On January 8, the United States Supreme Court heard oral argument in a dispute that began 29 years ago. After a decision in the 11th Circuit Court of Appeals addressing operation of the Corps of Engineers five large reservoirs on the Apalachicola-Chattahoochee-Flint (ACF), in November 2014 Florida sued Georgia asking the Court to apportion water between the states. State versus state suits invoke original jurisdiction of the Court, which turned the evidentiary matters and initial decision and report to trusted special master Ralph Lancaster. Special Master Lancaster has handled several interstate disputes for the Court, most recently Virginia’s suit against Maryland to secure water for Alexandria from the Potomac River.
After two and a half years of evidentiary and legal presentation, Special Master Lancaster in February 2017 ruled for Georgia, stating “I conclude that Florida has not proven that its injury can be remedied without such [an equitable apportionment] decree.” Lancaster found Florida had not carried its burden of showing harm from Georgia’s water use, and that harm would be remedied by a decree from the Supreme Court. Lancaster, whose prior pronouncements have been affirmed by the Supreme Court, recommended the Court deny Florida’s request for relief.
Fast forward to January 10, 2018, the Supreme Court had tough questions for both states, based on oral argument. Is Lancaster’s decision at risk, or is this the new Court’s style for high-profile interstate disputes? Chief Justice Roberts laser focused on how a river system like the ACF is managed by the Corps of Engineers, which itself never became a party to the Florida v. Georgia litigation. Very little discussion ensued regarding items that were the subject of decades of negotiation between the states: reservoir storage requirements to meet minimum flows, flood control, water supply. Aside from these issues, the oral argument covered much ground, including at one point the question of whether Coca-Cola or Pepsi would be the beverage of choice of an Atlanta mayor.
It’s a fascinating case, touching millions who live along the over 800 miles of mainstem river in Alabama, Florida and Georgia. Issues include billions in economic livelihood for Americans and economy of a region, protected and endangered species, dams, agriculture, natural and altered rivers. The Court can affirm, write its own opinion, or require Special Master Lancaster to undertake additional proceedings. Expect some direction from the Court before this year’s summer drought period.
Earth & Water Law Group provides legal, policy and technical services for water issues. Dave Moore served as counsel to governments, businesses and others regarding interstate and international/transboundary water quantity and water rights issues, and can be reached at david.moore@earthandwatergroup.com.
