By Lara Fowler
on April 1, 2021
at 5:04 p.m.
Less than 38 days after the hearing, Florida is at the end of the road to limit the amount of water Georgia uses in the Apalachicola-Chattahoochee-Flint River Basin. In a unanimous statement by Judge Amy Coney Barrett in Florida v. Georgia, the court approved the recommendations of a court-appointed special master, lifted Florida’s “exceptions” to his report and dismissed the case.
After Barrett had told the factual and procedural history in two rounds of court-appointed special masters and an earlier decision of the court in the long-standing water dispute, he stated: “[r]Elevant here that [second] The special master concluded that Florida could not provide clear and convincing evidence that Georgia’s alleged overconsumption was seriously damaging Florida oyster fisheries or the wildlife and plants in rivers. “
The standard of evidence in this case was a regular issue: what, as the complaining party, had Florida to prove? Here the court found that Florida had to make two screenings in order to obtain what is known as an “equitable division” – a court order that restricted the use of water in Georgia so that more water would flow to Florida. First, Florida had to demonstrate “a threatened or actual injury of” serious proportions “caused by Georgia’s upstream water use,” and second, it had to demonstrate that the benefits of a court order for Florida would “substantially outweigh” the harm to Georgia. Citing the fact that both states are riparian states, the court found that both “have the same right to make appropriate use of the water in the common basin” and that Florida bears the “heavy burden” of clearing its case through and through clear evidence to prove convincing evidence.
While the court agreed that the oyster collapse in Florida’s Apalachicola Bay after the 2012 drought was “of grave magnitude” to constitute an injury, the Florida court disagreed on the cause of the collapse. The court pointed to evidence of Florida’s mismanagement, overharvesting and the failure to re-peel its oyster bars. In addition, the court found that Florida’s own experts could not prove that falling water use in Georgia would have helped Florida oysters, compared to the effects of changing salinity and increased predator husbandry.
Barrett stated bluntly: “[t]The fundamental problem with this evidence – a problem permeating Florida’s submission in this case – is that, at most, it is ascertaining that increased salinity and predation contributed to the collapse, not that Georgia’s overconsumption of the increased salinity and the caused increased predation. Rather, the prolonged multi-year drought and the operations of the US Army Corps of Engineers were “disruptive factors” affecting Florida’s oysters. “Georgia’s consumption had little to no impact on the oyster population in the bay,” wrote Barrett in her statement, which all nine judges fully agreed with.
On the question of whether Georgia’s water use harmed other wildlife and flora in rivers, the court agreed with the Second Special Master’s finding that there was a “total lack of evidence” of such harm. Again Barrett wrote bluntly: “Without stronger evidence of actual past or threatened harm to species in the Apalachicola River, we cannot consider it“ very likely ”that these species have suffered serious injury, let alone as a result of excessive consumption by Georgia. ”
The court didn’t even reach the second pillar: whether the benefits to Florida “substantially outweigh” the harm. Instead, Barrett swiftly concluded her 10-page statement by stating that “Florida has not met the precise standard required to warrant the exercise of this court’s extraordinary power to control the conduct of an equal sovereign.” In closing, she stressed “Georgia has a duty to make appropriate use of the basin waters to help conserve this increasingly scarce resource,” and lifted and dismissed Florida’s exceptions.
What does that mean? The court’s decision leaves Florida no room to further discuss its case. There is no possibility for a further appointment. However, cases of equitable sharing over water between states can be re-submitted if circumstances change. For example, there are seven Supreme Court rulings related to the distribution of water between Kansas and Colorado. Whether Florida will file a new case against Georgia remains to be seen, but it would require different circumstances. In addition, this is not the only current case related to the administration of the Apalachicola-Chattahoochee-Flint system. Additional litigation over the Army Corps of Engineers Master’s Handbook is ongoing in a case that has been referred to the U.S. District Court for the Northern District of Georgia.
In addition to litigation, there may be other ways to manage the ACF river system. Previous treaties between states, including Alabama, expired in 2003 and 2004. In addition, interest groups from Florida, Georgia, and Alabama have come together to identify possible avenues for negotiation. The ACF advocacy group, founded in 2009 as a non-profit, developed a “Plan for Sustainable Water Management” over a period of six years, which was published in 2015. With the Florida-initiated immediate case now dismissed, it remains to be seen what happens next.