Can Florida obtain an apportionment of the waters of the Apalachicola-Chattahoochee-Flint River Basin to permit fresh water to flow into the Apalachicola Region?
This case asks the Supreme Court to decide whether Florida is entitled to an apportionment of the waters of the Apalachicola-Chattahoochee-Flint River Basin against Georgia. Plaintiff Florida argues that Georgia’s use of the water is unreasonable because of mismanagement and waste and that Georgia’s use harms Florida’s oyster fisheries. Florida argues that it is entitled to relief because even an extra 1,000 cubic feet per second (“cfs”) of water will greatly benefit Florida, whereas the cost to Georgia is low and can be mitigated by water conservation methods. Defendant Georgia argues that Georgia’s use is reasonable because Florida’s models for consumption are incorrect and that the water is used for important purposes such as irrigation. Georgia also argues that a cap on its consumption would yield little benefit to Florida because of how the United States Army Corps of Engineers operates its dams and reservoirs and would be extremely costly for Georgia to implement. The outcome of this case will have implications for the sharing of water resources by neighboring states, state economies, and the environment.
Questions as Framed for the Court by the Parties
Whether Florida is entitled to equitable apportionment of the waters of the Apalachicola-Chattahoochee-Flint River Basin and appropriate injunctive relief against Georgia to sustain an adequate flow of fresh water into the Apalachicola Region.
The Apalachicola-Chattahoochee-Flint River Basin is an interstate basin created by the confluence of three rivers—the Chattahoochee River, the Flint River, and the Apalachicola River. Florida v. Georgia at 2. The Chattahoochee and Flint Rivers run from Georgia to Lake Seminole near the Florida border, continue through the Woodruff Dam, and thereafter form the Apalachicola River. Id. at 2–3. The Apalachicola River, through which 35% of western Florida’s fresh water flows, eventually empties into the Gulf of Mexico. Id. at 3. There, the Apalachicola River’s fresh water mixes with the Gulf’s salt water, creating a unique ecosystem that has received national and international recognition. Id.
Florida has for many years alleged that Georgia uses more than its “equitable share” of the Basin’s waters. Id. at 3–4. Though the two states have long tried to agree on the apportionment of the Basin’s waters, they have failed to do so. Id. at 4. Because the Supreme Court has original jurisdiction to hear cases on the equitable apportionment of interstate waters, Florida asked the Court in 2013 to exercise that jurisdiction and issue a decree apportioning the waters between the two states. Id. at 3, 5. In its complaint, Florida contended that Georgia’s continued overuse of water resulted in a significant decrease in the flow of fresh water into the Apalachicola Bay, leading to the crash of the Bay’s oyster industry in 2012. Id. at 3. In response, Georgia argued that Florida failed to show sufficient evidence of a substantial injury caused by Georgia’s water consumption. Id. at 5.
The Supreme Court agreed to hear the case and appointed a Special Master to direct the proceedings, take evidence, and file reports with the Court. Id. at 6. In a February 2017 Report (the “2017 Report”) to the Supreme Court, the Special Master suggested that the Court dismiss Florida’s complaint. Id. at 7. First, the Special Master noted that the United States Army Corps of Engineers (“Corps”) operates dams and reservoirs along the Chattahoochee River that control the flow of water from Georgia to Florida. Report of Special Master Lancaster at 5-6. Continuing, the Special Master stated that the Corps, which is not a party to the suit due to the government’s sovereign immunity, has discretion to control the flow of water through its dams and reservoirs. Because of this discretion, the Special Master held that Florida would have to show that the Court could properly redress its injuries through the issuance of a decree that did not bind the Corps. Id. at 69–70. The Special Master found that Florida failed to make this showing and thus dismissal was appropriate. Id. at 70.
