New special master finds for Georgia in most recent round of water dispute

On November 7, 2019, the parties in Florida v. Georgia again presented their arguments over equitable allocation of water between the states after the U.S. Supreme Court remanded the case in June 2018 and appointed a new special master, Judge Paul Kelly Jr. of the U.S. Court of Appeals for the 10th Circuit, in August 2018. In remanding the case, the court set out specific questions for the parties to answer. Kelly asked for additional briefings, then eventually set an oral argument at the request of Florida. The transcript of the November 7, 2019, hearing is available online, as is the overall court docket .

During oral argument, Florida argued that it had met its initial burden of proving substantial injury to the Apalachicola Bay oyster fisheries and should be entitled to relief from Georgia’s water use that would ensure a minimum flow of 1,000 cubic feet per second of freshwater during drought years. Florida highlighted evidence in the record about both drought years and low-flow years, and argued that the benefit Florida would receive outweighed the cost to Georgia of reducing its agricultural water use.

In response, Georgia argued that Florida had failed to prove by “clear and convincing evidence that the benefits of its proposed remedies substantially outweigh the harm that might result.” Georgia argued that Florida’s evidence of Georgia’s water use is incorrect, that it is not possible to achieve the kind of water savings Florida says are possible, and that the U.S. Army Corps of Engineers is not able to deliver the water requested.

During the argument, Kelly noted that “the case has not moved past the stage of my having to determine the findings and conclusions based on the evidence as to each of the elements” and asked about the respective populations affected by the proposed water use.

On December 11, Kelly issued a 96 page report recommending a denial of Florida’s request for a decree allocating water between the states. He declined to decide whether Florida had to meet a standard of clear and convincing evidence, finding that that the preponderance of the evidence supported his conclusions.

Kelly closely reviewed the testimony and evidence for each part of his findings, making pointed analyses of credibility. First, in evaluating the harm to Florida’s oyster fisheries, he concluded that although low flows in the critical year of 2012 “played some role” in the oyster fishery’s collapse, Florida’s “management was a more significant cause of the decline,” and changes in salinity due to lack of freshwater inflow were modest. He also found no harm to other species in the bay or to nearby floodplain species.

Second, Kelly determined that although Georgia’s water use has increased since the 1970s, its use “is not unreasonable or inequitable.” He examined Georgia’s consumptive use, finding Georgia’s estimates more reliable than Florida’s, and concluded that Georgia “consumes a relatively small portion of state-line flows during most periods,” has made “significant progress” in water conservation, and uses water for “important purposes.” He highlighted the relative population and income of Georgia versus Florida, and documented efforts Georgia had made with municipal water conservation. He noted that “[w]hether Georgia’s agricultural consumption during droughts is equitable is a closer question”; although agricultural water use during a drought provides benefits, it also represented 28 percent of state-line flows during the 2012 drought. However, he concluded that such use was not unreasonable “because Florida has not shown that the oyster collapse was caused by Georgia’s consumptive use.” He declined to decide whether a “reasonable change” to the U.S. Army Corps of Engineer’s Master Manual could be made to ensure that water would pass from Georgia to Florida in a drought.

Finally, in examining the overall question of whether the benefit to Florida would outweigh the harm to Georgia under the equitable-apportionment doctrine, Kelly found that “Florida would receive no appreciable benefit from a decree.” He determined that “Florida’s modeling only showed small benefits to the amount of oyster biomass that would result from a decree, and Florida has not shown that the oysters would benefit substantially more than its modeling indicates.” Further, after reviewing the incremental benefits and costs of a variety of proposed conservation measures, he found that credible measures would generate only 801 cubic feet per second during dry years, at a cost to Georgia of over $100 million. He compared these findings to Florida’s fishing industry in the Apalachicola Bay region, with $11.7 million in revenue overall and $6.6 million for the oyster fishery.

At this point, Kelly’s report—a clear win for Georgia at this stage—has been submitted to the Supreme Court. It is not clear when the court may review the report and issue a further decision.