Updating Twentieth Century Water Projects to Meet Twenty-first Century Needs: Lessons from the Tri-state Water Wars

• Jurisdiction: United States,Federal
• Publication year: 2013
• Citation: Vol. 29 No. 4

Updating Twentieth Century Water Projects to Meet Twenty-First Century Needs: Lessons from the Tri-State Water Wars

Lewis Jones

John Fortuna

Karen Johnston

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UPDATING TWENTIETH CENTURY WATER PROJECTS TO MEET TWENTY-FIRST CENTURY NEEDS: LESSONS FROM THE TRI-STATE WATER WARS

Lewis B. Jones, John L. Fortuna, Karen M. Johnston

Introduction

As populations grow and water supplies dwindle, communities throughout the United States are looking for ways to fill the gap between supply and demand. In many cases, the water resources exist but are tied up in storage projects operated by the United States Army Corps of Engineers, which operates 136 multipurpose projects storing 9.8 million acre-feet of water (1.24 trillion gallons).¹ As a result of outdated authorizations, under-developed laws, and dysfunctional politics, however, this water has all too often proved incredibly difficult to access.

The "Tri-State Water Wars" among Alabama, Florida, and Georgia are a case in point. Metropolitan Atlanta, with a population of over five million people, lies in the Piedmont Region of North Georgia, where groundwater is scarce and surface water is limited to small, headwater streams with highly variable flows.² As a result, Metropolitan Atlanta depends heavily on storage reservoirs—and in particular on two large Corps projects known as Lake Lanier and Allatoona Lake, which together provide over ninety percent of its water supply.³ No practical alternatives to these reservoirs exist, and

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the entire Metropolitan Atlanta region has developed in reliance upon them.⁴ Yet Atlanta has had to fight for over twenty years to establish its right to continue its existing use of these waters, let alone to secure adequate supplies to accommodate future growth.⁵ Indeed, Atlanta's right to utilize these Corps projects was not established until 2012, when the issue was firmly and finally decided by the United States Court of Appeals for the Eleventh Circuit in In re Tri-State Water Rights Litigation, and the Supreme Court denied further review.⁶

The Tri-State decision has implications for many other federal projects. Lake Lanier, which was the focal point of the Tri-State case, is like many other Corps projects in that it was authorized in the 1940s to serve a mix of purposes that may no longer be relevant. As in the case of many other projects, the region served by Lake Lanier has changed dramatically since Congress authorized the project. When Lake Lanier was authorized, the population of the entire Apalachicola-Chattahoochee-Flint (ACF) River Basin was just 1.6 million,⁷ rural electrification was still a priority throughout the South,⁸ transportation networks were under-developed, and

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environmental protection was hardly a consideration.⁹ Today, five million people reside in metropolitan Atlanta alone,¹⁰ water is scarce, the region is fully electrified and connected by highway and rail, and a host of environmental issues have risen to the fore. In short, priorities have changed.

Unfortunately, the prevailing wisdom—in this controversy and others—has been that an Act of Congress may be required to modify existing projects to serve modern needs.¹¹ The authors argue, however, that the need for Congressional action has been greatly overstated: The Tri-State decision makes clear that older authorizations, when properly understood and interpreted in their historical context, may provide significantly more authority to modify existing projects than has been previously believed.

This paper will proceed in five basic parts. Part I provides a brief discussion of the legal framework governing the authorization and modification of Corps projects.¹² Part II provides a brief overview of

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the Tri-State litigation and the dispute surrounding the Corps' authority to operate Lake Lanier to accommodate Atlanta's growing water supply needs.¹³ Parts III and IV discuss the basic flaw in the Corps' interpretation of the authorizing legislation for Lake Lanier, with a focus on the intervening policy developments and authorization and funding procedures that caused the Corps and the district court to underestimate the Corps' authority to modify project operations to meet Atlanta's needs.¹⁴ Finally, Part V discusses what role, if any, post-authorization legislative history and appropriations legislation should play in interpreting authorizing legislation.¹⁵

