The compact negotiations There is no question but that the framers of the Constitution expected the states to resolve conflicts among themselves through the use of interstate compacts. This expectation is reflected in article 1, § 10, clause 3 of the Constitution which provides that "[n]o state shall, without the consent of Congress...enter into any agreement or compact with another state[.]” The Supreme Court has made its position abundantly clear: States should resolve their conflicts among themselves.24 An interstate water conflict, the Court has noted, is "one more likely to be wisely solved by cooperative study and by conference and mutual concession on the part of representatives of the States so vitally interested in it than by proceedings in any court however constituted." New York v. New Jersey, 256 U.S. 296, 313 (1921). "Time and again we have counseled States engaged in litigation with one another before this Court that their dispute 'is one more likely to be wisely solved by co-operative study and by conference and mutual concession on the part of the representatives of the States which are vitally interested than by proceedings in any court however constituted.'" Texas v. New Mexico, 462 U.S. 554, 575 (1983) quoting New York v. New Jersey, 256 U.S. at 313 (additional citations omitted)." 25 In order to understand the inherent illegality of the 6 July 2001 draft ACT Allocation Agreement, it is necessary to understand the process that led initially to the enactment of the Alabama-Coosa-Tallapoosa River Basin Compact.26 It is also necessary to understand that interstate compacts, once they have been ratified by Congress, become federal law. Because of this, certain individuals involved in drafting the compacts saw the ratification process as a means by which the requirements of numerous federal laws could be superceded. Early drafts of the compacts contained provisions authorizing the states to develop an allocation formula for the waters of the river basins. These early drafts also provided that the allocation formula would control should there be a conflict between the provisions of the allocation formula and the requirements of federal law.27 Others who were involved in the drafting and review process argued that any attempt to supercede federal law would make the compacts so politically unpalatable that congressional ratification would be impossible. The draft ACF Compact of 15 November 1996 contained "compromise" language.28 Two provisions should be noted (emphasis added): ARTICLE VIII(b). The parties to this Compact acknowledge that the United States does not have any permanent, vested or perpetual rights to any of the water resources of the ACF Basin but recognize that the United States Army Corps of Engineers operates certain projects within the ACF Basin that may influence the water resources within the ACF Basin. The parties to this Compact further acknowledge and recognize that various agencies of the United States have responsibilities for administering certain federal laws and exercising certain federal powers that may influence the water resources within the ACF Basin. It is the intent of the parties to this Compact, including the United States, to achieve compliance with the allocation formula adopted in accordance with this Article. Accordingly, once an allocation formula is adopted, each and every officer, agency, and instrumentality of the United States shall have an obligation and duty to exercise their powers in a manner consistent with the allocation formula so long as the exercise of such powers is not in direct conflict with other federal law. 24 Accord Moore, supra note 5 at 6. 25 Accord Vermont v. New York, 417 U.S. 270 (1974). "The parties have available other and perhaps more appropriate means of reaching the results desired under the Proposed Court Decree. An interstate compact under Act. 1, s 10, cl. 3, is a possible solution of the conflict here. Vermont and New York (along with Connecticut, Maine, Massachusetts, New Hampshire, and Rhode Island) are already parties to the New England Interstate Water Pollution Control Compact[.]" 417 U.S. at 277-278. Supra, note 1. 27 Working drafts of the ACT and ACF Compacts included provisions that the Compacts could override federal environmental conservation laws." Hawk, supra note 5 at 52. 