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Jan. 21, 2018
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Supreme Court to hear ‘water wars’ case this month

By Jane Harrison
 
U.S. Supreme Court justices will hear oral arguments from Florida and Georgia attorneys Jan. 8 in a rare hearing on states’ water rights. A decision, expected to be made public in June or July 2018, may or may not end the water war between the two states; nor is it guaranteed to stave off future battles between Deep South states that have squabbled over the precious resource for decades.
 
In the hearing, set for 11 a.m.-noon, Florida’s legal representative will present exceptions to a Special Master’s recommendation that justices deny its claims in a 2013 lawsuit. Special Master Ralph Lancaster concluded that Florida could not prove that limiting Georgia’s water use would remedy Florida’s water woes downstream. Florida hopes justices will send the recommendations back to Lancaster for revisions. The court usually concurs with Special Masters’ reports; however it occasionally makes exceptions, as it has before in at least one of the veteran court appointee’s cases.
 
The lawsuit alleges Georgia hoards water on the Apalachicola-Chattahoochee Flint River system and harms Apalachicola Bay’s oyster fisheries, which need fresh water to produce. Georgia officials and Lake Lanier advocates claim the Sunshine State’s desire to cap Georgia’s water use would thwart economic development and threaten the lake’s water level. Lake Lanier is the largest reservoir on the river system that reaches from the Georgia mountains to the Florida Panhandle.
 
Lancaster based a portion of his ruling on his finding that regardless of a court decision, the U.S. Army Corps of Engineers could not be bound to change operations of five dams on the river system, thereby providing no certainty that a cap on Georgia water consumption would send more water into Florida. However, the U.S. Solicitor filed an amicus brief taking exception to Lancaster’s recommendation, stating that the Corps could take a court ruling into account and potentially change operations on the dams after a lengthy environmental study and public comment period.
 
Justices will also hear testimony from the U.S. Solicitor General’s office, which filed an amicus brief for divided argument.
 
The Florida V. Georgia case will be the second water battle of the day to go before justices. They’ll begin with Texas V. New Mexico and Colorado lawsuit over a water compact which includes the Justice Department’s exceptions to a special master’s ruling.
 
 Court Day Jan. 8
- The attorneys: Florida- Gregory G. Garre, of Lathem & Watkins, former National Law Journal Litigator of the Week and U.S. Solicitor General, has argued 41 cases before the Supreme Court. Georgia- Craig Primis, of Kirkland & Ellis, named “Litigator of the Week” in February from the National Law Journal, which declared him as “winning the water year.” Both are based in Washington, D.C.
- The hearing: The court usually allots one hour of argument time for each case, with each side speaking for 30 minutes. Since the Solicitor General requested and was granted time to speak regarding Florida’s exceptions, he or another lawyer from his office, will get 10 minutes to talk. Justices frequently ask questions or request elaborations during oral arguments. Much of the hearing time is actually dominated by responses to justices’ inquiries. Attorneys generally reserve time from their presentation to rebut arguments from the opposing side.
- The vote: Justices vote on how to decide the case in private conference later in the hearing week. The senior justice in the majority appoints a justice to write the majority opinion; the minority opinion is composed by the senior justice voting on the minority side. Justices writing opinions then share written opinions among themselves, summarizing their reasons.
- The decision: The justices are expected to announce their ruling in open court in June or July.
- Hearing transcripts/oral argument recordings: Written and audio recordings are expected to be available at www.supremecourt.gov. Beginning with the October 2017 term, Heritage Reporting Corporation is providing written oral argument transcripts on the same day an argument is heard. Audio recordings are available at the end of each argument week on Friday after conference.
 
Timeline
• Oct. 1, 2013: Florida files federal lawsuit claiming Georgia takes more than its fair share of water from the Apalachicola-Chattahoochee-Flint River System and causes irreparable harm to Florida interests downstream. Suit seeks a cap on Georgia’s water use, equitable apportionment of the waters, and reparations for alleged damages.
• Jan. 31, 2014: Georgia rebuts Florida’s claims, stating that Florida has not presented clear and convincing evidence that it suffered substantial injury as a result of Georgia’s water consumption.
 • Nov. 19, 2014: Supreme Court appoints Ralph I. Lancaster as Special Master to oversee evidence gathering and hold an evidentiary hearing to offer recommendations to the court.
Dec. 1, 2014: Initial telephone conference between the Special Master and counsel for both parties, plus counsel for the U.S. Solicitor General.
Dec. 2014-Oct. 2016: Both states file evidence and report to the Special Master in regular teleconferences. Florida does not name the U.S. Army Corps of Engineers in its lawsuit. Lancaster repeatedly urges states to settle or face a costly decision that may please neither party. States choose a nationally-known mediator, whose name was kept secret, and begin mediations in Jan. 2016, but cannot reach settlement. Lancaster lambastes attorneys for putting more effort into piling up accusatory evidence rather than attempting to settle.
Oct. 31-Dec. 1, 2016: Lancaster presides over evidentiary hearing in Portland, Maine.
• Feb. 14, 2017: Lancaster issues his report, recommending the Supreme Court deny Florida’s claims, stating that Florida could not prove that limiting Georgia’s water use would guarantee increased water flow into the state since the U.S. Corps of Engineers, which controls five dams on the river system, could not be bound to allow additional flow downstream. Lancaster states he found clear evidence that Florida suffered harm and that Georgia misused water resources, but that a court ruling would not bind the Corps to send more water into Florida.
• Feb.-Aug. 2017: Florida files exceptions to Lancaster’s report, among them a claim that the Corps Water Control Manual for the river system states that the Corps’ could consider the Court’s ruling and possible adjust water operations.
• Aug. 8, 2017: The U.S. Justice Department files an amicus brief taking exception to Lancaster’s finding and notes that the Corps could potentially change operations on the river system after a lengthy public hearing process and environmental review.
• Nov. 17, 2017: Supreme Court sets the date for oral arguments for Jan. 8.
• Jan. 8, 2018: 11 a.m.-noon justices will hear oral arguments from attorneys from both states, plus statements from the Solicitor General as amicus curiae in divided argument.
• June or July 2018: Supreme Court expected to announce ruling.

Posted online 12/27/17
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