*1 (D.C.Cir.1996). But all of the parties to
the transaction are before the court. If
unraveling the necessary transfer is after merits,
the district court decides the it will power
be within the court’s to do so. See Lee,
Porter v.
328 U.S.
(1946);
(D.C.Cir.1968). The case therefore is not
moot. judgment court dis-
missing the action lack of standing is
reversed and the case remanded for proceedings.
further
So ordered.
SOUTHEASTERN FEDERAL POWER
CUSTOMERS, INC., Appellee GEREN, Secretary
Peter of the United Department
States Army, et
al., Appellees. Florida, Appellant.
State of 06-5080,
Nos. 06-5081.
United Appeals, States Court of
District of Columbia Circuit.
Argued Nov.
Decided Feb. *2 argued the cause
Parker D. Thomson H. Florida. Matthew appellant for State of appellant the cause for argued Lembke them on the With of Alabama. State McCollum, Attorney Bill Gen- briefs were eral, Attorney Office State General’s Chief, Florida, Glogau, A. Jonathan Banks, T. Litigation, James Wil- Complex IV, Cox, III, Radney, Larkin liam S. W. Kneisel, Craig B. R. and Scott Smith. Rise, Donald G. Blanke- M. Christopher Bartolomucci, nau, Christopher H. Caster, appearances. entered Lauren J. for Murray was on the brief M. Deborah Alliance, et Rivers amici curiae Mary M. As- support appellants. al. entered, appearance. bill Attorney, Depart- Gray, U.S. Michael T. Justice, the cause fed- argued ment of argued P. Brown Bruce appellee. eral et al. Georgia, State appellees cause for ap- the cause argued A. Vince Clinton Power Cus- Federal Southeastern pellee tomers, on the brief were Inc. them With Oakley, Robert H. Attorney, Depart- need only one address of the statutory Justice, Baker, ment of Thurbert E. Attor- challenges. Under the General, ney Attorney General’s Office for must obtain Congressional approval Georgia, Silliman, the State R. Todd before undertaking “major ... *3 Droze, William M. J. Cathy Fogel, David changes.” 301(d), 390b(d). § § 43 U.S.C. A. Fitzgerald, Patricia T. Barmeyer, and Because Agreement’s reallocation of Lewis B. Vidal, Jones. Orlando Philip E. Lake storage Lanier’s space constitutes a Bartz, D. Zdebski, and Charles A. entered major operational change on its face and appearances. has not been authorized by Congress, we reverse the district court’s of the Susan Kelly, Tillman, N. Wallace F. and Mary Ann Ralls were on the brief amici curiae American Public Power Asso-
ciation and National Rural Electric Coop- I.
erative in support Association appellees. setting The for this case is Lake Sidney Lanier, federally a owned operat- reservoir
Before: KAVANAUGH, ROGERS and by ed in Georgia. Circuit located Judges, SILBERMAN, Senior It was created Circuit construction of the Judge. Buford Dam on the River, Chattahoochee Opinion for the Court Circuit Judge approximately fifty miles northeast of the ROGERS. city of Atlanta. To the south of the Bu- Dam, ford joins Chattahoochee Opinion by Senior Judge Circuit Flint River and the two become the Apala- SILBERMAN concurring in judgment. River, chicola which flows through north- ROGERS, Judge. Circuit ern Florida and eventually into the Gulf of This case arises out of requirements Mexico. systems The three river up make of three States for water stored in a feder- the Apalachicola-Chattahoochee-Flint riv- al reservoir. The States of Alabama and (“ACF er Basin”), basin which includes appeal Florida the order of the district counties in Alabama. approving court Settlement Congress authorized the Corps to design between Southeastern Federal Power Cus- and build 1946, Buford Dam in and the tomers, Inc. (“Southeastern”), a group of project was completed in the mid-1950s. Georgia (“Water supply providers Beginning 1970s, in the the Corps entered Supply Providers”), the Army Corps into a of five-year series renewable con- (the of Engineers “Corps”), and the State tracts that allowed some of Lake Lanier to of Georgia. provides for a be used for storage of local water supply. ten or year twenty “temporary” realloca- See Customers, Se. Fed. Power Inc. v. tion of twenty over Harvey, 1, (D.C.Cir.2005). water storage in the Lake Lanier reser- last of the local water storage contracts voir, which is located the State of Geor- expired but the Corps permit- gia operated Corps. Alabama ted the water, withdrawal in increasing and Florida contend that amounts, under terms of expired violates the Supply (“WSA”), Water Act contracts. Id. 390b(d), § U.S.C. Control Flood Act (“FCA”), 33 U.S.C. and the Nation- In expiration before the of the last al Environmental Protection Act temporary contract, local water storage (“NEPA”), 42 U.S.C. seq. 4321 et. We the Corps transmitted a report to Con- threefold increase fectively requesting 207,000 acre-feet recommending that gress local space devoted