Navigation Issues: Status of ACF Litigation Steven Burns Alabama Water Resources Conference Orange Beach, Alabama September 8, 2011

Navigation Issues:Status of ACF Litigation

Steven Burns

Alabama Water Resources ConferenceOrange Beach, Alabama

September 8, 2011

Balch & Bingham LLP 2

Presentation Overview

ACF Litigation - Legal IssuesACF Litigation - The CourtsACF Navigation IssuesDelaware River Litigation


ACF Litigation – Legal Issues


ACF Litigation - Legal Issues

Parties ─ UPSTREAM parties

“Georgia Parties” (Georgia, Atlanta Regional Commission; DeKalb, Fulton, & Gwinnett Counties; Cobb County-Marietta Water Authority; City of Gainesville; Lake Lanier Association)

─ DOWNSTREAM parties Alabama; Florida; Alabama Power Company;

Columbus, GA; Apalachicola, FL

─ Southeastern Federal Power Customers

─ FEDERAL AGENCY parties Corps of Engineers (Corps), Fish & Wildlife Service

(FWS)



Lower court divided proceedings into two “phases”

Phase I: Authorized purposes of Lake Lanier ─ For what purposes did Congress authorize

construction of the Buford Dam?

─ The answer to that question determines whether it was lawful for the Corps to operate Lake Lanier in support of local water supply in North Georgia

Undisputed project purposes: hydropower, flood control, and downstream navigation (below Columbus)



Method to answer the question: ─ Review legislation authorizing project construction

and related documents

─ Project-specific statutes Generally, these statutes authorize the Corps to

proceed with projects in accordance with reports previously submitted by the Corps to Congress

Which means: Congressional intent depends on an interpretation of Corps reports

─ General statutes governing water supply, local contributions, etc.



1946 Rivers & Harbors Act (RHA):─ Corps may build various projects “in accordance

with the plans and subject to the conditions recommended by the Chief of Engineers in the respective reports hereinafter designated”

─ “Apalachicola, Chattahoochee and Flint Rivers, Georgia and Florida; in accordance with the report of the Chief of Engineers, dated May 13, 1946”

─ Also redesignates the “junction” dam as the Jim Woodruff Dam

That’s all the statute says about it.



The report dated May 13, 1946, is reproduced in House Document 300 (1946).



House Doc. 300 includes a report by BG James B. Newman of the Corps

Extensive discussion of topography, hydrology, demographics, economic development needs, construction costs, etc.─ Specific discussion of hydropower and flood

control benefits for Atlanta area

─ Describes limits on hydropower production: Not a total shutdown at off-peak times Continuous minimum flows to be provided at Atlanta

(no less than 650 cfs)



The Newman Report describes the benefits to the Atlanta area associated with continuous flows.

For example:



What do these passages and sources mean? Two possibilities:

Either…

─ Congress intended local water supply as a Congressionally authorized purpose, coequal with hydropower, flood control, and navigation;

or…

─ The Corps described water supply benefits incidental to reservoir construction and satisfaction of hydropower production and other project purposes.



The Corps has consistently interpreted the Newman report and other Corps documents as describing local water supply as an incidental benefit.

The Corps argued that local water supply withdrawals were authorized…

─Not because the RHA said so

─Rather, the authority was provided under another law (Water Supply Act of 1958) (WSA)



Phase II: Endangered Species Act issues; Revised Interim Operating Plan─ Endangered mussels and Gulf sturgeon in the

Apalachicola River

─ Drought-driven operations intended to provide minimum flows below the Woodruff Dam

Phase II issues are not central to the most recent court rulings.


ACF Litigation - The Courts



District Court Judge Magnuson

─From Minnesota

─Designated to hear consolidated cases at the Middle District of Florida

─Chosen because of his subject matter expertise, developed overseeing similar Missouri River litigation



Judge Magnuson’s opinion ruled in favor of AL & FL:

─Water supply a benefit of Buford construction, but only incidental to the primary project purposes

─Atlanta Mayor Hartsfield consciously turned down the opportunity to partially fund Buford construction and reserve storage space in the 1950s



Three-judge panel of the 11th Circuit Court of Appeals reversed

The RHA “clearly indicates that Congress intended for water supply to be an authorized, rather than incidental, use of the water stored in Lake Lanier”

Based on interpreting the report by the Corps’ BG Newman, which, according to the court, Congress incorporated by reference



Legal backgrounder on Chevron, a Supreme Court case: When reviewing an agency’s interpretation of a statute, the courts must follow a two-step analysis:1. If Congress has spoken clearly to the issue, the

statute controls over any agency interpretation to the contrary.

