TALLAHASSEE — After years of battling between Florida and Georgia, the U.S. Supreme Court next month will again take up a dispute about water in a river system that links the two states.
The Supreme Court last week scheduled oral arguments Feb. 22 in the case about divvying up water in the Apalachicola-Chattahoochee-Flint river system, which stretches from northern Georgia to Apalachicola Bay in Franklin County.
Florida filed the lawsuit in 2013, though the two states have fought for decades about water in the river system. Florida contends that Georgia is using too much water from the system, damaging the Apalachicola River and the long-iconic oyster industry in Apalachicola Bay.
Federal appellate Judge Paul Kelly, a special master appointed by the Supreme Court, dealt a blow to Florida in December 2019 when he said Florida had not adequately shown that Georgia’s water use caused problems in the Apalachicola River and Apalachicola Bay.
Kelly’s recommendation went to the Supreme Court, where Florida and Georgia in 2020 filed briefs that gave vastly different descriptions of the issues.
In one brief, Florida’s attorneys attacked Kelly’s findings and argued that “Georgia’s insatiable upstream consumption (of water) has decimated Apalachicola’s oyster fisheries.”
“The harm to the Bay’s oyster fisheries is undeniable. Apalachicola is renowned across America for its oysters, which account for 90% of Florida’s oyster harvest and 10% of the nation’s,” the brief said. “What’s more, oysters — and oystering — have created a distinct way of life in Apalachicola passed down from generation-to-generation; whole communities depend on the fisheries for their economic livelihood. The oyster is to Apalachicola what the lobster is to many New England towns.”
But in a June document, Georgia disputed that its water use has caused damage in Florida. Also, it said Florida’s request for an “equitable apportionment” of water — effectively seeking to place limits on Georgia water use — would have major economic ramifications.
“The trial record showed that Georgia’s water use had not caused harm to Florida, that Georgia was using far less water than Florida alleged, and that the cap Florida seeks would yield only minuscule benefits to Florida while inflicting enormous costs on Georgia,” the document said.
If Florida is ultimately successful, that could mean putting restrictions on water used by Georgia farmers for irrigation.
Kelly, who is based in New Mexico, was appointed special master after a divided U.S. Supreme Court in 2018 overturned a recommendation by another special master, Ralph Lancaster, who said Florida had not proven its case “by clear and convincing evidence” that imposing a cap on Georgia’s water use would benefit the Apalachicola River.
Writing for a 5-4 majority, Supreme Court Justice Stephen Breyer said Lancaster had “applied too strict a standard” in rejecting Florida’s claim.
Kelly held a hearing and later agreed with Georgia’s position on the potential benefits and harms of placing limits on its water use.
“I do not recommend that the Supreme Court grant Florida’s request for a decree equitably apportioning the waters of the ACF (Apalachicola-Chattahoochee-Flint) Basin because the evidence has not shown harm to Florida caused by Georgia; the evidence has shown that Georgia’s water use is reasonable; and the evidence has not shown that the benefits of apportionment would substantially outweigh the potential harms,” he wrote.
The Florida Fish and Wildlife Conservation Commission last month approved a suspension of wild-oyster harvesting in Apalachicola Bay amid a $20 million effort to restore conditions in the bay. Along with the dispute about water with Georgia, the bay has faced issues over the years such as drought and overharvesting.