On June 27, the U.S. Supreme Court issued its decision on special master Ralph Lancaster's Feb. 14, 2017, report in the Florida v. Georgia equitable apportionment case regarding the waters of the Apalachicola-Chattahoochee-Flint River Basin. The report followed a lengthy discovery process and five-week hearing. In his report, the special master recommended to the Supreme Court that it dismiss Florida's claims due to the absence of the U.S. Army Corps of Engineers as a party to the litigation. This dismissal recommendation was made notwithstanding the special master's conclusion that excessive agriculture industry irrigation use of interconnected groundwater and surface water in the lower Flint River watershed of southwest Georgia has resulted in depletion of Flint River flows, with corresponding depletion of flows into the Apalachicola River. But because the corps has managed its reservoirs on the Chattahoochee River to adjust Apalachicola River flows, the special master concluded that, without the corps as a party, an effective remedy could not be fashioned to provide redress to Florida. Following the special master's issuance of his report, the corps issued a revised management manual for its reservoirs on the Chattahoochee. While the manual did not include significant changes to its drought management protocol, it contained an express statement that the corps could be willing to modify its management regime after taking into consideration any decree the court may enter in the litigation. This statement was repeated by the United States in its amicus brief to the court. Supreme Court Remand The court's 5-4 decision reflected consideration of the factual findings of the report, evidence that had been presented to the special master, and the law applicable to equitable apportionment. The court rejected the special master's recommendation that the case be dismissed in the absence of the corps as a party, noting the corps' statement of willingness to consider the court's final decree in a potential modification of its management plan. The court remanded the case to the special master for further proceedings, also providing direction as to evidence and remaining questions the special master should consider in developing a new report. The court noted that the report's factual findings “deserve respect and a tacit presumption of correctness,” while recognizing that the court would otherwise review the evidence anew. The court went on to discuss its view of the evidence on a preliminary basis. The court focused on the irrigation-based depletion of Flint River flows and Georgia's failure to place limits on such irrigation. The court stated that “the greatest share of the basin's water is consumed by agricultural irrigation” in the Flint subbasin, citing to the report's finding that, since 1970, there has been “a dramatic increase in acreage devoted to agricultural irrigation.” The court held: “Given the laws of the states, both Georgia and Florida possess an equal right to make a reasonable use of the waters of the stream, which, in this case, is the Flint River,” and “states have an affirmative duty under the doctrine of equitable apportionment to take reasonable steps to conserve [waters] within their borders for the benefit of other states.” The court cited the report's finding that “there is little question that Florida has suffered harm from decreased flows in the Apalachicola River” and that it had pointed to “real harm and, at the very least, likely misuse of resources by Georgia.” The court pointed to the report's finding of the “unreasonableness of Georgia's consumptive water use,” its conclusion that “Georgia's upstream agricultural water use has been—and continues to be—largely unrestrained,” and its statement that “Georgia's position—practically, politically and legally—can be summarized as follows: Georgia's agricultural water use should be subject to no limitations, regardless of the long-term consequences for the Basin.” With the special master's and court's focus on irrigation-based depletions of the Flint River, it appears that prior allegations by Florida regarding metro Atlanta area's alleged overconsumption of water in the Chattahoochee subbasin were effectively debunked by evidence of metro Atlanta's substantial conservation efforts, pursuant to the Georgia General Assembly's 2001 adoption of the Metropolitan North Georgia Water Planning District Act. That act called upon metro Atlanta jurisdictions, in partnership with the Georgia Environmental Protection Division, to develop and implement integrated water management plans, including water conservation plans. As a result of these conservation efforts, the special master indicated that he did not believe Georgia's municipal and industrial water use, the type of use attributable to metro Atlanta, to be unreasonable. The majority opinion of the court contained no reference to metro Atlanta water use, and the dissent pointed favorably to metro Atlanta's water conservation efforts. What's next? So, what happens next? Where will the special master take the proceedings on remand? What will the Supreme Court do with a new report from the special master following those proceedings? What might Georgia do to improve its position while the litigation continues? One tool could be the modification by EPD of existing water withdrawal permits it has issued in the Flint subbasin to include reasonable limits on what the special master and Supreme Court have indicated to be excessive irrigation use. In this way, as it has done with metro Atlanta, Georgia could attempt to control its own destiny in the balance of this litigation, perhaps even to Florida's satisfaction. Another valuable tool could be for Georgia, Florida, the corps, the special master and Supreme Court to adopt the consensus-based Sustainable Water Management Plan developed under a multiyear collaborative process undertaken by the ACF Stakeholders, a diverse multistate group of agricultural, municipal, industrial, environmental and other interest-holders in the ACF Basin. Craig Pendergrast is an environmental lawyer and partner at Taylor English Duma based in Atlanta. He has served as counsel to the Apalachicola Chattahoochee Flint Stakeholders group and has served on the Metropolitan North Georgia Water Planning District's Technical Coordinating Committee.