Supreme Court unlikely to rule on Florida-Georgia water dispute before Oct. 1

By David Pendered

The U.S. Supreme Court is not likely to rule on the water war litigation between Florida and Georgia before the court breaks for its summer holiday, and possibly not until well after it convenes Oct. 1, according to the calendar the court provided in a recent ruling.

Apalachicola Northern Railroad bridge

The defunct Apalachicola Northern Railroad crosses the Apalachicola River about two miles north of the town of Apalachicola. The railroad once was owned by a scion of the Du Pont family, one of the country’s wealthiest families. File/Credit: David Pendered

The court agreed to Florida’s request to extend deadlines for responses to a report by the special master. The last deadline is Aug. 30, which is well after the court typically concludes its session in late June or early July. The court convenes, by statute, on Oct. 1.

The Supreme Court granted Florida’s request for the following set of deadlines:

  • May 31 – Exceptions to the special master’s report;
  • July 31 – Replies, meaning legal briefs that explains the arguments that support the position;
  • Aug. 30 – Sur replies, meaning additional replies to a motion.

Florida evidently needs more time to respond to a sweeping response from the special master, Ralph Lancaster. Lancaster acted as an agent of the court, hearing testimony from both sides in the case and delivering his recommendation in a report to the Supreme Court. The court can accept or dismiss the findings of the special master.

The deadline for responses from Georgia and Florida had been May 4.

Ralph Lancaster

Ralph Lancaster

Florida requested the extension because meeting of difficulties in meeting the May 4 deadline, according to the letter drafted by one of Florida’s lawyers, Gregory Garre, of the Washington office of Latham & Watkins:

  • “This extension is requested because completion of Plaintiff’s exceptions and supporting brief by the current deadline would be difficult in light of the heavy press of counsel’s other pending matters and professional duties.”

Florida requested the extension in a letter dated April 6. The court granted the extension in a letter dated April 7. Neil M. Gorsuch was sworn into office as an associate justice of the Supreme Court on April 10.

Florida stated in its letter that Georgia did not object to the extension:

  • “Defendant State of Georgia has no objection to this request, so long as reciprocal extension is granted for the replies and supporting briefs.”

Florida has to thread a needle in its response to Lancaster’s report.

Lancaster reported that he cannot recommend the Supreme Court rule in Florida’s favor. Such a ruling likely would compel Georgia to release more water to Florida through the Chattaahoochee River.

However, Lancaster did not recommend the court rule in Georgia’s favor.

apalachicola, tributary at wewa

A tributary of the Apalachicola River, at Wewahitchka, is well below normal levels in this photo from October 2016. File/Credit: David Pendered

Instead, Lancaster reported that no matter how much water Georgia sends to Florida, the amount that reaches the Sunshine State – especially in dry periods – is at the total control of the U.S. Army Corps of Engineers and its management of five dams along the Apalachicola-Chattahoochee-Flint river basin. Lancaster wrote:

  • “The evidence presented at trial suggests that the Corps’ reservoir operations are a significant, and perhaps the primary, factor influencing the amount of streamflow crossing the state line during times of drought and low flows….
  • “Unless the Corps’ rules are changed, therefore, increased inflow into the reservoir system will not necessarily pass downstream to Florida during these times.…
  • “Rather, it appears likely that ensuring relief for Florida during these times would require modification of the rules governing the Corps’ reservoir operations and, hence, active participation by the Corps in this proceeding.”
ACF river basin, chattahoochee, apalachicola

Florida has requested the U.S. Supreme Court to compel Georgia to provide more water to the Apalachicola River via the Chattahoochee and Flint rivers. Credit: wabe.org

Lancaster’s position is in complete contrast to that of Florida’s legal team. Florida specified in its 2013 complaint to the Supreme Court that it did not want to involve the corps:

  • “Florida also seeks no affirmative relief against the United States in this action with respect to the Corps’ operation of the federally authorized dam and reservoir system, or any other interest.”

The court formally filed Lancaster’s report on March 20, though the court received the report on Feb. 16. The court’s procedures resulted a deadline of May 4 being set for Florida and Georgia to respond to Lancaster’s report.

Florida provided copies of the letter seeking the extension to one of Georgia’s lawyers, Craig Primis, of the Washington office of Kirkland & Ellis, and to Jeffrey Wall, acting solicitor general for the Department of Justice. The letter was addressed to Cynthia Rapp, deputy cleark for case management for the Supreme Court.

The court’s calendar shows that June 26 is the last day the court will convene before the summer break. The next date the court is to convene is Oct. 1, the statutory start of the 2017 term.

 

David Pendered, Managing Editor, is an Atlanta journalist with more than 30 years experience reporting on the region’s urban affairs, from Atlanta City Hall to the state Capitol. Since 2008, he has written for print and digital publications, and advised on media and governmental affairs. Previously, he spent more than 26 years with The Atlanta Journal-Constitution and won awards for his coverage of schools and urban development. David graduated from North Carolina State University and was a Western Knight Center Fellow. David was born in Pennsylvania, grew up in North Carolina and is married to a fifth-generation Atlantan.

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