The Southeastern water wars are far from over.
That much was clear even before the U.S. Supreme Court directed an expert judge to revisit Florida’s legal challenge to Georgia on Wednesday.
The justices’ 5-4 ruling will extend that pricey legal battle for what could easily be upwards of a year, legal observers say. Beyond the Supreme Court battle, there are three separate federal cases related to water use in Georgia that will eat up taxpayer money for years to come.
Georgia has spent tens of millions of dollars and the better part of the past three decades fighting with Florida and Alabama over water rights in two river basins that originate north of Atlanta and empty into the Gulf of Mexico: the Apalachicola-Chattahoochee-Flint (ACF) and the Alabama-Coosa-Tallapoosa (ACT).
What was readily apparent from the Supreme Court’s ruling on Florida’s case over the ACF is that finding any legal resolution for the so-called “equitable apportionment” of water will not be easy.
Justices rebuffed the recommendation of Ralph Lancaster Jr., an expert judge appointed by the court as a “special master” to oversee the case. He had called on the justices to dismiss Florida’s case on what were essentially technical grounds, an outcome that was sought by Georgia.
They instead developed a list of five questions they would like Lancaster to focus on as he rehears the case. That includes whether Florida can prove that Georgia has taken too much water from the Flint River — which originates near Hartsfield-Jackson International Airport and flows through southwest Georgia — and whether capping the Peach State’s consumption could lead to substantial additional water flowing to Florida’s Apalachicola Bay without decimating Georgia’s economy.
Florida argued in court that thirsty Atlanta and Georgia agriculture have hastened the economic and ecological decline of the bay, which was once home to a thriving oyster population. Georgia said it has taken great strides to curtail its water use, especially in fast-growing metro Atlanta, and that capping the state’s water consumption would not necessarily lead to more water for Florida because of the complicated way the U.S. Army Corps of Engineers manages local dams.
It is unclear whether Lancaster, a no-nonsense Maine attorney well into his 80s, will return to helm the case for a second round. He could choose to stay on or step aside, or justices could opt to replace him. He sifted through some 7.2 million pages of documents, 130 subpoenas, 30 expert reports and 100 depositions in the first round of the case, Justice Clarence Thomas noted in his dissent.
Also unsettled is the case’s timeline going forward. Legal observers expect an initial outline to emerge in the weeks ahead. Proceedings, they said, could take months, a year or far longer.
“There are a lot of questions, and we will have to wait and see how the special master and the states will respond to the Supreme Court’s order,” said Lewis Jones, an attorney at King & Spalding who has closely tracked the case for the Atlanta Regional Commission and local governments.
“The one thing we know is that there’s going to need to be more fact-finding, and I would expect more expert discovery, focused on the questions that Justice (Stephen) Breyer identified in the order,” he said. “How long that will take, exactly what procedures the states will follow and the special master will adopt to answer those questions remains to be seen.”
Meanwhile, three other federal cases related to the ACF and ACT are moving forward on separate legal tracks.
In two of those cases, Alabama, which was not a party to the Supreme Court case but sided with Florida, sued the corps over its master plan for divvying water in those two basins. The state argues the agency didn’t properly address several environmental concerns it raised during the federal comment period. It said the corps’ plan would allow the agency to operate local projects in an “arbitrary and capricious manner” that will harm Alabama.
The corps’ water management plan for the ACF, released in late 2016, essentially gave metro Atlanta all the water it needs from the Chattahoochee River and Lake Lanier through 2050.
The state of Georgia; the Atlanta Regional Commission, which helps oversee metro Atlanta’s water plans; and other local entities have intervened in favor of the corps in both cases.
In a third federal lawsuit, the Cobb County-Marietta Water Authority sued the corps, alleging it violated a water contract from 1963 in Lake Allatoona.
It’s unclear what impact verdicts in any of those three cases could have on the Supreme Court case. There’s also a question of how the retirement of Justice Anthony Kennedy, who sided with the majority, could change any final ruling.
“Things could change (with Kennedy’s retirement), but this isn’t really a societal policy where you would expect the conservative versus liberal wing to really be strongly at play,” said Craig Pendergrast, counsel to the Apalachicola Chattahoochee Flint Stakeholders group, which represents various interests in Georgia, Alabama and Florida and has called for a consensus water use plan between the states. “That’s demonstrated when you look at who was in the majority and who was in the dissent on this one. It was a mixed bag.”
Breyer authored the majority opinion and was joined by Justices Kennedy, John Roberts, Ruth Bader Ginsburg and Sonya Sotomayor.
The courts are not the only branch of government that could have an impact on the region’s water fight.
The governors of Georgia, Alabama and Florida could sit down and hammer out a tri-state compact, as Lancaster and others have pushed for years. Those deals are politically, legally and environmentally complicated and have eluded Gov. Nathan Deal throughout his tenure. They would also need Congress to give it a greenlight.
Lawmakers on Capitol Hill have themselves tried to move the needle on the water fight, with the Alabamians typically locking arms with their Florida counterparts. Georgia congressmen have been able to rebuff legislative actions from their neighbors in recent years, but its possible the tables could turn now that a powerful Alabama Republican has received a major promotion in the U.S. Senate.
The story so far
Five years ago, Florida sued Georgia, alleging that its use of water from the Chattahoochee and Flint rivers had hastened the region’s ecological decline and the collapse of the oyster industry in Apalachicola Bay.
In February 2017, an expert judge appointed by the U.S. Supreme Court to oversee the case, urged the justices to drop it, essentially based on a technicality because Florida did not also sue the U.S. Army Corps of Engineers, which regulates water flow in the country’s locks and dams.
On Wednesday, the Supreme Court sent the case back to the expert judge ordering him to revisit key aspects of the case in pursuit of an equitable water-sharing solution, saying the judge’s initial standard was too strict.
What’s next: The expert judge will lay out a timetable for a second round of hearings for the case. Meanwhile, three separate water rights cases are winding their way through federal courts.