The United States Supreme Court issued a unanimous decision on April 1, 2021, ending a water dispute between Florida and Georgia.
Florida filed an original suit against Georgia in 2013 claiming that Georgia consumes more than its fair share of water from the Apalachicola-Chattahoochee-Flint River Basin (“ACF”). The basin consists of three rivers: the Flint, the Chattahoochee, and the Apalachicola. Both the Flint and Chattahoochee Rivers start in Georgia and empty into Lake Seminole, which sits on the Florida/Georgia border. Both are critical water sources for Georgia, with the Chattahoochee serving as the primary water source for Atlanta and the Flint supplying agricultural irrigation in southwestern Georgia. The Apalachicola starts at the Southern end of Lake Seminole and flows through the Florida Panhandle, emptying into the Apalachicola Bay. The Apalachicola supports a wide variety of wildlife and plant life in the Florida Panhandle, and its supply of freshwater is important for the Bay’s oyster habitat, which is a cornerstone of the regional economy. Over the years, low flows in the Apalachicola have become increasingly common during the summer and fall.
Disputes among Florida and Georgia regarding the water of the ACF have been ongoing for decades. The Supreme Court has held that both Florida and Georgia possess an equal right to make “a reasonable use” of these waters. The parties disagree on what constitutes a reasonable use. In its lawsuit, Florida essentially claimed that Georgia consumes more than its fair share, which in turn causes economic and ecological damage to the Apalachicola, causing damage to the oyster fisheries and river ecosystem in Florida. Florida sought a Court order to require Georgia to reduce its consumption of ACF water.
Special Master Recommendations
Initially, the Court referred the case to Special Master Ralph Lancaster, Jr., who conducted discovery and a 5-week trial. Lancaster issued a report recommending that Florida be denied relief. In reviewing the Special Master’s recommendation, the Supreme Court found that he imposed too strict of a standard when considering redressability and failed to make key findings on certain issues. Thus, the Court remanded the case back to Lancaster. Shortly thereafter, he retired.
Then, the case was sent to a second Special Master, Paul Kelly. Kelly accepted supplemental briefing and held an oral argument before issuing his report, also recommending that Florida’s case be dismissed. [Read Second Special Master Report here.] Relevant to the Supreme Court opinion, Kelly concluded that Florida failed to prove by clear and convincing evidence that Georgia caused serious harm to the Florida oyster fisheries or the wildlife and plant life in the river.
Florida filed objections to Kelly’s Second Special Master Report. It is these objections at issue before the United States Supreme Court.
Justice Barrett wrote the unanimous opinion for the Court. [Read full opinion here.]
Although the US Supreme Court has original jurisdiction over disputes regarding the equitable apportionment of interstate streams, it is an extremely high burden on a complaining state in order to obtain an equitable apportionment decree in this type of case. To succeed, Florida must prove two elements: (1) a threatened or actual injury of serious magnitude is caused by Georgia’s upstream water consumption; and (2) the benefits of apportionment substantially outweigh the harm that might result. Because both Florida and Georgia are riparian states, the law provides that both states have an “equal right to make a reasonable use” of the ACF waters.
Justice Barrett notes that the only issues that need be addressed to resolve the case are injury and causation. Florida claimed two distinct injuries caused by Georgia’s overconsumption of water: (1) the collapse of Florida oyster fisheries; and (2) harm to its river ecosystem. It is required to prove injury by clear and convincing evidence, meaning that it must convince the fact finder that its factual contentions are “highly probable.”
The parties agreed that the 2012 collapse of the oyster population in the Apalachicola Bay, which resulted in commercial oyster sales plummeting, constitutes an injury of serious magnitude. They dispute, however, what caused the collapse. Florida claims it was Georgia’s unreasonable agricultural water use consumption that resulted in sustained low flows in the Apalachicola river, which increased the Bay’s salinity, which attracted saltwater oyster predators and disease, thereby destroying the freshwater oyster population. Georgia claims that damage was caused by Florida’s mismanagement of its oyster fisheries by overharvesting oysters and failing to replace harvested oyster shells. Further, Georgia argues, to the extent that low flows did contribute to the collapse, they were caused by climatic changes and other factors, rather than Georgia’s upstream consumption of water.
