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No. 142, Original in the Supreme Court of the United States STATE of FLORIDA, Plaintiff, V. STATE of GEORGIA, Defendant. STATE

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No. 142, Original in the Supreme Court of the United States STATE of FLORIDA, Plaintiff, V. STATE of GEORGIA, Defendant. STATE No. 142, Original In The Supreme Court of the United States STATE OF FLORIDA, Plaintiff, v. STATE OF GEORGIA, Defendant. STATE OF GEORGIA’S PRETRIAL BRIEF SAMUEL S. OLENS CRAIG S. PRIMIS, P.C. ATTORNEY GENERAL OF GEORGIA K. WINN ALLEN DEVORA ALLON BRITT C. GRANT KIRKLAND & ELLIS LLP SARAH H. WARREN 655 FIFTEENTH STREET, N.W. OFFICE OF THE ATTORNEY GENERAL WASHINGTON, D.C. 20005 40 Capitol Square TELEPHONE: (202) 879-5000 Atlanta, GA 30334 [email protected] TELEPHONE: (404) 656-3383 Special Assistant Attorneys General for the W. RYAN TEAGUE State of Georgia OFFICE OF GOVERNOR NATHAN DEAL 206 Washington Street 111 State Capitol Atlanta, GA 30334 TELEPHONE: (404) 656-1776 TABLE OF CONTENTS Page INTRODUCTION .......................................................................................................................... 1 ARGUMENT .................................................................................................................................. 4 I. FLORIDA MUST OVERCOME SUBSTANTIAL BURDENS OF PROOF. ................... 4 II. FLORIDA CANNOT SHOW CLEAR AND CONVINCING EVIDENCE OF SUBSTANTIAL INJURY CAUSED BY GEORGIA’S WATER. .................................... 6 A. Georgia’s Water Use Did Not Cause Florida’s Oyster Fishery Collapse. .............. 6 B. Georgia Has Not Caused Substantial Injury To The Apalachicola River. ........... 11 C. Florida Cannot Prove Ecological Harm To Apalachicola Bay. ............................ 14 D. Florida Cannot Create New Legal Definitions Of “Harm” To Compensate For Its Failure to Develop “Clear And Convincing” Evidence. ........................... 16 E. Florida Cannot Show By Clear And Convincing Evidence That Georgia’s Water Consumption Is Decreasing Flows At The State Line. .............................. 17 III. FLORIDA CANNOT SHOW CLEAR AND CONVINCING EVIDENCE THAT GEORGIA’S WATER USE IS INEQUITABLE. ............................................................ 20 A. Georgia’s Water Consumption Is Plainly Equitable. ............................................ 21 B. Georgia Has Made Substantial Efforts To Conserve Water For Municipal And Industrial Purposes. ....................................................................................... 23 C. Georgia Has Made Substantial Efforts To Conserve Agricultural Water Resources. ............................................................................................................. 26 IV. FLORIDA’S PROPOSED REMEDIES WILL NOT REDRESS ITS ALLEGED HARMS, WILL IMPOSE EXTREME COSTS, AND CANNOT BE IMPOSED WITHOUT THE UNITED STATES AS A PARTY. ...................................................... 31 CONCLUSION ............................................................................................................................. 40 i TABLE OF AUTHORITIES Page(s) Cases Aransas Project v. Shaw, 775 F.3d 641 (5th Cir. 2014) ...................................................................................................14 Colorado v. Kansas, 320 U.S. 383 (1943) ...................................................................................................2, 4, 17, 31 Colorado v. New Mexico, 459 U.S. 176 (1982) (Colorado I) .............................................................................1, 5, 20, 31 Colorado v. New Mexico, 467 U.S. 310 (1984) (Colorado II) .................................................................................. passim Connecticut v. Massachusetts, 282 U.S. 660 (1931) .........................................................................................................4, 6, 21 Idaho ex rel. Evans v. Oregon, 462 U.S. 1017 (1983) .........................................................................................................1, 5, 6 Kansas v. Colorado, 206 U.S. 46 (1907) ...............................................................................................................5, 20 Pennsylvania v. New Jersey, 426 U.S. 660 (1976) (per curiam) .............................................................................................6 Washington v. Oregon, 297 U.S. 517 (1936) ...................................................................................................5, 6, 20, 31 Wyoming v. Colorado, 259 U.S. 419 (1922) ...........................................................................................................37, 38 Rules Fed. R. Civ. P. 19 ...........................................................................................................................32 Fed. R. Civ. P. 19(a) ......................................................................................................................32 