On July 14, 2017, three environmental groups (Environmental Integrity Project, Sierra Club, and Earth Justice) petitioned the Court of Appeals for the D.C. Circuit for a full review of its May decision that the EPA properly withheld testing data in response to a Freedom of Information Act (“FOIA”) request. The petition for rehearing en banc asks that the full Court of Appeals for the D.C. Circuit reconsider the environmental groups’ arguments as opposed to the three judge panel that originally heard the case.
In a seventy page opinion, Special Master Ralph Lancaster issued his recommendation to the Supreme Court today concluding that Florida had not met its burden of demonstrating by clear and convincing evidence that Georgia should be burdened with a consumption cap on its water use. Key to the Special Master’s ruling was a finding that because the U.S. Army Corps of Engineers would not be controlled by any decree of Court, a consumption cap remedy would be ineffectual. The Apalachicola-Chattahoochee-Flint (ACF) river basin is composed of two major forks, the Apalachicola-Chattahoochee fork that is highly regulated by the Corps in terms of streamflows, and the Flint fork for which there is little to no regulation.
Applying Chevron deference, the U.S. Court of Appeals for the Second Circuit on January 18, 2017, reversed the Southern District of New York by a 2-1 margin and concluded that the United States Environmental Protection Agency’s (the “EPA”) Water Transfers Rule that permits transfers between waters of the United States without a National Pollutant Discharge Elimination System (“NPDES”) permit was sound. (Catskill Mountains Chapter of Trout Unlimited, Inc. et al. v. USEPA, et al., U.S. Court of Appeals, Second Circuit, Docket Nos. 14-1823, 14-1909, 14-1991, 14-1997, 14-2003, 2017 U.S. App. LEXIS 914). The controversy stemmed from the transfer of water from the Schoharie Reservoir through the Shandaken Tunnel into the Esopus Creek in New York. Historically, the EPA has taken a hands-off approach to water transfers, choosing not to subject them to the requirements of the NPDES permitting program established by the Clean Water Act (“CWA”) in 1972.
The Supreme Court granted certiorari today in the long running dispute as to whether the federal district courts or appellate courts have jurisdiction to decide the viability of the Waters of the U.S. (WOTUS) Rule under the Clean Water Act. The controversial definitional section proposed for the CWA would expand federal jurisdiction for waterways and wetlands. Set for review is the U.S. Circuit Court of Appeals for the Sixth Circuit’s decision to hear legal challenges over the rule in lieu of district courts who are considered to be a potentially more favorable venue. Multiple state, industry and farm groups have challenged the joint U.S. EPA-Army Corps of Engineers’ rule. In February, the Sixth Circuit ruled 2-1 that it had jurisdiction to hear the challenges rather than the district courts. A nationwide stay of the rule accompanied the Circuit’s ruling pending the resolution of the litigation. The National Association of Manufacturers, along with 31 states, petitioned the Supreme Court to reconsider the Sixth Circuit’s jurisdictional decision.
Georgia and Florida filed post-trial briefs in the Florida v. Georgia U.S. Supreme Court litigation on December 15, 2016. The same day, the United States filed a brief at the request of Special Master Ralph Lancaster addressing what impact, if any, additional flows along the Flint River might have with regard to the operations of the U.S. Army Corps of Engineers in the ACF River Basin. The United States declined to take a position on whether the consumption cap arguments by Florida were persuasive and limited its brief to the topic of any prejudice to the Corps utilizing existing and anticipated operations plans. Georgia and Florida supplemented the record on December 29, 2016, with responses to the parties’ previously filed post-trial briefs.
The U.S. Army Corps of Engineers (USACE) released the Apalachicola-Chattahoochee-Flint (ACF) River Basin Water Control Manual and draft Environmental Impact Statement (EIS) for state and agency review on December 7, 2016. The U.S. Environmental Protection Agency will publish the final EIS on Dec. 16, 2016. The review period will end on Jan. 14, 2017.
The cast party following the wrap of the month long trial between Florida and Georgia known as the water wars may not be the social event of the season for the participants who exited the case largely as they entered it: in opposite corners. A decision on the water turf dispute now rests with United States Supreme Court Special Master Ralph Lancaster who suggested a recommended ruling might be issued prior to Christmas. In closing remarks to the case, tried in Portland, Maine, Lancaster admonished the parties, “I can guarantee you that at least one of you is going to be unhappy with my recommendation — and perhaps both of you,” in once again advocating for a negotiated resolution. Absent such a resolution however, Lancaster’s recommendation will go to the Supreme Court for further action. The parties have an opportunity to file briefs which challenge the Master’s findings and conclusions, and the Court determines whether to accept the views of the Master or hear oral argument about an unsolved issue.
One of the storied college football rivalries is the annual gridiron battle of teams of the University of Georgia and University of Florida. Last weekend’s football battle, held at the Jacksonville site where the Tri-State Water Wars between Florida, Alabama, and Georgia were heard in Multi-District Litigation five years ago, ironically tipped off the Supreme Court litigation between Florida and Georgia that commenced on October 31. Special Master Ralph Lancaster, sitting by designation of the Supreme Court of the United States, heard opening remarks in the three year old case of Florida v. Georgia, Supreme Court Docket No. 142, which is proceeding under the original jurisdiction of the Court. At issue is Florida’s assertion that it should be granted a consumption cap for its upstream neighbor in the Apalachicola-Chattahoochee-Flint (“ACF”) basin based upon a claim of a substantial injury predicated on a variety of theories. Florida ceded away any claim of delivery of a specific amount of water at the state line earlier in the litigation. To prevail, Florida must demonstrate by clear and convincing evidence a substantial injury that is redressable by the Court.
The tri-state water wars continue to divide the Southeast as litigation moves forward. In Georgia, two river basins supply water to metropolitan Atlanta—the Apalachicola-Chattahoochee-Flint (ACF) River Basin which flows through Georgia, Florida, and Alabama and the Alabama-Coosa-Tallapoosa (ACT) River Basin which runs through Georgia and Alabama. Litigation is pending over water allocation for both the ACF and the ACT basins. Continue Reading Special Master Appointed in Florida v. Georgia “Water Wars” and New ACT Lawsuits
The tri-state water wars between Georgia, Florida, and Alabama are far from over. In fact, they have now been escalated. On October 1, Florida filed a complaint in the United States Supreme Court requesting that the Court equitably apportion the waters of the Apalachicola-Chattahoochee-Flint (“ACF”) River Basin between Florida and Georgia. Florida argues that Georgia has permitted withdrawals of both surface and groundwater that are allegedly adversely impacting the Apalachicola Region’s ecosystem and economy. Florida cites declines in its fisheries and in particular claims that reduced flows impact oyster fisheries. As support for its complaint, Florida alleges impacts to ecosystems, threatened and endangered species, recreation and Florida’s economy. Georgia has yet to respond, but the state will likely raise issues related to conservation measures implemented by Georgia, Florida’s abandonment of its appeal of endangered species consultations between the U.S. Army Corps of Engineers and U.S. Fish and Wildlife Service, Florida’s own over-fishing of the oyster fisheries, and salinity issues created by Florida’s insistence upon Sikes Cut, a navigation channel through St. George Island. Continue Reading Florida v. Georgia – The Buck Stops Here