This is the third part of a four part piece on the ongoing Tri-State Water Wars. This part focuses on how the US Supreme Court will reach an apportionment decision and the fourth part will focus on what Georgia and Florida are doing to help their cases. The first part provided an introduction to the conflict and the second part focused on why a decree from the Supreme Court will ultimately prove to be untenable. This was originally supposed to be a three part series, but the third part has now been broken down into two pieces due to length.

The US Supreme Court, in Florida v. Georgia, is in the midst of collecting information and data from Georgia and Florida in pursuit of its goal of fairly apportioning water in the Apalachicola-Chattahoochee-Flint River (ACF) Basin between the two states. Rather, Special Master Ralph Lancaster, Jr. is in the midst of collecting such information and will report his official findings to the Supreme Court justices who will then make an official ruling.

Georgia largely needs the water for consumptive uses in metro Atlanta and for agricultural uses in the southern part of the state and Florida largely needs the water to support the oyster population in the Apalachicola Bay.The consequences of a decision are quite clear: it will shape the development of metro Atlanta for years to come and will likely force both states to become more cooperative in managing the region’s water resources.

In previous posts we’ve discussed the history of the water wars between Florida, Georgia, and Alabama, the implications for all interested parties, and the alternatives to asking the Supreme Court to make the final call. Note: While the Tri-State Water Wars as a topic includes all three states, only Florida and Georgia are involved in the current litigation before the US Supreme Court and therefore will be the only states subject to the eventual apportionment decree.  In this post we’ll look at previous equitable apportionment cases and try to figure out what exactly the Court will take into account when reaching its final apportionment decree. Plus, a recent motion by Georgia provides an insight into how the Court may rule!

The ACF Basin with Diversions (Dams) in Red.
fws.gov

The beauty of asking the Supreme Court to allocate water between the three states is that the Court can start with a clean slate. Unlike previous litigation between the states where the courts were asked specific questions of statutory interpretation regarding the obligations of the US Army Corps of Engineers (ACE) under federal law and were largely bound by judicial precedent, the Supreme Court has original jurisdiction in disputes between states; meaning this is an entirely new question for the judicial branch. It’s an action for equitable apportionment, which only the Supreme Court can address.

In such disputes, the Court is bound by very little. It isn’t exclusively asking whether Congress told ACE to build six dams or four dams or any dams at all. It isn’t exclusively asking who was using the water first and what use is the most important to the greatest number of people. These will certainly be factors in any final determination, but they’ll only be factors. The nine justices are simply tasked with apportioning the water in an equal manner based on the plethora of evidence gathered by Special Master Lancaster.

Of course the beauty of working with a clean slate is in the eye of the beholder. That paramount 11th Circuit Court of Appeals case won by Georgia back in 2011 that overturned a federal district court ruling and allowed ACE to continue to provide metro Atlanta with however much water it deemed fit comforted everyone in the state and provided a basis for some degree of swagger, but it means almost nothing now. The decades of water grabs by metro Atlanta counties and the lack of recent environmental planning by Florida in and around the Apalachicola Bay will not go unnoticed. Neither, though, will all the good things the states have recently done in their efforts to conserve and protect water resources.

How Will the Supreme Court Decide?

The Supreme Court rarely hears original jurisdiction questions, particularly those questions asking the Court to apportion water between two states. As we’ve discussed in previous posts, many states that received a decree of apportionment from the Court or those that have simply relied on legal rulings for apportionment have ended up creating their own agreement or compact after finding decrees and rulings to be inflexible. This has been true for the states of the Colorado River Basin and the states of the Delaware River Basin, to name just a few. Consequently, instead of hearing cases asking for water to be apportioned from a clean slate, the Court now largely hears cases asking for an interpretation or ruling on an existing water-sharing agreement. Since the Court doesn’t regularly hear outright apportionment cases, it makes it difficult to understand what factors will be in play and how much weight will be given to those factors.

