SHIFTING EMPHASIS OF CORPS ACTIVITIES

Throughout its lengthy history, the Corps of Engineers has had to operate among competing visions of water resource development. Some of the agency’s pressing current challenges, including limited resources for important infrastructure OMR needs, often stem from a gap between a vision of comprehensive river basin management and the political realities regarding individual project construction. From administrations of Theodore Roosevelt to Lyndon Johnson, the idea of comprehensive, rational federal development of river basins through multiple purpose projects has been promoted by many water

charged to power customers in conjunction with the reallocation of storage from hydropower to water supply.

Alabama and Florida intervened to challenge the settlement agreement, and a 2008 court decision [SeFPC v Geren, 515F.3d 1316 (D.C. Cir. 2008)], held that the settlement exceeded the Corps’ authority under the Water Supply Act, which requires congressional approval for reallocation of storage that involve “major operational changes.” The reallocation constituted over 22 percent of the reservoir’s conservation storage capacity, which the court noted would have been the largest reallocation undertaken by the Corps without congressional approval. Following vacatur of the settlement agreement, the SePFC case was consolidated with the other ACF litigation. A district court ruled in 2009 that the Corps’ then-current operation of Lake Lanier violated the Water Supply Act because it represented a de facto reallocation of storage exceeding the 22 percent threshold. However, the Eleventh Circuit reversed the district court, holding that water supply was an authorized purpose of Lake Lanier, and directed the Corps of Engineers to reconsider its authority to accommodate Georgia’s request for increased withdrawals from Lake Lanier and Downstream in light of the authorizing legislation, the Water Supply Act, and other applicable authority [Tri-State Water Litigation, 644 F.3rd 1160 (11th Cir. 2011)]. The Corps completed its legal and technical analysis on remand in June 2012, resulting in a legal opinion concluding that the Corps has the combined authority under the ACF authorizing legislation, a 1956 statute, and the Water Supply Act to accommodate the additional water supply withdrawals that Georgia has requested. The Corps is currently proceeding to update the water controls plans and manuals for the ACF system, taking into account the principles established in the June 2012 legal opinion.



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