Georgia motion to dismiss water wars suit rejected

Special Master Ralph I. Lancaster ruled that the federal government does not have to be a party to the case, and he also kept Alabama out of the litigation.

Florida sued Georgia in the Supreme Court, asking for the state to restrict its water use to 1992 levels because it claimed the Peach State’s overconsumption was depriving the Apalachicola Bay and its oystermen.

Georgia argued this month in the first open hearing of the case that Florida cannot sue Georgia on its own because the federal government should be part of the case. The feds disagreed, stacking the odds against the motion.

Georgia argued that the best legal remedy for Florida would be guaranteeing a certain amount of water flowing over the state line, which would require the Army Corps of Engineers to be a part of the solution because it runs the dams.

That wasn’t good enough for Lancaster, who wrote in his ruling Friday:

“Georgia has failed to carry its burden because it has provided no evidence — none — supporting its claims.

“To the contrary, the few facts before me at this stage of the proceeding support the conclusion that it is plausible that a minimum flow decree is not the only effective remedy for Florida and that a cap on Georgia’s consumption would afford adequate relief by increasing flows in the Apalachicola River.”

But Lancaster indicated that Georgia’s legal maneuver has narrowed the options for an ultimate ruling by helping cast aside “minimum flow” as an option.

“Florida has also indicated that it intends to pursue the latter (consumption cap) remedy and has disclaimed any intention to seek a decree establishing a minimum flow requirement,” Lancaster wrote. “It may be that Florida has done so to keep its case alive by sidestepping the need to join the United States as a party, but it is allowed to do so. …

“Having voluntarily narrowed its requested relief and shouldered the burden of proving that the requested relief is appropriate, it appears that Florida’s claim will live or die based on whether Florida can show that a consumption cap is justified and will afford adequate relief.”

The discovery phase of the case will continue, though the states continue to talk behind the scenes — at Lancaster’s urging — about a settlement.

Georgia Gov. Nathan Deal met this month with Florida Gov. Rick Scott in Tallahassee to discuss the issue.

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