National News

What to expect as the Supreme Court rules on Georgia's water fight

Posted June 13, 2018 2:47 p.m. EDT

WASHINGTON -- The U.S. Supreme Court could weigh in as soon as this week on the Southeast's long-running water wars, a decision that could have a major impact on the region's environmental and economic development.

But don't expect the justices' decision to end decades of legal and political fighting between Georgia, Florida and Alabama, observers say.

Here's a breakdown of the water fight and a peek at what could be around the corner as the justices prepare to rule on the fight for the first time:

The history

The three Southeastern states have tussled for decades over water rights in two river basins: the Apalachicola-Chattahoochee-Flint (ACF) and the Alabama-Coosa-Tallapoosa (ACT). Both originate in Northeast Georgia, with the former flowing through metro Atlanta and farm country along the Georgia-Alabama border to the Florida Panhandle before emptying into the Gulf of Mexico. The latter flows southwest into Alabama, ending in Mobile Bay.

The fighting has gone on for the better part of three decades, costing taxpayers tens of millions of dollars in legal fees. The governors of the three states have met quietly at several points to try to hash out a water-sharing agreement, but recent efforts have fallen short. Lawmakers on Capitol Hill have also sought to weigh in legislatively.

The case

There are four major cases related to the ACT and ACF currently winding their way through the court system. Most involve states suing the U.S. Army Corps of Engineers, the federal agency that manages the country's locks and dams, but the case awaiting a ruling from the Supreme Court is different because it pits two states against one another.

Florida sued Georgia five years ago following the collapse of its oyster industry in Apalachicola Bay. The state alleged the region's ecological and economic decline was hastened by the unchecked thirst of metro Atlanta residents and southwest Georgia farmers upstream in the ACF. Florida argued the state "suffered real harm" at the hands of Georgia and called on the court to impose a cap on Georgia's water usage so more water can flow downstream.

Georgia argued it has been a responsible steward of water, especially in Atlanta. It said a cap -- which would limit consumption at roughly 1992 levels, when metro Atlanta was home to only half as many people -- would deeply harm Georgia economically in exchange for little benefit to Florida because of the complicated way the corps regulates water.

The justices appointed a special master, Ralph Lancaster Jr., to collect facts in the case. After five weeks of hearing testimony in Maine, Lancaster said Georgia could have been more responsible with its water use but essentially handed the state a win on a technicality. Lancaster urged the justices to drop Florida's case, in no small part because the Sunshine State couldn't prove that limiting Georgia's water usage would provide relief downstream.

Alabama has stayed on the sidelines in this particular fight but has watched the case closely and sided with Florida.

The courtroom scene

Georgia stakeholders had entered Supreme Court oral arguments in January feeling like they had the wind at their backs following several recent legal and regulatory victories. But the questioning from the justices left some taken aback.

Several justices indicated they were amenable to finding a remedy for Florida, rather than dismissing the case outright as Georgia wanted. The justices peppered lawyers for the two states and the corps with questions about whether options existed that would result in more water flowing downstream to the Panhandle. But several also said they were flummoxed by Florida's decision not to also sue the corps since the agency controls much of the water flow in the ACF.

Georgia ceded some of its argument time to the corps, which told the justices it would take their eventual ruling into consideration but that the agency essentially didn't have to listen because of the way its mandate was set up by Congress.

The possible verdicts

It's been more than five months since oral arguments, and the Florida-Georgia fight is among just 21 cases from this term that have yet to see a verdict.

An opinion must come before the end of the month.

Local observers are generally expecting one of three outcomes from the court:

-- Accept Lancaster's recommendation. That would be a clear-cut win for Georgia since that would dismiss Florida's case.

-- Rule in Florida's favor. Justices could do that by setting a cap on Georgia's water consumption or laying out other parameters apportioning the water in the ACF.

-- Send the case back to Lancaster. Justices could direct the special master to re-examine the case in order to answer different questions or flesh out his previous recommendation using a different legal lens.

Chris Manganiello, the water policy director for the conservation group Chattahoochee Riverkeeper, took some hints from the justices' lines of questioning.

"I think they were trying to understand how the system works," he said. "And at a basic level they were asking pretty simple questions, like if there's more water in the system why can't it flow downhill? But on the other hand, the system is quite complicated and it's not as simple as just making sure there's more water."

"Without the Army Corps being a part of the case I think the court was just really trying to understand how to make a resolution work," Manganiello said.

The court's longer timeline for deciding the case has prompted some speculation about whether justices are planning a broader ruling. Another water rights case argued before the court on the same day as the Florida-Georgia case was decided months ago.

"It's very difficult to predict, particularly in a case like this that doesn't really have a partisan aspect to it," said Gil Rogers, the director of the Southern Environmental Law Center's Georgia and Alabama office.

Even if the court rules squarely in favor of Florida or Georgia, Rogers said he does not expect the justices' ruling to signal an end to the water fight.

If Florida loses, it could turn around and sue the corps. There are also several separate federal cases related to the corps' water allocation plans for the ACF and ACT that will see action in lower courts.

"I just don't see that going away anytime soon," Rogers said.

Story Filed By Cox Newspapers

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