By: Philip J. Morgan

Philip J. MorganFlorida versus Georgia.  It is a heated contest, and it has been going on for a long time, but it is not a football game; and the stakes are far more important than winning the annual Florida/Georgia game.

It is about water – its control and use.

The case of Florida versus Georgia is now before the U.S. Supreme Court.  Florida believes and argues that Georgia is diverting to Atlanta from the river systems which both states share more water than is reasonable, causing considerable damage to the Apalachicola Bay oyster fishing industry.

This controversy has been going on for more than 20 years without an acceptable solution being reached between the states. The conflict also involves Alabama, but that is a different story.

In 2011, the U.S. 11th Circuit Court of Appeals believed it had the solution by ordering the U.S. Army Corps of Engineers to come up with a plan of allocation of the water rights between Florida and Georgia; however, the Corps of Engineers said the study could take years, so Florida went back to Court and asked the U.S. Supreme Court to decide the controversy.

Just what are the rights of property owners downstream, whether they are private individuals or states?

The general rule of water rights is as follows: “There’s no title to water that runs over the land but all owners are subject only to a reasonable use.” (The Water Crisis: Water, Growth, and Development, Group 6, City Plan: Growth Management Law, April 21, 2008)

States are divided between the “Riparian Rights” theory and the “Prior Appropriation” theory of water law allocation.  The U.S. Supreme Court, however, in historical decisions has taken the position of “Equitable Apportionment,” which is why Florida has taken this case to the U.S. Supreme Court.

Riparian Water Rights is the system under which all owners of properties that adjoin a navigable body of water have the right to make reasonable use of the water flow that runs by, through or over their property.  The Prior Appropriation system is one in which a riparian or a non-riparian user who had previously used water from a body of water had superior rights to the continued use of the same amount of water despite the need of the downstream riparian owners for the water or the consequences (whether physical or economic) to the downstream riparian owners at a later date.

The Doctrine of Equitable Apportionment generally followed by the U.S. Supreme Court is a doctrine that provides that when states disagree over water use of an interstate stream, the court must devise an equitable apportionment of the water that meets the needs of water used in both states.  Equitable Apportionment of water is not based on a mathematical formula but on a fair consideration of all the interest involved including economic interests.

It sounds simple, but it is complicated and will be hugely difficult for the Court to reach what is fair to all interests involved, as the States have failed to reach an agreement on fairness after trying for over 20 years.

Let’s hope that with the Court’s help this contest ends in a draw with both sides winning the Florida–Georgia water war.

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