Note: Some of the following information is taken from Alyssa S. Lothrop’s 2009 Florida State Law Review comment on the Tri-State Water Wars. For ease of reading, I will provide the full citation now and just reference the page number at the end of sentences. Alyssa S. Lothrop, A Tale of Three States: Equitable Apportionment of the Apalachicola-Chatthoochee-Flint River Basin, 36 FLA. ST. U. L. REV. 865 (2009). <http://diginole.lib.fsu.edu/cgi/viewcontent.cgi?article=1113&context=fsulr>

What we do know is that the Court will look to satisfy all users in the ACF basin. Obviously everyone can’t get the exact amount of water needed to realize their most elaborate dreams, but one user isn’t automatically favored over any other user. Generally, the justices are going to weigh the economic harms and benefits with the environmental harms and benefits while factoring in the extent of existing uses and the good-faith efforts taken by each state to solve the problem without conflict. In Idaho ex rel. Evans v. Oregon 462 US 1017 (1983) the Supreme Court found that existing legal rights are subordinate to rights of equitable apportionment. Lothrop at 889. Therefore the Court is not bound by either state’s existing legal rights to water in the ACF Basin when deciding the proper allocation.  Since the Court isn’t bound by these legal rights, fairness and pragmatism will likely heavily influence any decision.

We should first consider the prevailing water laws of the eastern United States. While the western part of the country largely grew up with the law of prior appropriation – meaning the first to appropriate water gains superior title to such water – the east grew up with the law of riparian rights. Generally under riparian law, a user has the right to use water in a reasonable manner. What is reasonable can and does change based on how plentiful water is at the time. While the Supreme Court will directly apply equitable apportionment and not the prevailing water laws in the competing states, those water laws can be used as guideposts. Lothrop at 885. Georgia and Florida are both riparian states, so the Court likely will disregard when and by whom water was first apportioned and place a heavy emphasis on the reasonableness of how water is being appropriated.

Delaware River in Philadelphia
response.restoration.noaa.gov

Though the Court has addressed equitable apportionment only a handful of times, those cases do, at least, provide some insight into relevant factors. In New Jersey v. New York, 283 U.S. 336 (1931), the Court restricted the use of water by New York communities and ordered mandatory minimum flow requirements in the Delaware River Basin as a means of protecting New Jersey’s oyster populations. It also ordered the construction of sewage plants to ensure oyster populations and recreational users downstream enjoyed water of acceptable quality.

Sound familiar? That case has many similarities to Florida v. Georgia as it tasked the Court with apportioning water between growing population centers and ecologically sensitive areas. The two cases are unique among equitable apportionment cases in that both involve riparian states and ask the Court to apportion water for different uses; the is unlike the vast majority of apportionment cases heard by the Court, which have largely involved western prior-appropriation states and the apportionment of water for similar uses.

So we know that historically the Court has protected environmental interests (and the economic interests associate with a healthy environment) at the expense of consumptive uses by humans.

What is less known is how major environmental legislation will affect the Court’s decision. New Jersey v. New York was decided well before the proliferation of environmental regulations and statutes. Unless Congress chooses to apportion the water in the ACF Basin, the Supreme Court is free to allocate water on its own terms. As previously mentioned, current legal rights or obligations don’t need to be taken into account by the Court. In the same way that the 2011 decision by the 11th Circuit is somewhat meaningless, so too is the Endangered Species Act or any other piece of environmental legislation. The Court is free to take it or any other statute into account, but it isn’t required to do so. But, as we’ll see later, this doesn’t necessarily mean that should the statutes be ignored they will no longer have any significance.

We don’t know to what degree the environmental statutes will be considered, but as Lothrop wrote in her comment in the Florida State Law Review, Justice Scalia has historically indicated that such statutes should be taken into account since they were drafted by elected officials and theoretically represent the will of the people. Lothrop at 896. If Justice Scalia takes this approach and the more “liberal” justices place heavier weight on environmental issues then Florida may be in for big gains in the final decree. But then again, Georgia does have that 11th Circuit ruling allowing ACE to interpret certain statutes in a Georgia-friendly manner.

Ted Turner’s Vermejo Park Ranch in Northeast New Mexico Near the Vermejo River, the Subject of Colorado v. New Mexico
rmh.uwyo.edu

The Court also seems to place a heavy emphasis on the non-combative policies of the states. This largely asks what conservation methods are upstream and downstream users doing to capture and use as much water as possible without inconveniencing the other users. Unfortunately for Georgia, the burden is likely going to fall on it to justify the amount of water being diverted for agricultural and consumptive uses. In Colorado v. New Mexico II, 467 US 310 (1984), the Court established that after a state has shown substantial harm by clear and convincing evidence, the burden falls on the upstream diverting state to show by clear and convincing evidence that reasonable conservation measures are feasible. Lothrop at 886.

