To appreciate the issues that have arisen during implementation of the ACF and ACT Compacts, it is necessary to understand the historical context within which both the Compacts and the draft allocation agreements were developed. In response to both continued population growth and an ongoing series of droughts, the U.S. Army Corps of Engineers® in 1986 entered into water supply contracts with a number of local municipalities in the Atlanta metropolitan area.' These contracts were for water to be supplied from Lake Lanier to the municipalities. Drought returned to the area in 1988. In response, the Corps recommended reallocation of storage in Lake Lanier, Lake Allatoona and Carters Lake as needed to meet the future water supply needs of the Atlanta metropolitan area. To facilitate the reallocation, the Corps prepared "Post Authorization Change” documentation as needed to change the purposes for which a federal facility was authorized. Because of its opposition to the recommended reallocation, litigation was initiated by Alabama against the Corps in 1990.10 In April of 1991, Georgia and Alabama signed a Letter of Agreement that, among other provisions, mandated a comprehensive study that was intended to provide a basis upon which the conflict between Georgia and Alabama might be resolved. This Letter of Agreement was supplemented on numerous occasions. In September of 1996, the three states now involved in the conflict (Alabama, Florida and Georgia) reached a supplemental agreement to develop interstate compacts to cover both the ACT and the ACF river basins. The process by which these compacts were negotiated is discussed in greater detail in Section II.B. See generally C. Grady Moore, "Water Wars: Interstate Water Allocation in the Southeast," 14 Natural Resources and Environment 5 (1999); Jeffrey Uhlman Beaverstock, "Learning to Get Along: Alabama, Georgia, Florida and the Chattahoochee River Compact," 49 Alabama Law Review 993 (1998); David N. Copas Jr., Note, "The Southeastern Water Compact, Panacea or Pandora's Box? A Law and Economics Analysis of the Viability of Interstate Water Compacts," 21 William and Mary Environmental Law and Policy Review 697 (1997); Mary R. Hawk, Note, "Interstate Compacts: Allocate Surface Water Resources from the Alabama-Coosa-Tallapoosa River Basin Between Georgia and Alabama; Allocate Surface Water Resources from the Apalachicola-Chattahoochee-Flint River Basin Among Alabama, Florida and Georgia," 14 Georgia State University Law Review 47 (1997); Robert E. Vest, Note, "Water Wars in the Southeast: Alabarna, Florida and Georgia Square Off Over the Apalachicola-Chattahoochee-Flint River Basin," 9 Georgia State University Law Review 689 (1993); Carl Erhardt, "The Battle over 'The Hooch': The Federal-Interstate Water Compact and the Resolution of Rights in the Chattahoochee River," 11 Stanford Environmental Law Journal 200 (1992). 6 7 Hereinafter cited as either "the Corps" or "COE" depending on the context. Such contracts were authorized by both the Flood Control Act of 1944 and the Water Supply Act of 1958. Section 6 of the Flood Control Act of 1944, Public Law No. 78-534 (22 December 1944) (codified at 33 U.S.C. §708) provides in relevant part that "[t]he Secretary of the Army is authorized to make contracts with States, municipalities, private concerns, or individuals, at such prices and on such terms as he may deem reasonable, for domestic and industrial uses for surplus water that may be available at any reservoir under the control of the Department of the Army: Provided, That no contracts for such water shall adversely affect then existing lawful uses of such water." Section 301(d) of the Water Supply Act of 1958, Public Law No. 85-500, Title III (3 July 1958) (codified at 43 U.S.C. §390b(d)) provides that “[m]odifications of a reservoir project heretofore authorized, surveyed, planned, or constructed to include storage as provided in subsection (b) of this section which would seriously affect the purposes for which the project was authorized, surveyed, planned, or constructed, or which would involve major structural or operational changes shall be made only upon the approval of Congress as now provided by law." Read together, these provisions authorize the Corps to enter into water supply contracts so long as the water uses anticipated by the contracts do not interfere with the purposes for which the federal facilities were authorized. If such contracts do interfere with the purposes for which the facilities were authorized, then such contracts would be invalid absent the approval of Congress as now provided by law." 8 Lake Lanier is located in the ACF river basins. Lake Allatoona and Carters Lake are located in the ACT river basins. Lake Lanier, for example, was not authorized by Congress to be a water supply reservoir. The two purposes for which Lake Lanier was authorized were flood control and the generation of hydroelectric power. These were the only two purposes to which Congress allocated the costs of the project See George William Sherk, Buford Dam and Lake Lanier: Statutory Perspectives and Limitations (CD-ROM). Kennesaw, GA: A.L. Burruss Institute of Public Service, Kennesaw State University (2000). In its 1949 Definitive Project Report on Lake Lanier, however, the Corps listed three primary project purposes: Flood control, the generation of hydroelectric power and the stabilization of water flow. U.S Army Corps of Engineers, 1 Definitive Project Report, Appendix 1 (1 December 1949), cited in letter of 18 July 2001 from George B. Taylor, President, Southeastern Federal Power Customers Inc. to Lindsay Thomas, Federal Commissioner. It is possible that stabilization of water flow had been considered previously