Should the Supreme Court equitably apportion the water of the Apalachicola-Chattahoochee-Flint River Basin between Florida and Georgia?
This case asks the Supreme Court to consider whether it should equitably apportion the waters of the Apalachicola-Chattahoochee-Flint River Basin between Georgia and Florida. There is a long history of conflict between the states over Georgia’s use of water from the Chattahoochee and Flint rivers. Florida argues that the Supreme Court should impose a water consumption cap on Georgia because Georgia’s unreasonable water consumption inflicts real harm on Florida and its ecosystems. Georgia counters that Florida is not entitled to relief in this original jurisdiction action because Florida has not proven that the consumption cap will provide effective redress and Florida has failed to include a necessary party in the litigation. Florida contends that Georgia’s water usage has caused a reduction in the flow of the Apalachicola River that has harmed the region’s oyster population damaging the regional economy. Moreover, Florida suggests that it is the Court’s duty to intervene and apportion the water rights equally between the two states. Georgia disputes that it harmed the oyster population and organizations supporting it argue that upstream states have no duty to maintain or protect water flows to benefit downstream states.
Questions as Framed for the Court by the Parties
This is an action by the State of Florida to equitably apportion the interstate waters of the Apalachicola-Chattahoochee-Flint River Basin (“ACF Basin”).
The state of Florida has sued the state of Georgia over the use of water from the Apalachicola-Chattahoochee-Flint River Basin (the “ACF Basin”) in the United States Supreme Court, which has original jurisdiction over the matter—i.e., this case begins in the Supreme Court.
The Chattahoochee River begins in north Georgia and flows south through the city of Atlanta until it meets and runs down the Georgia-Alabama border to the Georgia-Florida border, where it meets the Flint River. Mot. for leave to file, Florida at 7–8. The Flint River rises in northern Georgia and flows unregulated through the state until it meets the Georgia-Florida border. Opp. to mot. for Georgia at 6. The Chattahoochee and Flint Rivers join to create Florida’s Apalachicola River, which flows down Florida’s panhandle until it feeds into the Gulf of Mexico at the Apalachicola Bay. Mot. for Florida at 8. The Chattahoochee is the primary source of water for the Atlanta metropolis. Opp. to mot. for leave to file, Georgia at 5. It also supplies water to serve other state projects. Id. The flow of water from the Chattahoochee into Atlanta is regulated by the Buford Dam, and the flow of water from the Chattahoochee and Flint into the Apalachicola by the federal Woodruff Dam. Id. at 5-6. There are five federal dams that regulate the Chattahoochee, and the United States Army Corps for Engineers (the “Corps”) is responsible for the dams’ operations. Id. at 4.
In the 1990s, Georgia, Alabama, and Florida (the “States”) began negotiations to apportion the waters of the ACF Basin. Mot. for Florida at 4. The States developed a process to study the ACF Basin and completed a Comprehensive Study of the ACF Basin’s needs in 1997. Id. at 5. Following this study, Congress passed the Apalachicola-Chattahoochee-Flint River Basin Compact (the “ACF Compact”), which the States then ratified. Id. The States agreed to create a formula to equitably apportion the waters of the ACF basin and protect the Apalachicola region’s ecosystem. Id. However, negotiations between the States fell apart and the ACF Compact terminated in 2003. Id.
In the late 1990s, Florida made multiple challenges to the Corps’ management of the ACF Basin dams under the Administrative Procedure Act, contending that the Corps’ regulation of the dams failed to satisfy federal statutes like the Endangered Species Act. Id. The Eleventh Circuit held that the Corps needed to develop a plan for operating the Buford Dam and to review its operations in the ACF basin. Opp. to mot. for Georgia at 8. Their opinion did not comment on Georgia’s water usage. Mot. for Florida at 4.
During the time between the Comprehensive Study and the termination of the ACF Compact, Georgia’s use of water in the ACF Basin increased. Mot. for Florida at 6. Following Georgia’s actions, the Apalachicola region’s ecosystem began to show signs of damage. Id. at 19. In 2012, the Apalachicola had its lowest average annual flow in the 90-year period of record. Id. The low flow reduced available habitats and increased salinity levels to intolerable levels for species in the Apalachicola. Id.
