Supreme Court justices say there are five questions left to answer in the water war between Georgia and Florida, and one side is already declaring victory.
In its 5-4 decision released on Wednesday, June 27, the Supreme Court returned the case to its special master, the attorney who has adjudicated most of the case between the two states. That gives Florida another chance to make its case that Georgia water use has caused harm to Florida residents and that a court-ordered consumption cap in the Peach State is the solution.
The decision drew disappointment from Georgia leaders, who otherwise remain confident in their case, and elation from their contemporaries in Florida.
In remanding the case, justices ruled in a 5-4 decision that Florida had proven it has suffered harm because of Georgia’s water consumption and that a consumption cap could be created if enough information is gathered by the special master.
The case centers on the Apalachicola-Chattahoochee-Flint River Basin, Lake Lanier and the dams in the basin operated by the U.S. Army Corps of Engineers.
Now, the states and the taxpayers funding the multimillion-dollar legal battles are girding for months more time working with a special master to make their cases while answering these five questions posed by justices in a decision written by Justice Stephen Breyer:
“First, has Florida suffered harm as a result of decreased water flow into the Apalachicola River? (The Special Master assumed ‘yes.’)
“Second, has Florida shown that Georgia, contrary to equitable principles, has taken too much water from the Flint River (the eastern branch of the Y-shaped river system)? (Again, the Special Master assumed ‘yes.’)
“Third, if so, has Georgia’s inequitable use of Basin waters injured Florida? (The Special Master assumed ‘yes.’)
“Fourth, if so, would an equity-based cap on Georgia’s use of the Flint River lead to a significant increase in streamflow from the Flint River into Florida’s Apalachicola River (the stem of the Y)? (This is the basic question before us.)
“Fifth, if so, would the amount of extra water that reaches the Apalachicola River significantly redress the economic and ecological harm that Florida has suffered? (This question is mostly for remand.)”
Answers to the latter two questions will determine whether the court will, or even can, create a water-consumption cap for Georgia.
Breyer wrote in his decision that a cap is possible, which would mean more water flowing out of Lake Lanier and into the Chattahoochee and, eventually, Flint rivers.
“The record leads us to believe that, if necessary and with the help of the United States, the Special Master, and the parties, we should be able to fashion one,” Breyer said, but noted that Florida would only qualify for a cap if “the benefits of the (cap would) substantially outweigh the harm that might result.”
In his dissent, which begins on page 43 of the 79-page decision, Justice Clarence Thomas lays out how a cap on Georgia’s water use could be economically unfair between the states.
“Although both Georgia and Florida depend on the Basin, the Florida portion of the Basin is significantly less populated and productive. The Georgia portion has a population of more than 5 million and accounts for around $283 billion in gross regional product per year,” Thomas wrote. “The Florida portion, by contrast, has a population of fewer than 100,000 people and generates around $2 billion in gross regional product per year. In relative terms, Georgia accounts for 98 percent of the population and 99 percent of the economic production.”
Determining the costs for Georgia and benefits for Florida of a water use cap in the basin is likely to take years.
“I don’t think it’ll be a short process,” said Linda MacGregor, director of the Gainesville Department of Water Resources. “I think it’ll be a thorough process.”
MacGregor once oversaw watershed protection for the Georgia Environmental Protection Division, the state agency responsible for permitting water utility providers in Georgia.
State lawmakers and EPD have tightened conservation measures in the course of the litigation while trying to prove the state can back up claims of good stewardship of the river basin. While the litigation continues, MacGregor said it’s unlikely the litigation is “going to change anything about providing water” in Gainesville while it’s ongoing.
While both sides of the case wait to hear how it will proceed — it’s not yet clear whether it will return to its original special master, Maine lawyer Ralph Lancaster — Florida lawmakers were crowing after the decision was announced.
Florida Gov. Rick Scott, who is running for a U.S. Senate seat, called Wednesday’s decision “a huge win” for the state and that after “decades of failed negotiations” the state decided to keep pushing the issue to the Supreme Court.
Sen. Marco Rubio said the Supreme Court came one step closer to alleviating the decades of harm caused by Georgia’s disregard for the (Florida) Panhandle’s vital economic and environmental resources.”
Georgia leaders struck a different tone after the decision was announced. Gov. Nathan Deal said he was disappointed in the ruling but “confident in the state’s legal position” that would prove the “ineffectiveness of draconian caps placed on Georgia’s water use.”
Deal noted that state government has reduced the state’s drain on the Apalachicola-Chattahoochee-Flint River Basin through changes to state law and conservation tactics.
Deal also told the Atlanta Journal-Constitution that he regretted negotiations with the governors of Florida and Alabama weren’t successful, especially at the start of his term.
“We got very close. But sometimes politics gets in the way, too. We had the advantage, at one point, when we were all three of us were early in their gubernatorial cycles,” Deal told the AJC.
“That would have been the time when we could have reached an agreement. I thought we were going to get it done, but we didn’t. And I regret that.”
In Washington, D.C., Rep. Doug Collins, R-Gainesville, told The Gainesville Times that the Wednesday decision wasn’t a win for either said and that the Supreme Court has decided “there’s going to be another several years of very expensive litigation. We’ll see where it goes from there. I believe we’ll still prevail.”
Army Corps management of lakes Lanier and Hartwell has been a major issue for Collins as a representative, and he said Georgia’s congressional delegation has had to beat back attempts from Florida and Alabama to mandate changes to water flows through federal law.
The decision should have been hashed out between the states, Collins said, Georgia has done “all of the legwork on conservation” while leaders in Alabama and Florida have “abdicated” their responsibilities to their states.
“Alabama and Florida wouldn’t have heard of conservation if somebody came up and yelled it at them,” he said.