Atlanta

The US Supreme Court Likely Won’t Solve the Southeast Water Wars, But It Could Be the Catalyst Needed for Actual Progress

This is the second part of a four part piece on the ongoing Tri-State Water Wars. This part focuses on why a Supreme Court decision will ultimately prove to be an inadequate solution. The first part provided an introduction to the conflict, the third part focuses on what factors the Supreme Court will use to apportion the water and the fourth part focuses on what Florida and Georgia are doing to best satisfy those factors.

Allowing the US Supreme Court decide how we use water in the Apalachicola-Chattahoochee-Flint River Basin (ACF Basin) is ridiculous and irresponsible. We should be able to figure this problem out on our own. We need to figure this problem out on our own. On paper, the ability to cooperate seems obvious. Though things are changing a bit for two out of the three of us, we do still share a similar culture and value similar ways of life. Our history is collective. All three of us are overwhelmingly governed by the same major political party. Failing to get along and reach compromise is childish at best. Children, after all, are sometimes physically incapable of understanding the magnitude of their decisions and the consequences of their actions even when presented with accurate and compelling data.

wilfires

Wildfires in Georgia and Florida

This isn’t as easy as blaming the politicians. We, as peoples, are failing to understand the necessity that is cooperation. We are forgetting that we are part of nature and we rely on nature. In constructing localized and systematic controls over our environment we fail to recognize the complexity of our planet. In arguing for our own interests and our own interests alone, we are all doomed to fail. The systems of the Earth obviously know no boundaries. They don’t stop at state lines and ask for permission. They don’t ask about our intentions and desires for the land or air. We may be able to dam a river or redirect water, but we’ll always fail as long as we ignore the implications of complex Earth systems.

So here we are. Florida v. Georgia. The United States Supreme Court will decide how we use our water. Unlike the negotiations we previously attempted, the Court doesn’t care so much about listening to what each state wants. Actually, perhaps it is like the negotiations. A decision by the Court, however, cannot be dissolved unilaterally and no state can simply decide not to honor it at some point in time.  The decision will be binding; at least until we come to the realization that a decree by the Court is a terrible way to manage water and decide to actually create a dynamic, flexible, and cooperative system.

This is far from uncharted territory. We aren’t unique or special compared to other regions. In fact, the US Supreme Court is currently hearing a case involving the Republican River in Kansas v. Colorado and Nebraska. Our social, economic, and environmental concerns aren’t any more important or disparate than the similar concerns of those in other regions.  Instead of learning from those other regions, we’re repeating the same mistakes. Asking the Supreme Court to divide water is a mistake.

The Court is incapable of creating a decree that will adequately manage water now and in the future. In one stroke of the pen a panel of justices cannot create  a sufficient solution to water management over the course of time. This is especially true since the Court will only allocate the water. It isn’t going to create a complex water management system. It isn’t going to put into place a plan that constantly adapts to changes in climate and weather, has the flexibility to respond localized changes in demand, and has the authority to adequately manage water quality. Of course, that’s exactly what we need.

With that said, let’s turn to why the Court decided to take the case, how it will proceed, and why other regions realized such a decision was clearly inadequate. Pursuant to Article III of the US Constitution, the US Supreme Court has original jurisdiction over disputes between states. The Court, however, is not required to hear such disputes and is barred from apportioning water if Congress has already apportioned such water. In the early 20th Century, the Court stated that it would not hear a dispute between states unless the dispute reached such a magnitude as to actually spark war. A hundred years ago the Court identified water as one such situation and we have case law throughout the 1900’s dealing with water apportionment between the states. While actual war seems a bit unrealistic today, Arizona did dispatch its national guard to defend water in the Colorado River, twice, in 1922 and in 1935.

US Marshals Escorting James Meredith into the University of Mississippi While State National Guard Troops Watch

US Marshals Escorting James Meredith into the University of Mississippi While State National Guard Troops Watch

Perhaps armed conflict between governments of the United States isn’t really all that unrealistic. Following Brown v. Board of Education, many states did confront the federal government by dispatching their national guards to prevent school integration, prompting the courts to dispatch US Marshals to enforce the law and escort students. Though no violence between the governments ensued, it is one modern example of the potential for war-like conflict.

