Florida And Georgia Renew ‘Water Wars’

Oct 8, 2018

Florida and Georgia have renewed their fight over the impact of Georgia’s water consumption on the Apalachicola River system.

After the U.S. Supreme Court ruled in late June that Florida be given another chance to prove its case that Georgia’s overconsumption of water is damaging the Apalachicola region, the states filed a joint legal pleading this week before a federal appellate judge who will act as a special master in the case.

Not surprisingly, the two states --- which have spent years and millions of dollars litigating the issue --- can’t agree “on how this case should proceed,” according to a memorandum filed Tuesday.

Georgia maintains there is enough evidence generated by the proceedings before a prior special master to move forward.

Georgia wants to hold a “summary-judgment-style proceeding,” in which the states would file briefs responding to the questions raised by the Supreme Court when it sent the case back to a special master earlier this year.

“Those briefs would rely on testimony and evidence that is already in the record,” the Georgia lawyers said, citing the five-week trial, 7.2 million pages of documents, reports from 28 experts and 69 depositions that were part of the prior proceeding.

“The existing record refutes Florida’s allegations of harm and fails to provide the clear and convincing evidence necessary to justify the extraordinary remedy of an equitable apportionment (of water). Florida therefore wants a second bite at the apple,” Georgia said in its portion of the memo.

The Supreme Court’s opinion “did not provide a license to re-litigate this entire case, years after the parties have already spent significant time and tens of millions of dollars developing a record,” Georgia’s lawyers argued.

In Florida's portion of the memo, the state's lawyers said the existing record is sufficient on a number of issues, including Florida's contention that Georgia’s overconsumption of water is harming the Apalachicola system.

But Florida said there needs to be more evidence-gathering on key issues, including the role of the U.S. Army Corps of Engineers, which operates a series of dams in the Apalachicola-Chattahoochee-Flint river system. The river system starts in Georgia and flows south to Florida.

“Florida believes that additional evidentiary hearings are unavoidable regarding the timing and extent of additional flows into the Apalachicola that reduced consumption in Georgia would produce,” the state argued.

Among other issues, Florida wants to gather more evidence on the impact of the Corps’ operating guidelines, known as a “master manual,” for the river system. And Florida wants to explore “reasonable modifications” to the Corps’ procedures that could lead to increased water flow in the Apalachicola region.

“For decades, Florida has warned that the river, bay, and entire Apalachicola region are already suffering significant harm and face a still worse, catastrophic and irreversible change in conditions unless something is done to control the run-away growth in upstream water consumption in Georgia, particularly for irrigation along the Flint River in southern Georgia,” Florida argued. “And for decades, Georgia has recognized that truth --- but has been unable to muster the political will to do anything about it.”

There are a number of other points of contention between the two states.

Ralph Lancaster, a Maine lawyer who acted as the former special master, rejected Florida’s original plea for relief, which began with a lawsuit filed in 2013.

But his decision was overturned in a 5-4 ruling by the Supreme Court, which said Lancaster “applied too strict a standard” in rejecting Florida’s claim.

Lancaster was replaced in August by Paul J. Kelly Jr., a senior judge on the U.S. Court of Appeals for the 10th Circuit, who resides in Santa Fe, New Mexico. Kelly is a former Republican state legislator and served on the federal appellate panel that upheld the conviction of Timothy McVeigh for his role in the 1995 Oklahoma City bombing.

In the new proceeding, Florida cites a number of “key statements” in Lancaster’s report that the state said bolsters its argument that water caps in Georgia are necessary because of the harm being caused in Florida.

Florida noted Lancaster said “there is little question that Florida has suffered harm from decreased flows in the river,” including an “unprecedented collapse” of the oyster industry in Apalachicola Bay in 2012.

But Georgia, in its portion of the memo, said it “strongly disagrees with the preliminary statements” made by Lancaster, arguing that his assertions are not supported by the record.

Georgia said the evidence showed many of Florida’s claims were “unproven and unsubstantiated.”

Instead, Georgia argued, the evidence showed Georgia’s water usage “is reasonable and equitable, particularly when evaluated against the fact that Georgia is home to the overwhelming weight of population and economic activity” in the river basin.

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