Responding to the Special Master’s Report, Florida filed exceptions challenging the “clear and convincing evidence” standard the Special Master applied when determining whether Florida had sufficiently proved the redressability of its injury. Id. at 9–10. The Supreme Court found that the evidentiary standard applied by Special Master was “too strict.” Id. at 16. Instead, the Court suggested that Florida must show only that it is “likely to prove possible” that a decree could redress Florida’s harms even if it did not bind the Corps. Id. After finding that equitable apportionment “may significantly redress” Florida’s harms, the Court remanded the case to the Special Master for further proceedings, consistent with the Court’s opinion, to resolve important evidentiary issues. Id. at 34. The Supreme Court also emphasized that, though the government is not party to the suit in this case due to its sovereign immunity, the Corps agreed to “work to accommodate” a determination by the Court that would result in equitable apportionment. Id. at 34–35.
In December of 2019, a new Special Master submitted a second report (the “2019 Report”) to the Supreme Court, suggesting that the Court not issue a decree of equitable apportionment. Report of Special Master Kelly at 81. The Special Master based this conclusion on the findings that (1) Florida did not show harm caused by Georgia; (2) Georgia’s water usage is reasonable; and (3) Florida failed to show that the benefits of a decree of equitable apportionment would “substantially outweigh the potential harms.” Id. The Special Master did not consider what changes the Corps could reasonably make to ensure water flows to Florida during drought. Id. at 61. Florida again filed exceptions to the 2019 Report, claiming that the Special Master committed a legal error by not considering “whether the Corps could make reasonable modifications [ . . . ] to accommodate a decree.” Exceptions to Report of the Special Master at 43. Florida also challenges the findings on which the Special Master based the recommendation to dismiss. Id. at 21, 31, 42. Georgia contends that the Special Master properly followed the Court’s instructions and that the findings were appropriate. Georgia’s Reply to Florida’s Exception to the Report of the Special Master at 13, 25, 38. On February 22, 2021, the Supreme Court will hear oral arguments on whether Florida is entitled to a degree of equitable apportionment.
REASONABLENESS OF WATER USAGE
Florida raises an exception to Special Master Kelly’s conclusion that Georgia’s unrestrained consumption of water was reasonable. Brief for Plaintiff, State of Florida at 15–17, 19–20. Florida argues that allowing Georgia’s unrestrained use of the water would deny Florida’s access to a shared resource. Id. at 52. Florida argues that, under well-established Supreme Court precedent, states maintain an affirmative duty to conserve their natural resources for the benefit of other states. Id. at 15. Florida contends that New Jersey v. New York supports the position that no upstream state is permitted to waste—or unreasonably consume—water to the detriment of a downstream state. Id. at 16. Florida contends that Georgia’s increased consumption during a drought, precisely when Florida required water the most, amounted to approximately one-third of all river flows at the state—making Georgia’s unrestrained use unreasonable. Id. at 41; Sur-Reply Brief for Plaintiff, State of Florida at 9. Florida asserts that Special Master Kelly ignored evidence that Georgia failed to place any limits on legal irrigation and curb illegal irrigation, as well as failed to fund the Drought Protection Act, which taken together proves unreasonable use. Brief for Plaintiff at 41–42. Florida also contends that Special Master Kelly erred in dismissing admissions of Georgia officials which proved that Georgia knew its consumption was depleting flow and unreasonably chose to not to implement affordable measures available to to curb the depletion. Id. at 33, 37–40.
Georgia argues that Special Master Kelly’s conclusions are accurate as they were the result of an extensive fact finding where Florida was unable to prove that Georgia’s use was unreasonable. Brief for Defendant, State of Georgia at 13–14. Georgia asserts that Florida’s models of Georgia’s waste and mismanagement were unreliable because the inherent margin of error was far greater than Georgia’s total consumption of water. Id. at 28–30. Georgia also contends that Georgia’s use is not unreasonable as it consumes far less water than Florida’s estimate, consuming only 2.4% of the state-line flow in normal years and 6.1% of the state-line flow in dry years. Id. at 33–34. Georgia argues that its use is reasonable because—even during the worst drought month—Florida received 3.5 times the water that Georgia consumed. Id. at 35. Georgia also asserts that its use is reasonable as the water is used by metropolitan residents and for important purposes such as irrigation. Id. Georgia argues that Special Master Kelly was justified in disregarding the statements of Georgian officials that were made in the 1990s as the statements do not reflect Georgian official’s current views. Id. at 33–34. Georgia also asserts that its use is reasonable because the state undertakes agricultural and municipal and industrial (“M&I”) conservation efforts. Id. at 36–38.