Since water is clearly something that could actually spark war-like conflict between the states, the Supreme Court, accordingly, takes an equitable apportionment approach to dealing with water conflict issues. Generally speaking, this means that the Court will attempt to distribute the water as equally as possible taking into account social and economic issues as well as efforts done by each party to ameliorate any conflict. This doctrine of equitable apportionment dates back to the early 1900’s and the Court has consistently stated it has the power to apportion water equitably regardless of existing state laws. We can see this in the original briefs filed by Florida and Georgia.

In Florida’s nearly 100-page brief seeking the Court’s permission to actually file a complaint against Georgia, the state lists the ecological and economic benefits of the Apalachicola Bay as well as the steps it has taken to protect the Bay. At his stage of the litigation, Georgia attempted to argue that the Court should not allow Florida to file a complaint until the US Army Corps of Engineers (ACE) issued a revised Master Water Control Manual. Georgia also claimed that Florida should be barred from seeking equitable apportionment since Florida has, to some degree, contributed to the degradation of the Apalachicola Bay. The United States, asked by the Court to provide a brief on the case, sided with Georgia. The November 3rd announcement that the US Supreme Court would hear the case was the Court siding with Florida and allowing a complaint to be filed. Note: the factors used by the Court to determine apportionment and what Florida and Georgia have been doing to tip the balance in their respective favors will be discussed in the final post.

Our Special Master,  Ralph Lancaster Jr. Ed Whitman via Dailyreportonline.com

Our Special Master, Ralph Lancaster Jr.
Ed Whitman via Dailyreportonline.com

Original jurisdiction means that Court has the ability to actually conduct a trial over the matter. This is a rare circumstance. Usually the Court acts as an appellate court, hearing arguments regarding the interpretation of law. The lower, or trial, courts are responsible for the fact-gathering aspect of the litigation. While the Court itself could conduct the trial, it instead appointed a Special Master to oversee the case. Scotusblog has a good article running through this process. Basically, the Special Master will go through the pleadings and motions of the parties, conduct necessary hearings, and hear any necessary testimony prior to issuing a final report, which is given to the US Supreme Court. At this point, the parties can challenge the final report and the Court can decide whether to accept the report or whether to conduct additional hearings prior to issuing a final decree. If this sounds like a long process that’s because it most certainly is. A final decision by the Court may not come for several years.

This means many more years of continued uncertainty. As previously mentioned, Nebraska, Colorado, and Kansas currently have a case concerning water rights currently pending in US Supreme Court. This is actually a reopening of an earlier suit dating back 15 years. The suit was originally filed in 1999 and it took the Special Master until 2003 to issue a final report. While their conflict concerns the interpretation of an agreement entered into by the three states and not the actual determination of how water should be allocated, the point is that court proceedings take a long time. This is one such downfall of taking a judicial approach to solving problems.

The other downfall is the lack of flexibility provided by a judicially-created apportionment scheme. Other regions that have taken the judicial approach have eventually realized the necessity of cooperation. Perhaps the most famous water conflict is the one involving the Colorado River. Over the course of a century the conflict has involved blatant water grabs, miles of canals, the dispatching of armed troops, numerous agreements, and, of course, litigation.

colorado riverThe Colorado River has been the focus of such great conflict due to it winding its way 1,400 miles across the arid landscapes of the west. The River and it’s tributaries touch the states of Wyoming, Colorado, Utah, Arizona, New Mexico, Nevada, and California. Unlike the water laws in the eastern states, the western states are governed by the law of prior appropriation. In a nutshell, this means that a user is entitled to however much water it has already appropriated; there is no need to consider how much water a downstream user may need or to relinquish any water already appropriated. Obviously this allowed the fast growing states, particularly California, to lock-in a large share of the Colorado River prior to the development of the other states. Prior appropriation also encouraged states to use water they didn’t actually need just to lay claim to it.

