Georgia v. United States Army Corps of Engineers

223 F.R.D. 691, 2004 U.S. Dist. LEXIS 18319, 2004 WL 2023024
District Court, N.D. Georgia·Decided July 20, 2004·No. No. CIV.A.2:01-CV-26-RWS·Published·Cited by 8 cases

Opinion

ORDER

STORY, District Judge.

Plaintiff, the State of Georgia (“Georgia”), brought this suit challenging the U.S. Army Corps of Engineer’s (the “Corps”) decision to deny a Water Supply Request from Buford Dam and Reservoir at Lake Lanier. Now before the Court for consideration are: the State of Florida’s Motion to Dismiss [104-1], or in the alternative, to Abate Proceedings [104-2]; the State of Alabama’s Motion for Leave to Intervene [113-1]; the State of Alabama’s Motion to Abate Proceedings [114-1], or in the alternative, Transfer Proceedings [114-2], and for Leave to File Briefs in Support Thereof [114-3]; the Motion to Intervene [118-1] of Gwinnett County, Georgia, the City of Gainesville, Georgia, and the Atlanta Regional Commission; and the State of Florida’s Motion for Leave to File Supplement to Florida’s Renewed Motion to Dismiss or Abate [129-1]. Having considered the record and the parties’ briefs, the Court enters the following Order.

Background

The Chattahoochee River is part of the Apalachicola-Chattahoochee-Flint (“ACF”) River Basin. The Chattahoochee River rises in the Blue Ridge Mountains in northeastern Georgia and flows through Atlanta to the southwest until it turns south and forms the border between the states of Georgia and Alabama. The river joins the Flint River at the Florida border, and upon crossing the Florida border, the river becomes the Apalachicola River and empties into the Apalachicola Bay in the Gulf of Mexico.

In the 1940s, the United States Congress authorized the United States Army Corps of Engineers (“the Corps”) to construct a water reservoir on the Chattahoochee River north of Atlanta-Lake Lanier and the Buford Dam. The use of water in this reservoir-and the operation of its dam-are the focal points of this litigation.

This case is the third of three involving rights to the water in the ACF Basin. The first, styled Alabama v. U.S. Corps of Engineers, No. CV-90-H-01331-E, was filed in the Northern District of Alabama, Eastern Division, on June 29, 1990 (the “Alabama case”). The second, styled Southeastern Federal Power Customers, Inc. v. U.S. Army Corps of Engineers, No. L00CV02975, was filed in the District of Columbia on December 12, 2000 (the “D.C. case”). The history of each of these cases is relevant to the issues before the Court. The Court therefore discusses the Alabama case, the D.C. case, the interaction between those two cases, and this case-the Georgia case-prior to considering the pending motions.

A. The Alabama Case

At issue in the Alabama case are contracts executed between the Corps and the Atlanta Regional Commission and the Cities of Gainesville, Georgia, Buford, Georgia, and Cumming, Georgia, as well as Gwinnett County, Georgia. The contracts involve withdrawing water directly from Lake Lanier and the Chattahoochee immediately downstream of Lake Lanier at an average rate of 327 million gallons per day (“mgd”), and at a peak rate of 377 mgd.

The State of Alabama (“Alabama”) alleges that the Corps’ action in reallocating storage in Lake Lanier and the Chattahoochee exceeds the Corps’ authority under, inter alia, [694] the Water Supply Act of 1958. The remaining counts are devoted to alleged violations of the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321.1 Aabama seeks declaratory and injunctive relief.

The State of Florida (“Florida”) filed a motion to intervene in the suit, alleging that the Corps has exceeded its authority in operating Lake Lanier. Georgia filed a motion to intervene as a party defendant, aligned with the Corps. A number of local governments and interest groups also moved to intervene. On September 19, 1990, the Aabama court entered an order abating the action pending the completion of a comprehensive study on water issues in the ACF and ACT Basins and negotiations among the three states and the Corps. These negotiations led to the adoption of two interstate compacts in 1997: the ACT Compact, Pub. Law No. 105-105, 111 Stat. 2223; and the ACF Compact, Pub. Law No. 105-104, 111 Stat. 2219.

The ACF Compact was adopted for the purpose of “promoting interstate comity, removing causes of present and future controversies, equitably apportioning the surface waters of the ACF, engaging in water planning, and developing and sharing common databases.” ACF Compact, Art. I. The Compact did not contain a formula for determining how much water each state was entitled to receive; rather, it was essentially an agreement to agree. Athough the states negotiated for years, they never reached an agreement and, after many extensions of the 1998 deadline at which the Compact was to terminate, the Compact expired on August 31, 2003.

B. The D.C. Case

On December 12, 2000, some ten years after the commencement of the Aabama case, the Southeastern Federal Power Customers, Inc. (“SeFPC”) filed a case against the Corps in the U.S. District Court for the District of Columbia, contending that the Corps’ contracts with the Atlanta Regional Commission and several other municipalities for the withdrawal of water from the Chattahoochee and Lake Lanier exceed the Corps’ authority under the Water Supply Act of 1958 and the Flood Control Act of 1944. Georgia and certain Water Supply Providers 2 moved to intervene, and were permitted by the parties to participate in mediation scheduled to commence in March 2001. In January 2003, the partieipants-SeFPC, the Corps, ARC, the Water Supply Providers, and Georgia-reached a Settlement Agreement and requested the court’s approval.

C. Interaction Between the Alabama and D.C. Cases

Shortly after the parties reached the Settlement Agreement in the D.C. case, Aa-bama and Florida moved to intervene to challenge the settlement, and they also revived the Aabama case by moving for a preliminary injunction asking the Aabama court to declare the Settlement Agreement violative of the Aabama stay ordered in 1990.

The Aabama court granted Florida and Georgia intervention in the Aabama case and allowed Florida to join Aabama’s motion for preliminary injunctive relief. The court granted the motion on October 15, 2003. In the order, Judge Bowdre enjoined Georgia and the Corps from implementing any part of the Settlement Agreement and from entering into any new storage or withdrawal contracts affecting the ACF Basin without the Aa-bama court’s approval. The order provided that the injunction would last until the Aa-bama litigation was resolved on the merits.

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Georgia v. United States Army Corps of Engineers, 223 F.R.D. 691, 2004 U.S. Dist. LEXIS 18319, 2004 WL 2023024 (N.D. Ga. 2004).

223 F.R.D. 691 (Georgia v. United States Army Corps of Engineers) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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