Florida, Georgia flush out arguments before Supreme Court in 'water wars' case

WASHINGTON — Florida's decades-long fight with Georgia for more water reached the Supreme Court Monday where sympathetic justices empathized with the Sunshine State and its efforts to rescue its beleaguered oyster industry.

It could be months before the nation's highest court decides whether a remedy is in order and the form it should take. But several justices during oral arguments seemed to concur that Florida deserves better even as the state has lost most of the legal and political battles of what's become known as the "water wars."

Justice Elena Kagan said Florida had "common sense" on its side.

Justice Sonia Sotomayor said there's "plenty of evidence on the benefits of additional water."

And Justice Stephen G. Breyer said it would be "equitable" if Georgia had to share more water with its parched neighbor.

But Craig S. Primis, arguing for Georgia, said it was more complicated than that.

"It's not as simple as if extra water comes in, then you just pass it through to Florida because they have articulated one concern," he told the justices. "There are multiple interests in the basin, there are multiple stakeholders, and multiple congressionally defined purposes."

The case pits Georgia's growing thirst for water to fuel metro Atlanta's growth and its multi-billion-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% of the nation's oysters.

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 in order 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, said Dan Tonsmeire, Apalachicola Riverkeeper since 2004. Today, about a dozen boats patrol the bay, collecting about two bags of oysters daily, he said.

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

One of the central questions confronting the court is whether an effective remedy, such as a cap on the amount of water Georgia consumes from the Apalachicola-Chattahoochee-Flint River Basin, could even be concocted.

Special Master Ralph Lancaster Jr., assigned by the Supreme Court to rule on the dispute, sided with Georgia in a decision issued in February.

The Maine lawyer found that Florida had suffered harm from the decreased water flow but had not proven that such a consumption cap would provide the relief it sought, mainly because the Corps of Engineers is not a party to the lawsuit.

The Corps, which manages the dams under a "Master Manual" that spells out its federal responsibilities, is not a party to the lawsuit and cannot be compelled to redirect the water flowing through the basin, Florida A&M Law Professor Robert "Bo" Abrams wrote about the case.

"This raises the possibility that the actions Georgia might take would not significantly increase the flows to Florida," he wrote. "This is vital because in other equitable apportionment cases, the Court has clearly stated that it will not order a state to take actions that will not produce the desired benefit to the other state in the dispute."

But Chief Justice John G. Roberts, Jr. seemed to push back on that notion. He compared Florida's plight to a company which lost out on a government bid because of discrimination.

"We don't require that person to show well, if I hadn't been, I would have won the contract. We just say if you were discriminated against in the process, you get a fair shot like everybody else," he said.

"It seems to me it's asking an awful lot of Florida to have to say: We know that the Corps is going to change things the way it benefits us," Roberts continued. "Instead, they just want to say they're going to make a different decision if they've got more water to allocate."

U.S. Rep. Neal Dunn, whose congressional district includes Apalachicola Bay, said he left Monday’s Supreme Court hearing optimistic about a favorable outcome.

“I think the Florida legal team put a great show on, very convincingly argued that for all these many years Florida has been right on the facts, right on the law, and right on the environment,” the Panama City Republican said. “That should be enough for the Supreme Court to reach out and give us some sort of redress. Reading the tea leaves and the body language, maybe we get something like that.”

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