On April 1, 2021, the United States Supreme Court issued a ruling in State of Fla. v. State of Georgia, 141 S. Ct. 1175 (2021), concluding that Florida had failed to show that Georgia’s water use had caused the collapse of Florida’s oyster fisheries. Accordingly, the Court dismissed the case and upheld the decision of the Special Master.
This case originates from a dispute between Florida and Georgia over the use of water from interstate rivers in the Apalachicola-Chattahoochee-Flint River Basin (“ACF Basin”). The Basin spans more than 20,000 square miles over Georgia, Florida, and Alabama. Three rivers feed into the basin – the Apalachicola River, the Chattahoochee River, and the Flint River. Georgia, the upstream state, relies on water from the ACF Basin for both municipal water supplies, as well as agriculture and irrigation. Florida relies on water from the ACF Basin to support its oyster fisheries and a wide range of river and plant wildlife. Various factors impact river flows within the ACF Basin from drought to activity from upstream states.
This action was originally brought by Florida in 2013, following a regional drought. According to Florida, over consumption of ACF Basin waters by Georgia caused low flows in the Apalachicola River which caused serious damage to Florida’s oyster fisheries and river ecosystem. Florida asked the court to issue an order requiring Georgia to reduce its consumption of water from the ACT Basin.
The Court appointed a Special Master to consider the case who concluded that Florida’s claim should be dismissed. Because the Court disagreed with that analysis, the case was remanded back to the Special Master to make definitive findings and recommendations on several issues, including whether Florida had proved its injury was caused by Georgia, and whether reducing Georgia’s water consumption would increase water flow into Florida’s fisheries. Following briefing and oral argument, the Special Master concluded that Florida had failed to show that Georgia had caused serious harm to Florida’s fisheries, and that therefore the case should be dismissed. Florida asked the Supreme Court to review that decision.
For additional background on this case and the underlying legal issues, click here.
In disputing the Special Master’s decision, Florida asked the Supreme Court to make an equitable apportionment of water in the ACF Basin. Equitable apportionment is a flexible doctrine that calls for a fair distribution of water between disputing states over existing water rights. In other words, an equitable apportionment occurs when the Supreme Court makes an allocation of interstate waters between or among states. Equitable apportionments vary from case-to-case depending on the facts of each dispute. Generally, when a state asks the Supreme Court to make an equitable apportionment, it “must bear a burden that is much greater than the burden ordinarily shouldered by a private party seeking an injunction.” Essentially, a state seeking an equitable apportionment has an extremely high burden to prove to the Court that an apportionment is necessary.
In this case, Florida had to prove two things to obtain an equitable apportionment: first, that Georigia’s upstream water consumption caused either a threatened or actual injury “of serious magnitude”; and second, that the benefits of an apportionment would substantially outweigh the harm that might result. Because the Court concluded that Florida had failed to show that Georgia’s consumption of water in the ACF Basin had caused Florida’s injury, the issue of whether granting an equitable apportionment would outweigh any resulting harm was not considered.
In 2012, the oyster population in the Apalachicola Bay collapsed, resulting in the decline of Florida’s oyster fisheries. Florida argued that Georgia’s alleged over consumption of water was the cause of the collapse. Specifically, Florida argued that Georgia’s unreasonable agricultural water consumer caused low flows in the Apalachicola River which caused higher salinity in the Apalachicola Bay, ultimately collapsing the oyster population.
In response, Georgia argued that Florida’s own mismanagement of its oyster fisheries caused the fisheries to decline. According to Georgia, Florida caused the collapse by overharvesting oysters and failing to replace harvested oyster shells to serve as habitat for young oysters. Additionally, Georgia argued that even if low flows contributed to the harm, the low flows were a result of climate change, not upstream consumption.
Ultimately, the Supreme Court dismissed the case because Florida failed to show that Georgia’s consumption of water was the cause of the harm to Florida’s oyster fisheries. The evidence showed that Florida permitted “unprecedented” levels of oyster harvesting in 2011 and 2021. The evidence also revealed that Florida had failed to replace harvested oyster shells while also harvesting oysters at a record pace. Additionally, while Florida maintained that increased salinity was the cause of the fishery collapse, it failed to show that Georgia was the cause of the increased salinity. Because Florida failed to prove that Georgia’s consumption of water was the cause of harm to Florida’s oyster fisheries, the Supreme Court dismissed the case without issuing an equitable apportionment.
The immediate result of the Supreme Court’s decision in State of Fla. v. State of Georgia is that water users in Georgia who rely on the ACF Basin will not face a reduction in water availability as a result of an equitable apportionment. For agricultural producers in Georgia, this is especially a positive outcome. Going forward, any state seeking an equitable apportionment of interstate waters from the Supreme Court will need to meet the high burden of showing that the upstream state has caused the complaining state’s injuries.
To read the Supreme Court’s decision in State of Fla. v. State of Georgia, click here.
For more National Agricultural Law Center resources on water law, click here.