Georgia and Florida made their final arguments in a longstanding fight over water flows at the state line in an hourlong appearance Monday, Feb. 22, before the U.S. Supreme Court.
“It’s hard to imagine New England without lobsters or the Chesapeake without crabs, but in effect, that’s the future the Apalachicola now faces when it comes to its oysters and other species,” Florida lawyer Gregory Garre told justices.
The state is seeking an “equitable apportioning” of waters in the Apalachicola-Chattahoochee-Flint River Basin, which includes Lake Lanier in the headwaters, alleging that “overconsumption” by Georgia has led to economic and ecological harm in the Apalachicola Bay in the Gulf of Mexico
Florida particularly is focusing on agricultural uses and irrigation on the Flint River in southwest Georgia.
“Florida has an equal right to the reasonable use of the water at issue,” Garre told justices in a teleconference live streamed by C-SPAN. “If the court accepts the special master’s recommendation, that right will be extinguished and the Apalachicola — not to mention the communities that have fished and depended on it for centuries — will be lost.”
U.S. Circuit Judge Paul J. Kelly, who was appointed by the court to hear from both sides on the issue, recommended in December 2019 that justices not grant Florida’s request for an “equitable apportioning” of waters in the basin.
Georgia’s lawyer, Craig S. Primis, said Florida “has not shown by clear and convincing evidence that Georgia caused Georgia’s alleged harms” in the bay.
“Instead, the record shows that Florida allowed oyster fishing at unprecedented levels in the years preceding the collapse,” he told justices.
Georgia maintained that it accounts for more than 90% of the population, employment and “economic output” in the basin, the state’s total water consumption is 2.4% of “state line” flows in wet years and 6.1% in dry years.
In Monday’s session which lasted about an hour, lawyers for both sides were allowed to give opening and closing remarks, and in between, were peppered with pointed questions and observations from justices.
At one point, Chief Justice John Roberts likened the demise of the oyster industry to the Agatha Christie tale “Murder on the Orient Express.”
“A lot of things took a stab at the fishery — drought, overharvesting, Florida regulatory policies, but also lower salinity that was caused by Georgia’s use of the water,” he said. “But you can’t say that any one of those things is responsible for killing the fishery.”
The court will issue a ruling later.
The battle with Florida is the latest chapter in water litigation also involving Alabama that dates to 1990. The last critical decision was in 2012, when the Supreme Court upheld a lower court’s decision to deny requests by Alabama and Florida to review whether water supply is an authorized purpose of Lake Lanier.
The issue is actually making its second pass through the Supreme Court. Ralph Lancaster, a court-appointed special master before Kelly, offered a recommendation — also siding with Georgia — but justices had additional questions and decided to appoint Kelly to carry on the work.
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