BALANCING TEST INQUIRY
Florida contends that it is entitled to relief because Florida has been harmed by Georgia’s consumption, and the benefits of a cap to Florida would greatly outweigh any cost to Georgia. Brief for Plaintiff at 42. Florida argues that, contrary to Special Master Kelly’s finding, Georgia’s increased consumption causes harm to oyster fisheries because of the lower water flow, which increases salinity, thereby harming oyster populations. Id. at 21–22. Florida also asserts that per Florida, 138 S. Ct., once a case reaches the balancing stage, the authority must try to arrive at a just and equitable apportionment by reconciling the equal rights of both states. Id. at 53–55. Florida argues that a cap is equitable because even an extra 1,000 cfs would benefit the Apalachicola Region, without harming Georgia. Id. at 45. Florida contends that Special Master Kelly erred in finding that Florida would not benefit from a decree only by disregarding the US Supreme Court’s holding that the Corps would accommodate a decree and Florida’s equal right to reasonable use of the waters. Id. at 19–20. Florida further argues that the costs to Georgia are minimal because the additional water could be generated by eliminating obvious waste and mismanagement in Georgia’s existing irrigation system in addition to the adoption of commonly-used water-saving measures that Georgia’s officials have proposed. Id. at 49–50. Florida disputes Georgia’s high-cost estimate as incorrect because it is based on the premise that Georgia would have to cease irrigation altogether. Id. at 47.
Georgia contends that Florida is not entitled to relief because it has not proved that Georgia’s water use, specifically, caused harm to the oyster industry. Brief for Defendant at 15–22. Georgia argues that the balancing test does not militate in Florida’s favor because the primary factors that caused Florida’s harm were actually climatic conditions—the drought—and Florida’s own fishery policies, which allowed record oyster harvests without making efforts to rebuild the oysters’ habitats. Id. Georgia also asserts that Florida failed to prove that the benefits of the apportionment outweigh the harm to Georgia. Id. at 38, 48. Georgia argues that the benefit to Florida is limited because Georgia does not consume as much water as Florida’s estimate and that a cap on Georgia’s consumption would not materially increase the water flowing to Florida because of how the Corps operates its dams and reservoirs. Id. at 42–45. Georgia further posits that the ecological benefits are limited because increasing flow to Florida during the drought would only increase the oyster biomass by 1.4%. Id. at 46. Finally, Georgia contends that, even by Florida’s estimate, the cost of capping Georgia’s consumption would be greater than $100 million a year, and thus the costs to Georgia would outweigh any benefit to Florida. Id. at 46, 49.
The Franklin County Seafood Workers Association (“FCSWA”), in support of Florida, argues that equitable apportionment of interstate waters would help to ensure the survival of the Apalachicola Bay’s delicate ecosystem while also granting Georgia more than enough water for its needs. Brief of Amicus Curiae Franklin County Seafood Workers (“FCSWA”), in Support of Plaintiff at 14. The FCSWA emphasizes that the Bay is one of the “few remaining … near pristine systems”—one that requires a “delicate balance” to survive. Id. at 4. Noting that oysters play a particularly important role in preserving the Bay’s biodiversity, the FCSWA points to Georgia’s overuse of water as having increased the Bay’s salinity and, consequently, has caused a drastic decline in the oyster population. Id. at 9. The FCSWA maintains that equitable apportionment of fresh water is necessary to ensure the health of the oyster population and the Bay’s ecosystem. Id. at 14. In agreement, the National Audubon Society, Defenders of Wildlife, Florida Wildlife Federation, and Apalachicola Riverkeeper argue that the ecological interest at stake in this case “transcends interests of individual states.” Brief of Amici Curiae National Audobon Society et al., in Support of Plaintiff at 17. They suggest that it is within the greater public interest to preserve one of this country’s “last remaining, biologically rich floodplain systems,” emphasizing that the effects of climate change will only compound the damage to the Bay and ultimately “lead to [its] ecological collapse.” Id. at 17, 22.
