The judge recommended in December that justices dismiss Florida’s suit. Instead, the court decided to hear the case for a second time.
Florida alleges that Georgia farmers upstream along the Flint River used too much of its water for irrigation during a 2012 drought, tanking the Apalachicola Bay’s once-flourishing oyster industry. It asked the court to impose strict new consumption limits on Georgia.
Apalachicola once supplied 90% of Florida’s oysters and 10% of the country’s oysters before the industry collapsed in 2013. The mollusks require a delicate mixture of freshwater from the Apalachicola River and saltwater from the Gulf of Mexico to survive. Florida said Georgia’s overconsumption of riverwater led to an overly saline Bay, which created thriving conditions for oysters' natural predators.
Florida has since approved an oyster harvesting ban to help the Bay’s population recover.
Georgia argues that its water usage has been reasonable and blamed Florida for allowing overharvesting of oysters. It said Florida’s proposed caps on water usage would be “draconian” and that equitably apportioning water is impossible because of the complicated way the U.S. Army Corps of Engineers runs the basin’s locks and dams.
In December, the court-appointed judge, who is based in New Mexico, sided with Georgia, concluding the state was a responsible water steward and that equitable apportionment wasn’t achievable without involvement from the Corps. The federal agency is not a party to the case.
“The evidence has not shown that the benefits of apportionment would substantially outweigh the potential harms,” Judge Paul Kelly wrote in his recommendation to the court.
The Apalachicola-Chattahoochee-Flint river basin originates near Lake Lanier, cuts southwest and flows along the Alabama border into the Panhandle. It serves as the main source of drinking water to more than 4 million people, including roughly 70% of metro Atlanta, and irrigates farmland in southwest Georgia, a cornerstone of the state’s $13.8 billion agriculture industry.
The case’s first expert judge, who died in 2019, implored Georgia, Florida and Alabama for years to strike an accord to prevent an expensive and potentially unfavorable court decision. The states' governors met several times but failed to reach such an agreement. So far, Georgia has spent roughly $50 million in taxpayer money defending itself.
Kelly’s recent recommendation has Georgia’s lawyers feeling optimistic about what’s to come. Florida must prove that the benefits of any legal remedy outweigh the costs to Georgia.
But recent changes at the Supreme Court inject a bit of uncertainty into how justices might approach the suit a second time.
Two of the justices who opted to reexamine the case, Ruth Bader Ginsburg and Anthony Kennedy, are no longer on the court. Ginsburg died last month, and Kennedy retired in summer 2018.