Case No. 142 | Original
February 22, 2021
Preview by Austin Martin, Senior Online Editor
This case concerns a decades-long dispute over rights to the waters flowing from Georgia into Florida’s Apalachicola Bay. The states previously reached the Supreme Court in 2018 when Florida claimed that its portion of the Apalachicola-Chattahoochee-Flint River Basin (“ACF Basin”) suffered environmental and economic harm due to Georgia’s alleged overconsumption of water from the Basin. The Court appointed Special Master Ralph Lancaster to issue a report recommendations based on the parties’ arguments. Special Master Lancaster concluded that Florida’s alleged injury would not be redressable by the Court in this case because the Army Corps of Engineers, not Georgia, controlled river flow into Florida. The Court disagreed, holding that Special Master Lancaster was too strict in his analysis of whether Florida met its burden to show redressability. See Florida v. Georgia, 138 S. Ct. 2502, 2516 (2018). Instead of requiring Florida to show “clear and convincing evidence” that the Court could issue a workable decree to allocate water among the states, the Court stated that Florida need only prove that a workable decree is likely possible. Id. Although Florida had satisfied this standard, the Court remanded with instructions for further consideration of certain evidentiary questions that Special Master Lancaster had left unresolved. The Court also appointed a new Special Master, Judge Paul Kelly Jr. of the Tenth Circuit.
In December 2019, Special Master Kelly issued a report recommending denial of Florida’s request for a decree to allocate water among the states. See Report of Special Master Kelly 7 (Dec. 11, 2019). Florida now challenges that report and urges the Court not to adopt it. See Exceptions to Report of the Special Master by Plaintiff State of Florida and Brief in Support of Exceptions, Florida v. Georgia, No. 142 (U.S. filed Apr. 13, 2020). Florida contends that Special Master Kelly ignored the Court’s command to “conduct the equitable-balancing inquiry” and focused too much on whether Georgia’s consumption was reasonable, rather than on whether Florida’s equal right to reasonable use was harmed. Florida, 138 S. Ct. at 2518; Exceptions to Report at 18–20. Florida leans on Special Master Lancaster’s report finding that the state suffered “real harm” from Georgia’s upstream consumption, in contrast to Special Master Kelly’s finding that “Florida has not suffered any harm from Georgia’s consumption.” Exceptions to Report at 21 (quoting Kelly Report 25). Furthermore, Florida asserts that an apportionment decree would pose little cost and would greatly benefit Florida’s economy and ecological health by improving its oyster fisheries in the ACF Basin.
Georgia argues that Special Master Kelly did exactly as directed by the Court, which was to evaluate the evidentiary issues left unresolved by Special Master Lancaster. The result, Georgia argues, is that Florida has failed to fulfill its burden to “prove by ‘clear and convincing evidence’ that it has suffered a serious injury “‘through the action of the other State.’” See Georgia’s Reply to Florida’s Exceptions to the Report of the Special Master at 15, Florida v. Georgia, No. 142 (U.S. filed Jun. 26, 2020) (quoting Florida, 138 S. Ct. at 2514). Georgia also argues that its consumption of ACF waters is reasonable and that the costs of any decree would significantly outweigh any minimal benefit the decree could offer. Georgia contends that Florida created its own problems by mismanaging its waters and has relied on untested, unreliable water consumption models specifically for this litigation. See id. at 15–17, 28.
Florida’s Apalachicola Bay oysters rely on freshwater flows from the Apalachicola River to decrease water salinity and drive away predators. Oyster beds themselves play a crucial ecological role by filtering nutrients from the water and creating feeding and nesting habitats in the ACF basin. Further, Apalachicola’s local community has long thrived on a deeply ingrained culture of “oyster stewardship,” which has made its oysters famously tasty and highly lucrative. Brief of Franklin County Seafood Workers Association as Amicus Curiae at 6, Florida v. Georgia, No. 142 (U.S. filed Jun. 26, 2020). At the same time, the Atlanta metropolitan area relies on the upstream waters of the Chattahoochee river to supply freshwater to its population of over 6 million people. See Amicus Curiae Brief in Support of the State of Georgia by the Atlanta Regional Commission, et al. at 2–4 Florida v. Georgia, No. 142 (U.S. filed Aug. 7, 2020). The Court’s decision in this case could have significant effects on these competing, vastly different southern communities.