A decades-long dispute between Florida and Georgia over each state’s water rights in the Apalachicola-Chattahoochee-Flint River Basin (“ACF River Basin”) is heading back to the United States Supreme Court where Florida is asking the justices to put a cap on Georgia’s water use. This move follows the release of the Report of the Special Master in which a court-appointed Special Master concluded that Florida had not shown that a cap on Georgia’s water use was warranted.

Both the Chattahoochee and Flint rivers start in Georgia and flow downriver into Florida where they enter the Apalachicola river and Bay in the Florida Panhandle, forming what is known as the ACF Basin. Florida claims Georgia uses too much water from both the Chattahoochee and Flint rivers, preventing enough water from flowing into the Apalachicola river. Florida says that this has affected both the environment in Apalachicola Bay and the Bay’s oyster industry. The two states have been in disagreement over how to allocate water resources in the rivers for nearly thirty years. In 2013, Florida filed suit against Georgia seeking to have the water rights of the two states determined by a judicial decree, otherwise known as an equitable apportionment. Because the case involved one state suing another, it automatically went before the Supreme Court. The Court appointed a Special Master to hear the evidence from both sides of the dispute and to make a recommendation to the Court about how it should rule.

In typical equitable apportionment cases, states seek a declaration from the court that will determine how much water each state can take for use. What made this case unique was that Florida was seeking to have water remain in the ACF Basin to help repair damage to the ecosystem and oyster industry in the Apalachicola Bay. In turn, Georgia argued that it was making a reasonable and fair use of the water in the ACF Basin to provide drinking water for cities and irrigation water to agriculture.

The first Special Master report was released in 2017. That report concluded Florida had failed to show with clear and convincing evidence that capping the amount of water Georgia was allowed to use would make more water available to Florida during drought years. Based on the 2017 report, the Court issued an opinion determining that the Special Master had used too strict a standard in concluding that Florida had failed to make its case, and ordered the case to go before a different Special Master to be reheard. In December 2019, the second Report of the Special Master was released, once again recommending that Florida’s request to cap Georgia’s water use should be denied.

Equitable apportionment is only available to a state which has suffered a real and substantial injury due to the actions of an upstream state. The Special Master therefore examined whether Florida had shown that it had suffered a real and substantial injury due to actions directly taken by Georgia. Ultimately, the Special Master concluded that Florida had failed to meet this standard. Although Florida was able to show that it had suffered a real injury, the collapse of its oyster industry in the Apalachicola Bay, it was unable to show that Georgia was the cause of that injury. According the Special Master, the record indicated that the collapse of Florida’s oyster injury was due to recent droughts, over-harvesting, and a changing climate.

Additionally, the Special Master concluded that Georgia’s use of water from the ACF River Basin was not unreasonable or inequitable. In other words, the Special Master concluded that Georgia did not take too much water from the ACF River Basin and the uses it put the water to, which are mainly domestic and agricultural, were reasonable uses. When it sent the case back to the Special Master, the Supreme Court had specifically asked the Special Master to determine whether Georgia had been making either an unreasonable or inequitable use of the water in the ACF River Basin. The Special Master’s conclusion that Georgia’s uses were both reasonable and equitable is positive for agriculture which the Special Master recognized as both a reasonable and beneficial use of water.

Following the release of the Report of the Special Master, the case will head back to the Supreme Court where the justices will make the final determination. The Court could chose to either fully adopt the Special Master’s recommendation, remand the case to a Special Master once again for further consideration, or even reach its own separate opinion.

 

To read the 2019 Report of the Special Master, click here.

To read the 2017 Report of the Special Master, click here.

For more National Agricultural Law Center Resources on water law, click here.

For more National Agricultural Law Center Resources on equitable apportionment, click here.