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 federal jurisdiction for waterways and wetlands. Set for review is the U.S. Circuit Court of Appeals for the Sixth Circuit’s decision to hear legal challenges over the rule in lieu of district courts who are considered to be a potentially more favorable venue. Multiple state, industry and farm groups have challenged the joint U.S. EPA-Army Corps of Engineers’ rule. In February, the Sixth Circuit ruled 2-1 that it had jurisdiction to hear the challenges rather than the district courts. A nationwide stay of the rule accompanied the Circuit’s ruling pending the resolution of the litigation. The National Association of Manufacturers, along with 31 states, petitioned the Supreme Court to reconsider the Sixth Circuit’s jurisdictional decision.
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.