The United States Constitution gives States a unique venue to seek redress for alleged harms brought about by another State. Indeed, in surrendering their sovereign powers to pursue diplomatic resolutions against their sister States, or, worse, make war against them, the States needed some unique venue to seek a remedy. That venue was before the United States Supreme Court in the form of an original action.
Florida v. Georgia – the Beauty of the Apalachicola Bay
In October, 2013, the State of Florida sought leave to file a bill of complaint in the United States Supreme Court, an original action against the State of Georgia, requesting the “equitable apportionment” of the waters flowing in the Apalachicola-Chattahoochee-Flint River Basin (ACF Basin). “Florida alleged that Georgia’s consumption of Flint River water ‘reduce[s] the amount of water flowing to the Apalachicola River at all times,’ and noted that ‘the effects are especially apparent during the low flow summer and fall periods.’” When “the Court is asked to resolve an interstate water dispute raising questions beyond the interpretation of specific language of an interstate compact, the doctrine of equitable apportionment governs [the Court’s] inquiry.”
The ACF Basin is made up of three river basins – the Chattahoochee, Flint and Apalachicola River Basins. The Chattahoochee River begins in northeastern Georgia, flowing south, at times forming the border between Georgia and Alabama. Ultimately, the Chattahoochee River flows into Lake Seminole at the Georgia-Florida state line. The Flint River begins south of Atlanta and flows through agricultural areas in southwest Georgia before it ends at Lake Seminole. Flowing south from Lake Seminole is the Apalachicola River, which ultimately feeds into Apalachicola Bay.
In his report, the Special Master describe the Apalachicola Bay as a “wide, shallow estuary along the Gulf Coast,” and as “one of the largest estuaries in the southeastern United States and … one of the most productive estuaries in the northern hemisphere.” One crop that the Apalachicola Bay has produced over the years is oysters. In that regard, “Apalachicola oysters are widely recognized for their quality and have significant commercial value.” However, in order to maintain the Apalachicola Bay’s health and ability to produce high-quality oysters, a certain amount of fresh watering flowing into the Bay is necessary. The Bay’s salinity levels, which directly impact oyster production, are influenced by flows from the Apalachicola River. Indeed, the Special Master noted that river flow “is the primary determinant of salinity in the Bay.”
The management of the waters in the ACF Basin has been the subject of a decades-long dispute between Florida, Georgia and Alabama. Much of this litigation involved the United States Army Corps of Engineers operation of various dams and reservoirs on the Chattahoochee River. Ultimately determining it was necessary to bring an original action in the United States Supreme Court, Florida filed its claim alleging “it has suffered serious harm to its ecology and economy because of reduced flows in the [Apalachicola] River resulting from Georgia’s increasing consumption of water from the [ACF] Basin for municipal, industrial, and agricultural uses.” For its remedy, Florida requested “that the Court ‘enter a decree equitably apportioning the waters of the ACF Basin.’”
The Special Master and the Report
The Court granted Florida’s request to file a Complaint and appointed a Special Master to conduct the necessary proceedings and return a report to the Court. Under this authority, the Special Master, after months of extensive discovery, convened a multi-week evidentiary hearing in Portland, Maine, on October 31, 2016. The Special Master issued his report on February 14, 2017.
After hearing the evidence, the Special Master made a number of findings regarding the Apalachicola Bay and its oyster industry, and the collapse of that industry in 2012. For instance, he concluded that: “[t]here is little question that Florida has suffered harm from decreased flows in the [Apalachicola] River”; “Florida experienced an unprecedented collapse of its oyster fisheries in 2012”; and “the oyster collapse came as a result of increased salinity in the [Apalachicola] Bay caused by low flows in the [Apalachicola] River.” The Special Master also noted that “the high salinity in the [Apalachicola] Bay from reduced streamflow allowed marine predators to invade the [Apalachicola] Bay in unprecedented levels, preying on the [Apalachicola] Bay’s oyster population.”
