Comments on recent Supreme Court ruling favoring Georgia

Supreme Court justices’ quick work ending a seven-year legal case over water in the river system that contains Lake Lanier solicited victory proclamations from Georgia officials and utterances of disappointment downstream in Florida. The Court’s unanimous decision, denying Florida’s claims that Georgia water use devastated oyster fishers and the Apalachicola River ecosystem, came just 38 days after oral arguments.

Others outside of state government offered more circumspect reactions, even pondering the possibility of more legal maneuvering if the two states and Alabama, which also taps the river system, fail to come up with plans to share the precious resource.

“The Supreme Court’s unanimous decision is a resounding victory for Georgia and a vindication of years-long effort by multiple governors and attorneys general here in the Peach State to protect our citizens’ water rights,” said Georgia Gov. Brian Kemp. “Our state will continue to wisely manage water resources and prioritize conservation, while also protecting Georgia’s economy and access to water.”

“Today the Supreme Court of the United States, in a unanimous decision, affirmed what we have long known to be true: Georgia’s water use has been fair and reasonable,” said Attorney General Chris Carr. “We will continue to be good stewards of our water resources, and we are proud to have obtained a positive resolution to this years-long dispute on behalf of all Georgians.”

Florida disappointed

A statement from the Florida attorney general’s office expressed disappointment and vigilance. “We remain committed to supporting (the state Department of Environmental Protection) in protecting Apalachicola Bay and the jobs that this important resource supports.”

Apalachicola Riverkeeper in a press release called the ruling “disheartening” and stated “the case was dismissed with no relief for the Apalachicola River and Bay system. While this legal case has ended, it does not conclude the work to be done in protecting the Apalachicola River and Bay.”  Chattahoochee Riverkeeper interpreted the ruling’s final paragraph as an admonition for Georgia to conserve water and use it efficiently.

In the summary opinion, Justice Elizabeth Coney Barrett wrote that Florida failed to carry its heavy burden of proof that upstream water use caused Apalachicola Bay’s oyster collapse in 2012. The ruling concurred with a Special Master’s findings that Florida lacked any evidence that any river species has suffered or will suffer serious injury from Georgia’s alleged overconsumption.

The opinion also recounted that Florida’s own documents and witnesses revealed that Florida allowed unprecedented levels of oyster harvesting in the years before the collapse and quoted one of Florida’s lead witnesses stating that Florida’s management practices “bent” Florida’s fisheries “until (they) broke.”

Florida’s tactics in the 2013 lawsuit initially targeted metro Atlanta water users who rely on the Chattahoochee River, which springs up near Helen. Early on, Lake Lanier advocates worried how the legal action might impact the largest reservoir on the river system. However, Florida later targeted Georgia’s water use on the Flint River, where farmers use more water than all other entities combined.

The Flint River originates just south of the Atlanta airport and stretches south through Georgia farmland. The two Georgia rivers meet at Lake Seminole at the state line. The Apalachicola River flows from there into Apalachicola Bay, where oyster fisheries depend on fresh water to nourish oyster beds. Florida filed suit after a 2012 drought dwindled flow on the rivers and dried up oyster harvesting. Florida wanted the Court to equitably apportion water between the states. Florida attorneys argued that without court intervention, Apalachicola was doomed.

No remedy found

“From the questions the Justices asked during oral argument, it seemed that there might be some sentiment for fashioning a remedy that would at least help save the oysters, especially if it could be done at little or no cost to Georgia. That led me to think that a unanimous decision was unlikely,” said Clyde Morris, Lake Lanier Association legal counsel. He referenced justices’ inquires in the Feb. 22 oral argument that sought to assess the economic and ecological value of Florida oysters. Morris added he thought justices saw they could not fashion a remedy that could benefit Florida. “In the end, while some Justices may have hoped to find a way to benefit the oyster farms, none of them was convinced that Georgia had caused their collapse. Florida just simply did not prove its case, and the few Justices who may have been leaning Florida’s way ultimately concluded that they could not vote in Florida’s favor.”

Morris indicated he feels the lawsuit outcome offers relief to Lake Lanier advocates “because the specter of equitable apportionment has been taken completely off the table… the fact that the Supreme Court’s decision was unanimous sends an unmistakable message to Florida and Alabama that their accusations of Georgia taking more than its fair share of water are meritless.”

Environmentalists and legal experts took note of justices’ message to Georgia in the ruling’s final paragraph which states “We emphasize that Georgia has an obligation to make reasonable use of Basin waters in order to help conserve that increasingly scarce resource.” Some even speculated on the possibility of more water litigation, besides current lawsuits currently working their way through the courts.

Chris Manganiello, Chattahoochee Riverkeeper water policy director, opined about potential future litigation if states do not heed the obligation to conserve. “If a robust culture of conservation does not take hold and advance in metro Atlanta, the Flint River basin, and across all economic sectors, then we’ll be back in court again. And the next court might consider Georgia’s water use un-reasonable,” he said.

Lara Fowler, Senior Lecturer for Penn State Law, wrote in SCOTUS Blog that although “the court’s ruling gives Florida no room to argue its case further … equitable-apportionment cases over water between states can be filed again if the circumstances change.” If Florida filed a new case against Georgia, “it would require different circumstances,” she added. She also mentioned other on-going litigation related to management of the Apalachicola-Chattahoochee-Flint system and the U.S. Army Corps of Engineers’ Master Manual for management of reservoirs on the rivers.

ACF Stakeholders the answer?

Manganiello, Fowler, and Apalachicola Riverkeeper all pointed to a possible medium that might help the states resolve water disagreements without going to court: ACF Stakeholders. The private, non-profit organization of representatives from Georgia, Florida and Alabama in 2015 presented a  Sustainable Water Management Plan that offers water-sharing solutions. The ACF Stakeholders has worked more than a decade to find a resolution to “the water wars” outside of the courtroom, according to the group’s post-ruling news release. Manganiello said the “collaborative group of agricultural, municipal, industrial, environmental, individual and other interests who live, work and use the water resources of the ACF river basin” have produced a technical solution to steer away from litigation.

Fowler described the Stakeholders’ effort as a potential pathway for negotiation that might avert litigation. “While the immediate case brought by Florida is now dismissed, what happens next remains open,” she said.

ACF Stakeholders Chairman Phil Clayton said the group felt relief that the lengthy and costly Florida v. Georgia case had come to an end. “Now we can shift the focus back to development of an equitable, stakeholder-supported  water sharing plan for the ACF Basin.”

Apalachicola Riverkeeper implored states’ officials to take a serious look at the ACF Stakeholders’ work. “We urge state leadership of Alabama, Georgia and Florida to collaboratively review this plan.”