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.

Georgia pre-filed direct testimony of 16 witnesses, including public officials and many experts, and Florida pre-filed the testimony of 14 witnesses with a similar pedigree.  The case is proceeding in Maine Bankruptcy Court due to the unavailability of a suitable courtroom in Washington, D.C., and the trial may continue for as long as two months. Historically, Florida has focused on the actions of the U.S. Army Corps of Engineers (“the Corps”) that manages five impoundments along the Chattahoochee River with most of the storage located in the northernmost reservoir, Lake Sidney Lanier.  In pre-trial briefing by Florida however, the state shifted its focus from metropolitan Atlanta growth and targeted in large part the unregulated Flint River, and agricultural business activities in the southwestern areas of Georgia.  This apparent strategic shift follows arguments by Georgia that the Corps is an indispensable party to the litigation given its impoundments; an argument that went Florida’s way in early briefing but which the Special Master authorized to be heard on its merits at trial.  Georgia argues that conservation efforts throughout the state, including metropolitan Atlanta, show good stewardship of the water resources originating in Georgia, that most of the population and businesses served by those resources are resident in Georgia, that natural climate conditions have contributed to any decrease in downstream water, that endangered species along the river courses are not adversely affected,  and finally that Florida’s own actions contribute to any harms in the region.

Lest we forget, despite the focus on the Florida v. Georgia litigation, this water dispute has been termed the tri-state water wars for a reason.  Although Alabama is not active in the litigation between the two states, it remains interested in not only the ACF basin but also the Alabama-Coosa-Tallapoosa (“ACT”) river basin.  Alabama has been working legislatively in both houses of Congress through pending legislation in the form of the Water Resource Development Act of 2016 (S. 2848, Sec. 1010; H.R. 5303, Sec. 111) to limit the Corps’ authority to re-authorize reservoirs for water supply under the Water Supply Act of 1958 for both the ACF and ACT basins.

A final irony would seem to be the initiation of this litigation on Halloween.  Special Master Ralph Lancaster has implored the parties on multiple occasions to pursue resolution of the controversy saying that one or the other, and perhaps both, may be unhappy with the result.  It remains to be seen in the final analysis who may have suffered the trick, and who may have earned the treat.

For more information or questions regarding this case, please contact William Droze.