as a component of Lake Lanier's flood control function 10 State of Alabama v. U.S. Army Corps of Engineers, Civil Action No. CV-90-H-01331-E (N.D.Ala., East Div., "Complaint for Declaratory Judgment, Preliminary and Permanent Injunction" filed 29 June 1990). Alabama's challenge raised issues relating to common law (riparian) water rights and to the Corps' compliance with both the National Environmental Policy Act and the Administrative Procedure Act. The compact negotiations bore fruit on the morning of 12 January 1997 when, after a marathon negotiating session in the offices of Rep. Newt Gingrich, Speaker of the U.S. House of Representatives, the parties reached an agreement as to the terms of an interstate compact." Virtually identical compacts were thereafter ratified by Congress and by the states for both the ACF2 and the ACT'' river basins. Both compacts mandated the preparation of an allocation formula." For the ACT, "allocation formula” was defined the methodology, in whatever form, by which the ACT Basin Commission determines an equitable apportionment of surface waters within the ACT Basin among the two states. Such formula may be represented by a table, chart, mathematical calculation or any other expression of the Commission's apportionment of waters pursuant to this compact. A series of draft allocation agreements were negotiated. The draft of 13 December 2000 contained certain provisions that becarne the subject of substantial criticism.16 Consequently, a revised draft ACT Allocation Agreement was released on 6 July 2001. Like its predecessor, the draft ACT Allocation Agreement includes a number of provisions that have been the subject of significant concem. This discussion addresses these provisions in terms of both their legality and impediments to their implementation. The following section, Federalism Issues, addresses issues relating to the federal/state relationship in the United States regarding the management and allocation of water resources. Section III, Water Law Issues, addresses two issues of great concern: Reasonable use as a measure of maximum upstream entitlements to water and potential liability for adverse downstream impacts resulting from transbasin diversions. Procedural Issues, specifically the burden of proof associated with the concurrence/nonconcurrence process and the need for congressional ratification, are addressed in Section IV. Conclusions are presented in Section V. II. FEDERALISM ISSUES A. States may exercise primacy over the management and allocation of water With regard to the management and allocation of water resources, the federal government deferred in general to the states throughout the nineteenth century and first half of the twentieth century. One of the best examples of this deference is §8 of the Reclamation Act of 1902;"' 11 Nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws[.] As discussed in greater detail herein, "Speaker Gingrich broke a political impasse between federal and state official regarding the two following issues: (1) whether the interstate Compacts would preempt existing federal law; and (2) whether federal agencies would be given sufficient time to approve the water allocation formula." Hawk, supra note 5 at 51-52 (footnote omitted). 14 Article VII(a) (entitled "Equitable Apportionment”) of each compact provided in relevant part that "[i]t is the intent of the parties to this Compact to develop an allocation formula for equitably apportioning the surface waters of the [ACT or ACF] Basin among the states while protecting the water quality, ecology and biodiversity of the [ACT of ACF.J" ACT Compact, Article IV(b). With regard to the ACF, Article IV(b) of the ACF Compact defined “allocation formula" as “the methodology, in whatever form, by which the ACF Basin Commission determines an equitable apportionment of surface waters within the ACF Basin among the three states. Such formula may be represented by a table, chart, mathematical calculation or any other expression of the Commission's apportionment of waters pursuant to this compact." As noted previously, supra note 3, the ACF allocation formulas has been withdrawn. 16 Section 2.5.C.4, for example, allowed Georgia to withdraw up to 25% of the average annual daily flow. Because this withdrawal limitation was based on average flows rather than actual flows, given both inter- and intraseasonal variability of stream flows, it was possible for Georgia's withdrawals to have devastating impacts on the ACT basin. The Supreme Court has acknowledged a "consistent thread of purposeful and continued deference to state water law by Congress." California v. United States, 438 U.S. 645, 653 (1978). "Where Congress has expressly addressed the question of whether federal entities must abide by state water law, it has almost invariably deferred to state law." United States v. New Mexico, 438 U.S. 696, 702 (1978). This deference, however, began eroding early in the twentieth century and the process has accelerated since then. The erosion of state primacy can be seen in three water law and policy areas. Reserved water rights It must be remembered that nearly one-third of the land mass of the continental United States is owned by the federal government. The reserved water rights doctrine emerged from the decision of the Supreme Court in Winters v. United States, 207 U.S. 564 (1908). At issue was the reservation of land from the public domain for the Indians of the Fort Belknap Reservation in Montana. The question before the Court was whether the reservation of land also reserved water as needed for the purposes of the reservation. When it concluded that the reservation of water was a "necessary implication" of the reservation of land for the