Water rights dispute between Florida and Georgia will get new hearing

As legal costs continue to mount, attorneys for Florida and Georgia will present the latest round of oral arguments in their long legal dispute over fresh water rights.

Senior Judge Paul J. Kelly Jr., a justice on the U. S. Court of Appeals for the Tenth Circuit, will hear each side present their case in Albuquerque, New Mexico on Thursday. Kelly was appointed as the second special master in the case on Aug. 9, 2018, succeeding Maine attorney Ralph Lancaster.

Attorneys will address Florida’s claim that Georgia’s consumption of water from the Apalachicola-Chattahoochee-Flint River Basin is responsible for increased salinity levels that have starved oyster fishery beds in northwest Florida’s Apalachicola Bay.

The litigation, filed in 2013 by former Florida Gov. Rick Scott who is now a U.S. senator, has been costly for the two Republican-led states.

Georgia has spent about $47.5 million on legal fees and related expenses, Katie Byrd, spokeswoman for Georgia Attorney General Chris Carr, told The Bond Buyer Monday.

“Some fees associated [with the suit] are with the company that hosts the litigation records, some are associated with travel, and the majority are fees spent on outside legal counsel,” Carr said.

Florida officials didn’t respond to three emails requesting current information on how much the state has paid for legal costs since filing the lawsuit. In January 2017, the Tampa Bay Times reported that Florida’s costs at the time amounted to $98 million.

Within days of taking office Jan. 8, Florida Gov. Ron DeSantis instructed state agencies to continue exploring options “to stop Georgia’s harmful upstream water use from causing further adverse impacts to the Apalachicola River and Bay,” a move that included continuing the litigation Scott filed against Georgia.

Thursday’s hearing will be the second go-around for arguments in the case before a special counsel, because of a ruling by the U.S. Supreme Court in June 2018.

In a 5-4 decision, justices said the evidence led them to conclude that Florida had met its initial burden in the case, with respect to a remedy, that extra water flowing from Georgia would “significantly redress the economic and ecological harm that Florida has suffered.”

The court ruled that then special master Ralph Lancaster had applied “too strict a standard” when he said that he didn’t believe that the court could 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, who died in January, had sided with Georgia in his February 2017 report to the Supreme Court in which he said that Florida’s request for relief should be denied in part because the U.S. Army Corps of Engineers was not a defendant in 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.

The Supreme Court remanded the case back to the special master to address whether Florida had shown that its injuries can “effectively be redressed by limiting Georgia’s consumptive use of water,” and later appointed Kelly as special master.

Georgia has hired Washington, D.C.-based Kirkland & Ellis LLP to argue its position that Florida “has not proven by clear and convincing evidence” that placing a consumption cap on Georgia’s water withdrawals will ameliorate the problems Florida contends exist, according to court documents.

In a February filing, Kirkland said that Florida was seeking two forms of relief – a yearly cap on Georgia’s consumption of water at existing levels and a cap on withdrawals that would “purportedly” increase water flows to the state.

“Florida’s draconian measures, which would impose hundreds of millions, if not billions, in costs on Georgia, are hardly reasonable,” the filing said. A cap on consumption “would outweigh the speculative and de minimis benefits Florida might receive from a cap.”

Georgia’s consumption of the waters has been “unreasonable, wasteful, and inefficient,” said Florida’s attorneys, Latham & Watkins. “Florida has suffered an invasion of rights of a serious magnitude, in the form of devastating harm to the ecosystems of the Apalachicola River and Bay.

“A decree capping Georgia’s consumption would produce benefits in Florida that would substantially outweigh the harms that might result,” Florida’s attorneys said, adding that Georgia’s cost estimates are “wildly exaggerated” and most likely would range from $8.9 million to $35.2 million per year.

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