After years of battling between Florida and Georgia, the U.S. Supreme Court on Monday said it will consider a lawsuit about increasing the amount of freshwater flowing into Northwest Florida's Apalachicola Bay.
The decision was at least an initial victory for Florida and for Franklin County residents, who argue that the area's economically vital oyster industry has been damaged by Georgia siphoning too much water upstream from a river system that flows to the bay.
With the backing of Gov. Rick Scott, Attorney General Pam Bondi last year asked the U.S. Supreme Court to take up the dispute between the states --- an idea that drew fierce objections from Georgia. Justices on Monday issued a two-sentence order indicating they will proceed with the case, though they gave no indication how they might ultimately rule.
"We are pleased with the United States Supreme Court's decision to grant Florida's motion and to allow the lawsuit against Georgia to move forward,'' Bondi said in a prepared statement. "Georgia has delayed long enough, and this lawsuit is essential to protect Florida from the environmental and economic harms caused by Georgia's over-consumption of water."
The dispute, which has involved more than two decades of litigation, focuses on a system of water that flows into the Apalachicola River from the Chattahoochee and Flint rivers in Georgia. Ultimately, the water flows downstream to Apalachicola Bay on the Gulf of Mexico.
Florida has long contended that Georgia takes too much water from the Chattahoochee to meet the demands of the Atlanta area. In the middle of the fight is the U.S. Army Corps of Engineers, which controls flows and has relied on a 2011 ruling from a federal appeals court that said Georgia has a legal right to water from Lake Lanier, at the top of the river system.
In the lawsuit filed with the Supreme Court, Florida asked for what it described as an "equitable apportionment" of water from the river system. Filing the case in the U.S. Supreme Court is a somewhat-unusual process that can be used in disputes between states.
"Florida has exhausted all other reasonable means to arrest Georgia's unchecked use of water and halt the continuing degradation of the Apalachicola region,'' the lawsuit said. "Florida now, of necessity, invokes the court’s original jurisdiction seeking an appropriate apportionment to redress existing harm and to avert additional harmful depletions caused by uses in Georgia. There is no other forum in which Florida may vindicate its interests and obtain the requisite relief against Georgia."
But Georgia argued in legal briefs that the Supreme Court should not move forward with the case, saying the lawsuit is "at best premature."
"The allegations and materials relied upon by Florida fall far short of indicating imminent and substantial harm to Florida’s sovereign rights," Georgia said in a brief filed in January. "Florida mischaracterizes its own evidence about Georgia's consumption of water and wildly overstates the effect of that consumption on flow at the state line and any harm that might result from any slightly reduced flow. And Florida fails to acknowledge that most of its alleged harms have been extensively evaluated and rejected by expert federal agencies."
The oyster industry is a major economic driver in the Franklin County area and has been hard hit during the past couple of years by factors such as drought and reduced flows of freshwater. Oysters have traditionally thrived in the bay because of a mixture of saltwater and freshwater.
As a sign of the severity of the problems, the area has been declared a fishery-resource disaster by the federal government since August 2013. In a prepared statement Monday after the Supreme Court order, Scott said Florida officials are "fighting for the future of this region."
"For 20 years, Florida has tried to work with Georgia, and families have continued to see their fisheries suffer from the lack of water," Scott said "The Supreme Court takes up so few cases, and their willingness to hear Florida's demonstrates the merits of our case before the court."
Justices early this year asked U.S. Solicitor General Donald Verrilli to file a brief about the federal government's position on the lawsuit. Verrilli argued in a September brief that that Supreme Court should deny Florida's request to move forward with the case, pointing to the ongoing process of the Army Corps updating what is known as a "master water control manual" for the river system.
As an alternative, however, Verrilli, wrote that the Supreme Court could grant Florida's request to take up the matter but issue a stay or tailor the legal process until the Army Corps has issued its revised manual. The manual is expected to be complete in September 2015, according to Verrilli's filing, with final implementation and approval slated for March 2017.
The Supreme Court order Monday did not provide details about how it would proceed, other than to give Georgia 30 days to file an answer to the complaint.
The fight with Georgia has become a political rallying point in Northwest Florida, particularly in a hard-fought campaign between U.S. Rep. Steve Southerland, R-Fla., and Democratic challenger Gwen Graham. They are running Tuesday in Congressional District 2, which includes the Apalachicola Bay area.
Graham said Monday that after the solicitor general issued his recommendation to delay the case, she wrote to the justices urging them to take it up "immediately, because of the urgency of this issue that the oystermen and women and the heritage of North Florida and the economy of Franklin County (don't) have time to wait for a lengthy Supreme Court case matter to work its way through the system."
Southerland recalled that he'd been with Scott when the governor announced the filing of the lawsuit, immediately following a U.S. Senate field hearing in Apalachicola in August 2013.
"And I've been in support of this action from the very beginning," Southerland said. "It is a big day for people that are affected by the ACF (Apalachicola-Chattahoochee-Flint) and the flow of water down the Apalachicola River, and so we're thrilled about this action and this announcement today."
