Supreme Court official denies Georgia’s motion to dismiss case

Mon, Jun 22, 2015

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A court official has denied a motion by Georgia to dismiss a U. S. Supreme Court lawsuit by Florida seeking to cap Georgia’s water use.

10-23-14 ACF damsFlorida in 2013 asked the Supreme Court to intervene following the crash of the oyster population in Apalachicola Bay. Alabama, Florida and Georgia have battled in federal court over water from the Apalachicola, Chattahoochee and Flint rivers since 1990.

Georgia had argued Florida couldn’t receive the relief it needs, including more water in the Apalachicola River, without the U. S. Army Corps of Engineers being included in the case. The federal agency operates five dams along the Chattahoochee River.

But Ralph I. Lancaster, the Supreme Court-appointed special master in the case, disagreed, saying that Georgia had not proven that a remedy is impossible without the federal government’s involvement. He also agreed with Florida that Alabama need not be involved in the case.

Georgia says more than 3.3 million people in the Atlanta area rely on water from the Chattahoochee River and the amount will increase to 6 million by 2040. Florida says placing a cap on Georgia’s water use means there will be more water available to flow downstream.

Ralph I. Lancaster.

Ralph I. Lancaster.

Lancaster accepted that argument with a warning in his written order, filed June 19.

“At trial, of course, Florida will have to carry its burden on this point,” he wrote. “While it is possible Florida will fail in making this showing, this possibility goes to the merits and does not mean than an adequate judgement is impossible absent the United States.”

He also said the Supreme Court has broad discretion in deciding water disputes among states. Therefore he said it would be improper to rely on Florida argument for limited court authority.

And he dismissed Georgia’s argument that Florida should seek more water from the Corps of Engineers as the federal agency goes through the process of updating its water control manuals for the system. Lancaster noted that Georgia previously had argued a decade ago in a case involving hydropower that Florida must seek more water from the Supreme Court.

Lancaster’s order means the case could continue on for years as Georgia and Florida gather and present evidence to bolster their cases. Lancaster has repeatedly urged both sides to negotiate towards a settlement and on March 3 he issued an order granting confidentiality in the case.

Georgia Gov. Nathan Deal met with Florida Gov. Rick Scott in Tallahassee on June 9 to discuss the dispute. Deal met earlier in the year with Alabama Gov. Robert Bentley, according to the Atlanta Journal-Constitution.

Lancaster has warned representatives of the states against speaking to the media. Spokespersons for the Georgia governor and the Florida Department of Environmental Protection spokeswoman declined to comment on the June 19 order.

(Story copyrighted by Bruce Ritchie and Floridaenvironments.com. Do not copy or redistribute without permission, which can be obtained from bruceBritchie@gmail.com.)

Cabinet approves search for DEP secretary and first oyster leases near Pensacola

Tue, May 5, 2015

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The Florida Cabinet will conduct a nationwide search for the Department of Environmental Protection secretary following the Senate’s refusal to confirm appointments during the 2015 legislative session.

Gov. Rick Scott and the Cabinet on Tuesday voted to reappoin DEP Secretary Jon Steverson and Rick Swearingen as director of the Florida Department of Law Enforcement. Both require Cabinet support.

Agriculture Commissioner Adam Putnam.

Agriculture Commissioner Adam Putnam.

“If you have ideas bring them,” Scott told Cabinet members. “We’ll do this search and then come back at the June 23 Cabinet meeting with the goal that we will have qualified candidates and we’ll make a decision to permanently fill these two roles.”

Scott reappointed Steverson and Swearingen along with another 14 agency chiefs who are not Cabinet appointees and also were not confirmed by the Senate.

The Cabinet on Tuesday also approved the first aquaculture leases in Escambia and Santa Rosa counties.

Regarding the confirmations, Senate President Andy Gardiner issued a statement on Monday saying that the confirmation process should “be more than a simple rubber stamp.”

“Towards the end of session, I heard from many senators who were not satisfied with some of the answers provided or still had some outstanding questions for several agency heads,” Gardiner said.

On Tuesday, the Cabinet set a May 31 deadline for applications for the DEP and FDLE posts. The search will follow Cabinet governance guidelines adopted earlier this year after the controversial ouster of FDLE Director Gerald Bailey.

Any resumes will be shared among Cabinet members with the goal of filling the positions at the June 23 meeting, Scott said.

Asked through a DEP spokeswoman whether he plans to apply for the permanent position, Steverson didn’t answer directly but said he will respect the process laid out by the Cabinet.

“My focus has not changed, which is to protect Florida’s natural treasures and serve the people of this great state,” Steverson said.

Scott said it would be up to individual Cabinet members to decide whether they want interview applicants individually.

