Somewhat like a soccer game, time on the dispute between Florida and Georgia over the waters of the Apalachicola Chattahoochee Flint (ACF) basin seems to be kept on the field. It is difficult to know from the stands exactly where the game stands notwithstanding the score.  But the report issued by Special Master Hon. Paul J. Kelly, Jr. on December 11, 2019, plainly tipped the balance in Georgia’s favor when Special Master Kelly stated that he did not recommend that “the Supreme Court grant Florida’s request for a decree equitably apportioning the waters of the ACF Basin because the evidence has not shown harm to Florida caused by Georgia; the evidence has shown that Georgia’s water use is reasonable; and the evidence has not shown that the benefits of apportionment would substantially outweigh the potential harms.”  Rep’t of Sp. Mast. at 81.

Special Master Kelly’s decision followed remand by the United States Supreme Court in an opinion authored by Justice Breyer on June 27, 2018.  Florida v. Georgia, No. 142, Orig., 585 U.S. ___ (2018).  In that opinion, the Court reviewed objections lodged by Florida to a prior special master report issued by Special Master Ralph Lancaster.  The earlier report followed a trial that spanned October 31, 2016 to December 1, 2016.  Special Master Lancaster assumed in his report that Florida could show harms but that even so, Florida had not demonstrated clear and convincing evidence that its proposed remedy would prove beneficial or workable in light of the U.S. Army Corps of Engineers’ operations in the basin.  The Court took issue with those findings, determining that a more in-depth factual review of the record was required.

The Court noted that the Master assumed Florida has suffered harm as a result of decreased water flow into the Apalachicola River; that Florida had shown that Georgia, contrary to equitable principles, had taken too much water from the Flint River; and that Georgia’s inequitable use of the water injured Florida. In directing the remand, the Court said further findings were needed on all of these evidentiary issues and that Florida would be entitled to a decree only if it showed that “the benefits of the [apportionment] substantially outweigh the harm that might result,” citing Colorado v. New Mexico, 459 U. S. 176, 187, and that on remand, before fashioning a remedy, the Special Master must address several evidentiary questions that were assumed or found plausible by Special Master Lancaster.

Judge Kelly, of the Tenth U.S. Circuit Court of Appeals, was appointed to hear the remand.  After receiving additional briefs, and taking oral argument on November 11, 2019, his 81-page report issued December 11, 2019 appears to answer the evidentiary questions posed by the Court in its 2018 opinion.  And like before, Florida came out on the wrong side of the issues.  To be sure, it is unlikely that Florida will accept the ruling and may lodge objections again with the Court once it acknowledges receipt and sets a schedule for them.  However, overcoming the comprehensive and thoughtful evidentiary review of a circuit court judge sets a high bar.  To be sure, the ruling offers some comfort for continued growth for Metro Atlanta, but perhaps even more so to agribusiness in Southwest Georgia that was the primary target of Florida in its most recent attacks upon the uses along the Flint River component of the basin.  Georgia adopted many conservation measures in the years leading up to the Supreme Court action and those measures appear to be working.  Stay tuned.

Questions regarding this post may be directed to William Droze.