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2/14/2017
Source: Law360
 

Special Master Deals Fla. Loss In Water Fight With Ga.

A U.S. Supreme Court-appointed special master dealt Florida a loss Tuesday in its fight with Georgia over use of water from the Apalachicola-Chattahoochee-Flint River Basin when he recommended that the court deny Florida's request to cap its neighbor's water usage.

After a lengthy bench trial late last year, special master Ralph Lancaster Jr. of Pierce Atwood LLP concluded that the court cannot give Florida the relief it wants without adding the U.S. Army Corps of Engineers as a party to the suit. The Corps operate five dams on the Chattahoochee River and cannot be party to the litigation because of sovereign immunity.

"Because the Corps is not a party, no decree entered by this court can mandate any change in the Corps' operations in the basin," Lancaster said. "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."

Georgia had previously tried to get the suit tossed on this basis, but Lancaster had dismissed that motion, saying that though the U.S.' interests were also at stake because of the five dams operated by the Corps, the suit could continue with just the two states as parties because the Supreme Court could determine a remedy, if suitable, that would cap Georgia's water usage rather than set minimum flow requirements for water coming into Florida.

Lancaster presided over a weekslong trial in Maine that began last October and continued into December. Florida's suit, filed in October 2014, claims that Georgia's "unchecked and growing" water consumption is depleting the flow into Apalachicola Bay, damaging fisheries and threatening northwest Florida's economic future. The suit ratcheted up the decadeslong water wars that have pitted Florida and Alabama against Georgia.

In its initial filings, Florida said that it has exhausted all other reasonable means of arresting Georgia's use of water upstream, including formal and informal discussions and court-sponsored mediation. The state wants the Supreme Court to cap Georgia's water usage to its level on Jan. 3, 1992, when the three states signed a memorandum of agreement to study and resolve the matter.

Florida claims that reduced water levels and resulting increased salinity in Apalachicola Bay have greatly damaged the oyster population and pose threats to mussels and other species.

On Tuesday, Georgia Attorney General Chris Carr tweeted his approval of the report.

"The state of Georgia put forth a tremendous effort in this case, and we are pleased with the special master's report," Carr said.

Florida Attorney General Pam Bondi could not immediately be reached for comment.

Florida is represented by Pamela Jo Bondi, Amit Agarwal, Jonathan L. Williams and Jonathan Glogau of the Office of the Attorney General, Frederick L. Aschauer Jr. of the Florida Department of Environmental Protection, Gregory G. Garre, Philip J. Perry, Jamie L. Wine, Claudia M. O'Brien, Abid R. Qureshi and Paul N. Singarella of Latham & Watkins LLP, Christopher M. Kise, James A. McKee and Adam C. Losey of Foley & Lardner LLP and Matthew Z. Leopold of Carlton Fields.

Georgia is represented by Christopher M. Carr and Sarah H. Warren of the Office of the Attorney General, W. Ryan Teague of the Office of the Governor and Craig S. Primis, K. Winn Allen and Devora W. Allon of Kirkland & Ellis LLP.

The case is State of Florida v. State of Georgia, case number 142, in the Supreme Court of the United States.

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