Going along with a request from Florida’s attorneys, a federal judge will hear arguments in December in a long-running water war between Florida and Georgia. Senior U.S. Circuit Court of Appeals Judge Paul J. Kelly, who was appointed by the U.S. Supreme Court to serve as a special master in the case, has scheduled oral arguments Dec. 16, according to an order issued last week.
Kelly, who serves on the 10th U.S. Circuit Court of Appeals and is based in Santa Fe, N.M., will hear arguments in an Albuquerque courtroom --- nearly 1,500 miles from Northwest Florida’s Apalachicola Bay, a key area in the case.
The lawsuit, filed by Florida in 2013, is a battle about water in the Apalachicola-Chattahoochee-Flint river system, which starts in Georgia and flows south into the Florida Panhandle. Both sides filed briefs early this year, and Florida asked for oral arguments in March.
“The special master previously identified the potential that oral argument would be scheduled, and given the extensive volume of the evidentiary record and number of issues addressed by the briefing, the state of Florida anticipates that argument could be helpful, especially if the special master has additional questions on the issues” that he directed the states to address in briefs, the state’s request for arguments said.
Kelly’s order scheduling the arguments came after four months of no public activity in the case --- and virtually assures that the legal battle will continue into 2020. Kelly is expected to ultimately make a recommendation to the Supreme Court about a decision in the case.
The states have argued, in part, about whether imposing a cap on Georgia’s water use would help the Apalachicola River region, which has grappled in recent years with problems such as a declining oyster industry in Franklin County’s Apalachicola Bay.
Kelly was named as a special master after a divided U.S. Supreme Court last year overturned a 2017 recommendation by another special master, Ralph Lancaster, who said Florida had not proven its case “by clear and convincing evidence” that imposing a cap on Georgia’s water use would benefit the Apalachicola River.
Writing for a 5-4 majority, Justice Stephen Breyer said Lancaster had “applied too strict a standard” in rejecting Florida’s claim.
In one of the briefs filed early this year, Florida attorneys said Kelly should recommend that the Supreme Court issue a “decree equitably apportioning the waters” of the Apalachicola-Chattahoochee-Flint basin. Florida contends, in part, that water usage by farmers in Southwest Georgia has reduced water flows in the river system.
“Ultimately, this is not a matter of simply dollar and cents, but of protecting and preserving irreplaceable natural resources,” the Florida brief said. “In their candid moments, Georgia’s own officials have recognized all this. They understand the problem’s source (agricultural withdrawals), its magnitude, and that it is solvable with exactly the type of common-sense steps Florida has suggested --- with limited impact on Georgia’s economy and farmers. Yet Georgia has failed to act because, as Special Master Lancaster recognized, it lacks the political incentive (or will) to do so. This action represents the last, best hope to change that, and save the Apalachicola region from destruction.”
But Georgia’s attorneys accused Florida of “empty rhetoric” and said Florida had not proven that the benefits of a water limit would outweigh harm to Georgia.
“In remanding this case, the Supreme Court could not have been clearer that ‘Florida will be entitled to a decree only if it is shown that ‘the benefits of the (apportionment) substantially outweigh the harm that might result,’ ” the Georgia attorneys wrote in a brief. “Not only has Florida failed to make that showing, but the record proves the opposite: the economic harms to Georgia from Florida’s proposed cap would overwhelm any minimal and speculative benefits to Florida.”