As Justice O’Connor wrote in Colorado v. New Mexico II, “[t]he standard reflects this Court’s long-held view that a proposed diverter should bear most, though not all, of the risks of erroneous decision: “‘The harm that may result from disrupting established uses is typically certain and immediate, whereas the potential benefits from a proposed diversion may be speculative and remote.'” Georgia, therefore, will likely need to show that it is taking reasonable conservation measures and that Florida can take reasonable conservation measures to replace any water lost through diversion. The Court will then weigh the benefits and harms of Georgia’s proposed diversions.

One major difference between Colorado v. New Mexico and Florida v. Georgia is that in the former the diversions sought by Colorado were proposed and not existing. Florida is not only trying to prevent future diversions, but to roll back existing ones as well. The Court didn’t have to address a future situation in which Colorado was forced to discontinue an existing reliance. That obviously is not the case in Florida v. Georgia since one of the major factors to be considered is how reliant Georgia has become on water appropriations over the past 15 to 20 years.

The costs and benefits of diversions are not nearly as speculative in this case as in Colorado v. New Mexico since we’ve seen over the past two decades what has happened to both Georgia and Florida as more and more water is appropriated for consumptive and agricultural uses in Georgia. Ultimately, Colorado v. New Mexico was dismissed due to Colorado’s lack of sufficient evidence that conservation methods could replace any water lost by New Mexico upon the completion of Colorado’s diversions.

Regardless of how the Court weighs the costs and benefits and feasibility of conservation efforts, pragmatism will likely play a large role. That consideration is what some attribute to the 11th Circuit’s decision to overrule the federal district court that ordered ACE to severely cut back the amount of water it appropriates for consumptive uses in metro Atlanta. Even if the district court was legally correct, the Court of Appeals may have wanted to avoid a potentially devastating water shortage in Georgia.

Perhaps it’s important to note that in Colorado v. New Mexico I, 459 US 176 (1982), the Court clearly stated that it will not protect wasteful water uses and part of the power of equitable apportionment is to impose some reasonable standard on the use and augmentation of water in streams. This likely would include things such as failing to put limitations on water usage by residents and farmers generally, but particularly in times of drought. Lothrop at 886. That case, though, involved prior appropriation states in the west and the Court placed heavy emphasis on the scarcity of water in that region as an underlying reason for giving so much weight to the wastefulness factor.

The Weight of the Factors in the Modern Age

So in the end it appears the Court will look at conservation efforts, the extent of existing uses, climate conditions, existing statutory framework, good-will, and the economic and environmental costs and benefits of an apportionment plan. What is still up in there and something we probably won’t know until a final decree is issued, is just how much weight will be given to each factor. South Carolina and North Carolina were involved in a similar equitable apportionment case involving the Catawba River, but settled after the Supreme Court ruled in 2010 that Duke Energy could intervene. Interestingly, the case was decided along non-ideological lines as Chief Justice Roberts, joined by Justices Sotomayor, Thomas, and Ginsburg dissented saying nonsovereign entities should not be allowed to intervene in equitable apportionment actions regarding the water rights of sovereign states.

Catawba River Basin
catawbariverkeeper.org

Though South Carolina v. North Carolina, 558 US 256 (2010) was limited to the procedural question of intervention, it could be telling of what’s to come in terms of how much weight the Court gives to statutory-schemes created by Congress, particularly those concerning environmental regulation. The traditional method of allocating water rights via equitable apportionment focuses on the factors mentioned above. They are rather simple manifestations of basic fairness and decency and are rooted in a time when we once thought regulation wasn’t needed. Unfortunately, people haven’t practiced basic decency over the years and we’ve needed regulation for better or for worse.

Previous decrees and decision often seem a bit romantic in their simplistic view of how complex ecological and economic values are assessed. The resulting rules created based on the factors previously used by the Court and by states could be considered the “old law of the river.” Conversely, the “new law of the river” has been carved out over the past several decades based on federal statues and administrative law. Those basic principles of fairness between the rights of two sovereign states have given way to heavier recognition of the need, and often obligation, to address complex regulatory schemes.

Compacts, agreements, and court decisions that focused primarily on the “old law of the river” are being met with fierce, and often successful, opposition from agencies and citizens focused on enforcing the likes of the Clean Water Act and the Endangered Species Act. What is left to be determined is how the Supreme Court will respond to this “new law of the river” when conducting equitable apportionment in the modern age. While it doesn’t appear that the Court has to take these statutes into account when apportioning water, it does appear that the statutes could be in play following any decree. Should the Court choose not to allocate water based on the health of an endangered species, it could find its decree challenged and chipped away at through even more litigation.

