SUPREME COURT

Justices give Fla. another chance to prevail in water war

The Supreme Court today handed Florida a partial win in the long-running Southeast water wars, reviving the state's case against Georgia over water use in the Apalachicola-Chattahoochee-Flint River Basin.

In a 5-4 decision, the court ruled that the Sunshine State had made a "legally sufficient showing" supporting a cap on Georgia's water consumption in the basin, despite the fact that the Army Corps of Engineers — which controls water flows in the region — was not involved in the litigation.

The case, though, is far from over.

Justices ruled only on a narrow threshold question and sent the litigation back to a court-appointed special master for further findings on a number of evidentiary issues. Those include whether capping Georgia's water consumption would actually "significantly redress" economic and ecological harm in Florida caused by low water flows.

"Florida will be entitled to a decree only if it is shown that 'the benefits of the [apportionment] substantially outweigh the harm that might result,'" Justice Stephen Breyer wrote for the majority.

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Environmentalists immediately heralded the ruling, which was the last the Supreme Court issued before breaking for its annual summer recess, as "great news for Florida's environment, drinking water supply and wildlife."

"We're confident that Florida will be able to meet the Supreme Court's test to show that reining in Georgia's wasteful water consumption upstream will provide much-needed fresh water to Florida downstream," said Tania Galloni, an Earthjustice attorney who is involved in litigation against the Army Corps over water allocations in the region.

Florida, Georgia and Alabama have been fighting about the waters in the ACF River Basin for 30 years. A compact among the states fell apart more than a decade ago.

Florida brought the Supreme Court suit in 2014, seeking what's known as "equitable apportionment," or for justices to allocate waters in the ACF River Basin between the two states. Such cases are typically a long shot: The Supreme Court has allocated the waters of only four rivers, only one of which, the Delaware River, is in the eastern United States.

But Florida argued that overconsumption of water by the Peach State had led to dangerously low flows of water in the Apalachicola River, causing the 2012 collapse of the region's oyster fishery. The Sunshine State blamed both the booming Atlanta area and irrigation by Georgia farmers.

For its part, Georgia argued that Florida's claims of harm were speculative. Georgia said Florida couldn't prove that Georgia's consumption has reduced flows because the Army Corps controls the amount and timing of water entering Florida through the Apalachicola River.

As is typical in cases involving state disputes, the Supreme Court appointed Ralph Lancaster, a Maine-based attorney, to oversee the litigation. After unsuccessful negotiations between the two states, the case went to trial in late 2016.

In a report last year summing up his recommendations, Lancaster found that "Florida points to real harm and, at the very least, likely misuse of resources by Georgia."

But he denied Florida's request for a consumption cap on Georgia, finding that without the Army Corps' involvement in the litigation, Florida couldn't show with "clear and convincing" evidence that a cap would actually result in more water flowing into the Apalachicola River (Greenwire, Feb. 15, 2017).

The government filed amicus briefs but chose not to formally join the litigation. Neil Purcell, division counsel at the Army Corps, said it was because the corps was busy working on getting done a number of projects in the region, including updating a decades-old manual governing Atlanta's allotment of water from Lake Lanier, a federal reservoir. The Army Corps issued the updated manual in December 2016.

"While some decisions may affect our operations, we have our own interests in getting what we're supposed to be doing done," Purcell said at an April environmental law conference in Orlando. "If we were compelled to be in Florida v. Georgia, we would still be without updated water manuals."

Florida objected to the special master's decision, arguing that the corps' involvement was not vital to its case against Georgia.

The Supreme Court heard arguments in January, the same day that it also heard a separate case pitting Texas against New Mexico and Colorado over waters in the Rio Grande Basin. Both cases tested the extent to which the federal government should be involved in the increasing number of interstate water disputes making their way in front of the Supreme Court (E&E News PM, Jan. 8).

'Too strict a standard'

Breyer, who previously called the federal government's absence from Florida v. Georgia a "mystery," today wrote for the majority that the special master applied the wrong standard in the case.

The special master "put the cart before the horse," Breyer wrote, by requiring that Florida must prove with "clear and convincing" evidence at this point in the litigation that a cap on Georgia's problems would ameliorate its water problems.

"We conclude that the Special Master applied too strict a standard when he determined that the Court would not be able to fashion an appropriate equitable decree," Breyer wrote.

The record, according to Breyer, shows that Florida's proposed cap would result in the release of "considerable extra water" into Lake Seminole, which sits at the border between the two states. The Army Corps controls flows from the lake.

While there are many factors that go into how the corps operates, Breyer said that "it cannot now be said that an effort to shape a decree here will prove 'a vain thing.'"

Under a cap, the corps is likely to permit and in some cases would be required to ensure that "material amounts" of additional water flow into Florida during both nondrought and drought conditions, Breyer added.

"The United States has made clear that the Corps will work to accommodate any determinations and obligations the Court sets forth if a final decree equitably apportioning the Basin's waters proves justified in this case," the opinion says.

Justice Clarence Thomas dissented. He wrote that the special master applied the "correct legal standard."

"He applied the ordinary balance-of-harms test dictated by this Court's precedents," Thomas wrote. "His findings are plainly correct and establish that Georgia should prevail."

The ruling did not fall along ideological lines.

Breyer, a Clinton appointee, was joined in his opinion by Chief Justice John Roberts and Justice Anthony Kennedy, both appointed by Republican presidents, as well as Justices Ruth Bader Ginsburg and Sonia Sotomayor, appointed by Democratic presidents. Justices Samuel Alito and Neil Gorsuch joined their fellow Republican appointee Thomas in his dissent, along with Democrat appointee Elena Kagan.

The legal battle over the ACF River Basin is likely to drag on for years.

Not only will the special master reconsider Florida's claims, but environmentalists are separately suing the Army Corps over its water manual, which gave the Atlanta metro region virtually all the water it needs through 2050 from the ACF River Basin.

Gil Rogers, director of the Southern Environmental Law Center's Georgia and Alabama offices, said today's decision reflects the complexities involved in resolving differences among states over water rights.

"Today's decision illustrates just how complicated these interstate water battles can be, particularly when there are key decisionmakers missing from the table," Rogers said. "By allowing for additional time to brief the issues, we hope this will provide an opportunity to forge a better, long-term solution for the river system overall."

Click here to read the court's decision.

Twitter: @apeterka Email: areilly@eenews.net

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