Georgia v. U.S. Army Corps of Engineers

• Decision Date: 21 August 2002
• Docket Number: No. 02-10135.,02-10135.
• Parties: The State of GEORGIA, Plaintiff-Appellee, Lake Lanier Association, Proposed Intervenor, v. The UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants, Southeastern Federal Power Customers, Inc., The State of Florida, Proposed Intervenors-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

302 F.3d 1242

The State of GEORGIA, Plaintiff-Appellee Lake Lanier Association, Proposed Intervenor, v. The UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants Southeastern Federal Power Customers, Inc., The State of Florida, Proposed Intervenors-Appellants.

No. 02-10135.

United States Court of Appeals, Eleventh Circuit.

August 21, 2002.

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James H. Curry, Autry, Horton & Cole, LLP, Tucker, GA, Donald G. Blankcnau, Fennemore Craig, PC, Lincoln, NE, Edward J. McGrath, J. Cathy Fogel, David A. Fitzgerald, Kellie A. Donnelly, Clinton A. Vince, Verner, Liipfert, Bernhard, McPherson & Hand, Sullivan & Worcester, LLP, Washington, DC, Amy Weil, Atlanta, GA, for Proposed Intervenors-Appellants.

Bruce Perrin Brown, McKenna, Long & Aldridge, LLP, Stephen E. O'Day, Smith, Gambrell & Russell, Atlanta, GA, for Plaintiff-Appellee.

Teri L. Donaldson, Tallahassee, FL, for State of Florida.

Appeals from the United States District Court for the Northern District of Georgia.

Before BARKETT and MARCUS, Circuit Judges, and HIGHSMITH^*, District Judge.

BARKETT, Circuit Judge:

The State of Florida and Southeastern Federal Power Customers, Inc. ("SeFPC") appeal from the denial of their motions to intervene as defendants in the State of Georgia's lawsuit against the Army Corps of Engineers (the "Corps"), which seeks to compel the Corps to increase the water supply available to the City of Atlanta from a source under the control of the Corps.

BACKGROUND

Georgia, Alabama and Florida share the water supply provided by interconnected rivers that flow through the three states. The Chattahoochee River originates in the mountains of north Georgia, flows southwesterly through Georgia, and becomes the Apalachicola River at the Florida border. Together with Alabama's Flint River, the Chattahoochee and Apalachicola make up the Apalachicola-Chattahoochee-Flint Basin ("ACF Basin"). In 1997, the Apalachicola-Chattahoochee-Flint Compact ("ACF Compact") was enacted by the legislatures and Governors of Alabama, Florida and Georgia, then passed by Congress. Its purposes include "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 data bases." ACF Compact, Art. I.

The Compact does not contain a formula for determining how much water each state is entitled to receive from the ACF Basin. Rather, the Compact requires the three member states to negotiate a water allocation agreement. ACF Compact, Art. VII(a). Georgia, Florida and Alabama have been in negotiations to determine an allocation formula since they enacted the Compact into law, to no avail. The Compact provides that it

shall be terminated and thereby be void and of no further force and effect if ... Alabama, Florida and Georgia fail to agree on an equitable apportionment of the surface waters of the ACF ... by December 31, 1998, unless the voting members of the ACF Basin Commission unanimously agree to extend this deadline.

ACF Compact, Art. VIII(a)(3). Although the three states have not agreed to a water allocation formula, they have agreed to extend the deadline on twelve separate occasions. Most recently, the states agreed to extend the deadline for the determination of an allocation formula until January 31, 2003.

In the 1940s, prior to the enactment of the ACF Compact, Congress authorized the Corps to create Lake Lanier, a reservoir north of Atlanta, "by constructing Buford Dam across the Chattahoochee River."¹ The reservoir and dam remain under the management of the Corps. Lake Lanier is contained within the ACF Basin and thus subject to the ACF Compact.

