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Interveners Allowed in Georgia Water Suit

Georgia v. United States Army Corps of Engineers, 302 F.3d 1242 (11th Cir. 2002).

Amanda M. Beard, J.D.

When Georgia brought an action against the Army Corps of Engineers (Corps) seeking to increase the amount of water available to the city of Atlanta from Lake Lanier, a reservoir owned and managed by the Corps, the state of Florida and Southeastern Federal Power Customers, Inc. (SeFPC), a preference customer of the reservoir, filed motions to intervene as defendants in the suit. When the United States District Court for the Northern District of Georgia denied the motions, Florida and SeFPC appealed. The 11th Circuit Court of Appeals reversed and remanded the lower court’s findings, holding Florida and SeFPC were both entitled to intervene in the action.

Background
The Apalachicola-Chattahoochee-Flint River Basin (ACF Basin) provides a shared water supply to Georgia, Alabama, and Florida. In 1997, the three states formed the ACF Compact, which was enacted by their legislatures and Congress to negotiate the equitable allocation of the states’ shared water supply. Having not reached an agreement by the original December 21, 1998 deadline, the three states agreed to extend their negotiation deadline to January 31, 2003. Since January, the Governors of the three states have entered the negotiations and again extended the deadline.

Lake Lanier, a reservoir owned and managed by the Army Corps of Engineers is located within the ACF Basin, just north of Atlanta, Georgia. Two years ago, Georgia’s Governor requested additional withdrawals of water from the reservoir until the year 2030, to meet the growing needs of the city of Atlanta. After nine months without a response from the Corps, Georgia filed suit, seeking an order compelling the Corps to grant the water supply request as well as a determination of the Corps’ authority and obligations to Georgia regarding Lake Lanier.

Florida filed a motion with the court to intervene as a defendant in the suit, or in the alternative, a motion to dismiss the suit. SeFPC also filed a motion to intervene as a defendant, six months after Georgia’s initial filing of the suit. The district court denied both motions. After the motions to intervene had been denied and before the appeal was heard, the Corps denied Georgia’s water supply request.

Florida’s Motion to Intervene
To determine whether Florida had a right to intervene as a defendant in the suit between Georgia and the Army Corps of Engineers, the 11th Circuit Court of Appeals considered the following criteria: whether Florida made a timely motion to intervene, whether Florida has an interest in the subject matter of the suit, whether the outcome of the litigation will impact Florida’s ability to protect its interest, and whether the existing parties have an ability to represent Florida’s interest. After the court stated that the timeliness of Florida’s motion was not disputed, the court went on to discuss the other factors.

First, the court considered whether Florida has an interest in the subject matter of the suit. To make the determination, the court looked to the subject matter of the suit and found that Florida does have a legally protectable interest in the “quality and quantity of water in the Apalachicola River and Bay,”1 which are contained in the ACF Basin. The court noted that because of the “interrelatedness of the Chattahoochee and the Apalachicola, and the impact of diverting more water from Lake Lanier for municipal purposes and permitting additional releases to accommodate increased wastewater discharges,”2 Florida’s interest in the water in the ACF Basin would be affected.

Second, the court considered whether the outcome of the litigation, as a practical matter, would affect Florida’s ability to protect its interests. Though Georgia argued that the proper forum for the adjudication of Florida’s rights is the United States Supreme Court, the court expressed doubt that the U. S. Supreme Court would be willing to hear an equitable apportionment action brought by Florida. The court also noted that “none of the equitable apportionment cases decided by the Supreme Court has ever been brought while an interstate compact was being negotiated.”3 In addition, the court speculated that even if the Supreme Court were to take jurisdiction over an equitable apportionment case brought by Florida, the outcome of Georgia’s lawsuit might have an adverse affect on it. Thus, the court found, as a practical matter, the outcome of this lawsuit would impact Florida’s ability to protect its interests in the waters of the ACF Basin.

Third, the court considered the ability of existing parties in the lawsuit to represent Florida’s interests. Because the Army Corps of Engineers has no “independent stake in how much water reaches the Apalachicola,”4 the court held that Florida’s interest in an equitable allocation of the waters of the ACF Basin could not be adequately represented by the Corps. Therefore, Florida met its “minimal” burden of showing that existing parties could not adequately represent its interests.

SeFPC’s Motion to Intervene
The court considered the same factors for SeFPC’s right to intervene.
First, the court considered SeFPC’s interest in the subject matter of the suit. The members of SeFPC have contracts to purchase the surplus hydropower produced by the Buford Dam, located on Lake Lanier. Thus, if Georgia’s request is granted, less water will flow through Buford Dam, and less hydropower will be generated and distributed to the SeFPC members. Accordingly, the court held that because granting Georgia’s water supply request would result in a “diminution of the overall production of hydropower,”5 the SeFPC has a legally protectable interest in the suit.

Second, the court considered whether the impact of the litigation would affect SeFPC’s ability to protect its interest. The court found that since SeFPC has a suit pending against the Corps, any decision in the present case could impact the SeFPC’s ability to litigate their suit.

Third, the court considered the ability of the existing parties to represent SeFPC’s interest. The court ruled that SeFPC, too, satisfied this “minimal” burden, stating that they do not believe that “a federal defendant with a primary interest in the management of a resource has interests identical to those of an entity with economic interests in the use of that resource.”6

Finally, the court evaluated the timeliness of SeFPC’s motion to intervene. After considering many factors, including the interests of justice, the court did not believe that SeFPC’s six month delay constituted untimeliness.

Thus, the court also reversed the district court’s ruling that denied SeFPC’s motion to intervene in the suit between Georgia and the Army Corps of Engineers.

Conclusion
The 11th Circuit Court of Appeals allowed both Florida and SeFPC to intervene in the lawsuit. In reversing the district court, the Court found that both parties met the requisite criteria, mainly that their respective interests would not be protected if not allowed to intervene.

ENDNOTES
1. Georgia v. United States Army Corps of Engineers, 302 F.3d 1242, 1252 (11th Cir. 2002).
2. Id.
3. Id. at 1254.
4. Id. at 1256.
5. Id. at 1258.
6. Id. at 1259.

University of Mississippi