The U.S. Army Corps of Engineers, a key player in Florida's decades-old legal fight with Georgia over water flow in the Apalachicola River, has weighed into the pending case before the U.S. Supreme Court.
The federal agency's comments, which were filed in a brief Monday, are important because a special master has recommended that Florida's claim for relief be denied because the Corps, which controls water flow through the region in a series of dams and reservoirs, was not directly involved in the lawsuit.
“Because the Corps is not a party, no decree entered by this court can mandate any change in the Corps' operations in the basin,” Ralph Lancaster wrote in his special master's report in February. “Without the ability to bind the Corps, I am not persuaded that the court can assure Florida the relief it seeks.”
In its brief, the federal agency said it was possible that the U.S. Supreme Court could impose a water-use cap on Georgia without requiring the Corps to change its policies for handling the dams and reservoirs in the Apalachicola-Chattahoochee-Flint river system.
“It thus may remain possible to design a consumption cap that would provide Florida with additional water at some points without any alteration of the Corps' operations, as Florida contends,” the Corps' brief said.
But the federal agency also said a court ruling requiring more extensive changes in the water-flow policies in the region would have to be viewed as “part of the constellation of laws to be considered by the Corps when deciding how best to operate the federal projects in the ACF (Apalachicola-Chattahoochee-Flint) basin for their congressionally authorized purposes.”
“It is impossible to define the limits of the Corps' ability to make those releases consistent without knowing the precise contours of the decree and implications for other project purposes and storage regimens,” the brief said.
The brief also warned there is the “significant and difficult question” as to whether any additional water releases would be permitted under the already approved “master manual,” an operating guide for the water-control system in the region.
The Corps agreed this year to provide 621 million gallons per day to Georgia cities from the Lake Lanier reservoir near Atlanta. Florida opposed that decision, and environmental groups and the state of Alabama are challenging the decision in separate lawsuits.
The Corps' brief in the U.S. Supreme Court case is the latest step in the costly, protracted dispute between Florida and Georgia that resulted in a 2013 lawsuit alleging Georgia diverts too much water from the Apalachicola-Chattahoochee-Flint river system and that the diversions have damaged Apalachicola Bay and Franklin County's seafood industry, including its signature oysters.
Georgia, which wants the Supreme Court to adopt the special master's recommendation, has countered that any limits on its water use will undermine its economy, including the growth of the Atlanta area and the state's agriculture industry in southeastern Georgia.
In a brief filed this summer, Florida asked the Supreme Court to reject the special master's report and return the case for more deliberation.
Late last month, Florida's entire congressional delegation, including the two U.S. senators, wrote a letter to President Donald Trump asking that the administration and the Corps remain “neutral” in the dispute.
“Rather than intervening in Florida v. Georgia, it is our hope that the (Corps) will instead take all steps possible within its existing authorities to manage vital basins, including the ACF, in ways that protect downstream ecosystems and the communities that rely on them,” the delegation wrote.
In Tallahassee on Tuesday, U.S. Sen. Bill Nelson, D-Fla., said he had not seen the Corps' brief but added, “I haven't been enamored by the way the Corps of Engineers has handled this issue.”
Nelson said the Corps' historic control of the water flow in the river basin has “starved” the Apalachicola River and Apalachicola Bay of the natural mix of freshwater and saltwater, which is critical to the oyster population.
Asked if he was confident that Florida would win a favorable decision from the Supreme Court, Nelson said: “I'm confident that at the end of the day the right thing is what should be done. The right thing is, all right, Georgia, you've got to start sharing your water like Mother Nature intended, instead of holding it all up for you."