On January 8, 2020, the U.S. Senate Environment and Public Works Committee heard testimony from representatives of Wyoming and Maryland in an effort to evaluate the effectiveness of programs under the Clean Water Act (“CWA”) designed to reduce nonpoint source (“NPS”) pollution.

NPS pollution, unlike point source pollution that can typically be traced to an

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.
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On April 26, 2018, a North Carolina jury awarded 10 neighbors $51 million in the first North Carolina hog farming case to be heard before U.S. District Judge W. Earl Britt.  Almost a week later on May 9, 2018, Judge Britt reduced the jury’s award of $23 million in punitive damages to nearly $3 million in punitive damages because of a North Carolina state law that limits punitive damages to $250,000-per-plaintiff.  This was the first case tried of 26 lawsuits brought by 500 neighbors complaining about hog operations in eastern North Carolina against Smithfield Foods, the world’s largest pork producer.

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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.

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On January 8, 2018, the United States Supreme Court heard oral argument on the decision issued by Special Master Ralph Lancaster in the long-running dispute between Florida and Georgia over the fate of water use in the Apalachicola-Chattahoochee-Flint (ACF) Basin.  The Special Master sided with Georgia, less on the merits than for procedural reasons, finding that Florida had failed to meet its burden of showing how Florida’s proposed remedy of a consumption cap on Georgia would be effective to curb alleged excessive water use by Georgia due to control of impoundments on the Chattahoochee River by the U.S. Army Corps of Engineers (“the Corps”), not a party to the suit.

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The United States Supreme Court announced today that it will hear oral argument in the Florida v. Georgia lawsuit on January 8, 2018.  In that case, Florida sought to mandate a statewide water usage cap for Georgia but was held to have failed to establish by clear and convincing evidence that such a remedy would be effective where the U.S. Army Corps of Engineers, a major manager of impoundments along the Chattahoochee River, was not a party to the lawsuit.  The lawsuit represents the most recent battle in the long-running “water wars” among the Southeastern states over the Apalachicola-Flint-Chattahoochee River Basin.

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On November 9, 2017, on the heels of New Jersey’s move to set a maximum contaminant level for certain perfluoroalkyl substances, California’s Office of Environmental Health Hazard Assessment (OEHHA) added perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) to the list of chemicals known to the state of California to cause reproductive toxicity (also known as the Prop 65 list).

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A new chapter opened last week in the perennial water wars between Georgia and Florida.  After briefing by both sides, including amici, relative to whether Special Master Ralph Lancaster correctly decided that Florida had failed to carry its burden in this original jurisdiction action, the Supreme Court in an October 10, 2017 Order granted oral argument in the case to be heard “in due course.”  Presumably, that will yield an argument during the Court’s October Term which usually completes in June or July.  Spokesmen for Georgia and Florida welcomed the opportunity to address the Court on the merits.

The dispute involves the water of the Apalachicola-Chattahoochee-Flint River Basin (“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 at levels that existed in 1992.
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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.
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