Turning to Georgia’s use of water in the ACF Basin, the Special Master noted that it “appears that Georgia’s upstream agricultural water use has been – and continues to be – largely unrestrained.”  Noting a dramatic increase in agricultural water use since 1970 – for instance, Georgia’s irrigated acreage increased from less than 75,000 acres in 1970 to over 825,000 acres by 2014 – the Special Master found “Georgia’s position – practically, politically, and legally – [could] be summarized as follows: Georgia’s agricultural water use should be subject to no limitations, regardless of long-term consequences for the [ACF] Basin.”
Ultimately, however, the Special Master concluded that there was “a single, discrete issue that resolves this case: even assuming that Florida has sustained injury as a result of unreasonable upstream water by Georgia….” After discussing the operations of the United States Army Corps on the Chattahoochee River, the Special Master found that the “evidence as presented at trial suggests that the Corps’ reservoir operations are a significant, and perhaps the primary, factor influencing the amount of streamflow crossing the state line during times of drought and low flows.” The Special Master concluded, in pertinent part, as follows:
Florida has failed to show that a consumption cap will afford adequate relief. The testimony and evidence submitted at trial demonstrates that the Corps can likely offset increased streamflow in the Flint River by storing additional water in its reservoirs along the Chattahoochee River during dry periods. The evidence also shows that the Corps retains extensive discretion in the operation of those federal reservoirs. As a result, the Corps can release (or not release) water largely as it sees fit, subject to certain minimum requirements under the [Revised Interim Operating Plan]. There is no guarantee that the Corps will exercise its discretion to release or hold back water at any particular time. Further, Florida has not shown that it would benefit from increased pass-through operations under normal conditions. Finally, without the Corps as a party, the Court cannot order the Corps to take any particular action. Accordingly, Florida has not proven by clear and convincing evidence that any additional streamflow in the Flint River resulting from a decree imposing a consumptive cap on Georgia’s water use would be released from Jim Woodruff Dam into the River at a time that would provide a material benefit to Florida.
Accordingly, the Special Master recommended that “the Court deny Florida’s request for relief.”
SCOTUS Weighs In
The United States Supreme Court heard oral argument by the parties on January 8, 2018; the opinion of the Court was issued on June 27, 2018. After summarizing the proceedings before the Special Master, the Court begins by explaining its jurisdiction in original actions. “We must approach interstate disputes ‘in the untechnical spirit proper for dealing with a quasi-international controversy, remembering that there is no municipal code governing the matter, and that this court may be called on to adjust differences that cannot be dealt with by Congress or disposed of by the legislature of either State alone.’” “[W]hen we are confronted with competing claims to interstate water, the Court’s ‘effort always is to secure an equitable apportionment without quibbling over formulas.’”
Deciding not to quibble over technical formulas, the Court concludes that “the Special Master applied too strict a standard when he determined that the Court would not be able to fashion an appropriate equitable decree.”
We believe the Master’s standard, as indicated by these statements, is too strict. In our view, unless and until the Special Master makes the findings of fact necessary to determine the nature and scope of likely harm caused by the absence of water and the amount of additional water necessary to ameliorate that harm significantly, the complaining State should not have to prove with specificity the details of an eventually workable decree by “clear and convincing” evidence. Rather, the complaining State should have to show that, applying the principles of “flexibility” and “approximation” we discussed above, it is likely to prove possible to fashion such a decree.
In reversing the judgment, the Court outlined five “subsidiary questions” to the “threshold question,” to wit:
First, has Florida suffered harm as a result of decreased water flow into the Apalachicola River? (The Special Master assumed “yes.”)
Second, has Florida shown that Georgia, contrary to equitable principles, has taken too much water from the Flint River (the eastern branch of the Y-shaped river system)? (Again, the Special Master assumed “yes.”)
Third, if so, has Georgia’s inequitable use of Basin waters injured Florida? (The Special Master assumed “yes.”)
Fourth, if so, would an equity-based cap on Georgia’s use of the Flint River lead to a significant increase in streamflow from the Flint River into Florida’s Apalachicola River (the stem of the Y)? (This is the basic question before us.)
