U.S. Supreme Court refuses to hear Florida's case in tri-state water disputeBruce Ritchie, 06/25/2012 - 05:28 PM
The Apalachicola, Chattahoochee and Flint river system. Map credit: Atlanta Regional CommissionThe U.S. Supreme Court on Monday refused to take up an appeal filed by Florida in the case involving the Apalachicola-Chattahoochee-Flint river system.
The decision not to hear Florida's request to review an 11th U.S. Circuit Court of Appeals ruling could harm the Apalachicola River and bay, the Florida Department of Environmental Protection said Monday.
Alabama, Florida and Georgia have been fighting in federal court over water since 1990. Alabama and Georgia want water for industry and growing cities, while Florida wants water for fish and wildlife along the Apalachicola River and to support the seafood industry in Apalachicola Bay.
Lake Lanier, a federal reservoir on the Chattahoochee River in north Georgia, has been the focus of the dispute because it provides 60 percent of the storage capacity among the reservoirs on the river system.
U.S. District Judge Paul Magnuson in 2009 ruled that Congress must authorize Lake Lanier to provide water to Georgia cities. Without authorization, he ordered that water use be cut off in three years.
But the 11th Circuit overturned the decision and instead directed the Corps of Engineers to analyze its authority related to the Lake Lanier.
Florida and Alabama in February asked the Supreme Court to review the case. The Supreme Court denied the petition on Monday without comment.
"The department is concerned that the 11th Circuit Court of Appeals decision could result in unbalanced management of the reservoir system, diverting more water from Lake Lanier for local municipal purposes, and depriving Florida of the water flows needed to support the ecology and economy of the River and Bay," Florida DEP said in a statement. "This could allow further disruption of the biological productivity and unique ecosystem of the river and bay and adversely affect endangered species and the bay's hallmark oyster production."
Georgia Gov. Nathan Deal said the Supreme Court had affirmed that drinking water always was an authorized use of Lake Lanier.
"We can now move forward with this issue behind us, have the governors work together and come to a long-term agreement that will provide for the water needs of all three states," Deal said in a news release.
The environmental group Apalachicola Riverkeeper said it was disappointed by the decision. Dan Tonsmeire, the group's executive director, said the states now can either focus on sharing water throughout the river basin, as the ACF Stakeholders group has suggested, or begin a new round of litigation.
"I think the most sane thing is to try to sit down and use the best available science and see what we can work out," he said. "I hold out some optimism we will achieve that overall look at how water can be managed in the whole ACF basin."
The ruling was drawn narrowly around the issue of judicial review rather than the larger question of the E.P.A.’s jurisdiction over wetlands. Nonetheless, property-rights advocates hailed it as a victory for individual freedoms over governmental authority.
For years, the E.P.A. has invoked its authority under the Clean Water Act to issue so-called compliance orders declaring a site to be a wetland and requiring owners to stop construction or to restore the land. Property owners could not seek judicial review of these orders without taking other administrative steps like applying for permission from the Army Corps of Engineers to build on a wetland.
Wetlands have been accorded federal protection because of their role as natural incubators and as water-cleansing filters within larger ecosystems. The agency argued that compliance orders are crucial to its ability to step in and guard such areas from illegal development, and that immediate judicial review of these administrative actions would undermine the Clean Water Act.
But the couple bringing the case, Michael and Chantell Sackett, argued that they should be able to ask a court to rule immediately on an agency order that carries with it the threat of fines of $75,000 a day.
The Sacketts had sought a hearing with the E.P.A. but were denied one. They then sued for judicial review of the wetlands determination.
Justice Antonin Scalia, writing for the court, said, “There is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review.”
The ruling in Sackett v. Environmental Protection Agency, No. 10-1062, did not address the question of the E.P.A.’s jurisdiction, particularly over wetlands. This issue was addressed — but not clearly decided — in a 2006 case involving a Michigan developer, John Rapanos.
In a statement, the E.P.A. said, “E.P.A. will, of course, fully comply with the Supreme Court’s decision, which the agency is still reviewing, as we work to protect clean water for our families and future generations by using the tools provided by Congress to enforce the Clean Water Act.”
In a concurring opinion, Justice Samuel A. Alito Jr. called on Congress to end the ambiguity over the E.P.A.’s jurisdiction. “Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act,” he wrote.
The Sacketts were represented by the Pacific Legal Foundation, a libertarian group in California. Their case drew support from groups including the National Association of Home Builders, the National Federation of Independent Business, the U.S. Chamber of Commerce, the National Association of Manufacturers and the Competitive Enterprise Institute.
via nytimes.com