Florida wants Supreme Court to reject water finding favoring Georgia

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Florida continues to pursue legal action against Georgia over water rights before the U.S. Supreme Court.

In a filing April 13, attorneys for Florida asked the high court to toss out Special Master Judge Paul J. Kelly's recommendation in December, which said that the state should be denied relief.

"Georgia’s unchecked disruption of our shared waters in the Apalachicola River has devastated Florida’s oyster industry," Florida Agriculture Commissioner Nikki Fried said in December.

"This court should hold that Florida is entitled to a decree equitably apportioning the waters at issue and order further proceedings on fashioning such a decree," Florida's attorneys said.

The 65-page filing takes numerous exceptions to Kelly's report, which said that Florida should be denied relief because the state didn’t prove the elements necessary to obtain a decree that would apportion Georgia’s consumption of water from the Apalachicola-Chattahoochee-Flint River Basin.

The filing cited a series of flaws and errors Florida's attorneys said they believe Kelly made, starting with the process he used to oversee the case to his determination that "Georgia would be greatly harmed by a decree."

"Neither Georgia, nor any other state, has the right to consume as much water as it wishes. The Union was built, and has endured, on the commonsense principle that all states have an equal right to the reasonable use of shared resources," Florida's filing concludes. "That is all that Florida asks this court to vindicate here."

Since the late 1980s, Florida and Georgia have been embroiled in a series of legal challenges often referred to as a "water war" over Georgia’s consumption from the Apalachicola-Chattahoochee-Flint River Basin, which is part of a system that allows fresh water to flow south into Florida's Apalachicola Bay where it feeds lucrative oyster beds.

In 2013, former Florida Gov. Rick Scott filed the current complaint against Georgia. Scott, now a U.S. senator, said the litigation was necessary “to stop Georgia’s unchecked and growing consumption of water" because it was threatening oyster beds and commercial fishing in Apalachicola Bay, in Florida's Panhandle region.

Gov. Ron DeSantis allowed the case to continue after he took office in January 2019. He didn't comment on the special master's report.

Since Florida filed the case more than six years ago, the state had spent $63.4 million through October of last year, according to the Department of Environmental Protection, whose attorneys are participating in the case along with other agencies.

Georgia had spent about $47.5 million on legal fees and related expenses as of Nov. 6, according to the Georgia Attorney General's office.

On Monday, Franklin County seafood workers in Florida's panhandle filed a friend-of-the-court brief supporting the state's suit, saying that their interests and livelihoods should also be considered in the case because Georgia's use of upstream water is causing salinity harmful to oysters.

"We’re not saying Georgia should not be able to use the water. We’re just asking that it take only its fair share," the Franklin County Seafood Workers Association's brief said. "A decree equitably apportioning the waters would return flows to the minimum levels under which the bay has historically been productive, while leaving plenty of water for Georgia itself."

The National Audubon Society, Defenders of Wildlife, Florida Wildlife Federation, and Apalachicola Riverkeeper are expected to file their own amicus brief supporting Florida's position by May 4, according to court records.

In December, Special Master Kelly said Florida pointed to harm in the oyster fishery collapse, but he didn't find that Georgia caused that harm by "clear and convincing evidence."

“Although Georgia’s use of the Flint and Chattahoochee Rivers has increased since the 1970s, Georgia’s use is not unreasonable or inequitable," Kelly concluded.

At the time, Florida Agriculture Commissioner Nikki Fried said she was disappointed with the ruling and that state agencies should "continue fighting to hold Georgia accountable for its water use and to explore all legal options.”

"Georgia’s unchecked disruption of our shared waters in the Apalachicola River has devastated Florida’s oyster industry," Fried said.

Like leaders in other states, Florida and Georgia's Republican governors are dealing with the novel coronavirus that causes COVID-19, and formulating plans for reopening their economies.

The Florida Department of Health reported 26,660 cases of the virus on Monday, with 789 deaths. The Georgia Department of Public Health reported 18,947 people had tested positive, while 733 had died.

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