Water War battle picks up Monday

Next week’s US Supreme Court hearing in Florida’s eight-year “water war” suit against Georgia is shaping up to be a real doozy.

Technically, the hearing is scheduled as “argument” on the court’s docket, and gives lawyers for the parties an opportunity to plead their case and answer any questions the nine justices may have. While it’s unlikely the high court will be “hot” – that is, interrupting and asking many questions –  Florida’s counsel, Greg Garre of the Washington DC law firm of Latham and Watkins, certainly will be, based on his recent filings in the case.

Why? He and his client have little to lose, for the subject of the argument is a recommendation from a fact-finder or “special master” that the high court deny Florida’s request that Georgia cut back its consumption of water from the tributaries of the Apalachicola River.

Now, Garre probably won’t shout (even though this is billed as an argument) but he will use the words and techniques lawyers learn to press Florida’s case to the max. That is clear from the words he used in written statements filed with the court on April 13 and July 27 of last year.

“This case,” he begins, “is in more need of this Court’s attention than ever… The case that returns today is scarcely recognizable compared to the one that this Court remanded in 2018.

“Given Georgia’s insatiable consumption of the waters at issue,” he continued. “adopting Special Master (Paul) Kelly’s recommendation would spell doom for the Apalachicola – a cruel twist on the ‘just and equitable apportionment’ this Court requires.”

The special master “rewrote this case from the ground up,” Garre said, adding that Kelly “flipped” and “flagrantly dismissed” the core conclusions of a previous fact-finder. The “stunning” result was “inexplicable,” he said, noting that Kelly’s methodology “corrupted” his inquiry.

Now for some background for those unfamiliar with this issue or litigation.

The natural landscape

The water war between Georgia and Florida (and on occasion Alabama) concerns 19,000 square miles drained by the Apalachicola, Chattahoochee and Flint Rivers. The last two are entirely in Georgia and meet at the Florida state line where they become the Apalachicola. The waters then flow 106 miles downstream into Apalachicola Bay, historically one of the most productive and diverse estuaries on earth. Critical to the health of the bay and the creatures in it, particularly oysters, is the mixture of fresh river water and saltwater from the Gulf of Mexico.

There are 16 dams on the three rivers, but only three can impound much water, and they are all on the Chattahoochee, which begins north of Atlanta, and managed by the US Corps of Engineers. Lake Lanier is by far the biggest impoundment, followed by West Point Lake and George Lake. There are no impoundments on the Flint River, which flows south in eastern Georgia. There is a big hydroelectic dam at the Florida Georgia line, but shallow Lake Seminole created by the dam is not used for impoundment purposes.

Florida contends that increasing withdrawal of water from the rivers by municipalities and businesses in Georgia is reducing freshwater flow to the Apalachicola estuary and is responsible for the collapse of the oyster shell fishery, along with other negative environmental consequences. As the lawsuit has progressed, Florida has focused on the impact of increased farm irrigation from the Flint River. Georgia says in response that Florida’s injuries are imaginary or self-inflicted, or caused by the Corps or by changing precipitation patterns, and that in any event, Georgia has taken steps to reduce water use by a growing population.

The Supreme Court has many times been asked to address water disputes between states, and its test is simple to articulate but difficult to measure. There needs to be an “equitable apportionment” of the waters in the river basin by the states served by the basin.

But in determining what is equitable, the court has held that everything, literally everything, is relevant, from population density to the prospects of endangered species within the river basin, from river transportation to the gardening or farming needs of neighboring landowners. To prevail, the court has also placed the burden of proof on the state (here Florida) seeking to restrict the activities in the other state (Georgia). Florida’s injury must be “real and substantial.” Florida must prove its case for harm by “clear and convincing” evidence, not by the usual “preponderance” of evidence. Florida must show that the remedies sought will ameliorate the injury.

Though the high court has made it clear environmental damage and water inefficiency is a factor in equitably apportioning water consumption between states, Georgia has emphasized the population and economic disparities between the two regions affected by the river basin. Georgia says that “92 percent of the population, 96 percent of the employment and …99 percent of the gross regional product” is in Georgia. More than 80 percent of the basin’s land is in the Peach state. Measured in these terms the water war is truly a battle between David and Goliath.

To date in Florida vs Georgia, according to Florida’s Department of Environmental Protection, the state has spent $64.4 million for lawyers, support staff, experts and its share of fees charged by the first fact-finder. (As a sitting judge, Kelly received no additional compensation.) This number does not include the state’s cost of the litigation and negotiations which preceded the Supreme Court action. Nor, of course, does it include Georgia’s cost for similar services, which according to one published report has exceeded $47 million since 2011.

A Thirty Years War

Monday’s hearing is the latest milestone in tangled and costly litigation that began in 1990 when the state of Alabama sued the US Army Corps of Engineers to stop storage of water for municipal and industrial customers in Georgia. That lawsuit was then stayed while the parties, now including the state of Florida, sought to negotiate a resolution. In 1992 an agreement was reached to study water resources in the basin drained by the three rivers, and in 1997 a compact, approved by Congress, established a process to negotiate a resolution. No resolution was reached, however, and the compact expired in 2003. Florida was unsuccessful in getting Georgia or the courts to limit Georgia’s consumption of water during these negotiations, which according to Florida has skyrocketed in the past 30 years from an increase in population and irrigated farming.

In 2007, litigation resumed in state and federal courts. The cases were consolidated and in 2011, a federal appeals court held that the Corps could in fact allocate a substantial quantity of Lake Lanier water storage for the Atlanta metropolitan area. The Corps began revising its water storage manual to recognize this authority, and in 2013 the Supreme Court permitted Florida to sue Georgia in that court, invoking constitutional language which gives the Court “original and exclusive jurisdiction” over disputes between states. The Corps of Engineers is not a party to this lawsuit.

