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Florida in bad spot arguing feds don’t play role in water dispute, law prof says

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A legal dispute in the U.S. Supreme Court between Florida and Georgia over water can proceed without the involvement of the federal government that operates dams on the Chattahoochee and Apalachicola Rivers, federal officials say.

That argument highlights how the water dispute between the states has changed. And if the argument holds true, then Florida is in a bad position for arguing its case before the U.S. Supreme Court, said Robin Kundis Craig, a University of Utah water law professor.

Alabama, Florida and Georgia have been fighting in federal court since 1990 over water from the Apalachicola, Chattahoochee and Flint rivers. Those cases have focused on how the Corps controlled reservoirs and the amount of water flowing through dams and whether Georgia was permitted under federal law to take water from those federal reservoirs.

But the dispute took a dramatic change in direction in 2013 when Gov. Rick Scott blamed Georgia for using too much water and asked the U.S. Supreme Court to step in.

Florida said Georgia’s water use was harming fish and wildlife along the Apalachicola River and caused Apalachicola Bay’s oyster population to collapse. Alabama and the federal government were largely excluded from the case.

And Georgia responded in court that Florida’s own mismanagement allowed oysters to be over-harvested and caused the collapse, although University of Florida scientists disagree.

And now Georgia is arguing that the case cannot proceed because the federal government is a “required party” that was excluded from the case by Florida’s lawsuit. The U.S. Army Corps of Engineers operates a series of dams along the Chattahoochee River as well as the Jim Woodruff Dam along the state line where the Apalachicola River begins.

Responding in a brief filed last week, the U.S. solicitor general says the case can proceed and that the court can divide water among the states without involving federal agencies.

Florida now is seeking to cap Georgia’s water use, the solicitor general said, rather than address how the corps is operating its reservoirs, which has been the focus of litigation back to a 1990 lawsuit filed by Alabama and Georgia against the Corps of Engineers.

“The complaint indicates that Florida believes that it can be made whole without any action by the corps to implement a decree if Georgia reduces its (water) consumption,” the federal response said.

Craig, who specializes in water law and Supreme Court equitable apportionment cases, said she hasn’t done the research to evaluate the veracity of Georgia’s claim that the federal government cannot be involved because it has not waived its sovereign immunity. And she said if Georgia is right, then dismissing the case would be a major development in the law dealing with water disputes before the Supreme Court.

And if Florida is right, the state will be stuck with arguing for a resolution that does not involve how the federal dams on the rivers are managed.

“If they (Georgia) are right about that then that’s why Florida is being put in the position they are being put in,” Craig said. “It is a bad position to be put in given the realities of the (federal operation of the river) system,” Craig said.

Bruce Ritchie (@bruceritchie) covers environment, energy and growth management in Tallahassee. 

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