Fifth, if so, would the amount of extra water that reaches the Apalachicola River significantly redress the economic and ecological harm that Florida has suffered? (This question is mostly for remand.)
Upon reading this, one would think that these “subsidiary questions” would most likely drive the remand.
In dissent, Justice Thomas argues that the “Special Master applied this balance-of-harms standard and, after presiding over a 1–month trial involving 40 witnesses and more than 2,000 exhibits, found that Florida had not met its burden.” Finding that the Special Master’s decision “is well supported by the evidence,” Justice Thomas notes that he would “have overruled Florida’s objections to the Special Master’s Report (Report) and denied Florida’s request for relief.” “Giving Florida another bite at the apple will likely yield no additional evidence, but it will be unfair to Georgia, which has already spent the time and resources to defeat the case that Florida chose to present. In short, we have all the evidence we need to decide this case now.”
There’s a New Special Master in Town
On remand, the newly-appointed Special Master, the Honorable Paul J. Kelly, Jr., issued Case Management Order No. 23 (CMO 23). In CMO 23, the Special Master ordered the parties to submit a joint report responding to several questions. The over-simplified version of CMO 23 is the requirement that the parties submit a joint statement addressing whether additional discovery or evidentiary hearings are necessary. Of course, the parties disagreed in the joint statement. Florida proposed limited discovery and a “short supplemental evidentiary hearing”; whereas, Georgia proposed that the Special Master proceed on the current record. The Special Master agreed with Georgia and ordered the parties to, among other things, provide proposed findings and conclusions as well as supplement briefs (and reply briefs).
The parties submitted their proposed findings and conclusions on January 31, 2019. As one might expect, the parties each advanced arguments as to how/why Georgia’s water use is/is not harmful to the Apalachicola Bay. For instance, Florida proposed, among others, the following findings:
- There is little dispute that recent river flows have been severely and persistently low, and Georgia’s expert hydrologist acknowledged this during trial. (Proposed Finding No. 6)
- The growth of agricultural irrigation in Georgia also has resulted in pumping increasingly significant amounts of water from the Upper Floridan aquifer, which has impaired and reversed the natural process by which the Upper Floridan supplements river flows and caused river water in Georgia to flow into the Upper Floridan to feed the pumping demand, rather than flowing from the aquifer into the rivers and streams.
- Florida has demonstrated that a remedy providing 2000 additional cfs in flows in summer months of peak consumption during drought would be reasonable and not unduly costly to Georgia.
Some of Georgia’s proposed findings include:
- Georgia’s total consumptive use in the ACF Basin (reflecting streamflow depletions from both the Flint and Chattahoochee Rivers) is a small fraction of total streamflow in the ACF Basin.
- A cap on Georgia’s consumptive use would not meaningfully increase state-line flows at the times of year, or in the amounts, necessary to significantly ameliorate Florida’s alleged harms.
At this point, the parties have briefed the Special Master and provided proposed findings. An additional non-evidentiary hearing may be held; however, that is not a guarantee. We know that the previous Special Master found that Apalachicola Bay has been impacted by low flows, and that Georgia has increased its consumption of water upstream, in the Flint River Basin, particularly, by a significant amount. Will the newly-appointed Special Master find Georgia responsible for Florida’s injury? Will the Corps’ actions on the Chattahoochee and the Court’s inability to fashion a decree without the Corps’ participation in this matter prevent the Court from entering a decree/ At this point, one can only guess what the Special Master might decide. Whatever he decides, the Supreme Court will get another opportunity to weigh in on this decades-long feud. The question is: will the Supreme Court finally resolve this decades-long feud over the right to water in the ACF Basin?
 “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.” U.S. Const. art. III, § 2, cl. 2. (emphasis supplied)
 State of Missouri v. State of Illinois, 180 U.S. 208, 241, 21 S. Ct. 331, 344, 45 L. Ed. 497 (1901)(“If Missouri were an independent and sovereign state all must admit that she could seek a remedy by negotiation, and, that failing, by force. Diplomatic powers and the right to make war having been surrendered to the general government, it was to be expected that upon the latter would be devolved the duty of providing a remedy, and that remedy, we think, is found in the constitutional provisions we are considering.”).
