2018-07-04 / Front Page

SCOTUS sends case back to special master

Water war enters new chapter

Hopes that the “water war” would be settled by the U.S. Supreme Court were dashed last week when SCOTUS told “special master” Ralph Lancaster “to conduct further legal proceedings in the battle over water from the Apalachicola- Chattahoochee-Flint river basin, which originates in North Georgia and follows along the Alabama border to the Florida Panhandle.”

The U.S. Supreme Court, in a 5- 4 decision, directed Judge Lancaster to revisit key aspects of Florida’s water rights case against Georgia. The decision was some what stunning, considering Georgia’s recent victories in court in its long-running water dispute with its neighbors.

After hearing five weeks of testimony, Lancaster said in his February 2017 ruling that there were no legal remedies available because Florida did not include the U.S. Army Corps of Engineers as a party to its case.

The water war was triggered in 1989 when the Corps of Engineers released a report recommending some of the water being used for hydroelectric power at Buford Dam be used to supply Atlanta with water for human consumption.

Alabama filed a lawsuit in 1990 against Georgia and the Army Corps of Engineers, followed by the state of

Florida later that year.

Writing for the majority, Justice Stephen Breyer concluded that Lancaster initially “applied too strict a standard” when he determined the court could not find an “equitable” solution that would lead to more water flowing downstream from Georgia.

“The amount of extra water that reaches the Apalachicola may significantly redress the economic and ecological harm that Florida has suffered,” said Breyer, who was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg and Sonya Sotomayor. “Further findings, however, are needed.”

Justice Clarence Thomas, a Georgia native, wrote in a blistering dissent that it “makes little sense” to send the case back to Lancaster. The special master, he said, has already sifted through more than 7 million pages of documents and conducted nearly 100 depositions.

“In short, we have all the evidence we need to decide this case now,” Thomas added.

The SCOTUS decision does not prescribe a solution for the water, such as limiting Georgia’s water use, nor does it guarantee Florida a future victory at the high court. But, it does keep Florida’s legal challenge alive.

Responding to the decision, Gov. Nathan Deal stated that he remained “confident” in the state’s legal position.

“Georgia heeded the Special Master’s warning and took legislative action, which is now law, to address his concerns,” Deal said. “I look forward to continuing to defend our position in this case.”

Florida Gov. Rick Scott quickly declared victory, calling the court’s ruling a “huge win” for his state.

“For nearly 35 years and under five governors, Florida has been fighting for its fair share of water from Georgia,” said Scott.

Deal, Scott and Alabama officials had huddled at various points over the past eight years to strike their own accord outside of court.

Georgia has spent more than $47 million on litigation over the Apalachicola- Chattahoochee- Flint river basin since Deal took office in 2011.

Florida filed the present case with the Supreme Court five years ago following the collapse of its oyster industry in the Apalachicola Bay.

Florida’s attorney argued the state “suffered real harm” at the hands of Georgia and that the justices should impose a cap on Georgia’s water usage at roughly 1992 levels — when metro Atlanta was home to only half as many people as it is today — so more water can flow downstream.

Georgia countered that its water use had little to do with the collapse of the oyster industry. They said the state has been a responsible steward of its water, cutting down on consumption in metro Atlanta even as the region’s population has exploded.

Even though Lancaster suggested that the justices dismiss Florida’s challenge, he did excoriate Georgia for not being a more responsible steward of its water, particularly within its agriculture sector.

“...we are confident metro Atlanta’s water use is reasonable,” Katherine Zitsch, manager of natural resources at the Atlanta Regional Commission said. “Metro Atlanta is a national leader in water conservation and uses on average only 1.3 percent of the water in the ACF basin to support a thriving region of more than 5 million people and 2.5 million jobs.”

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