The U.S. Supreme Court handed Florida a partial victory Wednesday in its decades-old water conflict with Georgia, ordering a court-appointed special master to take a fresh look at Florida's claim it has been harmed by water consumption upstream.
Florida had asked the court to cap Georgia's water use in the Apalachicola-Chattahoochee-Flint (ACF) river basin, which starts in the Blue Ridge foothills, feeds burgeoning Atlanta and then meanders into the gulf waters of northern Florida. In a 5-4 decision, the justices said Florida's request had merit, but deferred a final ruling.
That decision will come after a special master appointed by the court takes a new look at evidence that Florida would benefit if Georgia capped its water usage.
"At this stage of the proceeding and in light of these assumptions, Florida made a sufficient showing that the extra water that would result from its proposed consumption cap would both lead to increased streamflow in Florida’s Apalachicola River and significantly redress the economic and ecological harm that Florida has alleged," the court said in its order.
“Today’s ruling is a huge win for the entire state of Florida," Gov. Rick Scott said in response. "After decades of failed negotiations, we took our historic action to protect families all the way to the U.S. Supreme Court. I am glad that the court ruled in Florida’s favor today."
Wednesday's ruling, on the final day of the court's current term, was unexpected and it could have implications for river disputes nationwide. From the Rio Grande in Texas to California and Oregon, states are sparring over water decisions of an upstream neighbor.
In Georgia, Gov. Nathan Deal said he was confident his state would prevail over the "draconian" water caps sought by Florida. "I look forward to continuing to defend our position in this case," Deal said in a statement. "Georgia remains committed to the conservation efforts that make us amicable stewards of our water resources."
Scott, Florida's governor, launched his state's latest litigation against Georgia in 2013, after a record-low level of water flowed into the Apalachicola Bay, hammering Florida's oyster industry. The lawsuit alleged that Georgia's water consumption had made the bay saltier, causing a collapse in oyster production and damaging north Florida's economy.
In 2017, a special master appointed by the Supreme Court reviewed the arguments of both states and recommended that the court rule against Florida.
The special master, Maine lawyer Ralph Lancaster Jr., concluded that reduced flows into Apalachicola Bay had indeed harmed Florida's oyster industry. But he also concluded that a cap on Georgia's water usage wouldn't necessarily translate into increased flows to Florida, since the U.S. Army Corps of Engineers, which operates five dams and four reservoirs along the Chattahoochee and Flint Rivers, could not be ordered to increase water releases from reservoirs.
“Because the Corps is not a party, no decree entered by this court can mandate any change in the Corps’ operations in the basin,” Lancaster wrote. “Without the ability to bind the Corps, I am not persuaded that the court can assure Florida the relief it seeks.”
On Wednesday, a divided court decided that Lancaster had applied "too strict a standard when he determined that the Court would not be able to fashion an appropriate equitable decree."
In an unusual lineup, the decision was written by Justice Stephen G. Breyer, joined by Chief Justice John G. Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, and Sonia Sotomayor. Dissenting were Justices Clarence Thomas, Samuel Alito Jr., Elena Kagan and Neil Gorsuch.
Over the last five years, Florida has spent more than $57 million on this case alone, and Georgia has spent $40 million fighting it. Lawyers stand to make millions more if the battle continues. Conservation groups in both states hope the ruling will prompt the region's governors to go back to the bargaining table, in search of a water sharing agreement.
"A lot of stakeholders in the basin are weary about continued litigation," said Ben Emanuel, a Georgia-based director of American Rivers, a national conservation group. "Unfortunately, a lot more litigation and expense is what this decision tees up."
Scientists say there's little doubt that urban growth has reduced the water flowing through the river basin and into the Apalachicola Bay. Since 1980, metro Atlanta's population has more than doubled, to 5.6 million people, increasing consumption of water for businesses, lawns, yards, golf courses and swimming pools.
The Apalachicola-Chattahoochee-Flint river basin covers 20,227 square miles of three states.
U.S. Geological Survey, 2016.
But rising population is just one strain on the system. In recent decades, farmers in southwest Georgia have increasingly relied on irrigation water from the basin to grow corn, peanuts and other crops. Irrigation has spiked during droughts, including serious dry periods in 2000 and 2010, adding to the reduction of water flowing to Florida.
In 2012, the saltier water in the Apalachicola River attracted large number of oyster predators, such as crown conchs. Oyster harvests crashed, dropping from roughly 3 million in 2012 to 1 million a year later, and down to 520,000 by 2015.
In filing its lawsuit against Georgia in 2012, Florida did not include the Army Corps of Engineers as a responsible party. The Corps' decisions, based on orders from Congress, determine how much water is released downstream, and at what times.
The exclusion of the Corps made it difficult for Lancaster, the special master, to determine how Georgia alone could assure that extra water made it down to the Florida Panhandle.
If Georgia ultimately loses the case, state officials said it could cost it hundreds of millions of dollars in impacts to farmers, industries, utilities and homeowners. In pre-trial briefs, Florida was seeking as much as 40 percent more water from Georgia during droughts.
But conservationists say Georgia could relatively easily free up more water for the Apalachicola, in part by reducing excess irrigation by farmers, homeowners and others.
Conditions in the watershed are only likely to worsen as population grows, and droughts intensify, scientists warn. In a 2013 report, a trio of federal and state agencies urged Southeastern states to prepare.
"Under future climate change, this basin is likely to experience more severe water supply shortages, more frequent emptying of reservoirs, violation of environmental flow requirements (with possible impacts to fisheries at the mouth of the Apalachicola), less energy generation, and more competition for remaining water," the report stated.
Stuart Leavenworth: 202-383-6070, @sleavenworth
The Miami Herald's Elizabeth Koh and Mary Ellen Klas contributed to this report.