Fed. R. Civ. P. 19(b) ......................................................................................................................32 ii INTRODUCTION The Supreme Court places a heavy burden on States like Florida that seek to upset the status quo through a common-law equitable apportionment action. As the Court has explained, “the equities supporting the protection of existing economies will usually be compelling,” Colorado v. New Mexico, 459 U.S. 176, 187 (1982) (Colorado I), because the “harm that may result from disrupting established uses is typically certain and immediate, whereas the potential benefits from a proposed diversion may be speculative and remote,” Colorado v. New Mexico, 467 U.S. 310, 316 (1984) (Colorado II). This case begins and ends with these principles: Georgia’s existing water uses are compelling, disrupting those uses will cause certain and substantial harm, and Florida’s claimed injuries are speculative or not attributable to those uses. Georgia is home to over 98% of the population and economic activity in the Apalachicola-Chattahoochee-Flint River Basin (“ACF Basin”). ACF waters in Georgia support a city of five million people and a multibillion dollar agricultural industry. And yet, despite those highly beneficial uses, the vast majority of water in the Basin flows through to Florida, both in times of plenty and in times of drought. Florida receives more than 90% of available water under most conditions. And even in the worst drought conditions, the United States Army Corps of Engineers (“Corps”) guarantees flows to Florida of at least 5,000 cubic feet per second (cfs) in most cases—an amount Florida itself says is “enough water both to supply approximately 19 million people and irrigate approximately four million acres of farmland.”1 Before the Supreme Court will interfere with a sovereign State’s decisions on how to use the water within its own borders, the Court requires a plaintiff State to demonstrate an injury caused by another State that is “real and substantial,” Idaho ex rel. Evans v. Oregon, 462 U.S. 1Fla. Mot. in Limine to Preclude Expert Testimony by Dr. Philip Bedient and Dr. Sorab Panday at 3 (Sept. 16, 2016) (emphasis in original). 1 1017, 1028 (1983), and that constitutes “serious damage to her substantial interests and those of her citizens,” Colorado v. Kansas, 320 U.S. 383, 398 (1943). A plaintiff State, moreover, must prove those injuries by clear and convincing evidence: “Society’s interest in minimizing erroneous decisions in equitable apportionment cases requires that hard facts, not suppositions or opinions, be the basis for interstate diversions.” Colorado II, 467 U.S. at 320-21. This case fails at the outset because Florida cannot meet its burden of proving real and substantial injury by clear and convincing evidence. As Florida readily admits, this is not a case of economic harm. Rather, Florida attempts to establish a series of ecological harms that it claims must be caused by Georgia’s upstream water use. But these harms either do not exist, are based on speculation, or were caused by factors other than Georgia, such as operations of the Corps, uncontrollable forces of nature, or Florida itself. For example, Florida says that Georgia caused its oyster collapse, but Florida’s own leading scientists at the University of Florida studied this issue for thousands of hours and “did not find correlations” between Apalachicola River flows and the 2012 oyster collapse. Florida also claims that Georgia’s water use has endangered the fat threeridge mussel, but the U.S. Fish and Wildlife Service has estimated that between 6 and 18 million fat threeridge live in the Apalachicola River, ten times prior estimates. And Florida has been forced to concede that it was the Corps (not Georgia) that fundamentally changed the river’s habitat when it built Woodruff Dam and dredged the river channel. The evidence will also show that Georgia’s water use is “equitable” by any measure. The Atlanta metro region is a nationally recognized leader in water stewardship. Georgia has spent millions on water conservation in the region, and both per capita and total consumptive water use have declined in Atlanta over the last twenty years. Tellingly, Florida has dropped the expert it retained to critique Atlanta’s water conservation efforts. Moreover, since the late 1990s when 2 scientific evidence first began to suggest that agricultural irrigation could have an impact on streamflows, Georgia has directed significant funds and resources toward agricultural water conservation. Georgia has extensively studied agricultural water use in the ACF Basin, enacted a suite of measures to promote conservation and efficient water use, provided resources to farmers to improve irrigation efficiency, and placed limitations on new irrigations permits in key areas. Those efforts have had real and meaningful impacts
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