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The Special Master in the long-running dispute between Florida and Georgia over the apportionment of the Apalachicola-Chattahoochee-Flint River Basin (ACF Basin) issued a report to the U.S. Supreme Court last week that is favorable to Georgia.  The Special Master, Senior U.S. Circuit Court of Appeals Judge Paul J. Kelly, concluded that Florida had not shown harm to Florida caused by Georgia, Georgia’s use is not unreasonable, and the benefits of equitable apportionment would not substantially outweigh the potential harms.  Accordingly, the Special Master recommended that the Court deny Florida’s request for a decree equitably apportioning the waters of the ACF Basin.

Disputes between Florida and Georgia over the ACF Basin have endured for decades, but the pending lawsuit was filed by Florida against Georgia in 2013.  The matter came before Special Master Kelly on remand from the Supreme Court, as instructed in its June 27, 2018 decision.  The majority in the Court’s 2018 decision found that the former Special Master applied too strict a standard in concluding that Florida failed to meet its burden for its request for relief, and so remanded with instructions to make further factual findings.  For additional information on the Supreme Court’s 2018 decision, please refer to the Somach, Simmons & Dunn Alert “Supreme Court Rules in Florida’s Favor and Rejects Special Master’s Recommendation in Florida-Georgia Water Dispute.”

On remand, newly-appointed Special Master Kelly found that Florida’s oyster fisheries suffered harm, but to the extent that low flows played a role in the oyster population decline, Florida’s mismanagement and drought were a more significant cause than Georgia’s consumptive use.  Special Master Kelly noted that Florida and Georgia have an equal right to make reasonable use of water in the ACF Basin under the doctrine of reasonable use and the Supreme Court’s equitable apportionment precedents.  Moreover, although Georgia’s use of water from the ACF Basin has increased since the 1970s, Special Master Kelly found that such use was not unreasonable or inequitable.  Special Master Kelly further concluded that the United States Army Corps of Engineers’ reservoir operations on the Chattahoochee River would prevent any decreed streamflow increases from reaching Florida to alleviate the alleged harms, and ultimately recommended that the Supreme Court deny Florida’s request for an apportionment.  Special Master Kelly’s report will go to the U.S. Supreme Court, which will make a final decision in the case.  Special Master Kelly’s report is available here.

For further information on this topic, please contact Michelle Chester at mchester@somachlaw.com.

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