In re Tri-State Water Rights Litigation

• Decision Date: 17 July 2009
• Docket Number: No. 3:07-md-01 (PAM/JRK).,3:07-md-01 (PAM/JRK).
• Citation: 639 F.Supp.2d 1308
• Parties: In re TRI-STATE WATER RIGHTS LITIGATION.
• Court: U.S. District Court — Middle District of Florida

Page 1308

639 F.Supp.2d 1308

In re TRI-STATE WATER RIGHTS LITIGATION.

No. 3:07-md-01 (PAM/JRK).

United States District Court, M.D. Florida.

July 17, 2009.

Andrew Robert Greene, Bradley, Arant, Rose & White, L.L.P., Birmingham, AL, Andrew B. Koplan, Andrew B. Koplan, PC, Atlanta, GA, Andrew Mcfee Thompson, Smith, Gambrell & Russell, LLP, Atlanta, GA, Anthony P. Hoang, U.S. Dept. of Justice Environment and Natural Resources Div., Washington, DC.

MEMORANDUM AND ORDER

PAUL A. MAGNUSON, District Judge.

In the Rivers and Harbors Acts of 1945 and 1946 ("1945 RHA" and "1946 RHA"), Pub.L. No. 79-14, 59 Stat. 10, 10-11 (1945 RHA); Pub.L. No. 79-595, 60 Stat. 634, 640 (1946 RHA), Congress authorized the United States Army Corps of Engineers (the "Corps") to begin construction of a dam and reservoir on the Chattahoochee River north of Atlanta, Georgia. Construction on the project finished in approximately 1960. The dam was christened the Buford Dam; the reservoir was named Lake Sidney Lanier.

At issue in this Multi-District Litigation ("MDL") is the Corps's operation of Buford Dam and Lake Lanier. The parties to the various member cases are the states of Alabama, Florida, and Georgia; the Southeastern Federal Power Customers ("SeFPC"); the cities of Apalachicola, Florida, and Atlanta, Columbus, and Gainesville, Georgia; the Georgia counties of Gwinnett, DeKalb, and Fulton; the Atlanta Regional Commission ("ARC"); the Cobb County-Marietta Water Authority; the Lake Lanier Association;¹ the Alabama Power Company ("APC"); the Columbus Water Works ("CWW"); the Middle Chattahoochee River Users; and the Corps and several Corps officers.²

After the cases were consolidated by the Judicial Panel on Multidistrict Litigation, the parties agreed that the Court should consider the claims in two phases. Because some of the claims were similar or identical to claims pending before the United States Court of Appeals for the District of Columbia Circuit, the Court scheduled the proceedings on those claims second, awaiting that court's resolution of the claims. Thus, the first scheduling orders in the MDL case contemplated that the Court would first entertain environmental claims, such as claims that the Corps's operations in the Apalachicola-Chattahoochee-Flint ("ACF") river basin violate the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., and other environmental laws and regulations. Left for phase two were the overarching claims of the Corps's authority (or lack thereof) for its operations in the basin in general, such as claims that the Corps is violating the Water Supply Act and the Flood Control Act.

The D.C. Circuit ruled on claims similar to the so-called "overarching" claims in 2008. Thereafter, the "overarching" claims became ripe for this Court's resolution, and the Court therefore ordered that the phases be "flipped" so that the parties would present the statutory authorization and related issues first. (Aug. 11, 2008, Order.) The issues for resolution in the new Phase One include: (1) whether the Corps's operations in the ACF basin, including the execution of water-supply contracts and installation of water intake structures in Lake Lanier, the alleged preference of water supply over other purposes, and the denial of Georgia's water-supply request violate the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq., the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.; the Flood Control Act ("FCA"), 33 U.S.C. § 708 et seq.; the Water Supply Act ("WSA"), 43 U.S.C. § 390 et seq.; the Coastal Zone Management Act ("CZMA"), 16 U.S.C. § 1451 et seq.; and other congressional enactments; and (2) whether the water control plans and manuals, reservoir regulation manuals, action zones, recreation impact levels, and the Upper Chattahoochee Management Plan/River Management System violate federal law.

The fundamental question in the case is whether, by taking or failing to take the actions complained of in the various lawsuits, the Corps violated § 301 of the WSA, which provides:

Modifications of a reservoir project heretofore authorized, surveyed, planned, or constructed to include storage [for water supply] which would seriously affect the purposes for which the project was authorized, surveyed, planned, or constructed, or which would involve major structural or operational changes shall be made only upon the approval of Congress. . . .