Indians of the Fort Belknap Reservation, the Court established the reserved water rights doctrine. In essence, when lands are reserved from the public domain for a specific federal purpose, the minimum quantity of water needed to fulfill the primary purpose(s) of the reservation is reserved from water unappropriated as of the time of the reservation. The reserved water rights doctrine expanded beyond Indian water rights in 1976 when the Court ruled that the reservation of land for the Devil's Hole National Monument included the reservation of sufficient water to preserve the habitat of the pupfish (a species mentioned in the declaration creating the monument). Cappaert v. United States, 426 U.S. 128 (1976). However, in United States v. New Mexico, 438 U.S. 696 (1978), the Court concluded that water was not reserved for instream flows, stockwatering, wildlife or aesthetic purposes when land was reserved from the public domain for a national forest because, under the Forest Service 1897 Organic Act, the only purposes of the national forest were to provide timber supply and to protect watersheds. The distinction between these two cases relates to the primary purposes of the federal reservation. With regard to the Devil's Hole National Monument, water was reserved specifically to provide habitat for the pupfish. With regard to the national forests, however, water was not reserved to provide instream flows, stockwatering, wildlife or aesthetic purposes as these were not primary purposes of the reservation. In terms of the primacy of states over the management and allocation of water resources, the reserved water rights doctrine limited the quantity of water available to the states. Virtually without exception, the amount of water subject to state jurisdiction was less after a reservation than it had been before the reservation. The doctrine also provided a source of water rights that was essentially independent of state statutory procedures. The public trust doctrine In 530 A.D., the Roman Emperor Justinian ordered his legal scholars to put all of the laws of the empire into writing. The result was the Institutes of Justinian which included the following provision: "By the law of nature these things are common to all mankind; the air, running water, the sea, and consequently the shares of the sea." This provision was incorporated into the Magna Charta and became part of the common law." With increasing frequency, the public trust doctrine has been recognized in the United States. In general, the doctrine precludes states alienating property "common to all mankind” that is held in trust by the state. 20 In Sierra Club v. Block, 622 F.Supp. 842 (D.Colo. 1985), the court concluded that water was reserved for instream flows when wilderness areas were created by Congress because one of the purposes of the Wilderness Act is to preserve the land it its natural condition. 19 The public trust doctrine is reflected in the fact that the Crown owns both tidelands and the beds of rivers. 20 "The sovereign power itself... cannot, consistently with the principles of the law of nature and the constitution of a well ordered society, make a direct and absolute grant of the waters of the state, divesting all the citizens of their common right.” Arnold v. Mundy, 6 N.J.L. I At issue in Illinois Central R.R. v. Illinois, 146 U.S. 387 (1892), for example, was an attempt by the state legislature to convey virtually the entire Chicago waterfront to the railroad. Invalidating the conveyance, the Court reaffirmed the validity of the public trust doctrine: "The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties ... than it can abdicate its police powers in the administration of government and the preservation of the peace." 146 U.S. at 453. In upholding use restrictions intended to protect riverine resources, the court in Morse v. Oregon Division of State Lands, 581 P.2d 520 (Ore.App. 1978), noted: "These resources, after all, can only be spent once. Therefore the law has historically and consistently recognized that rivers and estuaries once destroyed or diminished may never be restored to the public and, accordingly, has required the highest degree of protection from the public trustee." 581 P.2d at 524. The most significant public trust doctrine case to date has been National Audubon Society v. Superior Court, 33 Cal.3d 419 (Calif. 1983), the Mono Lake decision. At issue was the authority of the state to allow the City of Los Angeles to divert flows from the watershed of the lake. The California court restated the public trust doctrine as “an affirmation of the duty of the state to protect the peoples' common heritage in streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust." 33 Cal.3d at 441. The state was held to have an affirmative and continuing duty to evaluate the impact of water allocations on trust resources and to protect those resources whenever feasible. "In our opinion, the core of the public trust doctrine is the state's authority as sovereign to exercise a continuous supervision and control over the navigable waters of the state and the lands underlying those waters. This authority applies to the waters tributary to Mono Lake and bars [Los Angeles] or any other party from claiming a vested right to divert waters once it becomes clear that such diversions harm the interests protected by the public trust." 