LEGAL BRIEFS
Georgia 9, Florida 0: Georgia Shuts Out Florida in the Latest Supreme Court Water War Battle
Kyle Robisch
A
fter nearly a decade of litigation, the U.S. Supreme Court finally decided Florida v. Georgia, Florida’s effort to get the Court to equitably apportion (i.e., cap Georgia’s consumptive use of) the Apalachicola-Chattahoochee-Flint (ACF) River Basin. In a unanimous decision penned by the Supreme Court’s newest justice, the Court delivered another blow to Florida, dismissing Florida’s challenge. While Georgia might have won this battle, the tristate wars (which include Alabama) are far from over.
Florida alleged two injuries, generally, from Georgia’s “overconsumption”: the collapse of northwest Florida’s oyster fisheries, and harm to Floridian river wildlife and plant life. Siding with the Special Master’s recommendation,1 Justice Barrett rejected both arguments, finding that Florida failed to carry the “heavy burden” necessary to compel the Court to “control the conduct of a coequal sovereign.” Starting with the oyster fisheries, Justice Barrett noted that “Florida’s own documents and witnesses” laid much of the blame—through overharvesting and failure to reshell—at Florida’s own feet. She also observed that Florida failed to prove Georgia’s water consumption caused the conditions (rock snail predation and increased salinity) purportedly depressing the oyster population. Turning to the alleged wildlife and plant life impacts, the Court found “a complete lack of evidence” that Georgia’s claimed overconsumption
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42 May 2021 • Florida Water Resources Journal
meaningfully injured species. Here, the Court questioned whether species were harmed at all. For instance, the Court homed in on Florida’s assertion that the fat threeridge mussel population suffered from Georgia’s “overuse.” The Court pointed to U.S. Fish and Wildlife Service evidence that mussel numbers were stable, at worst, and perhaps even inching upwards. Although Georgia won this round, expect more action going forward. For one, Florida might come back to the Court if circumstances change. Potentially presaging as much, the Court closed its opinion by reminding Georgia of its “obligation to make reasonable use of basin waters in order to help conserve that increasingly scarce resource.” That wouldn’t be unusual; Kansas and Colorado, for instance, have duked it out in the nation’s highest court more than a half dozen times over water allocation and apportionment issues. Florida or Alabama (and interested private and public parties) could also change tack, suing different parties—like the U.S. Army Corps of Engineers (the Corps), which plays a key role in administering ACF and Alabama-CoosaTallapoosa (ACT) basin water allocation—or trying different legal claims like those arising under the Endangered Species Act, Clean Water Act, or Administrative Procedure Act. Indeed, there are several ongoing suits in federal district courts along some of these lines. And because Georgia and the Corps just put the finishing touches on a water storage contract for Lake Lanier (which sits near the head of the ACF Basin), fresh challenges might flow from that agreement. Florida, Georgia, and Alabama might also explore entering into an interstate water compact. Those three states negotiated preliminary interstate compacts for the ACF and ACT basins in the late 1990s, but let the compacts expire in the early 2000s when state leaders couldn’t agree on binding water allocation formulas. While is isn’t clear what comes next, this much is certain—the tristate water wars are far from over. One way or another, expect more litigation and, at least in the short term, more uncertainty. 1
or more on how Florida and Georgia got here, F see “Round and Round Florida (and Georgia) Go: An Update on the Florida-Georgia Water Wars” in the November 2020 issue of Florida Water Resources Journal. S
