Florida gets the edge over Georgia in Supreme Court 'water wars' ruling

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Leaning toward Florida in a dispute with Georgia over fresh water rights, the U.S. Supreme Court Wednesday sent the long-running case back to a special master for further deliberations.

In a 5-4 decision written by Justice Stephen G. Breyer, the court said evidence indicated that extra water flowing from Georgia would “significantly redress the economic and ecological harm that Florida has suffered.”

Chief Justice John G. Roberts Jr., and Justices Ruth Bader Ginsburg, Anthony M. Kennedy, and Sonia Sotomayor joined Breyer's opinion, which said an examination of the record “leads us to conclude that, at this stage, Florida has met its initial burden” with respect to a remedy.

Final judgment in the case, the majority said, will be reserved until the special master addresses whether Florida has shown that its injuries can “effectively be redressed by limiting Georgia’s consumptive use of water” from the Apalachicola-Chattahoochee-Flint River Basin without participation in the case by the U.S. Army Corps of Engineers. Florida did not include the Corps as a defendant.

“Today’s ruling is a huge win for the entire state of Florida,” said Florida Gov. Rick Scott, who initiated the case in 2013 seeking an injunction that he said was necessary to protect water-starved Apalachicola Bay oyster beds in north Florida.

Scott, a Republican who is term limited out of office this year, said he went to the Supreme Court to resolve the nearly the nearly 30-year-old “water wars” dispute between Florida and Georgia. At times, it has also included Alabama because the three states benefit from water flowing from the basin.

“We look forward to further securing a healthy Apalachicola Bay while protecting the thousands of jobs that depend on this natural resource,” Scott said.

The court ruled that Special Master Ralph Lancaster applied “too strict a standard” when he said that the court couldn’t determine how much water would be appropriate for Florida to receive a significant benefit from a cap on Georgia’s use of water from basin.

Lancaster sided with Georgia last year after a trial in which he said that Florida’s request for relief should be denied because the Corps was not a party to the case.

The Corps controls a significant amount of water in Georgia through reservoirs and dams in the basin, which is a major source of water for drinking, marine and agricultural resources in Georgia, Florida and Alabama.

Georgia Gov. Nathan Deal, like Scott a Republican leaving office this year due to term limits, said he is optimistic that the merits of the case ultimately will turn in his state’s favor.

Deal said the state took seriously last year's special master’s opinion, which pointed out deficiencies in the way Georgia has handled agricultural permits for irrigation water.

Georgia lawmakers formed an Agricultural Permitting Compliance Task Force, whose recommendations were used in crafting water metering legislation this year. A monitoring program, implemented with $20 million, has been placed under the state’s Environmental Protection Division, which is a regulatory body.

“Though the court remanded this case back to the special master following a five-week trial, during which the ineffectiveness of draconian caps placed on Georgia’s water use as a solution was demonstrated, I remain confident in the state’s legal position,” Deal said. “I look forward to continuing to defend our position in this case.”

In other cases involving similar water-rights issues, analysts have warned that the ratings of some Georgia communities could be at risk because if court rulings resulted in significant capital costs to develop alternative water supplies.

Combined, Florida and Georgia have spent more than $100 million on the Supreme Court case.

In a dissenting opinion for the minority Wednesday, Justice Clarence Thomas said Florida did not “present clear and convincing evidence” that the state’s proposed cap on water withdrawals would benefit the state more than it would harm Georgia.

Thomas said the special master applied a “balance-of-harms” standard after a trial involving 40 witnesses and more than 2,000 exhibits to determine that Florida had not met its burden.

“Because that finding is well supported by the evidence, I would have overruled Florida’s objections to the special master’s report and denied Florida’s request for relief,” Thomas wrote. “I respectfully dissent.”

Justices Samuel A. Alito Jr., Elena Kagan, and Neil M. Gorsuch joined the dissenting opinion.

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