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Florida Looks To U.S. Supreme Court In Water War

A view from the docks in the Apalachicola Bay.
Jason Tereska

  Warning that a special master’s recommendation would “spell doom” for the Apalachicola River, Florida wants the U.S. Supreme Court to require Georgia to share more water in a river system that links the two states.

Florida filed a 65-page brief Monday asking the Supreme Court to reject a December recommendation by Special Master Paul Kelly, who said Florida has not adequately shown that Georgia’s water use caused problems in the Apalachicola River and Apalachicola Bay.

In the brief, Florida attorneys attacked Kelly’s findings and said Apalachicola Bay --- and its iconic oyster industry --- suffered from not enough water flowing south in the Apalachicola-Chattahoochee-Flint river system. The brief argued that “Georgia’s insatiable upstream consumption (of water) has decimated Apalachicola’s oyster fisheries.”

“The harm to the Bay’s oyster fisheries is undeniable. Apalachicola is renowned across America for its oysters, which account for 90% of Florida’s oyster harvest and 10% of the nation’s,” the brief said. “What’s more, oysters --- and oystering --- have created a distinct way of life in Apalachicola passed down from generation-to-generation; whole communities depend on the fisheries for their economic livelihood. The oyster is to Apalachicola what the lobster is to many New England towns.”

But Kelly, in siding with Georgia, wrote in December that mismanagement by Florida contributed to the oyster industry’s collapse. That included Florida’s lifting oyster harvesting restrictions after the 2010 Deepwater Horizon oil disaster caused fears of contamination in the bay.

“Georgia does not contest that the oyster fishery suffered significant harm; rather, it argues that the collapse resulted from Florida’s mismanagement, and insofar as low flows caused the collapse, those low flows were predominantly caused by drought, not Georgia’s consumptive use,” Kelly wrote. “I agree and conclude that Florida has not shown by clear and convincing evidence that the harms in the bay resulted from Georgia’s consumption.”

The brief Monday was the latest move in a decades-long battle between Florida and Georgia about divvying up water in the river system. Florida filed the lawsuit in 2013 and is seeking an order requiring an “equitable apportionment” of water.

If Florida is ultimately successful, that could mean putting restrictions on water used by Georgia farmers for irrigation.

Kelly, a federal appellate judge based in New Mexico, was appointed special master after a divided U.S. Supreme Court in 2018 overturned a 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, Supreme Court Justice Stephen Breyer said Lancaster had “applied too strict a standard” in rejecting Florida’s claim.

Kelly held a hearing in November and later agreed with Georgia’s position on the potential benefits and harms of placing limits on its water use.

“I do not recommend that the Supreme Court grant Florida’s request for a decree equitably apportioning the waters of the ACF (Apalachicola-Chattahoochee-Flint) Basin because the evidence has not shown harm to Florida caused by Georgia; the evidence has shown that Georgia’s water use is reasonable; and the evidence has not shown that the benefits of apportionment would substantially outweigh the potential harms,” he wrote.

But in the brief Monday, Florida attorneys wrote that Kelly did not hear from witnesses and did not consider new evidence. They argued that Kelly “approached this case as if an equitable apportionment is an either/or proposition.”

“Special Master Kelly focused almost exclusively on whether Georgia’s use was reasonable; he never genuinely considered ways of protecting Florida’s own equal right to the reasonable use of the waters.,” the brief said.

The brief asked the Supreme Court to rule that “Florida is entitled to a decree equitably apportioning the waters,” which could lead to negotiations involving the states and possibly the U.S. Army Corps of Engineers.

“Neither Georgia, nor any other state, has the right to consume as much water as it wishes,” the brief said. “The union was built, and has endured, on the commonsense principle that all states have an equal right to the reasonable use of shared resources. That is all that Florida asks this court to vindicate here.”