Saturday, June 03, 2017
Florida asks U.S. Supreme Court to save Apalachicola River, oyster industry (POLITICO)
Three putative "elite" corporate law firms -- paid tens of millions of dollars by the State of Florida -- failed to name the U.S. Army Corps of Engineers as an indispensable party and our case got tossed. Now, maladroit controversial Flori-DUH Attorney General PAMELA JO BONDI and her team of legal lightweights have filed the legal equivalent of a "Hail Mary play" in the United States Supreme Court. Good luck!
Florida asks U.S. Supreme Court to save Apalachicola River, oyster industry
By BRUCE RITCHIE 06/01/2017 07:02 PM EDT
TALLAHASSEE — Florida is telling the U.S. Supreme Court that it represents the state's last legal remedy for saving the Apalachicola River and the oysters and people who depend on it.
Gov. Rick Scott in 2013 sued Georgia in the Supreme Court, seeking to cap Georgia's water use upstream on the Chattahoochee and Flint rivers. But a court official recommended in February that the case be dismissed because Florida had not included the Army Corps of Engineers, which operates federal reservoirs on the Chattahoochee River.
In a brief filed Wednesday, Florida argues that the court had never found that a state was harmed by upstream water use but then determined it was powerless to do anything about it. If the court dismisses the case, Georgia would be free to continue or increase its water use, Florida said.
"This original action represents the State of Florida’s last remaining, legal remedy to save the Apalachicola Region — one of the nation’s most unique, diverse and irreplaceable environmental resources — from devastation as a result of the state of Georgia’s ever increasing consumption of the waters on which the Apalachicola ultimately depends for its life," Florida said.
A representative of the Georgia Attorney General's Office said she could not comment on Florida's brief. Georgia has until July 31 to file a reply with the Supreme Court.
Alabama, Florida and Georgia have battled in federal court since 1990 over water use from the rivers, but most of that time was spent on a lawsuit against the Corps that focused on reservoir operations.
In 2013, following a drought that led to the collapse of Apalachicola Bay's oyster population and a federal fishery disaster declaration, Scott blamed Georgia for unrestrained water use and filed the direct action. The Supreme Court is given power in the Constitution to decide disputes among states.
After a six-week trial last fall in Portland, Maine, Supreme Court special master Ralph Lancaster in February said Florida failed to show how a water-use cap would provide the relief the state is seeking.
Lancaster concluded that Georgia’s agricultural water use was “largely unrestrained” and blamed the state's lax enforcement. He cited Florida’s count that the amount of irrigated acreage in Georgia increased from 75,000 acres in 1970 to more than 825,000 acres in 2014.
Georgia had argued for dismissing the case because the Corps was not involved. Lancaster in 2015 had warned that Florida's case "will live or die" based on its ability to show that a water-use cap is justified and will provide relief.
"There is no guarantee that the Corps will exercise its discretion to release or hold back water at any particular time," Lancaster wrote on Feb. 14. "Further, Florida has not shown that it would benefit from increased pass-through operations under normal conditions."
In March, the Corps of Engineers provided 621 million gallons per day to Georgia cities from the Chattahoochee River despite objections from Florida officials. In April, Alabama and environmental groups sued to block the action.
In its brief filed Wednesday, Florida argued that Lancaster was mistaken in believing that could action could be "short-circuited" by the Corps of Engineers.
Florida said drought made worse by Georgia's water use had allowed predators to decimate oyster reefs, had stranded fish in the drying side channels along the Apalachicola River and had stunted swamp trees in the river floodplain such as the tupelo, source of the official state honey.
And Florida argued that reducing Georgia's water use would allow more water to flow down the Flint River, which lacks significant reservoir storage, into the Apalachicola River — and could provide more from reservoirs on the Chattahoochee River as well.
"It is true that no one can say for certain what the Corps will do if this court enters a decree," Florida wrote. "But in the face of all this, it is far more likely that the Corps would act to facilitate such a decree, rather than frustrate it."
The continued court action follows a political furor over spending on the Apalachicola River litigation during the legislative session that ended May 8.
Nearly $100 million had been appropriated for litigation since 2001, while $82.4 million had been spent, according to to the Florida Department of Environmental Protection. The current legal case so far has cost the state $41 million.
House Speaker Richard Corcoran said House members would audit spending, but he later called it a "time-consuming endeavor."
The 2017-18 state budget sent to Scott this week doesn't include $17 million he requested in January to pay for legal bills. But a DEP spokeswoman said $3 million provided for contracted services can be used for the case.
View a copy of Florida's brief here.