Florida and Georgia have been fighting for decades about flows in the Apalachicola, Chattahoochee and Flint River Basin (ACF Basin) that provide drinking water for the City of Atlanta, as well as water for agriculture in southwest Georgia and fisheries in Apalachicola Bay in Florida.

Most recently, Florida filed a lawsuit against Georgia at the U.S. Supreme Court in which it sought equitable apportionment of waters in the ACF Basin. The case was assigned to a Special Master1, and the Florida complaint was docketed by the Special Master in 2014. Florida v. Georgia, No. 142 Orig. (Nov. 3, 2014). This alert discusses the decision of the Special Master and the significance of his recommendation (the Report).

Background 

The ACF Basin drains more than 19,500 square miles in parts of Georgia, Alabama and Florida, and includes numerous dams, reservoirs and associated works. According to the Report, the U.S. Army Corps of Engineers (the Corps) operates key components of this rather complicated system and utilizes various operating protocols that could affect the freshwater flows into Apalachicola Bay (the Bay). These flows can affect the viability of oyster and other shellfish populations in the Bay.

One of the reservoirs in the ACF system is Lake Lanier, at the upper end of the Chattahoochee River. Approximately 65 percent of the Corps' usable storage is in this reservoir, which is a principal source of public water supply for the City of Atlanta. Florida has contended that withdrawals from the ACF system, including Lake Lanier, significantly affect the volume of flows available in the Apalachicola River for release into the Bay. Freshwater inflows affect the salinity gradients in the Bay, which in turn supports the fishery. Florida sought to have strict limits imposed on water use from the ACF Basin, which would limit withdrawals by the City of Atlanta.

Special Master's Report

The Report, issued on Feb. 14, 2017, includes a detailed discussion of the ACF Basin and its hydrology, as well as the implications of the Corps operating protocols. The Special Master found that the Corps is supposed to operate its dams as a unified whole to achieve multiple objectives, including navigation, hydroelectric power generation, national defense, recreation, and industrial and municipal water supply. Furthermore, "the Corps is also supposed to operate its system of dams and reservoirs in a manner that complies with various other federal statutory objectives, such as conservation of fish and wildlife, water quality, and protection of threatened or endangered fish and wildlife." In essence, "the Corps retains extensive discretion in the operation of [the] federal reservoirs. As a result, the Corps can release (or not release) water largely as it sees fit subject to certain minimum requirements ..."

The Report addresses legal criteria for assessing the evidence. The Special Master concluded that Florida, as the aggrieved state, must prove "real and substantial" injury from Georgia's conduct by "clear and convincing evidence."

The Special Master summarized his decision:

In sum, the Report recommends that the Court deny Florida's request for relief because the Corps is not a party to this original jurisdiction proceeding. Because the Corps is not a party, no decree entered by this Court can mandate any change in the Corps' operations in the Basin. Without the ability to bind the Corps, I am not persuaded that the Court can assure Florida the relief it seeks. I conclude that Florida has not proven by clear and convincing evidence that its injury can be redressed by an order equitably apportioning the waters of the Basin.

At the heart of the water litigation concerning the ACF Basin is a deeply rooted conflict between Florida and Georgia regarding allocation of available water and the priority to be given to any of the recognized uses. Although the Special Master urged the parties to settle, his efforts were unsuccessful. Thus, the litigation will proceed to decision by the Supreme Court.