Wednesday, February 6, 2008

Southeastern Federal Power Customers, Inc. v. Green (Dept. of Army)

Feb 5: In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 06-5080, 06-5081. The case arises out of the requirements of three States for water stored in a federal reservoir. The States of Alabama and Florida appealed the order of the district court approving a Settlement Agreement between Southeastern Federal Power Customers, Inc. (Southeastern), a group of Georgia water supply providers (Water Supply Providers), the U.S. Army Corps of Engineers (the Corps), and the State of Georgia. The Agreement provides for a ten or twenty year “temporary” reallocation of over twenty percent (20%) of the water storage in the Lake Lanier reservoir, which is located in the State of Georgia and operated by the Corps. Alabama and Florida contend that the Agreement violates the Water Supply Act (WSA), 43 U.S.C. § 390b(d), the Flood Control Act (FCA), 33 U.S.C. § 708, and the National Environmental Protection Act (NEPA), 42 U.S.C. § 4321 et. seq.

The Appeals Court said "We need address only one of the statutory challenges. Under the WSA, the Corps must obtain prior Congressional approval before undertaking 'major . . . operational changes.' § 301(d), 43 U.S.C. § 390b(d). Because the Agreement’s reallocation of Lake Lanier’s storage space constitutes a major operational change on its face and has not been authorized by Congress, we reverse the district court’s approval of the Agreement."

In their decision, the Majority concluded, "Congress envisioned that changed circumstances or 'difficult situations' might arise and specified that any solution involving 'major operational . . . changes' required its prior authorization. . . We therefore need not reach the other contentions of Alabama and Florida. The Agreement’s reallocation of Lake Lanier’s storage capacity to local
consumption is a major operational change that under section 301(d) of the WSA, 43 U.S.C. § 390b(d), may not occur without Congress’ prior authorization. Accordingly, because no authorization has been obtained, we hold that the district court erred in approving the Agreement and reverse." The third judge issued a separate, but concurring opinion.

Access the complete opinion (
click here).

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