The United States, in support of overruling Florida’s exceptions to the findings of the Special Master, emphasizes the uncertainty that would result if the Corps were to try to accommodate a decree of equitable apportionment by the Court. 2020 Brief of Amicus Curiae The United States, in Support of Defendant at 18. Because revisions to the Corps’ Master Plan would require administrative proceedings, public feedback, and in-depth legal and environmental analyses, the United States suggests that the arduous process of revising the Corps’ Master Plan could threaten the development of state plans because states would be unable to foresee federal operations. Id. The United States also stresses that ecological concerns are only one consideration the Corps must take into account when structuring its operations—it must also balance those concerns with other interests, such as interests in hydropower, recreation, and navigation. 2017 Brief of Amicus Curiae The United States, in Support of Defendant at 27.
The FCSWA, in support of Florida, asserts that that the damage to the oyster population has hurt not only the ecosystem, but the communities near the Bay that depend on the oyster industry. Brief of FCSWA at 12. Emphasizing the centrality of the oyster industry to life near the Bay, the FCSWA notes that, “[i]n 2008, one in every ten residents was an oysterman.” Id. at 6. Now, the FCSWA stresses, there are only three oyster boats in operations, whereas before the crash in the oyster population there were as many as six hundred oyster boats. Id. at 12. The FCSWA notes that the economic impact of this crash has been so severe as to warrant a “fishery disaster determination” for the Bay area by the National Oceanic and Atmospheric Administration in 2013. Id. at 9. The FCSWA contends that, without equitable apportionment of fresh water, the Bay’s oyster population—and, thus, the area’s oyster industry—will be “wiped out.” Id. at 13.
The Atlanta Regional Commission, the Cobb County-Marietta Water Authority, and multiple cities and counties in Georgia (“the Commission”), in support of Georgia, argue that restricting Georgia’s water use would affect the state’s economy severely and negatively. Brief of Atlanta Regional Commission et al., in Support of Defendant at 14. The Commission explains that consumption of water from the Apalachicola-Chattahoochee-Flint River Basin generates “hundreds of billions of dollars in economic activity.” Id. Continuing, the Commission contends that limiting water use would cost “hundreds of millions of dollars and result in significant employment losses” as well as property damage. Id. at 28. To support its assertion that the economic damage to Georgia outweighs the potential economic benefit to Florida, the Commission cites one of Florida’s experts, who stated that limiting Georgia’s water usage would yield just “$40,000 in annual benefits.” Id. at 32. The Commission argues that this minimal economic benefit to the Apalachicola Bay region fails to outweigh the detrimental effects that apportionment would have on Georgia’s economy. Id. at 33.
- Ellen M. Gilmer, Supreme Court Sets February Date for Florida-Georgia Water Clash, Bloomberg Law (Dec. 31, 2020).
- Lynn Hatter, Special Master Again Sides With Georiga In ‘Water War’ Over Apalachicola Bay, WFSU Public Media (Dec. 12, 2019).
- Pamela King, Climate Change Unleashes Interstate Water Wars, E&E News (May 6, 2020).
- Walter Wright, Florida v. Georgia/Interstate Water Dispute: U.S. Supreme Court Special Master Report, JD Supra (Dec. 18, 2019).