalachicola. “In the end, denying Florida relief … would spell doom for Apalachicola,” Florida attorneys claimed in August.
 
Since then, the Florida Fish and Wildlife Commission announced a plan to ban wild oyster harvest in Apalachicola Bay through Dec. 3, 2025 or until 300 bags per acre of adult oysters can be found on a significant number of reefs. The state’s effort to prevent over-harvesting may enter into Supreme Court deliberations. Georgia exerted a similar effort prior to the first oral arguments in 2018, touting conservation measures and a Governor’s Initiative to meter farmers’ irrigation from the Flint River. 
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