The US Supreme Court heard oral arguments Monday for the second time in Florida v. Georgia, a case about water rights between the two neighboring states. The case involves concerns about water flow in the Apalachicola-Chattahoochee-Flint River Basin (ACF Basin), a delta that flows into the Gulf of Mexico from Florida. After hearing Monday’s argument, the Supreme Court is expected to rule on whether Georgia will be required to curb its own water use to allow more water to flow into Florida.
As it involves a legal dispute between two states, the Supreme Court has original jurisdiction over the case. Oral arguments were first heard by the court in 2018, when Florida argued that apportionment of waters flowing into its state from Georgia was necessary to alleviate issues arising from inadequate water supply. In an opinion written by Justice Breyer, the court held that the Special Master appointed to the case incorrectly required Florida to meet a “clear and convincing” standard of proof. Ruling that the standard was too strict, the court asserted that “a complaining state should not have to prove with specificity the details of a workable decree; rather, it need only to show that its possible to fashion such a decree.” The case was remanded for further review of evidentiary matters.
The second Special Master of the case, Judge Paul Kelly, did not expressly overrule the prior “clear and convincing” standard. In his December 2019 brief, he stated that Georgia should not be forced to curb water use because Florida could not prove by a “preponderance of the evidence” standard that Florida’s benefit would outweigh Georgia’s harm. The Chattahoochee River, which flows through Georgia into the ATF Basin, is the major supplier of water for the greater Atlanta area. The Flint River is used for irrigation purposes in the state.
In its argument, Florida relies heavily on the findings of the first Special Master of the case, Ralph Lancaster, who found that Florida did suffer harms from the decreased water flow, including negative effects on oyster fisheries. Florida also leans on Lancaster’s findings that Georgia’s “unrestrained consumption [of water] was unreasonable.” Georgia argues that the oyster fisheries’ decline was not caused by its own use of water but by natural disasters and “mismanagement” by Florida. Additionally, Georgia posits that its water use is entirely reasonable, especially considering its population size and agricultural use of the water.
Arguing for Florida before the court on Monday, Attorney Gregory Garre stated: “under the decree Florida is requesting, all farmers could continue—to grow their crops. A decree would simply require them to prevent outright waste and adopt more efficient measures to save water while still irrigating. That’s hardly asking too much.”
Attorney Craig Primis, arguing for Georgia, replied:
Florida’s petition should be denied for a very basic reason. Simply put, Florida failed to prove its case. On this record, after a five-week trial, Florida has not shown by clear and convincing evidence that Georgia caused Florida’s alleged harms. And Florida also failed to show that the benefits of the decree it seeks substantially outweighs the harm it might cause. Florida’s oyster allegations prove the point. Florida failed to demonstrate that Georgia’s water use caused the oyster collapse. Instead, the record shows that Florida allowed oyster fishing at unprecedented levels in the years preceding the collapse. As one Florida official said at the time, they beat their oyster fishery until it broke.
Several amicus briefs were filed in the case, including one by the Acting US Solicitor General, which was offered in support of Georgia.
