Jesse James Richardson, Jr., Professor of Law at West Virginia University's College of Law, is one of the smartest water lawyers I know. He is also a delightful speaker so if you get a chance to hear him speak, do so.
Here's a piece he wrote after reading the Report of the Special Master in Florida v. Georgia water dispute. He gave me permission to post it. I just added the report itself, the ACF basin graphic, Jesse' picture, and the aphorism at the bottom.
Download Report_SpecialMaster_FL_v_GA_11Dec2019
As a Christmas present to myself, I read the report of the Special Master in Florida v. Georgia yesterday. In summary, the Special Master recommends denying Florida's request for a decree because it has not proved the elements necessary to obtain relief. Florida points to the oyster fishery collapse as the harm, but the Special Master found that Florida failed to prove that Georgia caused the collapse. The collapse was likely caused, according to the Special Master, by frequent droughts, over-harvesting, and climate change.In addition, the Special Master found that Georgia's use was not unreasonable or inequitable. Finally, the Special Master determined that the benefits of the apportionment would not substantially outweigh the harms. This is a good recommendation for agriculture, since the Special Master recognizes agricultural as a reasonable use generating "substantial benefits". However, the recommendation could prove to be ominous for rural states since the Special Master considered proportional population and economic production, even while decrying how relying on these measures too much would mean that the "larger state always win".The recommendation is likely bad for environmental groups. Environmental benefits and costs appeared to be given minimal weight, especially when compared with tangible economic benefits and costs.I think SCOTUS will accept these recommendations. The recommendations and very methodical and well supported. Since the Special Master has seen the witnesses and has developed the facts, it would be difficult to reject such well supported findings.Overall, Several interesting points in the report.(1) The Special Master thought it was important that Florida only presented evidence of harm during drought years. It was important to the findings that no harm was alleged during normal to above normal rainfall years. That seems odd to mean. Wouldn't one expect the harm to occur during drought years? I think the point was that the drought caused the damages, not Georgia's pumping. However, but for the the pumping of Georgia, would damages have occurred?(2) The Special Master was very critical of the experts for Florida. Their testimony, in his opinion, failed to specially address harm to individual fish species. Florida's experts relied on a model, many of the assumptions of which the special master viewed skeptically, at best. Georgia's experts, on the other hand, used actual data from on-site meters and the like, which the Special Master viewed favorably. Note that on some issues, experts for both sides used models. The Special Master viewed the Georgia experts as more persuasive on those issues as well.Note that the Special Master seemed to dismiss the testimony of one of Florida's experts because the expert failed to mention the weaknesses of the model until questioned on cross-examination. That expert also failed to disclose several results that did not support his conclusions.In addition, Georgia's experts attacked Florida's data with specificity while Florida's experts offered only generalized attacks. For example, one expert challenged the irrigated acreage totals presented by Georgia, but never estimated how much acreage was omitted.(3) The Special Master also found that Georgia's consumptive use was reasonable. As to the amount of consumptive use, this is the area where Florida used rainfall runoff models while Georgia's experts used number of irrigated acres and metering results. The Special Master found the Georgia method more reliable.Although emphasizing that relying on this fact as dispositive would make reduce equitable apportionment analysis to a "rigid rule whereby the larger state always wins", the Special Master nonetheless seemed to place great weight on the comparison between the proportion of population (92%), employment (96%) and gross regional product (99%) attributable to Georgia and the consumption of state line flows (up to 17.4%, depending on how calculated). This seems odd to me as well. Percentage of population, etc. is all well and good, but the percentage of state line flows consumed may well need to be limited to a very small proportion of the water.(4) This Special Master also disagreed with the prior Special Master with respect to Georgia's conservation of water. The Special Master noted that, despite a substantial increase in population, Georgia uses much less water than it did 30 years ago, but failed to mention that that fact is true across the country due to increased efficiencies (low-flow toilets, more efficient irrigation, etc.)."Drinking and other domestic purposes are the highest uses of water". Agricultural uses of water in Georgia provide "substantial benefits". The special master also found the consumption "reasonable". However, agricultural use of water during drought was called out as "only increasing" and "not effectively curbed", making the question "to what extent the two states should share the burden of drought". The Special Master answered that question by, in a very perfunctory manner, applying the doctrine of reasonable use, and finding Georgia's use reasonable.(5) The Special Master also found that even if the Corps of Engineers would increase flows into Florida, the impact would be minimal. Therefore, Florida would see "no appreciable benefit from a decree".(6) Finally, the Special Master found that the potential harms to Georgia of apportionment would substantially outweigh the benefits to Florida. The Special Master specifically limited his analysis to marginal costs and marginal benefits, drawing approval from economists everywhere. The cost of generating increasing the flow by 801 cfs during summers during dry years would cost $100 million. The Apalachicola fishing industry generates "only" $11.7 million per year and the oyster industry "only" $6.6 million per year before the collapse. This difference appeared to be dispositive.
Enjoy!
"August in Florida is God's way of reminding us who's in charge." - Blaize Clement
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