The most recent development in the decades-long water wars between Georgia, Florida, and Alabama occurred today at the Supreme Court.  In a 5-4 decision, Justices Breyer, Roberts, Kennedy, Ginsburg, and Sotomayor overruled the Special Master’s February 14, 2017 decision and remanded the case back to him for further consideration on factual issues.  In his decision, the Special Master dismissed Florida’s claim against Georgia for its consumptive use of water from the ACF River Basin, stating that Florida failed to carry its burden of demonstrating that a limit on Georgia’s water consumption would make any difference to Florida’s economic and ecological harm.

           On remand, the Court ordered the Special Master “address several evidentiary questions” relating to factual determinations of the related withdrawals and their economic and ecological effects on the two states in order to determine a remedy.  In order to succeed with its case, the Court held that Florida must prove that “the benefits of [an] apportionment substantially outweigh the harm that might result.”

The Court noted that, when confronted with competing claims to interstate water, the “Court’s effort always is to secure an equitable apportionment without quibbling over formulas.”  The Court added that a fashioned remedy can be flexible, but must consider “all the relevant factors,” including flow characteristics, the extent of established uses, and the effect of uses downstream.  Heading forward, the Special Master must consider these factors referenced by the Court.

In the dissent’s opinion, Justices Thomas, Alito, Kagan, and Gorsuch expressed their approval of the Special Master’s decision, especially given his extensive factual review regarding the economic and ecological harms of the water withdraw.

If you have any questions regarding this case or its implications, please contact William Droze, Doug Henderson, or Rich Pepper.