 See United States Supreme Court website at https://www.supremecourt.gov/search.aspx?filename
=/docket/docketfiles/html/public/22o142.html; and see Florida. v. Georgia, 138 S. Ct. 2502, 2510, 201 L. Ed. 2d 871 (2018)(“In 2013, Florida, the downstream State, sought to sue Georgia, the upstream State, asking us to exercise our ‘original and exclusive jurisdiction’ and issue a decree equitably apportioning the waters of the Basin.”)
 Florida v. Georgia, 138 S. Ct. 2502, 2510, 201 L. Ed. 2d 871 (2018); see also Florida’s Complaint for Equitable Apportionment and Injunctive Relief, Pg. 9, ¶ 21. The docket for this case is maintained at https://www.ca10.uscourts.gov/special-master-142 and documents from the Docket, with the exception of the Special Master’s Report and the Supreme Court’s opinion in this matter, will be cited to as follows: FL v. GA Docket, Pleading, Pg. #.
 Florida v. Georgia, 138 S. Ct. 2502, 2513, 201 L. Ed. 2d 871 (2018) citing See Colorado v. New Mexico, 459 U.S. 176, 183, 103 S.Ct. 539, 74 L.Ed.2d 348 (1982) (Colorado I ) and Virginia v. Maryland, 540 U.S. 56, 74, n. 9, 124 S.Ct. 598, 157 L.Ed.2d 461 (2003).
 Special Master’s Report, pg. 4. While the Special Master’s Report may be found at the online docket, due to the focus placed on it herein, the Special Master’s Report shall be cited as “Report, Pg. #”.
 Report, Pg. 4.
 Id. at 5.
 Id. at Pg. 8.
 Id. at Pg. 9.
 Id. at 10.
 Id. at 14.
 Id. at 16.
 Docket, Order Appointing Ralph Lancaster Special Master, Pg. 1. (“It is ordered that Ralph I. Lancaster, Esquire, or Portland, Maine, is appointed Special Master in this case with authority to fix the time and conditions for the filing of additional pleadings, to direct subsequent proceedings, to summon witnesses, to issue subpoenas, and to take such evidence as may be introduced and such as he may deem it necessary to call for. The Special Master is directed to submit Reports as he may deem appropriate.”)
 Report, Pg. 21.
 Report, Pg. 70.
 Report, Pg. 31.
 Id. at 32.
 Id. at 33.
 Id. at 34.
 Id. at 30.
 Id. at 36-46.
 Id. at 61.
 Florida v. Georgia, 138 S. Ct. 2502, 2513, 201 L. Ed. 2d 871 (2018)(quoting Virginia v West Virginia, 220 U.S. 1, 27, 31 S.Ct. 330, 55 L.Ed. 3533 (1911)).
 Id. (quoting New Jersey v. New York, 283 U.S. 336, 51 S.Ct. 478, 75 L.Ed. 1104 (1931)).
 Id. at 2516.
 Id. at 2518.
 Id. at 2529.
 Id. at 2541.
 Special Master Kelly was appointed by the Supreme Court on August 9, 2018. See Docket, US Supreme Court Order Appointing Judge Paul J. Kelly, Jr. as Special Master.
 Docket, Parties Joint Memorandum pursuant to CMO 23, Pg. 12
 The Corps asserted sovereign immunity.
* Mr. Aschauer is Of Counsel with Lewis, Longman & Walker, P.A., in its Tallahassee office. His practice focuses on both state and federal environmental regulatory issues. Mr. Aschauer is the former General Counsel to the Florida Department of Environmental Protection and, in that capacity, had the great fortune of witnessing the first two weeks of the hearing before Special Master Lancaster in person. He was also present, in a private capacity, for the oral argument before the Supreme Court.