A key brief from the United States has set the United States Supreme Court on a path towards finally resolving the original jurisdiction dispute between Georgia and Florida over the Apalachicola-Chattahoochee-Flint River Basin (“ACF Basin”).  On August 7, 2017, the Trump Administration filed a brief in the United Stated Supreme Court as an Amicus Curiae in the disputed “water wars” case between Georgia and Florida.  Postured where Florida is asking the Court to set aside the ruling of the Special Master who found that it had stated no redressable injury, the government brief sided with the Special Master’s ruling.

The water wars dispute is the water of the ACF Basin, a network of rivers, dams, and reservoirs that begins in northern Georgia and ends in the Florida panhandle.  Georgia and Florida have been disputing the extent of each state’s use of the ACF Basin waters for years but recently, in 2014, the dispute made its way to the United States Supreme Court.   There, Florida argued that overconsumption of waters in Georgia, particularly in connection with agribusiness uses on the Flint River, have led to dangerously low flows of waters into Florida from the ACF Basin and the downfall of the Apalachicola Bay’s oyster fishery.  Florida requested that the Court cap the amount of water Georgia can use to levels that existed in 1992.

Shortly after arriving in the Supreme Court, this case was assigned to a Special Master, who, after extensive discovery, held a five week trial.  Ultimately, the Special Master determined that because the U.S. Army Corps of Engineers controlled a network of dams and reservoirs along the Chattahoochee River, Florida’s requested cap on Georgia’s consumption of water would not ensure that more water reached Florida.  Specifically, the Special Master concluded that Florida failed to prove by clear and convincing evidence that a consumption cap would provide a material benefit to Florida. Therefore, the Special Master concluded that, when applying a clear and convincing evidence standard, Florida’s claims were not redressable by Florida’s requested relief.

Florida took exception to the Special Master’s findings.  In particular, Florida contends that the Special Master erred in concluding that uncertainty about the way that the Corps would operate projects precluded a finding of redressability.  The Trump administration filed an amicus brief earlier this month in opposition to Florida’s exception.  The government argued that the Army Corps’ reaction to a consumption cap would be speculative and uncertain, particularly in drier periods.  The government also noted that even if the Supreme Court capped Georgia’s consumption, it would not bind the Corps to take any particular action.  While the government acknowledged that a cap on Georgia’s use of the ACF Basin would generally benefit the region, it would be speculative to assume that the Army Corps would change their procedures in a way that affected the amount of downstream flow.  Moreover, the government noted that any changes in Corps’ procedures set forth in a recently adopted Water Control Manual would require vetting and compliance with environmental laws.

Several other groups also filed Amicus briefs in this matter earlier this month: the State of Kansas, the State of Colorado, and the Atlanta Regional Commission of DeKalb County, et. al.  In particular, the State of Colorado and the Atlanta Regional Commission agreed that the Special Master used the correct standard of proof.  Colorado also argued that a State has no duty to protect flows for the benefit of a downstream state, absent an interstate compact or equitable apportionment order, which is a nod to arguments Colorado made during its own water disputes with other western states including Wyoming, New Mexico, and Nevada.