ELR Citation: ELR 20160
No(s). 3:07-md-01 (M.D. Fla. Jul 17, 2009)

A district court sitting in a multi-district litigation concerning water disputes between Alabama, Florida, and Georgia held that the U.S. Army Corps of Engineer violated §301 of the Water Supply Act (WSA) when it failed to seek congressional approval for actions it took with respect to water supply in Lake Lanier, a reservoir created in 1956 by the completion of Buford Dam on the Chattahoochee River. In 1989, the Corps decided that the WSA did not require it to seek congressional authorization for the reallocation of significant amounts of Lake Lanier's storage to water supply for the Atlanta metropolitan region. The WSA provides that the Corps may set aside storage for water supply in a previously constructed reservoir as long as: (1) the beneficiaries of that storage pay a proportionate share of the costs of the project; and (2) the modification does not seriously affect the project's purposes or constitute a major structural or operational change. Although the water supply users have not paid a proportionate share of the project's costs, the court assumed for purposes of this case that the beneficiaries would pay a proportionate share of the cost of the project. Nevertheless, based on the legislative history and the record, water supply, at least in the form of withdrawals from Lake Lanier, is not an authorized purpose of the Buford project. Both before and during construction of Buford Dam, as well as in the decades after Buford Dam was completed, the Corps consistently described the primary purposes of the project as flood control, navigation, and hydropower. Although Congress and the Corps anticipated some benefits to water supply from the project, the water supply benefit was not from storage for water supply provided by Lake Lanier. Moreover, the Corps' reallocation of nearly a quarter of Lake Lanier's conservation storage to support water supply is a major operational change. The Corps argued that any storage reallocation to accommodate existing water supply needs will have an insignificant impact on the project's authorized purposes of hydropower generation and downstream navigation, but the court found the Corps's calculations suspect. Accordingly, the Corps should have sought congressional approval. The court stayed this phase of the litigation for three years to allow Congress' approval for the operational changes requested. During the stay, Alabama, Florida, and Georgia may continue to operate at current water supply withdrawal levels but may not increase those withdrawals absent the agreement of all other parties to this matter.

[Related decisions can be found at 33 ELR 20015, 35 ELR 20052, 35 ELR 20188, and 38 ELR 20042.]