Georgia and Florida faced tough questions about their water dispute in their hour before U.S. Supreme Court justices on Monday.
Justices grilled attorneys from both sides on the merits of their respective cases, according to the transcripts posted online, trying to tease out a solution to the decades-old water fight over the Apalachicola-Chattahoochee-Flint River Basin.
Georgia especially had its case challenged by justices — an abrupt change from proceedings through the highest court up to this point, during which Georgia’s case had been seen as strong. A court-appointed special master had basically sided with Georgia on the case, saying that Florida had not proved a hard cap on Georgia’s water consumption from the basin would help Florida residents and wildlife.
The special master, Maine attorney Ralph Lancaster, recommended the Supreme Court not grant Florida the hard cap it sought for Georgia — all while criticizing Georgia’s water management practices, agreeing that Florida had a point that the Peach State had not done enough to limit its use of water.
“Can we agree that a cap at the very least would prevent — would prevent the situation in Florida from getting worse?” asked Justice Ruth Bader Ginsburg of Georgia’s attorney, Craig Primis.
“That is, that if we do nothing, then the situation in Florida can get worse, even worse than it is now,” Ginsburg continued. “If there is a cap, then Florida is protected at least to that extent. It won’t get worse. Is that not so?”
Primis disagreed, saying that even in the worst drought years the U.S. Army Corps of Engineers is required to keep a minimum flow traveling into Florida for the benefit of wildlife.
The Army Corps could change the way it regulates water in the basin, but the agency isn’t easily subordinated to court orders because of the way the Army Corps was established by Congress.
Justices appeared to see the absence of the Army Corps — which controls the flow of water along the river system in several key points, one of the largest being the Buford Dam on Lake Lanier — from the litigation as a critical problem with the case. Florida’s suit focuses on Georgia and not the federal government.
The Army Corps regulates water in the basin using a guiding document, the water control manual, that was updated last year.
Leaders of the Chattahoochee Riverkeeper, the nonprofit environmental conservation group dedicated to the river system, also saw the federal agency’s absence from the case as a foundational problem with the case.
“To reach a remedy without the Army Corps of Engineers just seems like it was implausible,” said Chris Manganiello, water policy director for Chattahoochee Riverkeeper. “Instead of sitting on the sidelines, they have to be part of the solution.”
After the arguments on Monday, he told The Times that he was surprised by the extent to which justices questioned Georgia’s case.
“There was a clear desire to find some resolution that fairly apportions the water,” Manganiello said. “The court appeared willing to go beyond what the special master recommended: where the special master recommended dismissing Florida’s case for failure to meet its burden of proof, the justices’ questioning of all attorneys revealed a desire by the court to fashion some sort of resolution that provided relief for Florida and the Apalachicola Bay.”
Manganiello said on Friday that Chattahoochee Riverkeeper believes there’s enough water in the river system to supply both Georgia and Florida.
“It’s just a question of managing the system appropriately,” he said. “That requires the Army Corps of Engineers to go along with a sustainable water management plan.”