2. If the statute is not clear, the court must apply a deferential standard in reviewing the agency’s interpretation.

So, in this case, if the court had found any ambiguity, it would have been required to defer to the Corps’ interpretation.



The court instructed the Corps to articulate and determine the extent of its authority to provide water supply to the Atlanta area under the RHA and WSA

Deadline: One year



Downstream interests have petitioned the entire 11th Circuit for rehearing “en banc”

Next step: Wait and see if the 11th Circuit requests additional briefing.


Relevance to the Alabama-Coosa-Tallapoosa (“ACT”) case:

─ Pending before Judge Bowdre in the Northern District of Alabama (Birmingham)

─ August 19, 2011: Order requesting any additional challenge to the court’s jurisdiction based on 11th Circuit opinion

Due September 13, 2011

Responses due by October 5, 2011



ACF Navigation Issues



Dredging in the Apalachicola is required to support commercial navigation.

─ 300+/- navigable river miles in the ACF

─ 107+/- river miles along the Apalachicola

─ 3 “trouble spots,” all in the Apalachicola, require dredging (12+/- miles)

Corps has not dredged the Apalachicola since 2001

Result: Not commercially navigable

─ Except on a single-shipment basis, supported by massive temporary releases to float a vessel over shallow spots



Disposal of dredged material is the primary basis for opposition to dredging.

Past disposal methods objectionable to Florida interests on environmental grounds

─ Filling of sloughs

─ “Sand Mountain”

Today, all parties are in agreement that those methods were inappropriate.



State permitting issues

─ 2003: Negotiations between Corps and Florida Department of Environmental Protection (FDEP) for state “water quality certification” under Clean Water Act (CWA) Section 401(a)

─ 2004: Corps files permit application

─ 2005: FDEP denies the Corps’ application

─ 2005 & 2006: Mid-Chatt group appeals unsuccessfully at FDEP and state court

Corps did not appeal



Tri Rivers “404(t)” Petition (2006)

─ Based on CWA Section 404(t): “This section shall not be construed as affecting or impairing the authority of the Secretary [i.e., the Corps] to maintain navigation.”

─ Asserted the Corps’ obligation to maintain the federal navigation channel, despite state objection

Corps responses (2006 & 2008): The Corps will not dredge due to…

─ FDEP permit denial

─ One-year Congressional ban

─ Low tonnage results in funding shortfalls



Corps funding

─ In recent years, the Office of Management and Budget has required funding of the Corps’ Civil Works program based on annual tonnage.

─ ACF is low tonnage even with utilization compared to bigger systems.

─ Lack of dredging means commercial tonnage is nonexistent.

─ That means a “death spiral” of low tonnage and low funding



Other challenges for Corps funding

─ General budget shortfalls

─ Self-imposed Congressional limitation on “earmarks” in appropriations bills

Effectively relinquishes all project-specific funding decisions to the Office of Management & Budget (President’s annual budget submission to Congress)


Delaware River Litigation



Issue:

─ Can a state stop the Corps from maintaining a federally authorized navigation channel?

Federal statutes provide limited state authority to object to federal actions on environmental grounds

─ CWA Section 404(t)

─ Coastal Zone Management Act (CZMA)



Essence of the dispute:

─ Upstream interests support dredging to facilitate commercial navigation

─ Downstream interests receive little economic benefit and object to dredging on environmental grounds

In the Delaware River case, DE & NJ object to dredging for the benefit of the Port of Philadelphia

Note the similarity to the ACF, where FL objects to dredging for the benefit of Alabama and Georgia shippers on the Chattahoochee and Flint Rivers



In the Delaware River litigation, the Corps argued:

─ CWA § 404(t) provides a “navigation exception” to waiver of federal sovereign immunity

─ The states’ actions “would frustrate Congress’ authorization”

─ Federal agencies may proceed over state objections pursuant to the CZMA

Essentially the same positions advanced by Tri Rivers for ACF dredging



The federal district courts for Delaware and New Jersey agreed and ruled in favor of the Corps.

─ Excerpt from Delaware federal district court opinion:

“Ultimately, however, the federal supremacy principles apparent in each of these regimes require that state law yield in certain statutorily defined circumstances.”

─ Similar outcome in the New Jersey federal district court



Status:

─ Both decisions are now on appeal to the U.S. Court of Appeals for the Third Circuit.

─ Opening and response briefs have been filed

─ Reply briefs due Tuesday, September 13


Thank you!

Steven Burns(205) 226-8736

[email protected]

Documents

Navigation Issues: Status of ACF Litigation Steven Burns Alabama Water Resources Conference Orange Beach, Alabama September 8, 2011