On June 27, 2018, the Supreme Court of the United States issued a decision on the dispute over the apportionment of the Apalachicola-Chattahoochee-Flint River basin (ACF Basin).  The Court ruled in Florida’s favor on Wednesday when it rejected the Special Master’s recommendation to dismiss the case.  The Special Master had concluded in his report that Florida had failed to provide sufficient proof that capping Georgia’s water consumption would improve water flow into the Apalachicola River and relieve Florida’s drought conditions.

The ACF Basin consists of three rivers that run through Georgia and Florida.  The Chattahoochee River and Flint River flow into Lake Seminole, where the waters mix and become the Apalachicola River.  The Apalachicola River then flows through the Florida panhandle and empties into the Apalachicola Bay in Florida.  Disagreements over the apportionment of the ACF Basin have persisted for decades in the region and reached a tipping point after the collapse of Florida’s oyster fishery in 2012 during drought.  In 2013, Florida sought leave to file a complaint in the Supreme Court for an equitable apportionment of the ACF Basin.  Florida requested injunctive relief against Georgia, claiming that that Georgia’s “depletive water uses” reduced flow into the Apalachicola Bay, thereby changing the salinity of the Bay and resulting in the collapse of Florida’s oyster fishery.  The Court agreed to exercise its original jurisdiction and hear the case, and appointed a special master in 2014 to conduct further proceedings.

Notably, the United States did not waive its sovereign immunity to participate in the case.  The United States Army Corps of Engineers (Corps) manages multiple dams and reservoirs on the Chattahoochee River and is charged with operating such projects to achieve several competing objectives, such as power generation, national defense, recreation, and industrial and municipal water supply.  There are no dams on the Flint River.  The Corps also operates the dam at the southern end of Lake Seminole, which releases water into the Apalachicola River.  In 2015, Georgia filed a motion to dismiss for Florida’s failure to include the United States as a required party, given the Corps’ role in the ACF Basin.  The Special Master dismissed Georgia’s motion, concluding that it “might be possible” for Florida to prove by clear and convincing evidence that capping Georgia’s water consumption could afford Florida adequate relief without the involvement of the United States.

After 18 months of discovery and lengthy evidentiary hearings, in 2017, the Special Master issued a report concluding that Florida had failed to meet its burden of proof that its injury could be redressed by a decree from the Court.  Without the Corps’ involvement in the case, the Special Master determined, Florida could not receive the relief it requested.

The Supreme Court disagreed in a 5-4 decision.  The majority held that the Special Master applied too strict a standard in concluding that Florida failed to meet its burden.  Instead, the Court determined that the flexible, and not-so-formulaic, doctrine of equitable apportionment applies to interstate water disputes, and the clear and convincing evidence standard is not applicable to the threshold question of whether the Court would be able to issue an appropriate remedy.  “Rather,” the Court concluded, “the complaining State should have to show that, applying the principles of ‘flexibility’ and ‘approximation,’ it is likely to prove possible to fashion [an equitable decree].”  Under this standard, Florida made a legally sufficient showing that a consumption cap on the Flint River would result in more flow into the Apalachicola River, and that additional water would redress some of the harm that Florida has suffered.

The Supreme Court remanded the case to the Special Master to address legal and evidentiary questions outlined in the Court’s decision.  Additional findings, the Court reasoned, would resolve the necessary question of whether Florida can prove that the benefits of apportionment substantially outweigh the harm that might result.

For additional information on this case, please contact Michelle Chester at mchester@somachlaw.com.

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