Lawyers for Georgia, Corps of Engineers get grilled over 2003 deal to store Atlanta water
Daily Report
November 19, 2007
Andy Peters
Washington, DC
WASHINGTON — Federal appeals court judges sharply questioned lawyers Friday for Georgia and the U.S. Army Corps of Engineers on why they didn’t seek Congressional approval for their 2003 agreement to store water at Lake Lanier to supply drinking water for metro Atlanta.
In an intense 80-minute session, the three-judge panel from the U.S. Court of Appeals for the D.C. Circuit focused on whether the plan to set aside about a quarter of Lake Lanier for water storage was a “major operational change” that would surpass the corps’ authority to act on its own.
Senior Judge Laurence H. Silberman relentlessly demanded that lawyers for Georgia and the corps explain how they got around Congress’ authority.
“Under the statute, you have to go to Congress before you implement a major operational change,” he said.
Lawyers for Georgia and the corps argued that because the 2003 agreement created only a temporary contract, it’s did not need Congress’ approval. They also said that the plan would not have a major impact on Alabama and Florida, which are far downstream on the Chattahoochee River.
“The operational change is to Lake Lanier, not to the Chattahoochee River system,” said McKenna Long & Aldridge partner Bruce P. Brown, who argued for Georgia.
The argument came in one of the three cases pending in federal courts related to the Alabama-Florida-Georgia water wars, which have been fought for nearly 20 years. The historic drought that’s afflicting the Southeast has inflamed tensions over how to manage the limited resources of Lake Lanier and the Apalachicola-Chattahoochee-Flint River basin.
Also on Friday, the U.S. Fish and Wildlife Service approved a proposal by Georgia to reduce by about 17 percent the amount of water released from Lake Lanier. Georgia made the request, saying Lake Lanier would run out of water due to the drought if the corps continued to send its current amount downstream to protect endangered species in Florida.
The proposal was initially agreed to by the governors of Alabama and Florida, but the governor of Florida recently backed out of the deal, creating the likelihood he will go to court to stop the reduction.
The D.C. Circuit case specifically deals with the 2003 agreement Georgia and the corps finalized on water storage at Lake Lanier.
Alabama and Florida challenged the agreement’s legality but lost at a lower court. They appealed, leading to Friday’s argument.
Making the D.C. Circuit case curious is that Georgia is arguing on the same side as the corps, a federal agency Gov. Sonny Perdue called “nonsensical” for the amount of water it was releasing from Lake Lanier. In the other two federal cases, the corps sides with Florida and Alabama.
The 2003 agreement calls for the corps to increase the amount of water it stores at Lake Lanier for water supply from about 140,000 acre-feet to about 240,000 acre-feet, or about a quarter of the entire lake, according to court filings.
The agreement was deemed a solution to a longstanding dispute involving the price charged to local municipal and industrial water customers and the related credits issued to electric power customers. Power customers are issued credits because whenever water released through the turbines at Buford Dam is reduced, less hydropower is produced, forcing power customers to purchase more expensive electricity elsewhere.
Power customers have had their demands met since they filed an initial suit in 2000 and are now on the same side as Georgia and the corps. Alabama and Florida say the agreement would significantly reduce the amount of water flowing downstream to them.
Moreover, Alabama and Florida say the amount of water to be set aside for drinking water in Atlanta is so large that it should have required Congress to approve the deal. Since the corps and Georgia didn’t go to Congress, they violated that stipulation of the Water Supply Act of 1958, Georgia’s neighbors say.
But Georgia and the corps argue that the amount of water to be reallocated for water supply is not major and therefore did not trigger the requirement for congressional approval.
On Friday, both Silberman and Judge Brett M. Kavanaugh repeatedly asked the corps’ and Georgia’s attorneys what the benchmark is for when a change in the operation of a federal lake is considered major and when it is not.
“What if 100 percent of Lake Lanier had been reallocated” for storage, instead of 25 percent, Kavanaugh asked the corps’ attorney, Michael T. Gray of the Justice Department. Kavanaugh’s point was to find out the threshold for what the corps considered a major operational change.
Gray did not directly answer the judge’s question, but Silberman and Kavanaugh continued to probe on the major operational change issue. But the judges never seemed satisfied with the answers.
“We’re still struggling with major operational change,” Silberman told Gray.
Judge Judith W. Rogers also sat on Friday’s panel, but asked far fewer questions than Silberman or Kavanaugh.
Silberman also had pointed questions for Florida and Alabama’s lawyers. Silberman asked Florida’s attorney, Hogan & Hartson partner Parker D. Thomson, why the state had not included more data to buttress its contention that the Georgia-corps agreement was a “major operational change.”
“You had every opportunity to put in evidence yourself on what the baseline is for a major operational change,” Silberman said.
Thomson pointed out the inclusion of a 2000 document written by the corps in the appendix of a court filing, but Silberman seemed to reject that response.
Silberman asked Alabama’s attorney, Bradley Arant Rose & White partner Matthew H. Lembke, how the state could base some of its objections on the issue of reduced water for hydropower when the electric utility companies who produce that power aren’t objecting to the 2003 agreement.
“I fail to see how you have any standing to assert this when the hydropower companies have settled,” Silberman said.
Lembke argued, “When less water goes through the dam, there is less flow, and that leads to injury downstream.”
But Silberman was hardest on the attorney for the corps, Gray of the Justice Department.
“The problem you’re having here is trying to explain to us why this is not a major operational change,” Silberman said. “I was a little more persuaded by your brief than by your oral argument.”
Then Silberman asked Gray, “If we conclude that this is a major operational change, the appellants win, correct?”
Gray conceded that Florida and Alabama, the appellants, would win if that was determined by the court.
Sullivan & Worcester partner Clinton A. Vince, arguing for Southeastern Federal Power Customers, tried to explain why the lower court didn’t touch on the issue of what is considered a “major operational change.”
He said that District Court Judge Thomas Penfield Jackson focused on whether the pact forged by Georgia and corps was done in secret or not.
The case is Southeastern Federal Power Customers v. Harvey, No. 06-5080.
Staff Reporter Andy Peters can be reached at apeters@alm.com.