Supreme Court Wades Into Water Battle Between Florida and Georgia

by | January 9, 2018

By Tamar Hallerman

Members of the U.S. Supreme Court appeared open to revisiting key legal recommendations in Georgia's long-running water rights battle with Florida on Monday, potentially providing the latter with at least some form of relief.

But the justices also indicated they were flummoxed by Florida's decision not to include the U.S. Army Corps of Engineers as a party to its case against Georgia and that it may be exceedingly difficult to find any remedy with teeth.

Monday's oral arguments in the case came as a surprise to some local observers, who expected Georgia to have the upper hand following earlier legal and regulatory victories.

The justices instead peppered the lawyers for Georgia, Florida and the federal government with questions about water flow patterns, burdens of proof and legal jurisdiction as they dipped their toes into a tributary of the Southeast's decades-old water wars for the first time.

"I would be surprised if anyone feels confident coming out of that," said Kevin Jeselnik, the general counsel for the conservation group Chattahoochee Riverkeeper who attended Monday's oral arguments.

The particular case the justices heard was brought by Florida five years ago following the collapse of its oyster industry in Apalachicola Bay. The state alleges that the region's ecological decline was hastened by the growing thirst of metro Atlanta and southwest Georgia farmers upstream in the Apalachicola-Chattahoochee-Flint river basin.

Florida attorney Gregory Garre argued that the state has "suffered real harm" at the hands of Georgia. He said imposing a cap on Georgia's water usage would have a real ecological impact downstream.

Georgia urged the justices to uphold the recommendation of Ralph Lancaster Jr., whom the court appointed as a special master to collect facts in the case. Lancaster took Georgia to task for not being a better steward of its water resources but urged the justices to drop the suit last year after a five-week trial. Florida, he said, could not adequately prove that limiting Georgia's water use by a specific amount would have a direct impact on the ground in the panhandle.

Multiple justices, however, appeared willing Monday to revisit Lancaster's recommendations, even as he sat a few rows back in the marble and velvet-draped chamber. Several of the court's liberal members appeared to buy the crux of Florida's argument that any water saved upstream would eventually end up downstream.

"Can we agree that a cap at the very least would prevent the situation in Florida from getting worse?" Justice Ruth Bader Ginsburg asked.

Georgia attorney Craig Primis vehemently disagreed. He said capping the state's water use would not necessarily provide relief downstream because of the way the corps regulates its multiple dams and reservoirs in the Apalachicola-Chattahoochee-Flint basin.

"There's nothing common-sense about the operations of this basin," he said.

Less of a question appeared to be just how responsible Georgia was for Florida's water woes. But justices did ask about the would-be cost of Florida's proposed caps on water use and whether the price tag on Georgia would adequately compensate for the economic benefits Florida would gain.

One thing the justices appeared to agree on was that the absence of the corps in Florida's suit was a major problem.

The agency has sovereign immunity and can't be sued without its consent. It did not formally take sides in the suit but largely agreed with Georgia that there was little that could be done to help Florida without reopening the corps' current operating manual.

A lawyer representing the federal government told the justices that the corps would take any potential legal decision from the court into consideration but that the agency essentially didn't have to listen because of the way its mandate was set up by Congress.

Deputy Solicitor General Edwin Kneedler said the corps took its various responsibilities -- including protecting endangered species protections, providing drinking water and maintaining flood control -- into consideration when it drew up its latest water control manual, which was finalized last year. Several parties are challenging the corps' manual in court, but Florida is not one of them, Kneedler said.

That manual effectively granted metro Atlanta all the water it needs from the Chattahoochee River and Lake Lanier through 2050.

Gil Rogers, the Atlanta-based director of the Southern Environmental Law Center's Georgia and Alabama office, said the oysters in Apalachicola Bay are not considered endangered, which means the industry was likely not taken into full consideration by the corps.

"When they were questioning all of the lawyers, the justices seemed to be implicitly acknowledging that there is a real problem in the Apalachicola river system, that they're not getting enough water down there," said Rogers, who attended oral arguments. "I think they're just wrestling with what, if anything, they can do about it."

Indeed, an exasperated-sounding Justice Stephen Breyer asked Kneedler toward the end of oral arguments about what kinds of remedies existed for the court in this case.

"In other words, what do you think we should do?" Breyer said, prompting brief laughter in the courtroom. Kneedler never got a chance to fully answer the question.

The oral arguments represented the first time the Supreme Court has weighed in on the Southeast water dispute, which also includes Alabama. It has stretched on for nearly three decades, eating up tens of millions in taxpayer dollars. Alabama has generally sided with Florida but sat on the sidelines of this particular case.

A spokeswoman for Georgia Attorney General Chris Carr said he is "proud of the legal team that represented Georgia in today's oral arguments."

"We look forward to the Court's thoughtful consideration of the issues presented," the spokeswoman said in a written statement.

A verdict in the case may not come until this summer. Justices could choose to accept Lancaster's recommendations, reject them or urge him to re-examine the case using a new set of legal standards.

(c)2018 The Atlanta Journal-Constitution (Atlanta, Ga.)