Document Type

Article

Publication Date

2021

Abstract

This case marks the second trip to the Supreme Court for Florida’s equitable apportionment case seeking to obtain greater flows into Apalachicola Bay, the estuary of the ApalachicolaChattahoochee-Flint (ACF) River Basin. In a 2018 decision, the Supreme Court reviewed a report of then-Special Master Ralph Lancaster recommending that the Court deny relief to Florida because of the Court’s inability to provide relief without having the Army Corps of Engineers as a party to the litigation. At that time, a 5–4 majority ruled that the Special Master had applied too demanding a standard of proof to the issues surrounding redressability and balance of the equities. The case was remanded with instructions calling for a revised standard and for making additional fact-findings requisite for application of the Court’s equitable apportionment jurisprudence. See 138 S. Ct. 2502, 2512–17 (2018). Subsequently, Paul Kelly Jr., a Tenth Circuit Court of Appeals judge, was appointed Special Master for the current phase of the case. Special Master Kelly’s report was succinct in its conclusions: I do not recommend that the Supreme Court grant Florida’s request for a decree equitably apportioning the waters of the ACF Basin because the evidence has not shown harm to Florida caused by Georgia; the evidence has shown that Georgia’s water use is reasonable; and the evidence has not shown that the benefits of apportionment would substantially outweigh the potential harms. (Report of the Special Master, December 11, 2019, at 81.) Florida took exception to the fact-finding and conclusions of the Special Master.

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