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Supreme Court Hands Win to Georgia in State Water War (3)

April 1, 2021, 2:06 PM; Updated: April 1, 2021, 8:03 PM

The U.S. Supreme Court won’t force Georgia to curb its water usage, a defeat for downstream Florida in the two states’ long legal war over limited resources.

The justices issued their opinion Thursday, rejecting Florida’s plea for an order that would ensure more freshwater flows to the state’s wild oyster population along the Gulf Coast. Florida has hit repeated walls in its legal effort to protect the industry and the area’s broader ecosystem. Justice Amy Coney Barrett authored the opinion for the unanimous court.

The dispute centers on the Apalachicola-Chattahochee-Flint River basin, which straddles the southern states. Florida says Georgia farmers use too much from the shared resource, leaving insufficient freshwater for oysters in Apalachicola Bay. Georgia says Florida’s own management decisions are to blame for the industry’s recent collapse.

Florida failed to demonstrate that it was facing a serious injury from Georgia’s water use and that the benefits of an apportionment order from the court would outweigh any harm, the court said in Thursday’s opinion.

“In short, Florida has not met the exacting standard necessary to warrant the exercise of this Court’s extraordinary authority to control the conduct of a coequal sovereign,” Barrett wrote, dismissing Florida’s case.

‘Crushing Blow’

Georgia Gov. Brian Kemp (R) praised the Supreme Court’s decision as a big win for his state.

“The Supreme Court’s unanimous decision is a resounding victory for Georgia and a vindication of years-long effort by multiple governors and attorneys general here in the Peach State to protect our citizens’ water rights,” Kemp said in a statement. “Our state will continue to wisely manage water resources and prioritize conservation, while also protecting Georgia’s economy and access to water.”

The office of Florida Gov. Ron DeSantis (R) didn’t respond to a request for comment.

Florida Agriculture Commissioner Nikki Fried, a Democrat, issued a statement calling the decision “disappointing for the thousands of families whose livelihoods depend on” the river basin. Apalachicola City Commissioner Anita Grove likewise said the ruling was “a crushing blow.”

“I’m exceptionally disappointed. I’m very sad they didn’t choose the environment over the needs of Georgia,” she said in a phone interview Thursday.

Shannon Hartsfield, a fourth-generation oysterman in Apalachicola Bay, said he’d resigned himself to losing the case. But he was cautiously optimistic that new restoration projects could revive the bay’s fisheries—if Mother Nature cooperated and gave them more wet years than dry.

“We can put a lot of stuff out there and we can see a lot of good things with what’s going on right now, but it can change, season to season, really quick,” Hartsfield said in a phone interview Thursday. “Our next dry year, for us to not get any water would be like a drought situation for us down here, and that’s what’s scary.”

Casey Cox, a sixth-generation farmer along Georgia’s Flint River, said she was glad to see how the justices grasped the complex environmental factors affecting the region instead of over-simplifying the case to a dispute between farmers and oystermen.

The ruling will allow farmers to focus on conservation in their operations even as they contend with droughts and other environmental concerns, without the threat of arbitrary caps on their water usage, she said in an interview.

“Irrigation is the single most important risk-management tool for our crops. Knowing it’s secure is a relief,” Cox said.

Evidence

The ruling in Georgia’s favor was widely expected among environmental law scholars, said Robert Percival, director of the environmental law program at the University of Maryland.

“It returns the court to the usual way it deals with these water cases, which is deferring to the special master’s finding,” he told Bloomberg Law.

Georgia State University law professor Ryan Rowberry said other states involved in water disputes with their neighbors should look to the Supreme Court’s ruling to see how important it is to have “robust, compelling, and empirical data.”

“The strongest message it sends to states is that you need to have good evidence,” said Rowberry, who helped represent Florida in an earlier stage of the dispute. “That evidence is going to need to be very, very clear, and that’s something that Florida did not have.”

Barrett’s opinion said Florida didn’t provide “clear and convincing evidence that Georgia’s alleged overconsumption caused serious harm to Florida’s oyster fisheries or its river wildlife and plant life.”

“It was a very strong special master’s report and the court bent over backwards to make sure it had a very thorough treatment of the facts before it,” John B. Draper, a leading water rights lawyer based in Santa Fe, New Mexico, told Bloomberg Law. “Even with that, they couldn’t find a way to rule in Florida’s favor.”

Case History

Florida first approached the justices in 2013 after years of failed negotiations with Georgia. The state-versus-state case falls under the Supreme Court’s original jurisdiction, meaning the case went straight to the high court rather than working through lower benches first. Two court-appointed “special masters” sided with Georgia, and the justices in February heard arguments for the second time in the dispute.

Several members of the court appeared sympathetic to Florida’s plight, but raised questions about how much of the state’s water woes can be traced to Georgia’s usage, and how to weigh the impacts of a water-sharing decree.

With annual revenue around $6.6 million before the collapse, Florida’s oyster industry is tiny compared to the $4.7 billion in annual revenue from Georgia’s agricultural industry, according to legal filings. Florida argued, however, that the court should recognize the greater value in protecting Apalachicola Bay as an ecological resource.

Legal scholars expect similar interstate disputes to crop up often at the Supreme Court as climate change stresses water supplies. Another case, featuring groundwater, is already on the court’s docket. The justices issued an almost-unanimous opinion last year in a water dispute between Texas and New Mexico.

“There was a time two or three decades ago where the court seemed to be not as interested in these cases, but I’ve seen in recent times a willingness to take on interstate water disputes that wasn’t there before,” Draper said. “They’ve reaffirmed their embrace of that authority and responsibility under the Constitution.”

The case is Florida v. Georgia, U.S., No. 22O142, 4/1/21.

(Updates with additional reporting throughout.)

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com

To contact the editor responsible for this story: Seth Stern at sstern@bloomberglaw.com

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