Now this lawsuit, Florida v Georgia, Docket No. #22O142, has become as protracted and probably more contentious than what came before it.

A year after it was filed, the high court appointed Ralph I Lancaster, a Maine lawyer with previous experience as a special master, to receive evidence and make recommendations to the court. The master received tens of thousands of pages of documentary evidence, 2,400 exhibits and testimony from 40 experts. Some seven million pages of documents were exchanged. The trial, which included live testimony and oral arguments by counsel, lasted 18 days.

On Feb. 16, 2017, Lancaster filed his 137-page report with the high court. He concluded that even if he found that Florida had been injured by Georgia’s unreasonable use of water resources, no relief could be given Florida without the Corps’ participation in the litigation. (This was an argument Georgia had made initially but Lancaster had dismissed.)

In many places in Lancaster’s report he expressed sympathy and agreement with Florida’s arguments. Florida calls these statements “conclusions” or “findings;” Georgia calls them “assumptions.”

The high court did not, however, accept the report because a majority of justices felt Lancaster had applied too strict a standard as to whether a decree could correct any injury suffered by Florida. In sum, the high court said Lancaster had put “the cart before the horse.”  The court’s ruling was 5-4, and since then two justices, Anthony Kennedy and Ruth Bader Ginsburg, have been replaced by Brett Kavanaugh and Amy Coney Barrett.

In remanding the dispute for more factfinding, the high court asked the master to answer five specific questions relating to the harm Florida alleged it had suffered, how Georgia had caused it, and how a decree by the court would solve the problem. Then the high court replaced Lancaster with Paul Kelly, a federal appellate judge from New Mexico, presumably because of health. (Lancaster died in Jan., 2019, at age 88.) Kelly, 80 years old, was appointed to the 10th U.S. Circuit Court of Appeals by Pres. George H. W. Bush in 1992. Originally from New York, Kelly summers on a 46-foot trawler on Long Island Sound. 

Over the ensuing 14 months Kelly retraced the record developed by Lancaster, heard oral argument, and on Feb. 11, 2018 issued his findings and recommendations. In his conclusions Kelly relied on all the evidence accepted and considered by Lancaster, without accepting new witnesses or exhibits as Florida had requested.  In his report Kelly almost always found the Georgia experts more credible than those offered by Florida.

“I find a complete lack of evidence of any harm caused by Georgia to the ecosystems of the river and floodplain,” Kelly wrote at one point in his 81-page report. While acknowledging the 2012 collapse of the oyster fishery in Apalachicola Bay, Kelly agreed with Georgia that its cause was most likely due to overharvesting, insufficient re-shelling, drought, and what he referred to as Florida’s mismanagement of the fishery in the bay. His findings were, as he said, “detailed, extensive and specific;’ almost all were favorable to Georgia.

All of which bring us to the Monday hearing , normally conducted at the Court in our nation’s capital but because of COVID-19, will instead be held remotely via live streaming video.

The Last Argument?

Two lawyers will carry the brunt of the argument, Garre for Florida, and Craig Primis, of Kirkland and Ellis, for Georgia. Other attendees may include Florida’s Solicitor General Amit Agartala, and Georgia’s Solicitor General Andrew Pinson; Lisa Blatt, of Williams Connolly, representing the Franklin County Seafood Workers Association, and Lewis Jones, of King and Spaulding, counsel to the Atlanta Regional Commission.

Florida’s response to the Kelly report, as articulated in Garre’s brief, is basically fourfold: the second master is wrong on the facts, it’s unfair to have a second master reverse conclusions by his predecessor (particularly since he heard no witnesses but relied wholly on paper evidence or submissions by counsel), the court, not the master, is the ultimate decisionmaker, and finally that the high court has a kind of equitable duty to resolve a dispute between states, even if there is some doubt about the facts.

Georgia’s reply, as spelled out in its brief, is to defend Kelly’s conclusions and attack Florida’s claims as “incredible” or revisionist. It argues Florida used “made for litigation” models to estimate water flow and usage, as compared to Georgia’s “real world data.” In sum, Primis and Georgia say Florida’s case “is built on rhetoric and not on facts.”

Blatt filed an emotional brief on behalf of her clients, the oystermen ( and women) of Franklin County. “We have suffered droughts, hurricanes and other extreme climatic events but – until 2012 – the one constant has been that the Bay has always recovered and the oysters have always come back. But that’s no longer the case,” she wrote.

Oysters are not only the littoral foundation of the Bay, by providing reef material and purification to the benefit of many other species, but they are also the literal foundation for the human community of Franklin County, Blatt said.

Having opened the door to more factfinding in its previous decision in this case, the Supreme Court will have difficulty ignoring Kelly’s conclusions and recommendations, unless it can find some procedural infirmity, or wishes to wade into the intricacies of factfinding in a thick forest of competing experts. However, attorney Garre does offer a potential avenue for the Court to take if it felt a ruling of “relief denied” was fundamentally unfair to Florida and to the residents of Franklin County.

“This Court should hold that Florida is entitled to a cap stemming Georgia’s consumption and remand for the Special Master to consider the particular form of decree,” he says. “The Union was built, and has endured, on the common sense that all States have an equal right to the reasonable use of shared resources. That is all that Florida asks.”

Josh Fitzhugh is a retired attorney and insurance executive. Early in his career he was a business writer for the Associated Press in New York City and served as editor in chief of The National Law Journal, a weekly newspaper about law and lawyers. He and his wife winter in Apalachicola in their house in the Hill section of town.

This article originally appeared on The Apalachicola Times: Water War battle picks up Monday