In a 65-page brief filed at the Supreme Court on Monday, the state of Florida raised its objections to the findings and recommendations of a Special Master, Paul Kelly, appointed to hear that state’s dispute with Georgia over the use of water in the Apalachicola River. The Special Master had recommended finding for Georgia back in December, but Florida’s Monday brief asks the court to order differently, taking exception to numerous aspects of the Special Master’s analysis. “Given Georgia’s insatiable consumption of the waters at issue,” Florida argued in its brief, “adopting Special Master Kelly’s recommendation would spell doom for the Apalachicola[.]”

Kelly had taken up the case in 2018 after the Supreme Court remanded the findings of an earlier Special Master, Ralph Lancaster. On the crux of the water dispute, Lancaster had found for Florida—it had demonstrated, he said, that Georgia’s water consumption was harming Florida’s use of the river, particularly the oyster fishery at its mouth in Apalachicola Bay. According to Florida’s framing in its Monday brief, all the new Master was meant to do was work out some remaining issues as to how the harm to Florida would be redressed.

In Kelly’s December recommendation, however, he wrote that “[b]ecause the Supreme Court’s
list of questions for remand was not exclusive,” he would also “evaluate Florida’s arguments” anew. Depleting waters in the adjacent Chattahoochee, Flint and Apalachicola Rivers (or ACF basin) has been a source of controversy between the states for years. Kelly ultimately changed the earlier finding about whether Florida had been harmed. The Supreme Court should not “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,” he wrote.

In Monday’s new filing, Florida took issue with the change of course. “Without identifying any evidence not considered by Special Master Lancaster, Special Master Kelly rewrote this case from the ground up. The difference is not one of degree—it is night and day,” Florida argued. The state went on to assert that “Florida has sat by helpless as Georgia’s consumption of water has continued to explode, resulting in historically low flows into the Apalachicola and, ultimately, a historic collapse of the Bay’s iconic oyster fisheries.”

The Supreme Court will thus face an opportunity to take action in the contentious case. The court may either judicially apportion water between the two states or follow Kelly’s recommendation that no decree be issued given his findings that the purported harm, especially in typical rain years, would only see marginal benefits after apportionment, outweighed by its cost. Alternatively, the court may again remand for further adjudication.