Thursday, June 30, 2011

Re: MDL-1824 Tri-State Water Rights Litigation

Jun 28: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 09-14657. Appealed from the United States District Court for the Middle District of Florida. The Georgia Parties, Gwinnett County, Georgia, and the United States Army Corps of Engineers (the Corps) appeal from the Middle District of Florida's grant of summary judgment in this consolidated suit. The appeal arises from more than 20 years of litigation involving the above parties as well as the States of Alabama and Florida, Alabama Power Company, the City of Apalachicola, Florida, and Southeastern Federal Power Customers, Inc. (SeFPC), a consortium of companies that purchase power from the federal government. All of the underlying cases relate to the Corps' authority to operate the Buford Dam and Lake Lanier, the reservoir it created, for local water supply.
    In its order, the district court found that the Corps' current operation of the Buford Project -- Buford Dam and Lake Lanier collectively -- had allocated more than 21% of Lake Lanier's storage space to water supply. The court determined that such an allocation exceeded the Corps' statutory authority and ordered the Corps to drastically reduce the quantity of water that it made available for water supply. The court's summary judgment order also affirmed the Corps' rejection of Georgia's 2000 request for additional water supply allocations to meet the needs of the localities through 2030. The court stayed its order for three years to give the parties time to reach a settlement or to approach Congress for additional water supply authority.
    The Appeals Court outlines the claims of the various parties and ruled in a multipart decision, ". . .we hold: First, the district court erred in finding that it had jurisdiction to hear Alabama, SeFPC, and Apalachicola because the Corps has not taken final agency action. The three cases therefore must be remanded to the Corps in order to take a final agency action. Second, the district court and the Corps erred in concluding that water supply was not an authorized purpose of the Buford Project under the RHA [the 1946 Rivers and Harbors Act]. The Corps' denial of Georgia's 2000 water-supply request is therefore not entitled to Chevron deference, and the request must be remanded to the Corps for reconsideration. Third, the district court erred in finding that the 1956 Act, which authorized the Corps to contract with Gwinnett County to withdraw 10 million gallons of water per day, expired after 50 years. Gwinnett County's contractual and just-compensation claims are without merit. Fourth, we also provide certain instructions to the Corps on remand. And finally, the Corps shall have one year to make a final determination of its authority to operate the Buford Project under the RHA and WSA [the 1958 Water Supply Act]."
    Access the complete 95-page decision (click here). [*Water, *Drink, *CA11]

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