By: Seth Stroud
Florida and Georgia have been fighting for decades over water use rights in relation to the Apalachicola-Chattahoochee-Flint River Basin (ACF Basin), culminating in a lengthy legal battle where the parties again made oral arguments in front of the Supreme Court on February 22, 2021.[i] Florida v. Georgia is a case of original jurisdiction where the main question before the Court this time around is whether or not Florida is “entitled to equitable apportionment of the waters” of the ACF Basin, as well as injunctive relief against Georgia “to sustain an adequate flow of freshwater into the Apalachicola Region?”[ii]
The ACF Basin flows from northeast Georgia through metro Atlanta and along the Alabama border until it reaches the Florida panhandle, and eventually the Gulf of Mexico.[iii] This current battle began years ago when Florida brought suit against Georgia, accusing Georgia of using too much water from the ACF Basin during a drought, leading to the collapse of the oyster industry in the Apalachicola Bay.[iv] At the time, the Bay accounted for ten percent of the United States’ oyster production and is dependent on a delicate balance of freshwater from the ACF Basin and saltwater from the Gulf to be productive.[v] On the other hand, Georgia blames Florida’s oyster decline on various other factors, including the overharvesting that Florida allowed in the aftermath of the BP oil spill, while Georgia’s primary argument is the lack of substantial benefits that Florida would receive in comparison to the economic harm that would result if southwest Georgia’s farmers were required to cap their water usage so significantly.[vi]
Photo Credit: https://www.ajc.com/news/business/your-guide-to-the-florida-georgia-supreme-court-water-case/7GJK5JCAOZF65JR7G35BJRHXDI/
As this is a case of original jurisdiction, the Supreme Court appointed a Special Master (Judge Paul Kelly of the U.S. Court of Appeals for the 10th Circuit) to oversee the factual disputes in the case, resulting in a finding that a preponderance of the evidence supported Georgia, as the benefits to Florida would not outweigh the harm to Georgia.[vii] During oral arguments before the Supreme Court, Florida disputed the Special Master’s findings, arguing that: “Denying relief in these circumstances not only would be a death sentence for Apalachicola but would extinguish Florida’s equal right to the reasonable use of the waters at issue.”[viii] In Florida’s view, this death sentence would be the direct result of Georgia’s “unrestrained” water use that the Court could remedy at “little to no cost to Georgia.”[ix]
Chief Justice Roberts stated that the facts in this dispute between the two states are analogous to the “Murder on the Orient Express,” as there are many factors seemingly contributing to the demise of Florida’s oyster industry in the Apalachicola Bay, and noted to Florida’s counsel: “But you can’t say that any one of those things is responsible for – for killing the – the fishery.”[x] Georgia endorsed this view and went further to say that the Supreme Court should not consider an equitable apportionment when Florida cannot show that Georgia’s water usage is the primary cause of Florida’s oyster problems.[xi] In light of the lack of evidence to prove that Georgia’s water usage is the primary cause, counsel for Georgia added that a cap on Georgia’s cotton, peanut, and pecan farmers in the southwest portion of the state would be a “draconian” remedy for the Court to impose, especially considering the economic ramifications.[xii]
While the demise of the oyster industry in the Apalachicola Bay is certainly troubling, the Court’s balancing test seems like it will result in favor of Georgia, especially considering that “Georgia is home to more than 90% of the population, 98% of the jobs and 99% of the economy within the ACF Basin.”[xiii] Florida’s arguments concerning Georgia’s need to reduce wasteful use of water, as well as Florida’s general claims of equitable rights to the water, while compelling, seem to lack enough proof that Georgia’s water usage is the ultimate cause.[xiv] In addition, the U.S. Army Corps of Engineers regulates the flow of water at issue and has already decided that Georgia would get priority during a drought year in the state.[xv] The Corps is not a party to this case, so a Florida victory would not solve all of their problems in the Apalachicola Bay if Georgia would get priority during the years that water usage from the ACF Basin would be most critical.[xvi] .[xvii] Florida is challenging the Corps’ practices in a separate lawsuit, while the state has also implemented a ban on harvesting oysters in the bay until the oyster reefs have had time to heal.[xviii] Even though Georgia seems to have the upper hand at this stage of the legal battle, there is still hope for the oyster industry in the Apalachicola Bay outside of this case.
[i] Florida v. Georgia, Oyez, https://www.oyez.org/cases/2020/142-orig [https://perma.cc/2L3D-2E9N] (last visited Mar. 7, 2021).
[ii] Id.
[iii] Tamar Hallerman, Your Guide to the Florida-Georgia Supreme Court Water Case, AJC (Feb. 18, 2021), https://www.ajc.com/news/business/your-guide-to-the-florida-georgia-supreme-court-water-case/7GJK5JCAOZF65JR7G35BJRHXDI [https://perma.cc/ME87-2UVE].
[iv] Id.
[v] Id.
[vi] Molly Samuel & Rob Diaz de Villegas, Florida and Georgia Head to the Supreme Court – Again – In Fight Over Water, WABE (Feb. 18, 2021), https://www.wabe.org/florida-and-georgia-head-to-the-supreme-court-again-in-fight-over-water [https://perma.cc/SJ7X-LL9U].
[vii] Lara Fowler & Johanna Blasak, Florida and Georgia Face Off Again in Long-Running Fight Over Water Rights, SCOTUSBlog (Feb. 19, 2021), https://www.scotusblog.com/2021/02/florida-and-georgia-face-off-again-in-long-running-fight-over-water-rights [https://perma.cc/XBC6-QFXD].
[viii] Ellen M. Gilmer, Supreme Court Weighs Blame in Georgia, Florida Water War (1), Bloomberg Law (Feb. 22, 2021), https://news.bloomberglaw.com/environment-and-energy/supreme-court-weighs-blame-in-bitter-georgia-florida-water-war [https://perma.cc/3C64-YW3X].
[ix] Tamar Hallerman, Supreme Court Reexamines Florida-Georgia Water Rights Case, AJC (Feb. 22, 2021) https://www.ajc.com/news/georgia-news/florida-georgia-bring-water-rights-grievances-back-to-supreme-court/LFP5C2D6GNFTRDPYJWAAIGSLMI [https://perma.cc/H72L-GDB2].
[x] Gilmer, supra note viii; Ariana Figueroa, Georgia-Florida Water Wars Case Heard by U.S. Supreme Court, Georgia Recorder (Feb. 22, 2021), https://georgiarecorder.com/brief/georgia-florida-water-wars-case-heard-by-u-s-supreme-court [https://perma.cc/RPK9-PABJ].
[xi] Figueroa, supra note x.
[xii] Hallerman, supra note ix.
[xiii] Id.
[xiv] Samuel, supra note vi.
[xv] Id.
[xvi] Id.
[xvii] Id.
[xviii] Id.