Supreme Court Weighs in on Florida-Georgia Water Fight
The U.S. Supreme Court issued a unanimous decision on a long-standing dispute between Florida and Georgia over shares of the Apalachicola River. Justice Amy Coney Barrett wrote the decision.
In the decision, Justice Barrett noted that since the drought of 2012, the oyster population in Florida’s Apalachicola Bay had collapsed. The court suggested that rather than point fingers at Georgia, Florida should reflect on its own behaviors that contributed to the oysters’ demise. Justice Barrett wrote that “Florida’s mismanagement of its oyster fisheries” was a significant factor.
According to Georgia Attorney General Chris Carr, the decision “affirmed what we have long known to be true: Georgia’s water use has been fair and reasonable. We will continue to be good stewards of our water resources, and we are proud to have obtained a positive resolution to this yearslong dispute on behalf of all Georgians.”
The Florida attorney general’s office, on the other hand, called the decision “Disappointing. We remain committed to supporting [the state Department of Environmental Protection] in protecting Apalachicola Bay and the jobs that this important resource supports.”
History
Florida filed this case in 2013, insisting that the Supreme Court make an “equitable apportionment” of the Apalachicola-Chattahoochee-Flint River Basin. That’s about 20,000 square miles in Georgia, Florida, and Alabama where the rivers that make up the basin’s name flow.
Florida’s argument was that Georgia took too much water for agriculture, making the Apalachicola Bay saltier. The saltier water attracted predators and disease, which then decimated the oyster population. Georgia’s response: Florida overfished the bay and failed to replace harvested oyster shells, which would have acted as “housing” for the next generation of oysters, clams, mussels and scallops.
Last year the Florida Fish and Wildlife Conservation Commission shut down harvesting through the end of 2025 because of the shrinking oyster population.
Procedure
The Supreme Court is empowered to try lawsuits between states. But typically, and as they did in this case, they assign the dispute to a “special master,” an outside lawyer, for fact-finding and recommendations.
More History
The special master spent 18 months in discovery, then held a five-week trial. These actions didn’t produce much information. He concluded that even if Georgia had taken too much water from the Apalachicola, the Supreme Court would be unable to provide a remedy because the group that operates the reservoirs, the Army Corps of Engineers, wasn’t named to the case.
Unsatisfied, the Supreme Court called for additional proceedings before a new special master in 2018 (the prior special master had retired.) Three years later, the case was on the Supreme Court’s docket for argument in February.
The Franklin County Seafood Workers Association, a trade association that no longer exists, filed an amicus brief in April of 2020. They requested that the Supreme Court rule in favor of Florida. Shannon Hartsfield, president of that group, said, “We’ve been dealing with a nightmare pretty much and absolutely, it’s continuing. We could have an industry. It won’t be like it was before…but that’s not gonna happen the way the river is being managed.”
Oral Arguments
Craig Primis, Georgia’s lawyer, admitted that “the oysters do occur naturally in Apalachicola Bay,” but also said, “they have got be managed and the resource has to be cared for by humans.”
Florida’s lawyer, Gregory Garre, said, “It’s hard to imagine New England without lobsters or, say, the Chesapeake without crabs, but, in effect, that’s a future that Apalachicola now faces when it comes to its oysters and other species.”
The Decision
“Florida failed to prove by clear and convincing evidence that Georgia’s alleged overconsumption caused serious harm to Florida’s oyster fisheries or its river wildlife and plant life,” the decision said. Justice Barrett noted that Florida had, for the past several years, authorized unprecedented numbers of harvests because of “fear—ultimately unrealized—that the Deepwater Horizon oil spill would contaminate its oyster fisheries.”
Justice Barrett wrote, “Considering the record as a whole, Florida has not shown that it is ‘highly probable’ that Georgia’s alleged overconsumption played more than a trivial role in the collapse of Florida’s oyster fisheries.”
Admitting that the reason for the oyster disaster is unknown, the decision said, “Of course, the precise causes of the Bay’s oyster collapse remain a subject of ongoing scientific debate. As judges, we lack the expertise to settle that debate and do not purport to do so here.”
The decision continued, “The record also shows that Florida failed to adequately reshell its oyster bars.” Despite expert recommendations that Florida reshell 200 acres every year, in the decade before the oyster crisis, Florida reshelled only 180 acres in total.
The Aftermath
Georgia Governor Brian Kemp issued a statement saying, “The Supreme Court’s unanimous decision is a resounding victory for Georgia and a vindication of years-long efforts by multiple governors and attorneys general here in the Peach State to protect our citizens’ water rights. Our state will continue to wisely manage water resources and prioritize conservation, while also protecting Georgia’s economy and access to water.”
CEO of the Florida Wildlife Federation, Preston Robertson, said, “The Apalachicola River and Bay were once a renowned natural resource with the bay producing approximately 10% of the oysters consumed in the nation. That oyster fishery is now so depleted, it is illegal to harvest there. Water flow is the major cause of the demise of the oysters and the jobs that went along with them. Georgia’s consumption of this water has had drastic and highly negative downstream impacts.”
Georgia Ackerman of Apalachicola Riverkeepers was disappointed with the decision. She said, “The justices offered no resolution for the equitable sharing of the water of the Apalachicola-Chattahoochee river system. River flow is the lifeblood of the swamps, streams, and estuary of the Apalachicola River and Bay ecosystem. Upstream water management and flow regulation have failed to address downstream realities.
“Fundamental changes in water management and flow regulation policies, along with strong water conservation programs throughout the Apalachicola-Chattahoochee-Flint basin are urgently needed. This includes drought planning. The water of the ACF basin can and must be shared fairly.”
Although Florida didn’t get the result it was hoping for, the court threw them a bone, saying, “We emphasize that Georgia has an obligation to make reasonable use of Basin waters in order to help conserve that increasingly scarce resource.”
The Florida Department of Environmental Protection said in a statement that Florida “will be evaluating all available options to ensure Georgia fulfills this obligation.”
Sounds like the war isn’t over.