The law of prior appropriation was designed to encourage development in the western states, but it also, possibly inadvertently, encouraged deal-making. In 1922, the Colorado River states began their treacherous path towards a successfully functioning water-share agreement. The resulting Colorado River Compact protected water for both downstream users (particularly Arizona and California) and upstream users (mainly Utah and Colorado). Unfortunately, the Compact had too many holes and subsequent litigation generally sided with California due to its prior appropriation of the water.

Ultimately, drought conditions in the 1990’s and 2000’s led the states to enter into more serious agreements that involved better cooperation in water conservation and production. Court decisions and negotiations that allowed California to use water while the other states continued to develop proved unworkable for the state as time elapsed. Relying on water that either you don’t know if you have a right to use or don’t know if it will continue to exist is clearly problematic and spawned a massive deal-making effort. This should clearly ring some bells here at home.

delaware riverA better example is probably that of the Delaware River basin. In 1931 and 1954 the US Supreme Court apportioned water in the Delaware River among Delaware, New York, New Jersey, and Pennsylvania. Notably, the 1931 case involved the Court restricting New York’s access to water to a level that allowed New Jersey’s oyster population to exist without harm. The same issue is present in Florida v. Georgia. While the decisions provided stability at the time, the states realized the need for a more flexible and dynamic approach to water management. That led to the creation of the Delaware River Basin Commission (DRBC).The DRBC is made up of the governors of each state and one federal official. Comprehensive water quality and quantity plans are required every six years and projects are funded through budget allocations of the states as well as through user fees. One key difference between the ACFS Compact formed in the 1990’s and the DRBC is the fact that states relinquished some power to make it work. Instead of unanimous votes for most actions, like the ACFS Compact required, the DRBC requires a simple majority.

Conversely, it appears that Nebraska, Wyoming, and Colorado have failed to make any meaningful effort to reach compromise over the waters contained in the North Platte River. The US Supreme Court has apportioned the water three times, most recently in 2001. The two states appear to be perfectly happy filing petitions every 10 to 15 years to reapportion water. Those two states certainly have far fewer parties at play than Georgia and Florida given that agriculture is the overwhelming user of water in the North Platte River.

Judicial decrees may be an adequate solutions for two sparsely populated states battling over quite a small amount of water, but it likely will not be an adequate solution for the much more more diverse and complex environment. Our businesses, residents, and agricultural entities certainly won’t put up with a jeopardized water supply every decade. We should be able to successfully grow by adding more residents and producing more agricultural products while also protecting the natural beauties that make the southeast both a spectacle and a desirable place to live. The Court decree wont’t do this. It will fail to provide the type of reliable and flexible plan needed for our diverse built and natural environment.

Fortunately, gearing up for the court battle has led both Florida and Georgia to take necessary steps to conserve water while also allowing for growth. In some instances the steps have been quite dramatic. In other instances, they’ve simply been little more than gestures. The Supreme Court will look at these steps, among several other factors, in deciding how to apportion the water. Regardless of what a final decree may look like, the steps ultimately will prove valuable in forming the inevitable tri-state water agreement we all need.

Check back or follow SustainAtlanta to read the upcoming final Water Wars post on what Georgia and Florida have done to satisfy the Court’s steps in apportioning water in the ACFS Basin and how those steps could form a meaningful agreement.

This article featured contributions by Jennifer Grimes. She is a City and Regional Planning Graduate Student at Georgia Tech. Jennifer can be reached at jgrimes5@gatech.edu.  

Disclaimer: The information contained in sustainableatlantaga.com (hereinafter “this site”) should not be construed, or relied upon, as legal advice. By accessing this site it is understood that no attorney-client privilege has been formed between you and the publisher. This site is neither an advertisement for legal services nor an invitation to form an attorney-client relationship. This site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

2 replies »

    • Hey Bruce, no a third article has not been posted just yet. I should be posting shortly – I’ve been waiting on some relevant developments between the two states to occur prior to posting. Thanks Bruce!

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