33 Cal.3d at 425426 (emphasis added). Judicial recognition of the public trust has significantly restricted the discretion of the states to manage and allocate water resources. As noted by Sax, it has also created a cloud of uncertainty regarding state-issued water rights because such rights "are subject to several original public prior clairns, such as ... the public trust.2 Preemption Article VI of the Constitution contains the Supremacy Clause: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding. 22 Consequently, in the event of a federal/state conflict over the management and allocation of water resources, the requirements of federal law will preempt the requirements of state law. As Justice Douglas noted in Oklahoma ex rel Phillips v. Guy F. Atkinson Co., 313 U.S. 508 (1941): "Whenever the constitutional powers of the federal government and those of the state come into conflict, the 313 U.S. at 534-535 (additional citations omitted). This means, in essence, that the states are not sovereign over the use of water within each state. The authority of the federal government over navigable waters, for example, is superior to the rights of any of the states. The Supreme Court addressed this question in Arizona v. California, 373 U.S. 546 (1963), a case involving a conflict over the waters of the Colorado River: 21 Joseph L. Sax, "The Constitution, Property Rights and the Future of Water Law," 61 University of Colorado Law Review 257, 260 (1990). 22 The Supremacy Clause requires that federal law controls when in conflict with state laws." Robert Haskell Abrams, "Interbasin Transfer in a Riparian Jurisdiction," 24 William and Mary Law Review 591, 609 (1983) (footnote omitted). 76-809 D-01--2 90 While the States were generally free to exercise some jurisdiction over these waters before the [Boulder Canyon 93 90 First Iowa Hydro-Elec. Coop. v. Federal Power Comm 'n, 328 U.S. 152, 171 (1946). See United States v. Chandler- 91 373 U.S. at 587 Similar limitations on state authority apply to riparian lands owned by the federal government. For example, in United States v. Rio Grande Dam and Irrigation Company, 174 U.S. 690, 703 (1899), the Court addressed the jurisdictional relationship of federal and state governments: Although [the] power [to change] the common law rule as to streams within its dominion undoubtedly belongs to each State, yet two limitations must be recognized: First, that in the absence of specific authority from Congress a State cannot by its legislation destroy the right of the United States, as the owner of lands bordering on a stream, to the continued flow of its waters; so far at least as may be necessary for the beneficial uses of the government property. Second, that it is limited by the superior power of the General Government to secure the uninterrupted navigability of all navigable streams within the limits of the United States. In other words, the jurisdiction of the General Government over interstate commerce and its natural highways vests in that Government the right to take all needed measures to preserve the navigability of the navigable water courses of the country even against any state action. 174 U.S. at 704 (emphasis added). One of the best examples of the erosion of state primacy resulting from preemption is Riverside Irrigation District v. Andrews, 758 F.2d 508 (10th Cir. 1985). In this case, the court concluded that the requirements of federal law, specifically the Clean Water Act and the Endangered Species Act, may restrict the exercise of otherwise valid state water rights. The reserved water rights doctrine, the public trust doctrine and the Supremacy Clause of the Constitution has eroded the concept of state primacy to the point of meaninglessness. The inescapable conclusion is that states may exercise primacy over the management and allocation of water resources only to the extent that such resources are not needed to fulfill the requirements of federal statutes and regulations." 23 In essence, there is a significant distinction between the physical availability of water and the legal availability of that water. Based on the language of the draft allocation agreements, it does not appear that the states either understand or appreciate the significance of this distinction. 23 Georgia does not accept the validity of this conclusion. State of Georgia v. Corps of Engineers (N.D. Ga., Gainesville Div.) was initiated in February, 2001. At issue is Georgia's desire to use Lake Lanier (a Corps' facility) as a water supply reservoir for the City of Atlanta. Two issues of particular interest are included in Georgia's complaint: (1) In Count Three - Declaratory Judgment (State Law) - Georgia avers that "the Corps in its operation of Lake Lanier is subject to the law of the State of Georgia and appropriate regulation by State officials." In essence, Georgia is arguing that any conflict between state and federal law must be resolved in favor of state law. (2) In Count Four, Georgia avers that the Corps does not have the constitutional authority to deny the water supply requests. "The federal statutes authorizing the construction and funding of Buford Dam and Lake Lanier... should be construed so as to require allocation for water supply to meet Georgia's future water supply needs. Should these federal statutes be construed as not authorizing such allocations for water supply, however, then the federal statutes on their face or as applied by the Corps are unconstitutional because they exceed the power of Congress under the Commerce Clause[.]" This litigation may set the stage for a definitive ruling on the conflicting roles of the federal and state governments over the management and allocation of water resources. Given the language used by the Court in prior rulings on this conflict, as well as the respect paid by the present Court to the rule of precedent, it is unlikely that the Georgia position will prevail. What is likely is that any resulting precedent will erode the last vestiges of the concept of state primacy over the management and allocation of water resources. |