Water Wars Update – February 2019

Both States filed their supplemental briefs January 31 with Special Master Paul J. Kelly, Jr., and the arguments are entirely predictable. Florida says Georgia’s overuse of water is destroying Apalachicola oyster fisheries. Georgia says its use of water is reasonable and the damage to Georgia so enormously outweighs any benefit to Florida that Florida’s proposed consumption cap would not be equitable.

In order to provide members as quickly as possible with information about the filings, we are providing short, succinct excerpts from each state’s brief that summarize the positions. We think they accurately encapsulate each state’s argument without delving into the details.

EXCERPTS FROM FLORIDA’S OPENING POST-REMAND SUPPLEMENTAL BRIEF

As Georgia has drastically increased its consumption of upstream waters, especially along the Flint River for agricultural purposes, the amount of water flowing into the Apalachicola has shrunk dramatically. This has had the predictable effect: the Apalachicola has suffered and its oyster fisheries, in particular, have collapsed. The question now is whether Georgia’s wasteful practices should be allowed to continue-and worsen-while the Apalachicola, its natural resources, and the communities that depend on them are decimated.

After a five week trial, Special Master Lancaster had no difficulty concluding that Georgia’s “upstream water use” has been and continues to be “unreasonable,” and that the Apalachicola Region has sustained “real harm” as a result of the decreased flow of water into Florida. Underscoring the inequitable nature of Georgia’s conduct, he also found that “Georgia’s position – practically, politically, and legally-can be summarized as follows: Georgia’s agricultural water use should be subject to no limitations, regardless of the long-term consequences for the Basin.”

Nevertheless, on the novel question of whether the Army Corps of Engineers’

(Corps’) absence from this case prevents the Court from righting this wrong, Special Master Lancaster ultimately concluded that the Court was powerless to enter a decree because there was “no guarantee” that the Corps would not offset its effects. … On that single issue, the Supreme Court concluded, he was mistaken. The Court clarified that “‘[u]ncertainties about the future’ do not ‘provide a basis for declining to fashion a decree.'” Instead, given the importance of “protect[ing] the equitable rights of a State,” the equitable apportionment inquiry must rely on “[a]pproximation and reasonable estimates” to determine what relief is appropriate. Thus, Florida is entitled to relief if, under “reasonable predictions of future conditions, … the benefits of a decree would substantially outweigh its costs.

The evidence overwhelmingly establishes that this balance favors Florida. On the benefits side, a decree capping Georgia’s consumption would significantly increase the flow of water into the Apalachicola and restore the conditions in which the region survived and thrived for centuries. And on the costs side, much of this reduction in consumption could be accomplished simply by halting wasteful irrigation practices and sensibly limiting future irrigation in ways Georgia officials have themselves proposed and other States (including Florida) have long implemented.

EXCERPTS FROM GEORGIA’S SUPPLEMENTAL BRIEF

In remanding this case, a divided Supreme Court was unanimous in one key respect: Florida cannot prevail unless it “prove[s] by clear and convincing evidence that the benefits of an equitable apportionment decree substantially outweigh any harm that might result.” Florida has not met that heavy burden. The potential benefits to Florida from its proposed cap are small and speculative, while the harms to established economies in Georgia are certain and severe.

The record is clear that Florida’s proposed cap would impose enormous costs on Georgia while yielding at most de minimis benefits to Florida. Florida’s own expert estimated that a cap would cost Georgia more than $100 million each year it was implemented…. In truth, the per-implementation costs would range from $335 million to well over a billion dollars, not including the one-time costs that Florida seeks to inflict on Georgia. Those costs dwarf the entire value of, and outweigh any potential benefits to, the Apalachicola Bay oyster industry-the only industry for which Florida offered evidence of specific harm. Even before its 2012 collapse, the oyster industry produced annual revenues of only $5-8 million. And even a draconian cap on Georgia would increase oyster biomass in the Bay by only 1.4% and generate (at most) another $40,000 per year.

Georgia accounts for 92% of the population, 99% of the economic production, and 96% of the employment in the ACF Basin. And Georgia uses ACF waters to support a population of more than 5 million and an economy that generates around $283 billion in Georgia’s Gross Regional Product (“GRP”) each year. Yet Georgia … uses only 2.4% of the water crossing the state line during non-drought years … and 6.1% during dry years. At all times, the vast majority of available water in the ACF Basin flows into Florida.

And even if Flint River flows did increase to some small extent, that extra water would not flow across the state line at the times and in the amounts necessary to redress Florida’s alleged injuries. *** Even if severe cutbacks were imposed on Georgia, the Corps has confirmed that it would not materially increase its releases from Woodruff Dam into Florida during drought operations or extreme low flows, but would instead use that water to refill its upstream reservoirs. *** (G)iven the Corps’ operations and the relatively small amount of water that might be generated by a cap on Georgia, flows across the state line would be roughly the same with or without a cap during the drought conditions that are the exclusive focus of Florida’s case.

Florida has not proven, by clear and convincing evidence or otherwise, that the potential benefits of its requested cap substantially outweigh the resulting harms. The evidence shows just the opposite: “If we contrast the de minimisbenefits that Florida might receive from small amounts of additional water during nondroughts with the massive harms that Georgia would suffer if this Court cut its water use in half during droughts, it is clear who should prevail in this case.”