the amount be reallocated Lake Lanier having received consumption, In supply. to local hydropower from Congres- Georgia sued require request, to its response might noting in the USACE, district court the federal Corps in approval. sional Authoriza- Post RepoRT Georgia. District of Change Northern Notifioation tion By denied. letter Georgia’s request was HYDROPOWER FROM OF STORAGE REALLOCATION Georgia Acting Assistant Secre- Lanier, April at Lake (1989). In re- explained Army for Works tary of the Civil Report”) (“Pao in the sued the sponse, sub- request involves “[t]his that because *4 Dis- Northern in court federal Lake Lanier and from stantial withdrawals enjoin reallo- Alabama, to seeking trict of affect accommodating it would authorized storage space to Lanier’s of Lake cation ... matter had been purposes [the in a resulted litigation This supply. water Army Gener- the Office of to] referred USACE, No. order, v. Alabama stay tjhat Counsel, has ... con- office [and al 1990), (N.D.Ala. 19, Sept. CV90-H-1331-B accommodated cannot cluded storage realloca- water permanent and no Congressional authori- additional the recom- despite was undertaken tion Brownlee, to R.L. Letter from zation.” 1992, In Report. of the Pac mendations Barnes, Georgia of Governor Roy E. Hon. Florida, and Alabama, Georgia 2002), 15, citing Memorandum (Apr. a Memorandum entered into Counsel, Stockdale, Deputy Gen. Earl to continue existing withdrawals allowing Georgia Re- Army, regarding Dep’t de- reasonable response increase Lanier from Lake quest and 1997, three States mand; the same 2002) 15, (“Army Legal Memoran- (Apr. Apalachicola-Chat- approved Congress dum”). currently lawsuit is Georgia The Compact Basin River tahoochee-Flint USACE, F.R.D. Georgia v. abated. al- storage to facilitate (“Compact”) (N.D.Ga.2004). 691, 699 resolution location, dispute and planning dis- Meanwhile, the D.C. in March 105-104, 111 No. Pub.L. ACF Basin. media- parties to did not trict referred the which court Compact, The Stat. 2219. joined by water, eventually tion, id. were any quantity where rights to assign Supply Providers. with- and the Water August Georgia on terminated allo- on the agreement negotiated resulting parties in an out January 2003. The storage signed resources. it in cation of issue and Lake Lanier’s specifies sued the Southeastern 1,049,400 It acre-feet. storage space is in the District court federal district allocate between Corps to requires statutory Columbia, challenging the Lake La- 240,858 acre-feet and from Lake Lani- authority divert municipal storage local nier’s water hydropower users the detriment er to period for a uses once-renewable industrial stemming injury alleging economic space amount of years; the exact ten water from withdrawals from increased whether Gwinnett depends on allocated Lanier, compromised allegedly Lake stor- all of the purchase County chooses power gen- Lanier’s water use of Lake If, under entitled. it is space to which age petitioned Georgia thereafter eration. storage space all of Army for Secretary of the Civil Assistant to local dedicated officially may be reservoir formally reallocate Works con- is, then the consumption consumption for local storage space —ef- twenty-two stitutes more than percent hydropower affect generation, original (22%) storage of the total space in Lake purpose Lanier, of Lake the assent of the approximately Lanier and nine hydropower generators meant that Con- storage space more of the total than gressional approval for the allocation of being allocated for local use in 2002. storage space was not required. Id. at 31- Compare Agreement at Le- 32. The district court quoted the WSA’s gal Memorandum at with Agreement at “operational provision, change” but did not 6. The interim ten-year leases will become explicitly address this issue. See id. permanent if Congress approves This court dismissed the initial appeal change in use or a final judgment court filed Alabama and Florida for lack aof holds that such necessary, order, final in view of the conditional na Agreement at and the commits ture of the district court’s approval of the to recommending Congress formally Power, Se. Fed. 400 F.3d at “make the covered the Interim Following the dissolution of the Ala basis,” Contracts available a permanent on bama injunction, district court’s id. at 11. provides USAGE, (11th hydropower generators payments with *5 Cir. 2005), court, the form of the “credit D.C. hy- 9, reflected in district on March dropower rates,” 2006, based on entered a paid judgment “revenues final that is the into the United Treasury States [under basis for appeal by Alabama and Flor contracts based on Agreement],” the ida.
compensate for opportunities lost related to its reallocation of water storage rights. II.
