Supreme Court sides with Florida in decades-long dispute with Georgia over water rights

Ledyard King | USA TODAY

WASHINGTON – The Supreme Court Wednesday handed Florida an unlikely victory in its decades-long fight with Georgia over water rights, ruling a court-appointed special master was "too strict" in determining that no remedy in the court's power would boost water flow into the Apalachicola River and help the region's beleaguered oyster industry.

The 5-4 decision remands the case, known officially as Florida v. Georgia, back to Special Master Ralph Lancaster Jr., who sided with Georgia in a decision issued last year that Florida later appealed to the nation's highest court.

Lancaster found that Florida had suffered harm from the decreased water flow in the Apalachicola-Chattahoochee-Flint River basin but had not proven that limiting the amount of water Georgia consumed would provide the relief it sought. That was largely because the U.S. Army Corps of Engineers, the agency in charge of federal water projects, is not a party to the lawsuit.

But the justices Wednesday said Florida made a "sufficient showing" to both the special master and the high court itself that capping consumption by Georgia would provide a direct benefit to Apalachicola Bay.

"In addition, the United States has made clear that the Corps will cooperate in helping to implement any determinations and obligations the Court sets forth in a final decree in this case," the opinion, written for the majority by Associate Justice Stephen G. Breyer states. "While the Corps must take account of a variety of circumstances and statutory obligations when it allocates water, it cannot now be said that an effort to shape a decree here will prove 'a vain thing'."

Breyer was joined by Chief Justice John G. Roberts Jr. and Associate Justices Anthony M. Kennedy, Ruth Bader Ginsburg, and Sonia Sotomayor in siding with the Sunshine State. Justices Elena Kagan, Neil M. Gorsuch, Samuel A. Alito Jr., and Clarence Thomas dissented.

In writing for the dissenters, Thomas said the special master was correct to find that capping Georgia's water use would not benefit Florida, a conclusion that favors Georgia under the "traditional balance-of-harms" standard.

"It makes little sense to send this case back to the Special Master so that he can amend his Report to say “appreciable benefit” instead of “redress” and then send this case right back to this Court," Thomas wrote. "That pointless exercise will only needlessly prolong this litigation."

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The decision is also a victory for Florida Gov. Rick Scott who opted to file the case with the high court when lower court decisions favoring Georgia suggested he would not win.

"Today’s ruling is a huge win for the entire state of Florida," Scott said in a statement issued shortly after the ruling. "For nearly thirty years and under five governors, Florida has been fighting for its fair share of water from Georgia."

Apalachicola Riverkeeper Georgia Ackerman hailed the court's action because sending the case back to the special master "will allow Florida to present evidence of the ecologic and economic harm suffered along with potential solutions for equitable sharing of the water of the Apalachicola River system."

A lack of water led the Obama administration in 2013 to declare the oyster fishery in the Apalachicola Bay a federal disaster.

Georgia officials, disappointed by the ruling, continue to point out that aggressive conservation efforts mean that metro Atlanta consumes only 1.3% of the water in the Apalachicola-Chattahoochee-Flint River basin that spans Georgia, southeastern Alabama, and northwestern Florida in an area covering 19,800 square miles.

“We are disappointed this litigation will continue, but we are confident Georgia will prevail in the end," said Katherine Zitsch, natural resources manager at the Atlanta Regional Commission. "We look forward to a time when we can move beyond litigation and cooperatively manage the basin’s water.”

Lawyers for both states made their arguments before the nation's highest court in January. It was the last opinion the court issued of the 63 cases the justices heard in this just-concluded term.

The case pits Georgia's growing thirst for water to fuel metro Atlanta's growth and its multibillion-dollar agriculture industry in the state's southwestern region against Florida's need for fresh water to preserve the fragile ecology of the Apalachicola Bay that was once produced 10 percent of the nation's oysters.

Though Atlanta has improved its conservation efforts, Georgia's agricultural operations continue to draw large amounts of water from the basin particularly during dry periods when Apalachicola Bay's ecology is at its most vulnerable, Ackerman said.

Under congressional direction, the U.S. Army Corps of Engineers built the first of five dams in the 1950s that diverted water away from its traditional path downstream to Florida's panhandle to accommodate Georgia.

The lack of water began taking a heavy toll about a decade ago when the bay supported several hundred oyster boats harvesting around 20 bags per day. Today, about a dozen boats patrol the bay, collecting about two bags of oysters daily, according to Dan Tonsmeire, the longtime Apalachicola Riverkeeper who retired earlier this year.

"The Apalachicola region has suffered serious harm," Gregory G. Garre, a lawyer representing Florida told the justices in January. "Not only have its oysters been decimated but really a way of life."

The case had the relatively rare status as an "original jurisdiction” case that begins in the Supreme Court, rather than one coming to the justices as an appeal from a lower court. And that may have been a reason why it was the last opinion the justices issued this term, legal analysts said.

While it's an important victory for Florida. it's too early to celebrate, said Tallahassee lawyer Jonathan Williams, a member of Florida's legal team on the "Water Wars" case when he served as deputy solicitor general under Attorney General Pam Bondi from 2015-17.

"Florida still needs to convince the special master that a cap on Georgia’s water consumption will benefit Florida substantially more than it will harm Georgia, and a final decision is likely more than a year away," he said.

But Florida GOP Rep. Neal Dunn, whose Panhandle district includes Apalachicola Bay, said he's confident that sending it back for further review means relief for Florida is inevitable given the special master has already concluded that Georgia's water usage harmed Florida.

"This is a fundamental shift in the direction this has been going in 30-plus years," the congressman said. "This is about as good an answer we could have gotten ... In the future, I'm looking forward to more oysters."