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.

Summarizing his ruling, the Special Master stated “Florida has failed to show that a consumption cap will afford adequate relief. The testimony and evidence submitted at trial demonstrates that the Corps can likely offset increased streamflow in the Flint River by storing additional water in its reservoirs along the Chattahoochee River during dry periods. The evidence also shows that the Corps retains extensive discretion in the operation of those federal reservoirs. As a result, the Corps can release (or not release) water largely as it sees fit, subject to certain minimum requirements under the RIOP.

There is no guarantee that the Corps will exercise its discretion to release or hold back water at any particular time. Further, Florida has not shown that it would benefit from increased pass-through operations under normal conditions. Finally, without the Corps as a party, the Court cannot order the Corps to take any particular action. Accordingly, Florida has not proven by clear and convincing evidence that any additional streamflow in the Flint River resulting from a decree imposing a consumptive cap on Georgia’s water use would be released from Jim Woodruff Dam into the River at a time that would provide a material benefit to Florida.”  Sp. Mast. Ruling at 69-70 (Feb. 14, 2017).

Early on, Georgia had contested Florida’s complaint asserting that the Corps was an indispensable party to the litigation.  Although the Special Master rejected that early effort to disrupt the proceedings, he indicated that the issue would be carried with the case and that Florida would be ultimately charged with carrying the burden of demonstrating an effectual remedy