Supeme Court sends Fla./Ga. water lawsuit back to special master for more consideration

By David Pendered

The U.S. Supreme Court ruled today that the special master who considered the federal lawsuit Florida filed against Georgia over water flow from Georgia into Florida will gather additional information in the case before justices issue a final ruling. Justices determined the special master had applied too strict a standard with Florida’s claim that Georgia was hoarding water to the detriment of the Apalachicola River Basin.

In a potential setback for Georgia, the ruling observed that Florida had, “made a legally sufficient showing as to the possibility of fashioning an effective remedial decree.” Such a decree could affect the amount of water flowing from Georgia into Florida by setting caps on the amount of water held in Georgia in reservoirs overseen by the U.S. Army Corps of Engineers.

supreme court

The U.S. Supreme Court on Wednesday sent hte Fla./Ga. water lawsuit back to a special master, who’s to gather more evidence about Florida’s water needs.
File/Credit: sites.google.com

The ruling observed:

  • “The Master concluded that Florida failed to make the requisite showing because it did not present clear and convincing evidence that its injuries could be redressed by a decree capping Georgia’s upstream water consumption if the decree does not also bind the Corps. Florida has filed exceptions to the Master’s Report.
  • “The Special Master applied too strict a standard when he determined that the Court would not be able to fashion an appropriate equitable decree. The Master referred to this as a ‘threshold’ showing. But it is ‘threshold’ only in the sense that the Master has not yet determined key remedy-related matters, including the approxi- mate amount of water that must flow into the Apalachicola River in order for Florida to receive a significant benefit from a cap on Georgia’s use of Flint River waters.”

The ruling also observed the court was withholding judgment as to the final outcome of the case:

  • “The Court reserves judgment as to the ultimate disposition of this case, addressing here only the narrow ‘threshold’ question the Master addressed below—namely, whether Florida has shown that its ‘injur[ies can] effectively be redressed by limiting Georgia’s consumptive use of water from the Basin without a decree binding the Corps.” … Florida has made a legally sufficient showing as to the possibility of fashioning an effective remedial decree.”

The ruling appears to send the case back to Special Master Ralph Lancaster. In doing so, the court is sticking with a court-appointed official who presided over the case for about a year before issuing his recommendation to the court.

The Feb. 16, 2017 ruling from 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.

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.”

The court did not retain the services of a special master in another case. In March, the court sent back to a special master the lawsuit Texas brought against Colorado and New Mexico. The court assigned a new special master to handle the proceedings. 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.

Florida filed the federal lawsuit Nov. 3, 2013 after years of litigation and negotiation failed to satisfy Florida’s concerns. Florida contended that Georgia’s water consumption was on track to decimate the region centered at Apalachicola, a fishing village facing the Gulf of Mexico on Florida’s Forgotten Coast.

Florida contended in its lawsuit:

  • “Georgia officials have projected that Georgia’s consumption of the ACF Basin water will nearly double from present levels by 2040. See affidavit of Judson H. Turner, Director of the Georgia Environmental Protection Division, provided at App. 3-27.
  • “If Georgia’s consumption increases as planned, the sole source of fresh water sustaining the Apalachicola River and Bay will shrink further, jeopardizing the viability of the Apalachicola Region’s ecology, economy, and way of life.”
apalachicola, tributary at wewa

Several justices said Florida did not make its case that getting more water from Georgia in rainy years would improve its conditions during drought years. A dry summer of 2016 lowered the water level by several feet on the Chipola River, a tributary of the Apalachicola River. File/Credit: David Pendered

Several Supreme Court justices said during oral arguments on Jan. 8 that Florida did not make its case. They cited the findings of the special master they appointed to hear the case and make a non-binding recommendation to the court.

Special Master Ralph Lancaster’s recommendation focused on the management of the Apalachicola-Chattahoochee-Flint 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.

Several justices noted that Lancaster observed that Florida did not even attempt to make a case that it would suffer less in times of drought if it received more water during rainy seasons.

Associate Justice Elena Kagan:

ACF river basin, chattahoochee, apalachicola

The water flow along the Chattahoochee, Flint and Apalachicola rivers has been in litigation and negotiation for more than three decades. File/Credit: wabe.org

  • “I thought that the Special Master – this is at page 63 to 65 of his report – said that Florida at the trial concentrated only on the harm from the low flows in drought years and it did not address the benefits of increased flow during normal non-drought periods. It didn’t even address it, he said, no – no less showed the benefits that it would gain. So he said if – if Florida has not established its case, it’s Florida’s fault because all they did was concentrate on the drought years.”

Associate Justice Ruth Bader Ginsburg:

“But in this – but in this case, Mr. Garre [attorney for Florida], the special master said: Yeah there was proof on that point, but it was put in by Georgia, and Georgia’s expert said it wouldn’t make enough of a difference – a difference to cure Florida’s problem.”

Kagan, on Florida’s request for the court to put a cap on Georgia’s water consumption from the ACF River Basin:

  • “Florida hasn’t put on any evidence that they’re going to get enough water as a result of these consumption caps going into place that would improve their ecosystems, improve the oyster beds or so forth, and without that, I can’t go forward.”

Gregory Garre, a lawyer representing Florida, told the court during oral arguments on Jan. 8. “With respect to the special master, we believe he – he made a legal error on this discrete issue, that the case should be returned to him for him to complete the work that he has begun.”

 

 

 

 

 

 

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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