28 The ACF Compact and the ACT Compact are essentially identical. ARTICLE X(c). Nothing contained in this Compact shall impair or affect the constitutional authority of the United States or any of its powers, rights, functions or jurisdiction under other existing or future legislation in and over the area or waters which are the subject of the Compact, including projects of the Commission, nor shall any act of the Commission have the effect of repealing, modifying or amending any federal law. All officers, agencies and instrumentalities of the United States shall exercise their powers and authority over water resources in the ACF Basin and Water Resource Facilities in a manner consistent with the allocation formula so long the actions are not in direct conflict with any other applicable federal law. All officers, agencies, and instrumentalities of the United States shall exercise their discretion in carrying out their responsibilities to the maximum extent practicable in a manner that effectuates the allocation formula developed pursuant to this Compact or any modification of the allocation formula. The United States Army Corps of Engineers, or its successors, and all other federal agencies and instrumentalities shall cooperate with the ACF Basin Commission in accomplishing the purposes of the Compact and fulfilling the obligations of each of the parties to the Compact regarding the allocation formula. 30 On 20 November 1996, the states submitted this language to the U.S. Department of Justice for review. In her response, the Attorney General made it clear that any state attempt to usurp the constitutional or statutory authority of the federal government would not be acceptable: While I join in your desire to have the negotiations succeed, the compact as drafted fails to take into account the The states then sought the assistance of Newt Gingrich, Speaker of the House of Representatives. On 11 January 1997, the Speaker affirmed the conclusions of the Attorney General: I recognize the significant interests and responsibilities Federal agencies have throughout the ACF river basin. Therefore, as the Speaker of the United States House of Representatives and a member of the Georgia Congressional delegation, I am committed to working with my colleagues in the Congress to incorporate the following principles into the Federal implementing legislation. First, the Federal implementing legislation will recognize the need to preserve Federal agency discretion under law when meeting obligations to comply, to the maximum extent practicable, with the allocation formula. Second, the legislation will emphasize full participation of Federal agencies during the development of the allocation formula. Federal agencies must have equal participation in all technical working groups and meetings in which the terms and conditions of the allocation formula are negotiated. Just prior to the issuance of this letter, a marathon negotiating session was held in the office of Speaker Gingrich. The outcome of this session was an agreement on language that was to become the core of both the ACF and the ACT Compacts. The ACF and ACT compacts With regard to the relationship between federal and state statutory and regulatory requirements, the compromise language to which the parties agreed is contained in Article VII (b): Equitable Apportionment (emphasis added): 29 Letter of 20 November 1996 from Lawton Chiles, Governor of the State of Florida, Zell Miller, Governor of the State of Georgia and Fob James, Jr., Governor of the State of Alabama to Janet Reno, Attorney General. 30 On 9 January 1997 identical letters were sent from Janet Reno, Attorney General to Lawton Chiles, Governor of the State of Florida, Zell Miller, Governor of the State of Georgia and Fob James, Jr., Governor of the State of Alabama. 31 Letter of 11 January 1997 from Newt Gingrich, Speaker, U.S. House of Representatives to H. Martin Lancaster, Assistant Secretary of the Army (Civil Works). The parties to this Compact recognize that the United States operates certain projects within the ACT Basin that may This language leaves little room for interpretation. In the event of a conflict, federal law controls over state law. As discussed above with regard to the Supremacy Clause, this is precisely what the framers of the Constitution intended. Both the ACF and the ACT Compacts were ratified by Congress on 20 November 1997. With regard to the language contained in the draft ACT Allocation Agreement, it should be noted that Congress (when it ratified the Compacts) intended to preserve "the congressionally authorized purposes of the federal reservoirs.32 The draft ACT Allocation Agreement Review of the draft ACT Allocation Agreement leads to the inescapable conclusion that the same individuals who failed in their attempt to circumvent the requirements of federal law through the compact negotiation and ratification procedure are now attempting to achieve the same goal through the negotiation and ratification of the allocation agreements. Simply stated, those provisions of the allocation agreements that change the use of federal facilities are prima facie illegal. Article 1, §1 of the Constitution provides that “[a]Il legislative Powers herein granted shall be vested in the Congress of the United States, which shall consist of a Senate and a House of Representatives." This sentence is as important as it is simple to understand: All legislative authority is vested in Congress. Only Congress has the authority to authorize federal projects and only Congress can change the purposes for which the projects are authorized." 