While ACE does have a Congressional mandate to regulate the flow of water in the ACF Basin, it still must abide by federal environmental laws. Over the past several decades downstream communities and states in the ACF Basin and elsewhere have routinely challenged rules and protocols created by ACE for failing to take into consideration requirements under environmental laws, chiefly the Endangered Species Act. But how does this litigation play out after a Supreme Court decree based on equitable apportionment? Particularly if the decree is more traditional and mentions nothing about environmental laws.

In his 2005 article in the Journal of Contemporary Water Research and Education, law professor J.B. Ruhl suggests things could only get more complicated and troublesome. Florida could still initiate litigation challenging the actions of upstream users despite the equitable apportionment decree. This path seems like a downward spiral towards chaos. Our second post in this series focused on why a decree will be inadequate in terms of planning for water needs based on climate and population changes. The threat of even more litigation based on changing federal statutes and regulations is yet another reason why more and more water-sharing agreements and pacts are popping up across the country instead of more and more equitable apportionment cases.

In South Carolina v. North Carolina, the majority, led by Justice Alito, at least indicated that things are different; by allowing a private third-party to intervene, the majority indicated that the equitable apportionment of water involves more than just the inherent rights of the states. This seems like a significant departure from the “old law of the river.” Like the interests of Duke Energy, the interests created by federal environmental statutes are not based in the inherent rights of states. After all, such statutes often allow for private rights of actions by citizens.

Duke’s Riverbend Steam Station Along the Catawba River
voices.nationalgeographic.com

If the Court has indicated that a private energy company has an interest in water allocation then it seems reasonable when determining how water should be allocated that the statutorily-vested interests under environmental laws should also be considered. The fact that the majority of the Court (that included the great John Paul Stevens, now replaced by Elana Kagan) at least acknowledged the interest of another nonsovereign party could indicate where it is moving in terms of incorporating federal statutory schemes into an apportionment decree.

Acknowledging the interests of other governments, though not nonsovereigns, is hardly new. In New Jersey v. New York, back in 1931, Justice Holmes, in writing for the majority, acknowledged that the War Department also had a significant interest in the navigable rivers of the Delaware River Basin and any rights New York gained under the decree to erect dams would change based on the needs of the War Department. The Court could incorporate something similar in its ACF decree in regards to ACE.

An Early Insight Into What May Come

Recently Special Master Lancaster dismissed a motion to dismiss Florida v. Georgia for failure to join the United States as a required party. As a non-party to the suit, the federal government, through ACE, will not be bound by any decree ordered by the Court. Federal rules of procedure require a party to be joined if in its absent full relief cannot be afforded or if disposing of the party’s interest in its absence would impede its ability to protect its interest or leave it at risk of taking on additional obligations. Georgia argued that the case must be dismissed because the United States is a required party, but the US cannot be joined involuntarily since it did not waives its sovereign immunity.

What’s significant is that the only way the Court could dismiss the motion is to find that any decree will not necessarily prejudice the federal government. According to Georgia and by the United States’ own admission, any decree that would set minimum flow rates along the Chattahoochee or Apalachicola Rivers by requiring ACE to change its practices would necessarily prejudice it and require it to be a party.

By failing to dismiss the case, the Special Master feels that, at least at this point in time, a decree can be entered that equitably apportions water without necessarily prejudicing ACE. In his order, Lancaster stated that a cap on Georgia’s consumption seems like the most plausible remedy, rather than minimum flow standards. Theoretically, a cap on consumptive use will not affect ACE since it will allow more water to flow into the reservoirs thereby preventing a situation in which ACE must decide between abiding by the decree or abiding by its own legislative mandate. Of course, what is plausible could change based on changing facts, but as of right now, it appears that Special Master Lancaster believes a cap on consumptive use is the most likely remedy.

Even though ACE will not be bound by any decree should the United States not join as a party, the amicus brief filed by the United States in opposition to Georgia’s motion to dismiss does entertain the possibility that Florida may bring future claims against ACE based on a decree. This is precisely what is predicted by J.B. Ruhl and many others.

In the fourth installment we’ll focus on what the states, particularly Georgia, are doing to satisfy the factors used by the Supreme Court in determining how to equitably apportion the water. These include a plethora of policies and legislation as well as general statements and actions, some good and some ridiculous, that have been made over the past several years.

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