43 U.S.C. § 390b(d). In general, Florida, Alabama, APC, and the SeFPC contend that the Corps was obligated to seek Congressional approval for actions the Corps has taken with respect to water supply in Lake Lanier, because those actions allegedly affect the purposes for which the Buford Dam project was authorized or constitute major structural or operational changes. The Georgia parties and the Corps argue that Congressional approval is not required because the project's purposes include water supply and because, in any event, the Corps's operations have not amounted to a major structural or operational change in the project. To resolve these differences, the Court must examine the history of the Buford Dam and Lake Lanier.

BACKGROUND

A. Legislative History

1. Authorization

Although the 1945 and 1946 RHAs officially authorized the construction of Buford Dam, the Corps had been examining the feasibility of such a project for many years prior to 1945. Indeed, as early as 1925,³ Congress asked the Corps to work with the Federal Power Commission (the predecessor to the Federal Energy Regulatory Commission) to examine the development of hydroelectric facilities on waterways nationwide, including in the ACF basin. River & Harbor Act of 1925, Pub.L. No. 68-585, ch. 467, 43 Stat. 1186, 1186, 1194 (March 3, 1925). In 1938, in response to a House resolution regarding the ACF basin, a Corps district engineer Colonel R. Park, prepared a report to Congress outlining in great detail the geography and history of the basin and making recommendations for potential improvements in the basin. See H.R. Doc. No. 76-342, at 9-87 (1939) [hereinafter "Park Report"] (ACF000126-65).⁴ It was in the Park Report that the project as eventually completed began to take shape.

The Park Report discussed a multitude of options for the development of rivers in the ACF basin and detailed eleven sites that could support a dam project to benefit hydroelectric power plants and navigation on the rivers. One of the eleven sites was the "Roswell" site "located on the Chattahoochee River 16 miles north of Atlanta, Ga., and about 2.5 miles upstream from the highway bridge at Roswell." Park Report ¶ 196, at 66 (ACF000155). The Roswell site is approximately where Buford Dam was eventually located.

The Park Report detailed both the costs and benefits of each of the eleven sites. Colonel Park considered the following "direct benefits" for all of the proposed sites:

(a) Savings to the public in transportation charges.

(b) Value of hydroelectric power developed.

(c) Value as a facility for national defense.

(d) Increased commercial value of riparian lands.

(e) Recreational value.

(d) Value as a source of industrial and municipal water supply.

Id. ¶ 243, at 77 (ACF000160). The Park Report assigned an approximate dollar value to each "direct benefit." For example, in Colonel Park's estimation, the value of hydroelectric power if all eleven projects had been built would have been worth $6.5 million annually. Id. ¶ 247, at 78 (ACF000161). Similarly, Colonel Park assigned a value of $25,000 to national defense, and $50,000 as a two-reservoir system's recreational value. Id. ¶¶ 250-51, 259, at 79, 80 (ACF000161-62). For the proposed projects' value as a water-supply source, however, Colonel Park assigned no monetary value, noting that "[t]here is apparently no immediate necessity for increased water supply in this area though the prospect of a future demand is not improbable." Id. ¶ 260, at 80 (ACF000162). Water supply was the only potential benefit assigned no monetary value in the Park Report. Id. ¶ 261, at 81 (ACF000162).

After the Park Report was submitted to Congress, the Corps continued to evaluate the ACF basin for potential improvements. A so-called "interim" plan was submitted to the Chief of Engineers in December 1942, but was never submitted to Congress. See Sherk, Buford Dam, at 45 & n. 190 (noting that the interim report itself is not available, likely because it was withdrawn before being submitted to Congress). The interim report recommended two potential dam sites, including the Lanier site, "`principally in the interest of hydropower.'" Id. at 45 (quoting Memorandum from P.A. Feringa, Colonel, Corps of Eng'rs, to Chief of Eng'rs (Oct. 28, 1943)). The Chief of Engineers sent the report back to the district engineer, asking him to revise the report to include an analysis of the benefits to navigation and flood control. Id.

The 1945 RHA stated specifically that the ACF project was authorized "in accordance with the plans" in the Park Report. 1945 RHA, ch. 19, 59 Stat. at 12, 17. Because the Park Report had not established where in the ACF basin the dam or dams would be built, the Corps continued to study the matter. The first result of this study was the report of Brigadier General James B. Newman, Jr., submitted to Congress in 1947. H.R. Doc. No. 80-300, at 10-40 (1947) [hereinafter "Newman Report"] (ACF000644-74).

General Newman noted that "[t]he principal value of the Chattahoochee River is as a source of power." Id. ¶ 7, at 13 (ACF000647). He described the Park Report as evaluating the rivers in the ACF basin "in the combined interest of navigation and power." Id. ¶ 47, at 22 (ACF000656). The majority of the Newman Report consists of detailed evaluations of the hydropower and navigation benefits of the alternatives discussed in the Park Report. General Newman concluded that the locks and dams proposed by the Park Report for the southern portion of the Chattahoochee, below Columbus,...