33 This authority is referenced in §1.2 of the draft ACT Allocation Agreement which provides (in part): "Performance under Section 2 of this Agreement shall begin on the date upon which all of the following have occurred: ... (c) the United States Congress has authorized the allocation of storage in Allatoona Reservoir and Carters Reservoir as necessary to provide for the Withdrawals specified in Subsection 3.1 of this Agreement, unless a court of competent jurisdiction has held in a final, unappealable decision that such authorization is not required by law[.]"34 In addition, §1.6 of the ACT Compact provides in part that actions taken under the draft ACT Allocation Agreement are not to "conflict with federal law." Nonetheless, by changing the purposes for which federal projects have been authorized and limiting the applicability of federal laws and regulations, the draft ACT Allocation Agreement seeks to do what only Congress can do. In essence, the draft allocation. agreement is not intended to conflict with federal law, it is intended to change federal law." Taken at face value, Congressional reallocation of storage in Allatoona Reservoir and Carters Lake would have impacts far beyond the shores of those two reservoirs. There are multiple examples: 35 12 Comments of the Honorable Bob Barr, Member, U.S. House of Representatives at the Georgia Water Resources Summit, Atlanta, Georgia (14 August 2001). "If specific modification to a project is needed, specific Congressional authorization would be required.: Roy R. Carriker, Water Wars: Water Allocation Law and the Apalachicola-Chattahoochee-Flint River Basin 2 (2000) (Department of Food and Resource Economics, Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, Florida). “If significant modification [of the congressionally authorized purpose] is required... congressional approval is necessary." Vest, supra note 5 at 691, citing Long-Term Water Supply Needs of the Atlanta Region from the Apalachicola-Chattahoochee-Flint River Basin and the Operation of Buford Dam Lake Sidney Lanier in Meeting Those Needs, 1991: Hearing Before the Subcommittee on Water Resources of the House Committee on Public Works and Transportation, 101St. Congress, 2d Session (1990) (testimony of Col. Michael F. Thuss). 34 Similar language is contained in the draft ACF Allocation Agreement. Under §1.2(c), either Congressional reauthorization of Lake Lanier as a water supply facility or a final, unappealable decision that such authorization is not required is a condition precedent to performance of obligations under the agreement. "Accord letter of 18 July 2001 from George B. Taylor, President, Southeastern Federal Power Customers Inc. to Lindsay Thomas, Federal Commissioner, supra note 9 (the states are not authorized to change the requirements of federal legislation). 30 Similar examples can be found in the draft ACF Allocation Agreement. For example, see §1.3 (directing the Corps to operate federal reservoirs in the ACF “in accordance with Subsection 2 of this Agreement and to fulfill other obligations under this Agreement."), §2.4 (prohibiting releases for navigation except in accordance with the Agreement) and §2.1 (repeated in §2.3, Buford Dam is to be operated "to meet the water supply needs specified in Table B-1. The COE shall operate West Point Dam and Lake and Walter F. George Dam and Lake to meet Alabama's water supply needs and Georgia's water supply needs, other than those specified in Table B-1."). Section 2.2(a) dictates how Buford Dam is to be operated (including restrictions on the authority of the Corps to provide downstream flows), §§2.2(B) and (G) dictate how West Point Dam is to be operated, §§2.2(C), (D), (F) and (G) dictate how Jim Woodruff Dam is to be operated and § 2.2(G) dictates how Walter F. George Dam is to be operated. Section 2.5 provides that there shall be no releases from Buford Dam, West Point Dam or Walter F. George Dam "solely for the production of hydropower in excess of the number of hydropower hours specified in Table B-6." As provided in Table B-6, hydropower generation at Lake Lanier would be limited to five hours per week and generation at both West Point Dam and Walter F. George Dam would be limited to 20 hours per week (April through August) or 10 hours per week (the rest of the year). Finally, §2.5(E) provides that the ACF Commissioner for Georgia "may require the COE to make additional releases from one or more of the federal reservoirs in the ACF Basin for purposes not otherwise specified in Section 2 of this Agreement." 