The Trump administration recently weighed in on two complex interstate water disputes in the Supreme Court, in both cases building on the arguments made by the Obama administration.
In one, Justice Department attorneys cast uncertainty on Florida’s contentions about the role of the Army Corps of Engineers in the state’s long-running legal battle with Georgia over waters in the Apalachicola-Chattahoochee-Flint River Basin.
In the other, DOJ urged the Supreme Court to uphold a decision allowing Texas’ lawsuit to continue against New Mexico over water rights to the Rio Grande. The administration also sought to remain a key player in the legal battle.
The responses from the Trump administration come as the Supreme Court is considering reports issued by special masters assigned to the cases. The federal government’s views will play into the justices’ decisions about whether to accept the recommendations in the reports.
Florida and Georgia have been sparring over water use in the ACF River Basin for decades, but the legal dispute currently in the Supreme Court dates to 2014. That year, Florida brought a case arguing that overconsumption of water by Georgia from the Chattahoochee and Flint rivers has led to dangerously low flows of water in the Apalachicola River, causing the 2012 collapse of the Apalachicola Bay’s oyster fishery. Florida blamed both the booming Atlanta metro area and irrigation by Georgia farmers.
But in February, the court-appointed special master for the dispute recommended that the Supreme Court deny Florida’s request to set a consumption cap on Georgia’s water use in the ACF River Basin.
Maine-based attorney Ralph Lancaster, the special master, found that while Florida demonstrated "likely misuse of resources by Georgia," the state could not show that a cap on Georgia water use would actually result in more water flowing into into the Sunshine State. That’s because the Army Corps, which was not a party in the case, controls water flow in the river basin system through a system of five dams and four reservoirs.
"There’s no guarantee that the corps will exercise its discretion to release or hold back water at any particular time," Lancaster wrote (Greenwire, Feb. 15).
Florida countered the special master’s claims in late May, arguing to the Supreme Court that the Army Corps’ involvement was not essential to its case against Georgia.
The state says that it’s "undeniable" that reducing Georgia’s consumption would result in more water in the Apalachicola River because the Army Corps doesn’t have enough storage capacity to hold back water before it flows into Florida "even if it wanted to" (Greenwire, June 6).
The Trump administration, though, filed a brief last week claiming that there’s a lot of uncertainty over how the Army Corps would respond to a consumption cap, particularly during drier periods.
And the government noted that, even if the Supreme Court were to cap Georgia’s water use, it "would not formally bind the Corps to take any particular action" because the corps wasn’t a party in the suit.
DOJ said it wanted to ensure that the high court understands how the corps operates its system of dams for the ACF River Basin and to protect its ability to operate the system as required by law.
The department repeated what the Obama administration told Lancaster: that whether a consumption cap on Georgia causes more water to flow into Florida depends on the flow of water in the river system and whether the Army Corps is running the dam system under "drought operations."
During such operations, protocols call on the Army Corps to store additional water flowing into the river basin — not release it to Florida. While the corps retains discretion to send more water to the Sunshine State, it has to abide by congressional authority and statutes, DOJ told the Supreme Court.
It remains a "significant and difficult question" whether the law allows the corps to routinely release water from storage, DOJ said. The corps would need to explore the issue "before formally committing to operate the projects in any particular way as a matter of course," the department said.
DOJ noted that any changes to the Army Corps’ procedures would require a public process and environmental review. "The Corps cannot prejudge those required processes," DOJ said.
Still, Trump administration lawyers acknowledged that capping Georgia’s water use in the basin would "generally benefit the ACF system." It would allow the corps to meet minimum flow requirements for a longer period of time during droughts and shorten the time it takes to resume normal operations after a drought.
Rio Grande water dispute
While the government maintained that it does not need to formally join Florida v. Georgia, DOJ on the other hand sought to remain a key player in the litigation involving Texas, New Mexico and Colorado.
The dispute between the states involves the 1938 compact approved by Congress to apportion water in the Rio Grande Basin.
Texas’ lawsuit in the Supreme Court claims that New Mexico is violating the compact by diverting water before it crosses into the Lone Star State. According to Texas, the compact mandates the diversion of a certain amount of water to New Mexico’s Elephant Butte Reservoir, a part of the Rio Grande Project. The state argues that the water must be allowed to flow from there unimpeded through southern New Mexico into Texas.
New Mexico moved to dismiss Texas’ complaint, but in February, the special master assigned to the case, A. Gregory Grimsal, issued a report recommending that the litigation move forward (Greenwire, Feb. 10).
The Obama administration had supported Texas’ claims. In a July 28 brief, DOJ again backed Texas, filing a court brief seeking to overrule New Mexico’s and Colorado’s objections to the February special master report.
DOJ argued that New Mexico’s claims that Grimsal made several "analytical errors" are "based on a considerable overreading of isolated statements" in the special master’s 351-page report.
The government took issue with New Mexico’s statement that the compact and the special master’s report took away its sovereign immunity. New Mexico is not required to cede ownership of Rio Grande water but rather to administer state law in accordance with the compact, DOJ argued.
And DOJ rejected Colorado’s argument that the federal government is only allowed to intervene in the legal dispute to the extent needed to protect its treaty obligations with New Mexico.
DOJ said it wants to both protect its obligation to deliver water to Mexico and make sure Texas gets its fair share of water.
Click here to read the government’s brief in Florida v. Georgia.
Click here to read the brief in Texas v. New Mexico and Colorado.
