“D.C.” Case
The “Settlement Agreement” (1/9/03), which arose out of the SE Federal Power Customers Vs Corps (Georgia, et al) Case (filed in December 2000) went to the District Court (District of Columbia i.e. “DC” case,) LLA sought to intervene as Defendant and submitted a brief that stated that LLA did not completely agree with the terms of the Settlement Agreement (January 2003). The two main issues of disagreement brought up in the brief were
- Adequate water levels to be maintained
- Water quality not be degraded
The Settlement Agreement authorized withdrawing water from the lake without regard to the level of the Lake at the times of withdrawal –
- LLA requested that the Lake levels be maintained at above 1056 Feet (Settlement
- Agreement allowed the level as low as 1035 Feet).
Also, “return flows” (discharge of treated sewage) contemplated did not adequately address the impact of such “return flows” on the water quality. –
- LLA requested that all parties to Agreement comply with all applicable state and federal anti-degradation regulations in federal Clean Water Act.
Because of its position on the proposed Settlement Agreement, LLA opposed Georgia and Corps of Engineers (who negotiated and approved the Agreement) on those two main issues.
The District Court in Alabama ordered an Injunction of the “Settlement Agreement.” On 9/19/05 US Court of Appeals rendered a Judgement (published on Web site on 12/19/05) vacating that injunction.
Alabama (Tri-States) Water Issues
The case was initially filed 1990 by State of Alabama against the Corps of Engineers asserting that the Corps failed to properly fulfill their duties to operate and manage the federal water resources projects and related facilities in the ACF River Basin and the ACT River Basin, including Lake Lanier, Allatoona and Carters Lakes.
LLA has been a Defendant intervener since March 2004 in opposition to the positions of Alabama and Florida. The brief filed by Andy Thompson in the D.C. Case sets forth LLA’s position on the water supply agreements at issue in the Tri State case as mentioned above.
Since late 2005 there have been numerous amended complaints, motions, responses and replies filed by Plaintiffs (State of Alabama and, intervenor plaintiff, State of Florida) and by the defendants (Corps of Engineers and intervenor defendant, ARC). The primary ones include:
- September 2005: Alabama’s 4th Amended Complaint
- October 2005: Alabama Power motion for leave to file complaint in intervention Florida’s 3rd Amended and Supplemented Complaint. Corps of Engineers answer to Florida’s 3rd Amended and Supplemented Complaint
- November 2005: Georgia and ARC began responses and motions to dismiss the Alabama Power complaint and motion for intervention Corps ask court to dismiss Alabama Power’s Amended Complaint. Alabama Power notice of dismissal of claims against the State of Georgia (claims remain against Corps and ARC). Montgomery Water Works files complaint. motion to intervene
- December 2005: State of Georgia and ARC motion to dismiss Alabama Power and Montgomery Water Works complaint in Intervention. LLA filed answer to Florida’s 3rd Amended and Supplemented Complaint. LLA filed answer to Alabama’s 4th Amended Complaint. Georgia and ARC response to Florida’s 3rd and Alabama’s 4th Amended Corps of Engineers answer to Florida’s 3rd and Alabama’s 4th Amended.
- January 2006: State of Alabama’s motion to Sever Alabama Power and Montgomery Water Works claims against ARC. State of Florida’s opposition to Alabama Power and Montgomery Water Works motion to amend (Florida stated it could expand and complicate the scope of the case.) Florida Motion for Preliminary Injunction on Endangered Species Act claims * Georgia and ARC’s response to Alabama Power and Montgomery Water Works motion to file 2nd Amended Complaint (ARC explains their position in this case in this response*.)
- February 2005: Florida’s motion and Brief to expedite motion for Preliminary Injunction Alabama Power response in opposition to Alabama and Florida’s motion to sever (they say no need to sever because they have same issues as State of Georgia and Florida; ask the court to “separate” issues in Trial.) Georgia and ARC response to Alabama and Florida’s motion to sever Alabama Power and Montgomery Water Works. Georgia and ARC agree with Alabama and Florida that they should be severed from this case. Georgia, ARC, Alabama and Florida want to sever Montgomery Water Works and Alabama Power issues from this case.
Things are Heating Up!
Florida and Alabama are asking for expedited consideration of their motion for Preliminary Injunction on the Endangered Species Act claims. Georgia and ARC were opposed to the expedition. Court has Granted Florida’s motion to expedite. A Scheduling Order has been issued. Responses due by March 1, briefs by March 6. Hearing before Judge on April 14, 2006 at 10AM, Courtroom 5-A Hugo Black District Court, Birmingham, Alabama to hear oral arguments on all pending motions.
- A scheduling conference was conducted by all parties to agree on witness availability for depositions.
- Montgomery Water Works has made request for Production to the ARC
- Montgomery Water Works Notice of Deposition of Charles Krautler (ARC) to be held on March 8 in Atlanta.
- Alabama and Florida have filed a motion to compel the Corps to compile Administration
- Records for Challenged Agency Actions. (normally a motion to compel is necessary only if the party being compelled has not done so voluntarily) They want information/documents from the Corps such as those related to
- Corps execution of “Settlement Agreement” on January 9, 2003
- Copy of contracts Corps made for withdrawal of water with City of Gainesville,
- Gwinnett County, Cobb-Marietta Water Authority, City of Cummings, etc.
- Corps execution of “Chattahoochee Management System”
- Corps development of “action zones” and management guidelines used tomanage ACF and ACT
- Alabama and Florida have filed a motion to order to show cause why Corps of Engineers should not be held in contempt and sanctioned.