Supreme Court rules against Florida in water fight
Image via AP.

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The Supreme Court ruled Florida did not prove Georgia caused damage to Apalachicola Bay.

After years of legal battling, the U.S. Supreme Court on Thursday unanimously rejected a lawsuit in which Florida argued Georgia has used too much water in a river system shared by the states.

The 12-page ruling dismissed the lawsuit that Florida filed in 2013 after the oyster fishery collapsed in Franklin County’s Apalachicola Bay. Florida contended that Georgia drew too much water in the Apalachicola-Chattahoochee-Flint river system, which starts in northern Georgia and ends in Apalachicola Bay, and that more water should be directed to Florida.

Justice Amy Coney Barrett wrote in Thursday’s ruling that Florida did not prove Georgia’s water use had caused damage in the bay and the Apalachicola River. The ruling upheld a recommendation from a special master, who was appointed by the Supreme Court and sided with Georgia in a December 2019 recommendation.

“Of course, the precise causes of the bay’s oyster collapse remain a subject of ongoing scientific debate,” Barrett wrote. “As judges, we lack the expertise to settle that debate and do not purport to do so here. Our more limited task is to evaluate the parties’ arguments in light of the record evidence and Florida’s heavy burden of proof. And on this record, we agree with the special master that Florida has failed to carry its burden.”

Florida contended that Georgia farmers have used too much water to irrigate crops, causing downstream damage to the Apalachicola River and the bay. But Georgia argued, in part, that the oyster industry sustained damage because of over-harvesting after the 2010 Deepwater Horizon disaster sent oil spreading through the Gulf of Mexico.

The Supreme Court ruling pointed to over-harvesting as a key factor undercutting Florida’s arguments.

“Florida’s own documents and witnesses reveal that Florida allowed unprecedented levels of oyster harvesting in the years before the collapse,” Barrett wrote. “In 2011 and 2012, oyster harvests from the bay were larger than in any other year on record. That was in part because Florida loosened various harvesting restrictions out of fear — ultimately unrealized — that the Deepwater Horizon oil spill would contaminate its oyster fisheries. A former Florida official, one of Florida’s lead witnesses, acknowledged that these management practices ‘bent’ Florida’s fisheries ‘‘until (they) broke.’”

The ruling also pointed to a lack of “reshelling” oyster bars by Florida.

“Reshelling is a century-old oyster management practice that involves replacing harvested oyster shells with clean shells, which can serve as habitat for young oysters,” Barrett wrote. “Yet in the years before the collapse, while Florida was harvesting oysters at a record pace, it was simultaneously reshelling its oyster bars at a historically low rate.”

While Florida filed the lawsuit in 2013, battles about water in the river system date to the 1990s. Florida sought in the lawsuit what is known as an “equitable apportionment” of water, which could have led to new limits on water used by Georgia farmers.

The Supreme Court heard arguments in February, after Special Master Paul Kelly, a New Mexico-based appellate judge, issued his 81-page recommendation in 2019 that supported Georgia.

Kelly was appointed special master after a divided Supreme Court overturned a 2017 recommendation by another special master, Ralph Lancaster, who said Florida had not proven its case “by clear and convincing evidence” that imposing a cap on Georgia’s water use would benefit the Apalachicola River.

Writing for a 5-4 majority in 2018, Justice Stephen Breyer said Lancaster had “applied too strict a standard” in rejecting Florida’s claim.

But Thursday’s ruling flatly rejected Florida’s arguments.

“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,” Barrett wrote. “Florida therefore has failed to carry its burden of proving causation by clear and convincing evidence.”

Florida Agriculture  Commissioner Nikki Fried issued a statement that said the ruling is “disappointing for the thousands of families whose livelihoods depend on the waters of the Apalachicola-Chattahoochie-Flint River Basin.”

“The court may have disagreed, but the hard-working Floridians of our oyster fisheries know that water overconsumption by Georgia has contributed to a 98 percent decline in value of Florida’s oyster catch,” the statement said. “While we work to protect Florida’s waters, our Division of Aquaculture will continue working hard to support our oyster industry every way that we can.”

Amid the court battle, the Florida Fish and Wildlife Conservation Commission in December suspended wild oyster harvesting in the bay as part of a $20 million restoration effort.

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Republished with permission from The News Service of Florida.

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