SCOTUS Says Upstream States Must Reduce River Usage To Aid Downstream States During Drought

Jul 9, 2018
Originally published on July 4, 2018 1:13 pm

From Texas Standard:

NASA says droughts are becoming more common, and will continue to be. If that's true, more lawsuits could follow. In the U.S., states are taking each other to court over what constitutes fair use of rivers and tributaries. Last week, the Supreme Court ruled in Florida v. Georgia, settling  a long-running dispute over three river systems shared among Florida, Georgia and Alabama. The decision could have significant implications for Texas' water disputes with its neighbors.

John Tracy is the director of the Texas Water Resources Institute at Texas A&M. He says the Supreme Court appointed a special master to handle the case – but it still went to the Supreme Court after the special master declared Georgia was in the right.

“Florida didn’t like the special master’s decision and went straight to the Supreme Court,” he says, “And in a 5-4 decision they came down on the side of Florida and said Georgia can do things to increase flows to Florida during times of drought and that Georgia needs to start undertaking measures to reduce their water use – and in essence provide downstream flows to Florida.”

In cases where an upstream state has completely stopped using water and the downstream user couldn’t get any benefit from the new condition, the Court usually decides to have the upstream user get some beneficial use from the river system. Tracy says that was Georgia’s argument, but the Supreme Court rejected it.

“The special master is going to have to work with all the parties to come up with a way for Georgia to reduce their reliance on water from this river system during times of drought so that they can maintain flows to Florida,” he says.

Texas is in several disputes with other states over its water – most glaringly with New Mexico. Tracy says the decision in Florida v. Georgia reaffirms the rights of the downstream states – and Texas is a downstream state to New Mexico.

“I think that this ruling really puts Texas in a fairly good position in terms of being able to claim that there are steps that the upstream state could take to help Texas get the water it’s entitled to in a river system,” he says.

Tracy says it comes down to money when deciding the balance of harm in these types of cases.

“When you look at the situation in Texas – sort of Texas farmers versus New Mexico farmers – and there it really comes down to prior appropriation,” he says, “Who had the right to the water in the first place at the first time – it’s like ‘Well, you should have been there first’ I guess is the way to answer that question.”

Written by Amber Chavez.

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