Georgia fires back at Florida in water war

June 29, 2020

Jim Saunders

TALLAHASSEE --- Arguing that Florida’s case was “built on rhetoric and not on facts,” Georgia is urging the U.S. Supreme Court to reject arguments by Florida in a long-running battle about divvying up water in a river system that links the two states.

Georgia attorneys on Friday filed a 57-page document asking the Supreme Court to deny Florida’s request for an order that could lead to more water flowing south into the Panhandle’s Apalachicola River and Apalachicola Bay. A special master appointed by the Supreme Court sided with Georgia in December, but justices will have final say in the case.

The dispute involves water in the Apalachicola-Chattahoochee-Flint river system, which stretches from northern Georgia to Apalachicola Bay in Franklin County. Florida contends that Georgia uses too much water from the system, in part damaging a critical Apalachicola Bay oyster fishery.

But in the document filed Friday, Georgia disputed that its water use has caused damage in Florida. Also, it said Florida’s request for an “equitable apportionment” of water --- effectively seeking to place limits on Georgia water use --- would have major economic ramifications.

“The trial record showed that Georgia’s water use had not caused harm to Florida, that Georgia was using far less water than Florida alleged, and that the cap Florida seeks would yield only minuscule benefits to Florida while inflicting enormous costs on Georgia,” the document said.

But in a brief filed in April, Florida lawyers attacked the December recommendation by Special Master Paul Kelly, who said Florida has not adequately shown that Georgia’s water use caused problems in the Apalachicola River and Apalachicola Bay.

In part, Florida contended in the brief that “Georgia’s insatiable upstream consumption (of water) has decimated Apalachicola’s oyster fisheries.” The brief asked the Supreme Court to rule that “Florida is entitled to a decree equitably apportioning the waters,” which could lead to negotiations involving the states and possibly the U.S. Army Corps of Engineers.

“Neither Georgia, nor any other state, has the right to consume as much water as it wishes,” the Florida brief said. “The union was built, and has endured, on the commonsense principle that all states have an equal right to the reasonable use of shared resources. That is all that Florida asks this court to vindicate here.”

Florida filed the lawsuit in 2013, though the two states have fought for decades about water in the river system. If Florida is ultimately successful in the case, it could lead to putting restrictions on water used by Georgia farmers for irrigation.

Kelly, a federal appellate judge based in New Mexico, was appointed special master after a divided Supreme Court in 2018 overturned a recommendation by another special master, Ralph Lancaster, who said Florida had not proven its case “by clear and convincing evidence” that imposing a cap on Georgia’s water use would benefit the Apalachicola River.

Writing for a 5-4 majority, Supreme Court Justice Stephen Breyer said Lancaster had “applied too strict a standard” in rejecting Florida’s claim.

Kelly held a hearing in November and later agreed with Georgia’s position on the potential benefits and harms of placing limits on its water use.

“I do not recommend that the Supreme Court grant Florida’s request for a decree equitably apportioning the waters of the ACF (Apalachicola-Chattahoochee-Flint) Basin because the evidence has not shown harm to Florida caused by Georgia; the evidence has shown that Georgia’s water use is reasonable; and the evidence has not shown that the benefits of apportionment would substantially outweigh the potential harms,” he wrote.

In the document filed Friday, which was a reply to Florida’s brief, Georgia attorneys echoed the idea that Florida had not proven its case. They also pointed to evidence during a lengthy trial that was held by Lancaster --- evidence that was then used by Kelly in making his recommendation.

“The (Supreme) Court has said time and again that an equitable apportionment is an extraordinary remedy. And before the court will exercise its authority to control the behavior of one state at the behest of another, the complaining state must prove its case with hard facts, grounded in actual science and data, and show that the benefits of an equitable apportionment substantially outweigh the harm that might result,” Georgia attorneys wrote. “After years of discovery and a five-week trial, Florida failed to make those showings.”