Justice Barrett noted that the Court is not equipped to settle scientific debate about the cause of the collapse, but instead to review the evidence to determine if Florida carried its high burden of proof. The Justices held it did not for multiple reasons. First, Florida’s own evidence showed it did allow unprecedented levels of oyster harvesting from the Bay in 2011 and 2012 prior to the collapse. The state loosened certain harvesting restrictions, a management practice which one Florida witness admitted “bent Florida’s fisheries until they broke.” Second, the record shows that Florida did fail to reshell it waters. Basically, this is a practice of replacing harvested oyster shells with empty shells that can serve as a habitat for young oysters. Witnesses testified that in addition to harvesting at a record pace, Florida was reshelling at a historically low rate in the years prior to the collapse. Third, Georgia’s expert witness testified that oyster density at heavily harvested oyster bars dropped by 78%, but that in the areas where there was not heavy harvesting or there was reshelling, the density actually increased 3-13%. Further, he testified negligible differences between the salinity among these various bars, thereby suggesting that salinity levels did not explain the variance in density.
Florida did not rebut these findings, but instead continued to argue that overconsumption in Georgia was the sole cause of the collapse. Their experts, however, testified otherwise. First, one of Florida’s ecology experts testified that by reducing Georgia’s consumption by the amount requested, oyster biomass would have increased by less than 1.5%. However, Florida did not explain why this minor fluctuation would have avoided the collapse. They argued that larger effects would have been seen had there been more increased stream flow, but offered no evidence on how much larger the effects would have been and the experts did not model this. Second, two of Florida’s expert contradicted each other. One testified that salinity reductions of greater than 10 parts per thousand would be required to reduce predators, while another testified that the salinity throughout the bay would have been reduced substantially less than 10 parts per thousand even if Georgia had eliminated all water consumption. Finally, while Florida offered some evidence that increased salinity caused the collapse, it failed to offer evidence that it was Georgia’s overconsumption that caused the increased salinity. No witnesses or reports point to Georgia’s overconsumption as a significant cause of the high salinity and predation. In fact, the NOAA blamed prolonged drought conditions and actions by the US Army Corps of Engineers for elevated salinity levels in the Bay.
Based on this, Florida failed to show that it is “highly probable” that Georgia’s overconsumption played more than a trivial role in the collapse of the oyster fisheries.
Florida also argued that Georgia’s overconsumption has harmed river wildlife and plant life by disconnecting tributaries, swamps, and sloughs from the Apalachicola River. Both the Special Master and the Supreme Court found “a complete lack of evidence” that any river species suffered serious injury due to Georgia’s over consumption.
Florida relied on species harm metrics developed by their ecology expert, Dr. Allan. He established minimum river-flow requirements necessary for certain species of fish, mussels, and trees to avoid significant harm during dry months. He sought to quantify the harm by showing the number of days in which river flows fell below the requirements. What he failed to do, however, was show that the harm metrics would translate into real-world harm to these species. He offered no data showing the population of any river species declined in recent years. Additionally, other evidence “casts significant doubt” on his metrics. For example, US Fish and Wildlife data shows that the population of one species of mussel analyzed by Dr. Allan was actually stable or increased in size. Without evidence of actual past or threatened harm to the species, Florida did not show it highly probably that the species have suffered serious injury, much less that such injury was caused by Georgia’s overconsumption of water.
Thus, Justice Barrett concluded that Florida’s case should be dismissed as it failed to meet its burden of proof. She did note, however, that “Georgia has an obligation to make reasonable use of Basin waters in order to help conserve that increasingly scarce resource.”