By David Pendered
The U.S. Supreme Court ruling on the water war litigation between Florida and Georgia is expected by June 30. The ruling may follow one of three scenarios – including one the court followed last month in a water ruling that involves three western states.
The three potential scenarios include:
- A ruling in favor of Florida, which seems unlikely given comments by several justices that suggested Florida didn’t make its case;
- A ruling in favor of Georgia, which is possible given those same comments;
- An order for a court-appointed special master to hold further proceedings to gather information contained outlined in the court order.
In March, the court sent back to a special master the lawsuit Texas brought against Colorado and New Mexico. The case involves a dispute over water rights in the Rio Grande basin. It also involves a compact between the United States and Mexico that pertains to water flow into Mexico.
The special master had presided over hearings and presented his recommendations to the court. The court unanimously rejected the recommendations, released the special master, and appointed a new special master to preside over the gathering of information contained in the court order, court records show.
There’s no telling when the Texas case may end. The court authorized the new special master to set his own calendar. The court did not set a deadline for the work to be completed.
As an aside, the court began its opinion with a joke about the Rio Grande. Associate Justice Neil Gorsuch wrote: ‘Will Rogers reportedly called the Rio Grande “’the only river I ever saw that needed irrigation.’”
There’s no way to speculate how the court will rule in the Florida/Georgia case.
The dispute has simmered more three decades and has, at various times, involved Georgia, Florida and Alabama. In the current posture, Florida filed a lawsuit against Georgia that’s now pending in the Supreme Court.
In the early days, Alabama and Florida claimed that metro Atlanta’s explosive population boom was devouring the water supply. The strategy shifted to an assault on all of Geogia as entities including the North Metro Water District documented moderations in water consumption by the metro region over time.
Florida contends Georgia is using too much water contained in the Chattahoochee River basin. Georgia’s hording of water is depriving Florida of river flow necessary to sustain the fishery in the Apalachicola Bay, according to Florida’s claim.
The court heard oral arguments Jan. 8. The court heard the Texas case the same day.
Comments by justices provide some illumination as to whether the court will rule for Florida or Georgia.
During the arguments, Associate Justice Elena Kagan questioned the degree to which Florida had established the extent of harm suffered and what benefit would accrue to Florida if a consumption cap were placed on Georgia.
Associate Justice Ruth Bader Ginsburg observed that Georgia’s expert had testified that Florida’s problem would not be cured by any amount of water saved.
One of Florida’s attorneys contended that it was up to Georgia to prove that its extent of harm would outweigh any benefits that accrued to Florida if Florida received more water.
Gorsuch countered: “Look, I thought the burden ultimately was for the plaintiff who wishes to alter the status quo to show that the benefits he wishes to obtain significantly outweigh the harms that the relief he seeks would cause.”
The case contains quirks that add complexity.
For starters, the special master’s ruling did not analyze the harm to Georgia and the benefits to Florida if additional water were directed from the Chattahoochee basin into the Apalachicola River.
The ruling from Special Master Ralph Lancaster focused on the management of the river basin. Lancaster observed that the U.S. Army Corps of Engineers controls the amount of water that flows into Florida because the corps manages the river through its control of dams. The corps is not a party to the suit.
- “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.”
Lancaster issued his order Feb. 16, 2017.
On March 30, 2017 the corps’ Brigadier General David Turner, Commander South Atlantic Division, U.S. Army Corps of Engineers, approved the Water Control Manuals for the Apalachicola-Chattahoochee-Flint River Basin.
According to a statement the corps released:
- “The updated plans and manuals comply with existing Corps of Engineers regulations and reflect operations under existing congressional authorizations, taking into account changes in basin hydrology and demands from years of growth and development, new/rehabilitated structural features, legal developments, and environmental issues. Corps regulations also provide specific policy and guidance for inclusion of drought contingency plans as part of the Corps of Engineers’ overall water control management activities.”
The new manual was the first update in some 50 years of the document that guides the management of the Chattahoochee River basin and its dams.
The court could determine that the corps may not be a party to the case, in light of possible sovereign immunity, but the water control manual could be brought into discussion.