Also Tuesday, the Cabinet approved without comment 10-year leases for floating oyster cultivation in two five-acre parcels in Escambia Bay and East Bay near Pensacola.

Tommy Leggett of the Chesapeake Bay Foundation shows floating oyster used in Virginia waterways. Photo by Bruce Ritchie.

Tommy Leggett of the Chesapeake Bay Foundation shows floating oyster used in Virginia waterways. Photo by Bruce Ritchie.

The Florida Department of Agriculture and Consumer Services has determined the leases will not harm sea grass or other sensitive habitats.

Pensacola Bay Oyster Co. LLC, which won the leases, also must get a permit from the U. S. Coast Guard, which reviews the request for factors related to navigation and boater safety, state agriculture officials said.

“This marks the first one in Pensacola Bay — the beginning of the potential new industry in Northwest Florida making the most of our fantastic natural resources,” Agriculture Commissioner Adam Putnam said.

“It’s new, it’s innovative,” Attorney General Pam Bondi said. “It’s a great way to use waters that aren’t navigable.”

(Story and photo copyrighted by Bruce Ritchie and Floridaenvironments.com. Do not copy or redistribute without permission, which can be obtained from bruceBritchie@gmail.com.)

Alabama isn’t joining Florida in this water fight with Georgia

Tue, May 5, 2015




Alabama says it doesn’t need to be involved in a legal fight between Florida and Georgia over water, unlike earlier disputes when Alabama usually fought alongside Florida in cases involving the three states.

Florida filed a lawsuit in 2013 asking the U. S. Supreme Court to allocate water in the Apalachicola, Chattahoochee and Flint rivers between Florida and Georgia and to cap Georgia’s water use. Florida says Georgia is sucking up more water from the rivers, harming oysters in Apalachicola Bay and the seafood industry there.

10-23-14 ACF damsGeorgia says Florida’s lawsuit should be dismissed because the federal government wasn’t named as a party in the case. The U. S. Army Corps of Engineers operates hydropower dams and reservoirs along the Chattahoochee River that regulate water flowing into Florida.

But Georgia’s motion also prompted Ralph I. Lancaster, the court-appointed special master in the case, to question during an April 7 conference call whether Alabama also should be included in the court case. Although lawyers representing Florida and Georgia both said the case could be resolved without Alabama, Lancaster requested that briefs be filed.

Alabama and Florida often were allies in federal litigation after 1990 as they battled the Corps of Engineers in court over operation of its reservoirs and sought to curb Georgia’s water use. But Florida, in its 2013 lawsuit, said it’s dispute is with Georgia and Alabama didn’t need to be involved.

In an amicus curiae brief filed Friday, Alabama’s lawyers wrote that original actions before the Supreme Court, such as Florida’s lawsuit, take considerable time and consume “scarce” state resources.

“The two states that already are parties do not believe that a third needs to take part, and Alabama itself has made the careful decision not to enter this particular fray at this particular time,” Alabama’s lawyers wrote. “It (Alabama) instead is focusing on other fora (forums) where it believes it can protect its interests.”

Alabama’s brief did not say what other forums the state is focusing on. Spokespersons for Gov. Robert Bentley and Attorney General Luther Strange did not respond to queries requesting details.

Only 15 percent of the area drained by the Apalachicola, Chattahoochee and Flint rivers lies within Alabama — and most of the 2.6 million population is in the river basin is in the metro Atlanta area. Florida occupies slightly less of the river basin than Alabama.

But Alabama also says it has made investments in shipping facilities along the Chattahoochee River that depend on water and that decreased water flows also could hurt tourism and recreation on reservoirs. The Farley nuclear plant near Dothan and the MeadWestvaco paper packaging plant along in Cottonton, Ala. and cities along the Chattahoochee River also could be hurt, Alabama said.

“Alabama has substantial interests” in the river basin and reserves its right to get involved later if “Alabama’s relationship to this action is different from what it currently perceives,” the state’s lawyers said.

Alabama’s lawyers also said Florida’s case appears to hinge on whether the federal government must be a party in the case.

In earlier filed Supreme Court documents, Georgia said Florida’s own mismanagement of water allowed oysters to be over-harvested and caused the collapse, although University of Florida scientists disagree.

And Georgia argues that the case cannot proceed because the federal government, as manager of reservoirs and dams that control water flow, is a “required party” that was excluded from Florida from the case.

Florida says it is not seeking minimum flows, rather a cap on Georgia’s water use. Therefore, Florida says, the federal government is not a required party in the case.

(Story and photo copyrighted by Bruce Ritchie and Floridaenvironments.com. Do not copy or redistribute without permission, which can be obtained from bruceBritchie@gmail.com.)

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