In 2013, Georgia updated its water supply request, explaining that the state anticipated a future withdrawal of up to 705 million gallons of water daily from the ACF Basin. Opp. to mot. for Georgia at 12. Georgia also explained that 78% percent of that water would be treated and returned to the basin to be used downstream, and that their increased water supply request would have only a minor impact on the flow of the Apalachicola River. Id. at 12–13.
In October 2013, Florida filed a Motion for leave to file a bill of complaint with the Supreme Court. Report of the Special Master, at 14. The motion was granted in 2014 and a Special Master was appointed to direct subsequent proceedings. Id. at 16.
In late 2016, the special master conducted an evidentiary hearing and concluded that, even if Florida was injured by Georgia, Florida’s injury would not be remedied by limiting Georgia’s use of water from the ACF basin. Id. at 21, 30–31. Florida disputes this determination
MUST FLORIDA SHOW “CLEAR AND CONVICING EVIDENCE” OF REDRESSIBILITY OR IS IT SUFFICIENT FOR IT TO SHOW A REASONABLE LIKELIHOOD OF REDRESSIBLITY?
Florida argues that the Special Master incorrectly required Florida to show clear and convincing evidence that a decree will redress its injury. Exceptions to Report of the Special Master at 34. Florida contends that the clear and convincing evidence requirement applies to a showing of injury rather than a showing of redressability, and that the Supreme Court has never required an injured State to establish redressability through clear and convincing evidence. Id. Florida notes that the Special Master found that Florida proved substantial injury through clear and convincing evidence and therefore it has met the redressability requirement. Id. at 35. Florida asserts that once it met the redressability requirement, the Court will invoke its original jurisdiction and the Court will settle the dispute in a manner that recognizes the equal rights of both States. Id. at 35–36. Florida notes that the Special Master correctly concluded that Florida has sustained a real and substantial injury from Georgia’s unreasonable consumption of water, but incorrectly held that Florida must show that a decree by the Supreme Court is guaranteed to work. Id. at 29–30. Florida contends that the Supreme Court does not need to be certain that its decree will fully redress Florida’s injury; a reasonable likelihood of the fact suffices. Id. at 30. The Supreme Court, according to Florida, has also consistently held that Article III of the Constitution only requires a plaintiff to show a likelihood of at least partial redress. Id. at 31.
Georgia argues that the Special Master correctly applied the clear-and-convincing-evidence standard. Georgia’s Reply to Exceptions at 35. The Supreme Court, according to Georgia, has held that the clear-and-convincing-evidence standard is not limited to the proof of injury inquiry in equitable apportionment cases, and thus Florida must provide clear and convincing evidence that a decree is highly probable to redress its alleged injuries. Id. at 36. Georgia asserts that the reasonable predictions must be accompanied by supporting evidence that they are likely to occur and that the Court will not issue a decree if relief is uncertain. Id. at 33. Georgia notes that the Special Master applied the correct legal standard when he held that, after a long discovery period and trial, Florida did not meet its burden of proof to establish the redressability requirement. Id. at 28. Georgia argues that Florida failed to establish the redressability requirement because it did not show that its reasonable predictions that a decree solely against Georgia would necessarily result in additional water reaching Florida. Id. Georgia also notes that the Special Master did not require Florida to show that a decree is guaranteed to work, but rather he used to word to denote that the Corps’ impact on water flows in the ACF Basin would make redress merely speculative and uncertain. Id. at 34.
WILL A CONSUMPTION CAP EFFECTIVELY REDRESS FLORIDA’S INJURY?
Florida argues that even if the Supreme Court adopts the Special Master’s incorrect standard to provide redressability, the Court may still grant Florida relief in this case by imposing a consumption cap. Exceptions to Report at 37. First, Florida contends the mere chance that the Army Corps could offset or frustrate the benefits of a decree mandating a reduction in Georgia’s water consumption is irrelevant to the redressability analysis. Id. Florida notes that the Supreme Court has held that the impact of an independent third party, like the Army Corps, is only material to the redressability analysis if the redress requires action by that third party. Id. Florida contends that that is not the case here because the Army Corps’ involvement is not necessary to achieve effective redress from Georgia. That is, Florida asserts, that capping Georgia’s overconsumption of water upstream will flow into Florida without any action by the Army Corps. Id. at 38.
