The U.S. Supreme Court on Monday plunged back into a years-long water battle between Florida and Georgia, at times sounding skeptical of arguments that more water should be directed to Florida in a river system shared by the states.
The fight is rooted in a collapse of the iconic oyster industry in Apalachicola Bay at the southern end of the Apalachicola-Chattahoochee-Flint river system, which starts in northern Georgia. Florida contends that Georgia farmers use too much water to irrigate crops, causing downstream damage to the Apalachicola River and the Franklin County bay.
But during an hour-long hearing Monday, justices pointed to conflicting evidence about whether Georgia鈥檚 water use is responsible for damage in the bay and questions about how to balance the interests of the states.
Chief Justice John Roberts asked Florida鈥檚 attorney, Gregory Garre, how the court should view the case if the record shows that 鈥淕eorgia contributed to the collapse of the oyster harvest, but not enough to cause that on its own.鈥� Roberts suggested that 鈥渁 lot of things took a stab at the fishery,鈥� including drought, overharvesting of oysters and Florida鈥檚 regulatory policies.
鈥淏ut you can鈥檛 say that any one of those things is responsible for killing the fishery,鈥� Roberts said. 鈥淗ow should we analyze the case from that perspective?鈥�
Justice Stephen Breyer and Justice Samuel Alito asked about conflicting evidence and conflicting reports by two special masters who were appointed by the Supreme Court to make recommendations about the case.
Georgia has argued that the oyster industry sustained damage because of overharvesting after the 2010 Deepwater Horizon disaster sent oil spreading through the Gulf of Mexico.
Breyer said to Garre that one big hurdle for Florida is testimony from experts 鈥渢hat there was overharvesting of the oysters, and that was the major cause. That鈥檚 your basic problem.鈥�
But Garre said water used in Georgia for irrigation has 鈥渟kyrocketed,鈥� causing damage in Florida, including increased salinity of water in the bay. Garre said Florida is not arguing that water use in the metropolitan Atlanta area has caused the problems.
鈥淗ere you have overwhelming evidence of harm,鈥� Garre said. 鈥淵ou have overwhelming evidence of what鈥檚 causing that harm.鈥�
Craig Primis, an attorney for Georgia, contended that Florida has not proven that Georgia caused the problems in the bay and described overharvesting as a 鈥渟elf-inflicted wound.鈥�
鈥淔lorida failed to demonstrate that Georgia鈥檚 water use caused the oyster collapse,鈥� Primis said. 鈥淚nstead, the record shows that Florida allowed oyster fishing at unprecedented levels in the years preceding the collapse.鈥�
Florida filed the lawsuit in 2013, though battles about water in the river system date to the 1990s. Florida is seeking what is known as an 鈥渆quitable apportionment鈥� of water, which could lead to new limits on water used by Georgia farmers.
Monday鈥檚 hearing came after Special Master Paul Kelly, a New Mexico-based appellate judge, in December 2019 issued an 81-page report that said mismanagement by Florida contributed to the oyster industry鈥檚 collapse and that Florida had not adequately shown that Georgia鈥檚 water use caused problems in the bay and Apalachicola River.
Kelly was appointed special master after a divided Supreme Court overturned a 2017 recommendation by another special master, Ralph Lancaster, who said Florida had not proven its case 鈥渂y clear and convincing evidence鈥� that imposing a cap on Georgia鈥檚 water use would benefit the Apalachicola River.
Writing for a 5-4 majority in 2018, Breyer said Lancaster had 鈥渁pplied too strict a standard鈥� in rejecting Florida鈥檚 claim.
During Monday鈥檚 hearing, Alito alluded to the complexity of the details involved in the case.
鈥淭his is about the most fact-bound case that we have heard in recent memory,鈥� Alito said to Garre. 鈥淎nd we have two comprehensive reports by two outstanding masters and they are not, to put the point perhaps mildly, not entirely consistent on a number of key points. What do we do with that?鈥�
Breyer, at one point, asked whether the states had ever tried to settle the case --- though he acknowledged the question was 鈥渋rrelevant.鈥�
鈥淭his has been going on for years, and Florida thinks that it wouldn鈥檛 cost Georgia much to remedy the situation,鈥� Breyer said. 鈥淢aybe Georgia has a different view. But has anybody ever tried to work out that Florida would pay something to Georgia to solve the problem?鈥�
Amid the court battle, the Florida Fish and Wildlife Conservation Commission in December suspended wild oyster harvesting in the bay as part of a $20 million restoration effort.
While Primis argued during Monday鈥檚 hearing that Florida鈥檚 request in the lawsuit would cause economic damage for Georgia farmers, Garre cited the importance of the oyster industry in the Apalachicola area.
鈥淚t鈥檚 hard to imagine New England without lobsters or, say, the Chesapeake without crabs, but in effect that鈥檚 the future that Apalachicola now faces when it comes to its oysters and other species,鈥� Garre said.
Copyright 2021 WJCT News 89.9. To see more, visit . 9(MDAyNDY5MjM1MDEyODE2MzMyMTZmZDQwMg001))
