Public Lands, State and Local, Water, Wildlife

Florida-Georgia Line: A battle of water rights

Tyler Takvor

Environmental Law Review Staff Member

Along the Florida Panhandle one can find Apalachicola Bay. The bay is about an hour east of Panama City, and known for its excellent fishing, and acres of national and state forests to explore. The water from the bay originates from the Flint and Chattahoochee Rivers in Georgia, which connect to create the Apalachicola River in Florida which empties into the Bay. Despite the areas beach town vibes, the water was subject to Supreme Court scrutiny last April when Florida brought a case against Georgia for its use of the water. Florida filed suit in 2013, looking for an equitable apportionment order to control Georgia’s use of the shared water.

Florida argued that Georgia’s increasing use of the water for its irrigation system has had a negative impact on its oyster fisheries in Apalachicola Bay. Florida goes on to argue that extreme low flows have been occurring more frequently, making it more difficult for oyster fisheries to thrive. Florida said that as little as 500 cubic feet per second saved could greatly benefit the fisheries, an expense it claims would have little impact on Georgia. Georgia of course has objected to such restraints due to the state’s dependence on the water from the rivers, thus claiming that Florida’s own management errors were to blame for the oyster industry’s troubles.  Georgia also argued that Florida was already using most of the water from the Apalachicola River system. Thus, taking the insubstantial amount that Georgia was depending on would have no benefit to Florida, but substantial detriment to Georgia residents.

The issue has made its way to the Supreme Court twice in the past three years. This past April (2021), Justice Amy Coney Barrett wrote the unanimous opinion of the Court. The court ruled that Florida was unsuccessful at establishing its claim that it was highly probable that Georgia was over consuming the water to an extent that played any significant role in the downfall of Florida’s oyster fisheries. Barret explained that Florida did not provide “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 Court looked to the annual revenue of both States dependence on the water as well. Florida was able to show that the oyster industry brought in $6.6 million per year compared the $4.7 billion of revenue Georgia showed its agricultural industry was bringing in thanks to the water. Moreover, Chief Justice John Roberts questioned the attorney for Florida, Gregory Garre, about the number of factors that could be influencing the oyster fisheries. Florida tried to argue that the fact that there may be contributing causes to the oyster decline does not take blame away from Georgia. With harm and causation playing a big role throughout the case Florida tried to show that change in salinity levels in the water was due to Georgia’s consumption. Florida went on to argue that this change in salinity allowed for more oyster predators to live and prosper, causing the oyster population to be decimated. Unfortunately, however for Florida, the justices did not find that Florida offered enough evidence to show Georgia was responsible for the change in salinity or any other contributing factor.

The case illustrates the significance water rights will play in years to come. The proliferation of such cases is expected to rise, as climate change accelerates. Conflicts among states will continue to rise as water becomes more and more of a limited commodity. Water Rights cases may hit Southern States particularly hard as populations in many southern states continue to boom. The Supreme Court is expected to hear a total of four Water Rights this year, including Florida v. Georgia. Rulings such as these have the potential to impact millions of Americans dependent upon these bodies of water to thrive.

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