Second, Florida argues that even if the Army Corps’ impact is relevant to the redressability analysis, the evidence suggests that the Army Corps’ conduct will likely aid rather than offset or frustrate a decree by the Supreme Court. Exceptions to Report at 40–41. Florida notes that the Army Corps’ rules mandate that it release at least an established minimum flow amount, but it may release even more than that required minimum. Id. at 41. In fact, according to Florida, the Army Corps has released more than the required minimum in the past when excess water was available. Id. Florida also contends that the Army Corps and the U.S. government have expressed a willingness to accommodate and comply with a decree issued by the Supreme Court. Id. at 42–43. Thus, Florida asserts that is has shown a likelihood that a decree will redress the substantial injury. Id. at 42.
Third, Florida argues that a decree will likely redress the substantial injury even if the Army Corps retains excess water upstream. Exceptions to Report at 46. Florida contends that a greater amount of water left unconsumed by Georgia due to a consumption cap will lead to a greater amount of water reaching Florida. Id. Florida concludes by noting that the Special Master failed to consider the ways in which a consumption cap would result in more water in the ACF Basin, which in turn would necessarily yield benefits for Florida independent of the Army Corps’ actions. Id. at 49. And at the very least, according to Florida, it would prevent the injury from worsening. Id. at 52.
In response, Georgia first argues that the Special Master correctly concluded that Florida did not demonstrate that a consumption cap will offer effective relief. Georgia’s Reply at 38. Georgia asserts that the Special Master correctly considered the role of the Army Corps in its redressability analysis because the equitable balancing process entails consideration of obstacles that hinder effective redress. Id. at 56. Georgia argues that the Supreme Court has ruled that if some obstacle or third party will frustrate effective redress, equitable relief is likely inappropriate. Id. Effective relief in this case, according to Georgia, is contingent upon an alteration of the Army Corps’ rules and practices. Id. at 57.
Georgia then contends that the Special Master correctly concluded that the Army Corps generally offsets increased flow from the Flint River into Lake Seminole by reducing reservoir releases from the Apalachicola River into Lake Seminole. Georgia’s Reply at 44. Georgia notes that the U.S. government describes exactly this practice in its post-trial amicus brief. Id. Georgia also contends that U.S. Geological Survey data for the two rivers as well as the Army Corps’ official Reservoir Simulation model confirm the offset. Id. at 44–45, 46. Thus, according to Georgia, a consumption cap resulting in an elevated streamflow in the Flint River will not necessarily result in an elevated streamflow into Florida. Id. at 45. Georgia further asserts that the U.S. government states in its brief that the Army Corps will likely not release more than the minimum during drought periods. Id. at 51.
Georgia finally argues that Florida’s own expert witnesses testified that increased flows from Georgia are not correlated with a corresponding increase in flows into Florida. Georgia’s Reply at 49–50. Georgia notes that Florida’s own witnesses testified that the Army Corps would need to be involved to effectively increase stream flows into Florida. Id. at 50. Georgia also contends that the Special Master correctly held that Florida failed to prove any material redress from a consumption cap not only during drought periods but also during normal and wet periods without coordination with the Army Corps. Id. at 53–54.
DO EQUITABLE CONSIDERATIONS FAVOR FLORIDA?
Florida argues that the Special Master ignored principles of equity when he required Florida to guarantee that the decree would guarantee redress. Exceptions to Report at 52. Florida contends that in equitable apportionment cases, the Supreme Court will give due consideration to “broad and flexible equitable concerns” instead of “hard and fast rules.” Id. Florida further asserts that the Special Master correctly concluded that Georgia is inflicting real harm on Florida and that equity demands a remedy. Id. at 53. Florida finally asserts that the Special Master’s recommendation would have the Supreme Court relinquish its constitutional duty to adjudicate disputes between States. Id. at 54.
