Can a State's Water Rights Be Damned? Environmental Flows and Federal Dams in the Supreme Court

Abstract

Interstate rivers are subject to the doctrine of equitable apportionment, whereby the Supreme Court seeks to ensure that all states that share such rivers get a fair portion of their benefits. The Court has rarely issued an equitable apportionment decree, however, and there is little law on whether the doctrine protects river flows for environmental purposes. The ongoing Florida v. Georgia litigation in the Supreme Court raises this issue, as Florida seeks to limit consumptive uses by upstream Georgia to preserve flows in the Apalachicola River, which provide both economic and environmental benefits. This article summarizes both the equitable apportionment doctrine and the concept of environmental flows, then considers prior Supreme Court cases dealing with environmental issues on interstate rivers. It then examines Florida v. Georgia, including the Court’s 2018 decision where it narrowly allowed the litigation to continue. A key issue in that decision was the role of the Army Corps of Engineers, which operates several federal dams in the river basin at issue in the case. This article examines the views of the Court on the role of the Corps and its dam operations, and contends that the Court focused too narrowly on the agency’s existing plan while overlooking the broader legal and policy context. It concludes with some brief thoughts on the future of the Florida v. Georgia litigation and environmental flows.