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Water wars may drag longer with new court appointment
New special master takes case between Florida, Georgia
I-Water wars pic.jpg
Buford Dam sits at the base of Lake Lanier and is managed by the U.S. Army Corps of Engineers. Below the dam the Chattahoochee River continues southward. - photo by Scott Rogers

Georgia’s longtime water fight with Florida likely will take even longer after a new special master was appointed by the U.S. Supreme Court to handle the dispute.

New Mexico-based judge Paul Kelly, who serves as a senior judge on the 10th Circuit Court of Appeals in Santa Fe, replaces Maine attorney Ralph Lancaster as the special master for the Florida v. Georgia case, commonly called the “water wars” case.

The appointment was made by Supreme Court justices on Thursday, Aug. 9:

“It is ordered that the Honorable Paul J. Kelly, Jr., of Santa Fe, New Mexico, is appointed Special Master in this case with authority to fix the time and conditions for the filing of additional pleadings, to direct subsequent proceedings, to summon witnesses, to issue subpoenas, and to take such evidence as may be introduced and such as he may deem it necessary to call for.”

A new special master for the case could drag out proceedings if Kelly chooses to hold hearings to go over the original arguments of the case in addition to the new questions the Supreme Court has ordered him to answer.

In June — the final month of the most recent court term that ended with an earthquake as Justice Anthony Kennedy announced his retirement — the Supreme Court kicked the case back to the special master, the court-appointed lawyer who adjudicates much of the case before it gets before the justices.

That special master had been Lancaster. For years, he handled Florida’s lawsuit against Georgia over the Peach State’s use of water flowing through the Apalachicola-Chattahoochee-Flint River Basin. Kelly will now pick up the work to answer the additional questions posed by the court that will determine the future of Georgia’s water use.

The case centers on Lake Lanier and the other reservoirs maintained by the U.S. Army Corps of Engineers along the river basin.

In the June opinion written by Justice Stephen Breyer, the court set out the new tasks for the special master:

“First, has Florida suffered harm as a result of decreased water flow into the Apalachicola River? (The Special Master assumed ‘yes.’)

“Second, has Florida shown that Georgia, contrary to equitable principles, has taken too much water from the Flint River (the eastern branch of the Y-shaped river system)? (Again, the Special Master assumed ‘yes.’)

“Third, if so, has Georgia’s inequitable use of Basin waters injured Florida? (The Special Master assumed ‘yes.’)

“Fourth, if so, would an equity-based cap on Georgia’s use of the Flint River lead to a significant increase in streamflow from the Flint River into Florida’s Apalachicola River (the stem of the Y)? (This is the basic question before us.)

“Fifth, if so, would the amount of extra water that reaches the Apalachicola River significantly redress the economic and ecological harm that Florida has suffered? (This question is mostly for remand.)”

The answers to these questions will determine the outcome of the case, which could have dire consequences for Georgia’s water consumption — especially in metro Atlanta and for Georgia farmers.

“Gov. (Nathan) Deal appreciates Special Master Lancaster’s work and professionalism in presiding over our case since 2014, which culminated in a five-week trial before him,” said Jen Ryan, a spokeswoman for Georgia’s governor. “He looks forward to presenting our legal arguments to Judge Kelly and remains confident in Georgia’s legal position.”

While Georgia attorneys had been hopeful after Lancaster’s findings tilted in their favor, Supreme Court justices’ June opinion leaves open the possibility that a consumption cap or other restriction could be placed on the state.

The lawsuit between Georgia and Florida went straight to the Supreme Court, which is the only court capable of resolving legal disputes between the states.