Georgia argues that the principles of equity actually favor the Special Master’s recommendation. Georgia’s Reply at 57. Georgia contends that the Supreme Court will not grant relief where the plaintiffs has not proven that the relief will effectively redress the alleged harm. Id. Georgia also asserts that the Special Master did not conclude that Florida suffered injury and that the Special Master explicitly did not reach that issue. Id. at 58. Georgia finally notes that this case is not Florida’s “last remaining, legal remedy” because Florida may partake in the administrative process of altering the Army Corps’ rules and practices or bring a case in federal court involving the Army Corps. Id. at 58–59.
THE EFFECT OF GEORGIA’S WATER USE ON THE APALACHICOLA BAY
Florida claims that Georgia’s increasing water use has directly and seriously harmed both the Apalachicola Bay (the “Bay”) ecosystem, a major fishery resource, as well as the regional economy. Report of the Special Master at 14. By decreasing the average flow of water from the Apalachicola River (the “River”), Florida asserts that Georgia is harming different species and habitats in the Apalachicola Region, an area encompassing both the Bay and the River. Id. at 15. Florida argues that this is in turn harming the economic stability of the region, as the livelihoods of oystermen, farmers, and businessmen are also harmed by the decrease of oyster and other wildlife populations. Id. at 2. As a result of the evidentiary hearing, Florida notes, the Special Master found that Florida had suffered real harm and that there had been probable misuse of natural resources by Georgia. Exceptions to Report of the Special Master at 23.
The Atlanta Regional Commission, in support of Georgia, disputes Georgia’s responsibility for any environmental or economic problems experienced by Florida, further arguing that any existing problems regarding water reduction in the River cannot be linked to Georgia’s water use. Brief of Amicus Curiae Atlanta Regional Commission, in Support of Respondent at 12. Georgia suggests that Florida’s problems with reduced flow might stem from other causes, such as the the Corps’ control of the flow of water between Georgia and Florida. Georgia’s Reply to Exceptions at 31. Georgia also suggests that other possible causes might be changes in rainfall or other local weather events. Id. at 19.
DUTIES TO DOWNSTREAM STATES AND THE DUTY OF THE COURT TO INTERVENE
In allocating natural resources, Florida argues, the Court should settle apportionment disputes by considering both states as having equal rights and status. Exceptions to Report of the Special Master at 35–36. Florida also notes that when Florida, Georgia, and Alabama agreed to a compact designed to facilitate resource allocation, Congress passed a law requiring state and federal officials to administer laws affecting the ACF Basin in furtherance of the compact. Florida maintains that this law indicates that federal policy favors equitable apportionment. Id. at 42. Florida states that the Court has never required an injured state to prove more than a likelihood of redressability once it demonstrates that it has suffered real harm, and that moreover, the Court will not issue a decree only where redress would be a physical impossibility. Sur-Reply Exceptions to Report of the Special Master at 8.
Alternatively, the Atlanta Regional Commission, in support of Georgia, argues that Florida has misinterpreted the two Colorado v. New Mexico decisions dealing with a dispute over riparian rights between those jurisdictions, and that the Court has never apportioned riparian rights without yielding to the pre-existing status quo based on legal relations between states. Brief of Atlanta Regional Commission at 21–22. Moreover, the Atlanta Regional Commission asserts that the Court’s general rule in equitable apportionment cases is to adhere to local law in dividing resources, only departing from the rule as necessary to protect existing users or to provide additional water necessary to protect established economies. Id. at 33. Colorado, in support of Georgia, argues that, in the absence of a decree or compact, an upstream state has no duty to protect the flow of water for the benefit of a downstream state. Brief of Amicus Curiae Colorado, in Support of Respondent at 15.
- Lloyd Dunkelberger: U.S. Supreme Court Wades Into Florida-Georgia Water War, Palm Beach Post (Oct. 11, 2017)
- Tamar Hallerman: U.S. Supreme Court to Hear Georgia Water Rights Case, Atlanta Journal Constitution (Oct. 10, 2017)
- U.S. Supreme Court: Equitable Apportionment, Atlanta Regional Commission (last updated Dec. 12, 2017)