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Editorial: A Supreme Court win for Florida in water war with Georgia

 
Published June 28, 2018

Florida scored an important but temporary victory Wednesday with a sensible decision by the U.S. Supreme Court in the state's long-running water war with Georgia. The court's 5-4 opinion sends the case back to a special master, who sided with Georgia last year, and keeps alive the hope that Florida could draw more from an upstream basin near Atlanta that ultimately feeds the fisheries of Apalachicola Bay. The majority found an appropriate role for the court in balancing the interests of both states and the practical benefit for all sides in coming to an agreement.

The court said the hearing master had set the bar too high by finding in his report last year that Florida had failed to provide clear and convincing evidence that capping Georgia's water consumption would improve the flow into the Apalachicola River and into Apalachicola Bay. The states have fought for decades over the lack of water flowing downstream, as Georgia saps the water to serve its farms and Atlanta-area suburbs while in Florida the reduced water flow has devastated the Apalachicola habitat. Over the years, the two states have agreed to compacts to resolve the issue, but those efforts have collapsed. In his report, the master found "there is little question that Florida has suffered harm from decreased flows in the river," accepting that Georgia has taken too much water. But he determined that the court could not fashion a fair and effective remedy.

The Supreme Court rightly put that hand-wringing aside, declaring that both Georgia and Florida have "an equal right to make a reasonable use of the waters." It cited an earlier case noting that "wasteful or inefficient uses will not be protected," and held that states were obligated to take "reasonable steps to conserve and even to augment the natural resources within their borders for the benefit of other states." The majority also recommitted to its practice when confronted with competing state claims of looking for a fair deal "without quibbling over formulas." The court directed the special master to further examine the technical basis behind Florida's complaint, such as the scope of the damage from low water flow and what amount of water it might take to seriously address the problem.

The narrow vote and the resolve of the three justices who joined Justice Clarence Thomas (Samuel Alito, Elena Kagan and Neil Gorsuch) in a blunt dissent — "Giving Florida another bite at the apple will likely yield no additional evidence" — shows that the state still has an uphill fight in asserting its claim. The court majority underscored that point, too, writing that Florida will be entitled to a win only if it can show that the benefits of sharing water outweigh the harm. Still, the court recognized the need to approach the case with "care and thoroughness," and declared that the record "leads us to believe" a deal can be reached. That at least keeps Florida's case alive, and the interests of Apalachicola Bay on the federal radar. If anything, it should prompt Georgia to act as a better neighbor. A political deal between the two states would remove this uncertainty from the courts. But for now, the high court struck the right balance and sent the right message.