I. The Legal Framework Governing Authorization And Modification Of Corps Projects

The Corps enjoys broad discretion to operate water projects under its control. The general understanding is that Congress identifies the purposes to be served by a project while leaving it to the Corps to determine how to balance competing objectives.¹⁶ Because there is very little statutory law on point, however, and because individual project authorizations vary widely, it is not always easy to identify the authorized purposes for any given project. The Corps' own analysis of the "authorized purposes" for each of its projects is set forth in a table published the Code of Federal Regulations at 33 C.F.R. § 222.5, Appendix E.¹⁷

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Project authorities can be divided into two basic groups—specific authorities and general authorities. Specific authorities are contained in the initial authorization for a project and in any subsequent legislation that modifies the original authorizing legislation.¹⁸ Specific authorities often include purposes such as navigation, flood control, hydropower, water supply, and recreation.¹⁹

Congress has authorized other purposes through general legislation applicable to all Corps projects or to all projects constructed after a given date.²⁰ Examples of these general authorities include authority provided by the Flood Control Act of 1944 to sell "surplus water" and to construct and operate recreational facilities;²¹ authority provided by the Water Supply Act of 1958 to include storage for municipal and industrial water supply;²² authority provided by the Clean Water Act to augment low flows to benefit water quality;²³ authority provided by the Fish and Wildlife Coordination Act to modify projects to conserve fish and wildlife;²⁴ and authority provided by the Endangered Species Act to address the needs of endangered and threatened species.²⁵ The limitations applicable to these authorities vary by statute.

In addition, the Army has some inherent authority to make minor modifications to the plans approved by Congress. In some cases the authority to modify a plan is explicitly provided in the authorizing

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legislation,²⁶ but this is the exception and not the rule.²⁷ Even when the authorizing legislation is silent, it is generally accepted that the Army has discretion to modify the specific plans authorized by Congress without further legislation so long as the modification is not "so foreign to the original purpose as to be arbitrary or capricious."²⁸ This general understanding is reflected in an internal guidance document (called an "Engineering Regulation") addressing the Army's authority to modify completed projects.²⁹ The Engineering Regulation states that "significant modifications" require Congressional authorization.³⁰ It indicates that modifications should be deemed "significant" if they would "serve new purposes" or "extend services to new beneficiaries (areas)."³¹ It provides little guidance, however, to assist in determining whether a given purpose should be considered "new," as this is a question of statutory interpretation that can only be determined by examining the specific history of each project.

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II. A Brief History Of The Tri-State Water Rights Litigation³²

Georgia, Alabama, and Florida have been litigating over the Apalachicola-Chattahoochee-Flint (ACF) River Basin and the Alabama-Coosa-Tallapoosa (ACT) River Basin for almost a quarter century.³³ The main point in controversy is the scope of the Corps' authority to use two federal reservoirs—Lake Lanier and Allatoona Lake—to provide drinking water to communities in Metropolitan Atlanta.³⁴ As framed in the litigation, two basic questions were presented: first, whether water supply is a specifically "authorized purpose" of these projects; and second, whether the Corps' water supply operations exceed its supplemental authority under the Water Supply Act of 1958.³⁵

The litigation commenced in 1990 when the Corps released a draft plan to reallocate storage in both Lake Lanier (in the ACF) and Allatoona Lake (in the ACT), and to execute contracts with water supply providers in North Georgia that would assure their access to water stored in the projects into the future.³⁶ Alabama filed suit in the

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Northern District of Alabama to enjoin the Corps from finalizing or implementing the draft plan.³⁷ This litigation was stayed several months later to give the states and the Corps time to negotiate. The stay remained in effect and led to the formation of two interstate compacts—one for each basin—in 1997.³⁸

The two compacts established a governing structure but did not include a formula for allocating water among the states.³⁹ In essence, they were "agreement[s] to agree" on an allocation formula, which the signatories anticipated would be negotiated within one year.⁴⁰ This did not occur, however, and (after several extensions) the ACF and ACT Compacts terminated in 2003 and 2004, respectively.⁴¹

While the compact allocation negotiations were still pending, the State of Georgia submitted a "water supply request" to the Corps.⁴² In this request, Georgia asked the Corps to reallocate storage in Lake Lanier in an amount sufficient to accommodate withdrawals (either directly from Lake Lanier or from the Chattahoochee River below the project) in the amount of 705 million gallons per day.⁴³

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The Corps denied Georgia's water supply request on grounds that it could not "be accommodated without additional Congressional authorization."⁴⁴ The legal memorandum accompanying the...