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.

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.

Applying Chevron deference, the U.S. Court of Appeals for the Second Circuit on January 18, 2017, reversed the Southern District of New York by a 2-1 margin and concluded that the United States Environmental Protection Agency’s (the “EPA”) Water Transfers Rule that permits transfers between waters of the United States without a National Pollutant Discharge Elimination System (“NPDES”) permit was sound.  (Catskill Mountains Chapter of Trout Unlimited, Inc. et al. v. USEPA, et al., U.S. Court of Appeals, Second Circuit, Docket Nos. 14-1823, 14-1909, 14-1991, 14-1997, 14-2003, 2017 U.S. App. LEXIS 914). The controversy stemmed from the transfer of water from the Schoharie Reservoir through the Shandaken Tunnel into the Esopus Creek in New York.  Historically, the EPA has taken a hands-off approach to water transfers, choosing not to subject them to the requirements of the NPDES permitting program established by the Clean Water Act (“CWA”) in 1972.

The Supreme Court granted certiorari today in the long running dispute as to whether the federal district courts or appellate courts have jurisdiction to decide the viability of the Waters of the U.S. (WOTUS) Rule under the Clean Water Act.  The controversial definitional section proposed for the CWA would expand…

Georgia and Florida filed post-trial briefs in the Florida v. Georgia U.S. Supreme Court litigation on December 15, 2016.  The same day, the United States filed a brief at the request of Special Master Ralph Lancaster addressing what impact, if any, additional flows along the Flint River might have with regard to the operations of the U.S. Army Corps of Engineers in the ACF River Basin.  The United States declined to take a position on whether the consumption cap arguments by Florida were persuasive and limited its brief to the topic of any prejudice to the Corps utilizing existing and anticipated operations plans.  Georgia and Florida supplemented the record on December 29, 2016, with responses to the parties’ previously filed post-trial briefs.