Two years ago, the Governor of Georgia made a written water supply request asking the Corps to commit to making increased releases of water from the Buford Dam until the year 2030 in order to assure a reliable municipal and industrial water supply to the Atlanta region. Specifically, Georgia requested that the Army Corps take the following actions:

1. Allow municipal and industrial withdrawals from Lake Lanier to increase as necessary to the projected annual need of 297 mgd in 2030;

2. Increase the water released from the Buford Dam sufficiently to permit municipal and industrial withdrawals in the Chattahoochee River south of the dam to be increased as necessary to the projected annual need of 408 mgd in 2030;

3. Enter into long-term contracts with Georgia or municipal and industrial water users in order to provide certainty for the requested releases;

4. Ensure that sufficient flow is maintained south of the Buford Dam to provide the requisite environmental quality — that is, assimilate discharged wastewater; and

5. Assess fees on the municipal and industrial water users in order to recoup any losses incurred by a reduction in the amount of hydropower generated by the dam as a result of the increased withdrawals or releases.

After approximately nine months without a response from the Corps, Georgia filed suit seeking (1) an order compelling the Corps to grant its water supply request; (2) a declaration that the Corps has the authority, without additional Congressional authorization, to grant its request; (3) a declaration that the Corps is subject to state law insofar as it does not conflict with federal law and that state law mandates that the Corps grant the request; and (4) a declaration that, if applicable federal law prohibits the Corps from granting Georgia's request, then such federal law is unconstitutional on its face or as applied by the Corps.² Georgia characterizes the central issue of this case as a determination of the Corps' obligations to Georgia regarding Lake Lanier and the Buford Project under federal and state law.

The state of Florida filed a motion to intervene as of right or permissively as a defendant in the suit and simultaneously filed a motion to dismiss, or, in the alternative, to abate proceedings. Florida argued, as it does on appeal, that Georgia was seeking to effect a de facto partial apportionment of the water in the ACF Basin in violation of the ACF Compact. Florida asserted that if Georgia's water supply request is granted, more water will be consumed upstream in the ACF Basin and less will be available for uses in Florida because the flow in the Apalachicola River, located completely within Florida's borders, depends almost entirely on the amount of water flowing in the Chattahoochee. Florida asserts that the Compact is designed to be the exclusive mechanism to resolve disputes involving the ACF Basin, and that this litigation improperly contravenes the ACF Compact.

The district court denied the motion to intervene on the ground that Florida has no legal interest in the subject matter of the litigation. It found that the controversy between Georgia and the Corps involves only an intrastate allocation of water, and that the disposition of the case would not, as a practical matter, impair Florida's ability to protect its interests, because it would not impede the viability of the ACF Compact or affect Florida's ability to file an equitable apportionment claim in the Supreme Court. The court also denied Florida's motion for permissive intervention, holding that Florida's motion to dismiss or abate the action had no issues of law or fact in common with Georgia's claims and that allowing Florida to intervene would prejudice the original parties to the action.

Six months after Georgia filed suit, SeFPC also filed a motion to intervene as of right or permissively as a defendant, along with a proposed answer to Georgia's complaint. SeFPC's members are "preference customers" of the Buford Project, which means they are entitled to purchase surplus hydropower from the Southeastern Power Marketing Administration ("SEPA"), a power marketing agency of the Energy Department.³ SeFPC argued that, unlike hydropower, municipal and industrial water supply is not an established purpose of the Buford Project, and that granting Georgia's water supply request would reduce the availability of hydropower to SeFPC's members.

The court denied SeFPC's motion to intervene on the ground that the case involves only the legal standards applicable to Lake Lanier and the legal relationship between the Corps and Georgia with respect to intrastate water allocation. It found that denying SeFPC's motion to intervene would not preclude SeFPC from enforcing its rights under its contracts with the Corps. It also denied SeFPC's motion for permissive intervention because it found that the Corps could adequately defend against Georgia's claims.

Finally, on April 15, 2002, after the district court had denied the motions to intervene, and before this Court heard oral argument on the appeal, the Corps denied Georgia's water supply request. It concluded that it lacked the "legal authority to grant Georgia's request without additional legislative authority, because the request would involve substantial effects on project purposes and major operational changes."⁴

STANDARD OF REVIEW

We review the denial of a motion to intervene as of right de novo. Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1512 (11th Cir.1996). Subsidiary factual findings are subject to review for clear error. Meek v. Metro. Dade County, 985 F.2d 1471, 1477 (11th Cir.1993). Orders denying permissive intervention are subject to review for abuse of discretion. Id.⁵

DISCUSSION

Rule 24(a) provides for intervention as a matter of right as follows:

Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter...