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Florida Wins Big Battle Over Georgia in Water War

By George Khoury, Esq. on June 28, 2018 | Last updated on March 21, 2019

The High Court issued its last opinion of the term in the big water rights case between Florida and Georgia. To the surprise of many, the Court ruled in favor of Florida, but that doesn't mean that Florida has won the right to stop Georgia from tapping into the interstate waterway, at least not yet. Rather, the state will be able to continue fighting to restrict the upstream rights.

The case centers on Florida's claim to water rights from the Apalachicola-Chattahoochee-Flint River basin, and the interstate waterways. Although the appointed special master for the dispute found that Florida has suffered harm as a result of Georgia's water usage decreasing the flow of water into the basin, he also found that the state failed to carry the heavy burden of proof to show that an effective remedial decree of equitable apportioning is workable.

Try Again With the Horse in Front of the Horse

The decision in this rare case arising under SCOTUS's original jurisdiction, as the dissent notes, is likely to land the matter before the High Court again soon. That's due to the fact that the matter was remanded with instructions to shift the focus of the "clear and convincing evidence" standard that was applied.

Justice Breyer, writing for the 5 justice majority, explained simply in the syllabus:

First, both Georgia and Florida possess "an equal right to make a reasonable use of the waters of" the Flint River ... Second, when confronted with competing claims to interstate water, the Court's "effort always is to secure an equitable apportionment without quibbling over formulas... Third, in light of the sovereign status and "equal dignity" of States, a complaining State's burden is "much greater" than the burden ordinarily shouldered by a private party seeking an injunction.

As Justice Breyer goes on to explain, "To require "clear and convincing evidence" about the workability of a decree before the Court or a Special Master has a view about likely harms and likely amelioration is, at least in this case, to put the cart before the horse."

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