37 The language quoted from these sections is inconsistent with the legislation that authorized both Lake Allatoona and Carters Lake. Lake Allatoona was authorized by the Flood Control Acts of 1941 and 1944. The authorized purposes included "flood control, hydropower, recreation, water supply, navigation, water quality and fish and wildlife management.' With regard to Carters Lake, construction of which was completed in 1977, the authorized purposes included hydropower, flood control, recreation, and fish and wildlife management.3 139 Two sections of the draft ACT Allocation Agreement are particularly egregious. Section 2.2.K. provides that “[t]he COE may operate the federal reservoirs in the ACT Basin to satisfy their respective project purposes, so long as such operation is consistent with all other provisions of this Agreement.' In essence, the 6 July 2001 draft ACT Allocation Agreement subjugates the purposes for which Congress authorized the projects to the provisions of the Agreement. Only Congress has the authority to do what the states attempt to do in §2.2.K. 140 Section 2.2.M. provides that "[t]he COE shall develop and adopt a Water Control Plan for the implementation of the terms of this Agreement and for the operation of the federal reservoirs consistent with this Agreement." Again, the draft ACT Allocation Agreement subjugates the purposes for which Congress authorized the projects to the provisions of the Agreement. Again, only Congress has the authority to do what the states attempt to do in §2.2.M. Finally, § 2.5.A.1 provides in part that "[e]ach State recognizes the sovereignty and right of the other State to use the Water Resources within the ACT Basin in such State in any manner that it deems appropriate subject only to applicable laws and to the limitations set forth in Sections 2 and 3 of this Agreement." One way to read this provision is that only those laws set forth in Sections 2 and 3 of the Allocation Agreement are applicable. If this is the intent of the parties, then the parties have exceeded their authority once again as only Congress could grant the statutory exemptions that the parties sock. The Corps of Engineers views the draft ACT Allocation Agreement as impermissibly limiting the Corps' discretion in the operation of both Lake Allatoona and Carters Lake." With regard to the generation of hydroelectric power, similar concerns have been expressed by the Southeastern Power Administration (SEPA). Specifically, SEPA has noted that the draft ACT Allocation Agreement is inconsistent with the authorizing legislation."2 Furthermore, both the U.S. Environmental Protection Agency (EPA) and the Fish & Wildlife Service have concluded that the draft ACT Allocation Agreement is inconsistent with federal environmental and species protection laws."3 Violation of the nondelegation doctrine It has been alleged that Congress, through ratification of the ACF and ACT Compacts, delegated authority to the states (specifically to the ACF and ACT Commissions) to negotiate an allocation agreement and that this delegation of authority included the authority to change the purposes for which federal projects had been authorized. Assuming arguendo that Congress did intend to delegate such authority either to the states or to the Commissions, any such delegation would violate the nondelegation doctrine." 44 37 Mobile, Vol. 19, No. 6 (Dec. 1997- Jan. 1998), http://www.sam.usace.army.mil/pa/December/9712lake.html. 38 Mobile, Vol. 21, No. 3 (May-June 1999), http://www.sam.usace.army.mil/pa/May99/9906car.htm. 39 Similar language is contained in §2.5(B) of the draft ACF Allocation Agreement: "The COE may operate the federal reservoirs in the ACF Basin to satisfy their respective authorized project purposes, so long as such operation is consistent with all other provisions of this Agreement." 40 Similar language is contained in §2.6 of the draft ACF Allocation Agreement: "The COE shall develop and adopt a Water Control Plan for implementation of the terms of this Agreement and for the operation of the federal reservoirs consistent with this Agreement." See letter of 24 July 2001 from Col. J. David Norwood, District Engineer, U.S. Army Corps of Engineers to Lindsay Thomas, Federal Commissioner. 42 *See letter of 16 July 2001 from Jim B. Lloyd, P.E., Assistant Administrator for Power Resources, Southeastern Power Administration to Linsday Thomas, Federal Commissioner. SEPA has also raised concerns regarding the amount of compensation that would be required if hydroelectric generation is reduced or curtailed at federal facilities. Id. 43 See letter of 16 July 2001 from Larry E. Goldman, Field Supervisor, Fish & Wildlife Service to Lindsay Thomas, Federal Commissioner and letter of 31 July 2001 from Thomas C. Welborn, Branch Chief, U.S. Environmental Protection Agency to Lindsay Thomas, Federal Commissioner. 44 It has been argued, for example, that ratification of the ACF and ACT Compacts indicates congressional intent to give the states a "blank check" over the operation of federal facilities located in the ACF and ACT river basins. Given the legislative history of the two Compacts as discussed herein, to make such a "blank check" argument is absurd. Not only did Congress not give the states a "blank check" over federal facilities, under the nondelegation doctrine, Congress could not give the states such a "blank check". |