April 02, 2021
Arkansas Environmental, Energy, and Water Law
No April Fools’ joke here.
The Supreme Court of the United States unanimously ruled in favor of the State of Georgia over a decades-long dispute with Florida over water consumption.
Florida challenged Georgia’s water consumption from the Apalachicola-Chattahoochee-Flint River Basin. Florida v. Georgia, 592 U. S. ____ (2021) (Slip Op.).
The states have long feuded over the Atlanta metropolitan area’s increased use of water from the Chattahoochee River. The river drains into the Apalachicola River eventually entering the Gulf of Mexico through Florida’s Apalachicola Bay.
Apalachicola Bay sustains an important oyster industry. Florida has claimed for over a decade that Georgia’s increased water consumption, due largely to the growth of Atlanta and increased agricultural demand, has diminished flows into Apalachicola. As a result, the state claimed that the Bay’s oyster population suffered significant harm.
Florida brought an original action in the Supreme Court in 2013 seeking equitable apportionment of Apalachicola-Chattahoochee-Flint River Basin waters. The majority of these waters are within Georgia. Florida lost that case after a special master determined that Florida failed to prove by clear and convincing evidence that Georgia’s alleged overconsumption caused serious harm to Florida’s oyster fisheries or its river wildlife and plant life. Florida then petitioned the Supreme Court to review certain issues with the special master’s report.
Water apportionment issues between states are unique original actions in the Supreme Court. This means that the Supreme Court is the trial court. As the petitioner, Florida held the burden of proving that Georgia’s water consumption was a threatened or actual injury “of serious magnitude” and that “the benefits of the apportionment substantially outweigh the harm that might result.” Slip Op., at 4.
The Court found that Florida failed to meet its burden of proof on causation. It specifically declined to adopt a causation standard in equitable apportionment cases because “Florida has failed to establish a sufficient causal connection under any of the parties’ proposed standards.” Id. at 7. Georgia primarily argued that Florida had mismanaged its oyster fisheries, which the Supreme Court noted was somewhat supported by Florida’s own documents. Id. at 5. The Court felt that other portions of the record did not support Florida’s causation theory, noting that (i) the National Atmospheric and Oceanic Administration blamed prolonged drought conditions and the U.S. Army Corps of Engineers’ reservoir management for diminished flows into Apalachicola Bay and (ii) Florida’s own modeling showed that Georgia’s consumption had “little to no impact” on the Bay’s oyster population. Id. at 9. In closing, however, the Court appeared to acknowledge that the fight is long from finished, recognizing that “Georgia has an obligation to make reasonable use of Basin waters in order to help conserve that increasingly scarce resource.” Id. at 10.
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