Standing outside the U.S. Supreme Court for three hours in sub-20 degree temperatures Monday morning to observe oral arguments in the Florida vs. Georgia water dispute case was exciting enough to seem worth suffering frozen feet. An extremely important environmental case for Florida, it’s also a case that could have legal ramifications for inter-state water supply disputes across the country.
When I finally received a yellow admittance ticket, I expected to soon be observing a part of Florida water-law history. But after hearing the opening argument from Gregory Garre, the Washington, D.C.-based attorney representing Florida, that excitement quickly shifted.
I realized this very important case for Florida’s oyster industry and the Apalachicola estuarine system may get sent back to the “special master” appointed by the Supreme Court for more factual findings and a second evidentiary hearing. And after hearing justices Stephen Breyer and Sonia Sotomayor both raise that possibility, my frozen feet began to thaw and hurt.
When Florida filed its lawsuit in 2013 against Georgia seeking an “equitable apportionment” of water from the Apalachicola-Chattahoochee-Flint river basin necessary to sustain the Florida oyster industry and estuarine wildlife, it requested the Supreme Court issue a decree putting a cap on Georgia’s upstream water use. But in order to grant such relief, the Supreme Court needed evidence showing that Florida’s claims were real and that a cap on Georgia’s water withdrawals from the basin would actually provide a remedy for Florida.
The Supreme Court appointed a special master to manage the case and hold an evidentiary hearing. His task was to make factual findings, apply the law and submit a report with recommended action to the Supreme Court.
The special master issued his report last February, recommending denial of Florida’s request for an “equitable apportionment” of water flowing south. This conclusion was not based on harm to Florida, but on his reasoning that the U.S. Army Corps of Engineers needed to be a party to the case because it plays such a significant role in affecting water flow in the basin.
The Corps controls water levels and releases from dams and reservoirs along the Apalachicola-Chattahoochee-Flint river system, determining when major releases occur and how much should be released. The Corps also decides how much water to withhold in storage reservoirs (like Lake Lanier, which provides Atlanta's drinking water) during drought seasons.
Without being a party to the case, the special master concluded, any decree would not bind the Corps to specific actions. Therefore, a decree without the Corps involved would not guarantee any relief to Florida, because the Corps could simply continue to follow its own established regulations.
But on Monday, Garre got straight to the point stating, “With respect to the special master, we believe he made a legal error on this issue and that the case should be returned to him for him to complete the work that he has begun.”
The justices searched for answers in the evidentiary record and from the attorneys about how much water was really needed to afford Florida relief. They seemed sympathetic to Florida’s plight, and Justice Elena Kagan remarked to Florida’s attorney that “you have common sense on your side.” But the justices were frustrated by what they noted was a “dearth of evidence” showing exactly how Florida’s harm could be alleviated.
Without the Corps being a party to the case, the task seemed especially problematic given a complicated set of federal regulations the Corps follows to balance human, environmental and economic water demands.
The Corps is protected by the legal doctrine of sovereign immunity — so it would need to consent to be a party to the case. Even though it had filed an amicus curiae brief and sent a deputy solicitor general to explain its position in court, Breyer’s frustration was evident when he said, “So why don’t you just waive the sovereign immunity, get into this and try to help the special master reach an equitable solution?”
Ultimately, Florida argued that the Corps does not need to be a party to the case, because whatever decree the Supreme Court issues, the Corps would treat the decree as binding upon it as a federal agency and manage the river basin in a way that contributes to an “equitable apportionment” of precious water resources.
The Supreme Court is expected to take months before issuing a decision, but a final resolution to the dispute might take even longer.
Byron Flagg was raised in Gainesville and is currently a land use/environmental attorney based in Miami.