When we last left our story, Florida and Georgia were making their way to the arid State of New Mexico to take up arms in the latest Water Wars battle. This coming in the wake of a surprising 5-4 decision by the US Supreme Court (“Court”) giving Florida one last chance to make the case that Georgia’s water use should be curbed in its favor. Well last week the newly appointed Special Master overseeing the case of Florida v. Georgia issued a recommendation seemingly ensures Florida’s defeat.

A Never-Ending War

For decades, Florida, Georgia, and Alabama have fought over how water should be apportioned in the Apalachicola-Chattahoochee-Flint River Basin (“ACF Basin”) with each state utilizing the resources for different purposes. Georgia primarily uses the water for municipal and industrial (“M&I”) purposes, as well as for agricultural purposes. Florida, meanwhile, relies on the water to sustain an ecosystem in and around the Apalachicola Bay that supports the fishing and tourism industries. Alabama, while an infrequent combatant, large relies on the water for energy production. Moreover, the US Army Corps of Engineers (“ACE”) has a congressional mandate to operate a system of dams in the ACF Basin to control the flow of water.

Note: Please see our Water Wars page for more background and analysis of the issues

After years of legal fighting and failed negotiations for an interstate water compact in the early 1990’s, the Water Wars heating up again in the 2010’s after several droughts plagued the region. Florida has essentially argued from the beginning that Georgia’s use of water in the ACF Basin imperils its ecosystem, particularly its oyster population, and it’s only fair for Georgia to allow more water to flow across state lines.

In the late 2000’s, a federal district court in Florida ruled that Georgia must cap its use of water in the ACF Basin to 1990’s levels and allow more water to flow to Florida. However, the 11^th Circuit Court of Appeals promptly overruled this decision thereby allowing the status quo to remain. The US Supreme Court, in turn, rejected Florida’s appeal to hear the case.

Florida and Georgia Battle it Out in DC…

Out of options, Florida filed a new action directly with the Supreme Court in 2014 asking it to cap Georgia’s water use and equitably apportion the resource between the two states (a case known as Florida v. Georgia). The Court agreed to hear this case, and since it was an original jurisdiction case – meaning the action was filed directly in the US Supreme Court, not in a lower federal district court or state court – a special master was appointed to conduct hearings, compile evidence, and issue a recommendation to the Court on how to rule.

Special Master Ralph Lancaster subsequently recommended that the Supreme Court reject Florida’s request for a decree apportioning water and placing a cap on Georgia’s use because Florida had not shown by clear and convincing evidence that its injury could be redressed by a Supreme Court decree. Instrumental in this recommendation was the fact that the Army Corps of Engineers was not a party to the action. Since ACE was not a party and wouldn’t be bound by any decree and because it operates a system of dams in the ACF Basin, Lancaster decided that there was no possible way a decree could help Florida.  

In a 5-4 decision, the Court rejected the recommendation saying that Lancaster’s standard was too high – Florida didn’t need to prove by clear and convincing evidence that a solution was possible before determining whether it suffered a harm and the harm could be redressed. It remanded the case back to the Special Master with specific instructions for him to better explore the extent of Florida’s alleged injury (its damaged ecosystem), the extent to which Georgia is responsible for this (has Georgia’s use caused the injury), whether Georgia’s use is reasonable and equitable, and whether an equity-based apportionment by the Court would increase water flows to the extent that it would help Florida given that ACE has its own mandate to manage water.

…And Then in New Mexico

Following the Supreme Court decision, Special Master Lancaster was replaced by Paul Kelly of Santa Fe, which is why the two states found themselves in New Mexico. Last week, Special Master Kelly issued his recommendation to the Court, which likely spells the end of the fight for Florida. In recommending that Florida’s appeal for an apportionment decree be rejected, Kelly found little to no evidence that Georgia’s use of water in the ACF Basin has caused Florida’s alleged injuries. He also found that Georgia’s use of the water is reasonable and equitable given the state’s population and its implementation of water conservation controls. Finally, Kelly found that any proposed cap on Georgia’s use of water would not only fail to help Florida, but would be a substantial economic burden on Georgia. Since Kelly found little harm caused by Georgia, there was no need to conclude whether ACE operating procedures would allow more water to flow to Florida under a proposed cap on Georgia’s use.

Notably, Kelly found that the major decline of oysters in the Apalachicola Bay was largely due to drought, over-harvesting, and mismanagement by Florida. The report notes that Florida lifted its cap on harvesting following the Deepwater Horizon oil spill for fear that the spill would lead to a reduction in oysters. Kelly also found that ACE, not Georgia, damaged floodplain forests by constructing the Woodruff Dam and dredging channels.

Georgia’s Conservation Proves Persuasive

While Kelly’s conclusion didn’t turn on Georgia’s conservation efforts, it’s clear these efforts painted Georgia as a reasonable and responsible actor. While the fact that Georgia accounts for almost all of the population in the ACF Basin and almost all of the economic output derived from the ACF Basin is important in analyzing whether water is being used fairly, wasteful and inefficient uses of water will not be given  priority in equitable apportionment cases. Meaning, a state cannot use a tremendous amount of water in a wasteful way and then claim it needs that water to support its population and industry. Georgia’s use of the water is deemed fair and equitable not only because the state accounts for most of the population and industry in the ACF Basin, but also because it’s using water in an efficient and meaningful way.

The conservation efforts employed in Georgia over the last decade have not only reduced water usage, but have been pivotal in supporting Georgia’s case in the Water Wars. Kelly notes that while metro Atlanta’s population increased from 3.3 million people in 1993 to nearly 5 million people in 2013 (a year before this litigation was filed), M&I water consumption has not increased. Things like the use of conservation pricing, leak detection and auditing, and a statewide law that requires multifamily apartment buildings to be sub-metered on a unit-by-unit basis proved convincing to Mr. Kelly.

Kelly did note that while the state’s conservation efforts regarding M&I water use have been successful, it has some work to do when it comes to agricultural efforts, particularly during times of drought.

There still lies an inherent problem with a court attempting to equitably apportion resources when the value of the resources may not be easily quantifiable. While Florida’s economic benefits from the ACF Basin pale in comparison to Georgia’s, clearly some benefits of natural resources can’t be easily converted into dollar figures. We have a separate article on this point, so there’s no sense getting into that here. Suffice it to say, Mr. Kelly found the cited economic significance and potential, though unsubstantiated, cultural significance of the oyster industry wouldn’t benefit in a manner that would come anywhere close to outweighing the economic harm caused to Georgia if a decree and cap on water use were implemented.

If You’re Tired of Hearing About This Then We’ve Got Some Bad News

So Florida is out of options now, right? Not exactly. The Supreme Court still has to decide whether to accept or reject Special Master Kelly’s recommendation, but given that the Court will now have two recommendations to dismiss Florida’s request for a decree, it seems likely the justices will agree with Kelly.

A final ruling against Florida, though, is only another lost battle in the larger war. As environmental circumstances change, Florida can continue to bring legal action. Congress has ultimate authority over how water is used in the ACF Basin, so the states can always attempt to influence legislation and regulation. So while the Supreme Court battle may be winding down (after only five years), the longer struggle is far from over.

This one of several articles related to the Water Wars – for more background and analysis please visit our Water Wars page.