Don’t be fooled by Atlanta rains that have spilled over 30-year averages by 43 percent in the past year. Georgia and Florida remain locked in litigation over water resources, and the latest filings in the case show a wide gulf between the two states’ legal and bargaining positions.
“It’s almost like the parties are arguing past each other,” said Gil Rogers, director of the Georgia and Alabama offices of the Southern Environmental Law Center.
Florida in 2014 asked the U.S. Supreme Court to cap Georgia’s use of water from the Chattahoochee and Flint rivers along the length of the state to boost Florida’s water flow into the Apalachicola River and Bay.
Florida wants more water to counter ecological harm damaging Apalachicola’s oyster industry. The Chattahoochee River supplies most of metropolitan Atlanta’s drinking water, and the Flint River supports South Georgia agriculture.
Last year, the high court decided 5-4 to send the case back to a federal judge. His mandate: Decide if Florida has shown its injuries can effectively be redressed by limiting Georgia’s consumption of water from the basin without a decree binding the U.S. Army Corps of Engineers.
Both states filed briefs last month with Senior Judge Paul Kelly Jr. of the U.S. Court of Appeals for the Tenth Circuit.
Georgia said “it is simply impossible” for the state to increase flows by the amount Florida wants. “Florida’s draconian measures, which would impose hundreds of millions—if not billions—in costs on Georgia, are hardly ‘reasonable.’”
Florida said Georgia “has drastically overstated the costs of a decree. The true annualized costs would be at most $35 million—a very small fraction of 1 percent of Georgia’s state budget and miniscule in relation to either the Flint Basin or Georgia [Apalachicola-Chattahoochee-Flint] economy.
“Ultimately, this is not a matter of simply dollar and cents, but of protecting and preserving irreplaceable natural resources,” Florida added.
Florida Attorney General Ashley Moody and Florida’s lead lawyer, Gregory Garre of Latham & Watkins in Washington, declined to comment.
The office of Georgia AG Chris Carr and lead lawyer Craig Primis of Kirkland & Ellis in Washington did not respond to an email request for comment by deadline.
Data from the Georgia AG’s office show the state has spent about $20 million on the Florida litigation since it was filed in 2014—on top of the cost of water cases that have run since the 1990s.
The Associated Press reported last year that Florida spent $57 million on the case.
Rogers said his organization, the Southern Environmental Law Center, does not have a position in the case other than wanting the watershed to be healthy.
“Both Georgia and Florida—and Alabama—can do more to manage their portion of the watershed better,” he said.
Rogers noted Florida cut budgets for water management, while Georgia’s agricultural use of the water means that, even when rains have filled the basin, “it’s almost like it’s a permanent drought.”
The Supreme Court majority, in an opinion penned by Justice Stephen Breyer, determined the previous special master in the case was too strict in requiring Florida to present “clear and convincing” evidence of the workability of any future decree that would govern water use by Georgia and Florida. Breyer was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg and Sonia Sotomayor.
Justice Clarence Thomas, a Georgian who authored the dissent, was joined by Justices Samuel Alito, Elena Kagan and Neil Gorsuch. The minority agreed with special master Ralph Lancaster, a Maine attorney appointed by the high court, that Florida “must present clear and convincing evidence that its proposed cap will benefit Florida more than it harms Georgia.”