11th Circuit Court Of Appeals Weighs In On Army Corps' Statutory Authority For Lake Lanier Operations

What is now commonly known as the Tri-state water war between Georgia, Alabama, and Florida recently reached its latest turning point in its decades-long unfolding. The object of this war — water from Lake Lanier, an Army Corps of Engineers reservoir on the Chattahoochee River north of Atlanta with a conservation pool of 1,049,000 acre-feet.1 Built in the 1950s,2 hydropower releases from Lake Lanier meander down the river, eventually forming the Alabama-Georgia state line. The Chattahoochee River converges with the Flint River to form the Florida Panhandle's Apalachicola River, and eventually discharges fresh water to the Apalachicola Bay, an inlet of the Gulf of Mexico. The players on the battlefield: Georgia and its multi-million and growing population in the Atlanta metropolitan area; Alabama and its municipal, industrial, and agricultural users; and Florida, where the fresh water inflows support all manner of fish, shrimp, and oysters.

The focus of this battle was the Corps' authority to use Lake Lanier to meet Atlanta's water supply needs. At the heart of the battle are the Corp's original statutory authority to build the reservoir, as viewed through its legislative history, including the Corps' technical reports,3 and the interplay between the reservoir's creation statute and the subsequently enacted Water Supply Act of 1958.4

In a 2009 U.S. District Court order, the district judge concluded that the Corps, the owner and operator of the reservoir, lacked authority to reallocate reservoir storage to water supply at the expense of hydropower generation because water supply was not an authorized purpose for Lake Lanier. According to the district court, the references to water supply benefits in the legislative history of the statute authorizing construction of Lake Lanier, the Rivers and Harbors Act of 1946 (referred to in this article as 1946 RHA) were descriptive of the incidental benefits associated with the regulation of river flow by releases for hydropower.5 Further, the court held that the 1958 Water Supply Act could not be used as authority to allow the Corps to redistribute water from Lake Lanier.6 The Water Supply Act limits modifications of a reservoir project if the change would "seriously affect the purposes for which the project was authorized, surveyed, planned or constructed, or which would involve major structural or operational changes ..."7 The district court found that the level of water supply contemplated by the Corps and requested by Atlanta would be a significant redistribution and result in a major operational change.8 Moreover, use of Lake Lanier for significant water supply would seriously affect the purposes for which Lake Lanier was originally authorized.9 The district court judge himself called his ruling "draconian," but nevertheless set July 2012 as the deadline for...