Id. at 13. Alabama and Florida contend that 2003, In October after the Agreement Agreement should be set aside because signed, the D.C. district court allowed WSA, FCA, it violates the and NEPA. Alabama and Florida intervene and de- They maintain that the nied the motions to transfer the case to the Agreement requires Congressional approv Georgia court; district Alabama and Flori- al under the WSA because it both consti da also resuscitated the Alabama lawsuit tutes a operational change and seri that was filed in 15, 1990. On October ously affects purposes. They also 2003, the Alabama court district entered a contend violates the preliminary injunction, preventing the FCA because it only allows the short-term Agreement from being implemented. The water, sale surplus Agree whereas the D.C. district court approved the Agree- ment a long-term is transaction involving 10, ment on February 2004, contingent water that surplus; is not because upon the “dissolution of the [Alabama dis- prohibits FCA negatively affecting existing trict injunction.” court’s] Se. Fed. Power water; uses of affected Caldera, Customers v. because the 26, 301 F.Supp.2d (D.D.C.2004). contrary 35 is inter reject- district court nal contracting ed FCA guidelines. Alabama’s and argument Finally, Florida’s the Agreement contend that the authority exceeded the violates conferred on the NEPA Corps by Congress, “irrevocably committing] in- [the cluding applicable provisions WSA, Corps] to executing [Agreement] the FCA and Id. NEPA. at 31. It completion also the analysis,” its NEPA Ap concluded that while pellants’ Br. at effectively bypassing
1321
directly
spoken
Congress
[Where]
the statute.1
...
the end of the
...
issue
is
the fairness
court reviews
matter;
court,
as the
for the
as well
dis
for abuse of
agreement
a settlement
unambig-
give effect to the
agency, must
Sec. Deal
Nat’l Ass’n
Moore v.
cretion.
...
Congress
intent of
uously expressed
(D.C.Cir.
Inc.,
1106
ers,
ambiguous with
is silent or
if the statute
1985).
precedents
are few
Although there
issue,
question
specific
respect to
for
agreement
a settlement
review of
on
agency’s
is whether
for
court
statutory requirements,
with
compliance
con-
on a permissible
answer is based
hardly approve
court
district
could
statute.
struction
a stat
that violates
agreement
settlement
842-43,
purposes for which the was au- thorized, surveyed, planned, or con- matter, As a
structed,
threshold
we hold
would
major
involve
Alabama and Florida have standing to
structural or operational changes shall
challenge
insofar at it con
only
be made
upon
of Con-
stitutes a
operational change to the
gress as
provided by
now
law.
Lake Lanier
reservoir.2 They credibly
Id.,
390b(d)
301(d),
added).
(emphasis
claim to fear that
proposed
water
will result
in “dimin
Alabama and Florida contend that the
flow of
reaching
ish[ed][ ]
water
the down
Agreement’s
reallocation of up to
stream
Appellants’
states.”
Br. at 2. The
acre-feet of storage space to the Water
Agreement does potentially reduce the
Supply Providers constitutes a “major ...
amount
flowing downstream,
operational change[]”
requires
and thus
5; Alabama,
at
424 F.3d at
Congressional approval. They point
1122, and the ACF basin
thereby
would
previous analyses prepared by the Corps
affected
changes to
quantity
and the
Office
General Coun-
the Chattahoochee River for as
sel indicating
changes on
long
twenty
see,
years,
e.g., Agreement
a similar
require
scale
Congression-
10;
at
Georgia
USACE,
cf.
RepoRT
See,
al approval.
e.g.,
12;
Pac
(11th
Cir.2002).
As the ACF
Army Legal
Memorandum 12. Appel-
basin
parts
includes
of both Alabama and
lees offer that
“merely
Florida, they would
directly
impacted
place
leaves in
...
quo
[t]he status
[of]
Agreement’s
proposed changes to
incremental
increases
in withdrawal
storage uses;
complaint,
its
Flori
amounts
Providers as
da alleged
negative
various
environmental
those
permitted by
increases are
Georgia,”
impacts from reduced water flow. In addi
Appellees’
Br. at
and thus does not
tion, the states’ quasi-sovereign interests
constitute an operational change. They
entitles them to “special solicitude” in
*7
would distinguish
the 2002
Legal
standing analysis. See Massachusetts v.
Memorandum on the
that Georgia’s
basis
—EPA,
U.S.-,
127 S.Ct.
request
larger
involved a
percentage of
(2007).
1323 total stor- Lake Lanier’s of Massachusetts, Id.) practicable.” cf. legal That to local use. addition, age, reallocated at 1456. S.Ct. request Georgia’s provision that concluded compliance opinion NEPA that its states Relo- Supplement “involve that would apply magnitude was of “does and between and project purposes Contract” cation effects on substantial of removal allowing of City Gainsville changes” therefore and major operational date Lanier from Lake from Congressional approval. required prior 12,14. settlement, at 1; at see Memorandum Army Legal on was based This conclusion both at show id. Florida thus and Army Le- analysis: its causa- and injury-in-fact a comprehensive imminence of the approval “specifical- reversing the tion, gal and identified Memorandum redress their provide Lanier] Lake purposes [of ly authorized v. Lujan generally See injury. genera- hydropower navigation, .... Defenders [as] 560-61, Wildlife, U.S. supply tion, and flood control—with (1992). Alabama’s 119 L.Ed.2d 6; benefit,” at reviewed id. anas incidental standing is like- prudential Florida’s authorizations, be- congressional relevant within they come because established wise Acts and Harbor with Rivers ginning Congress could interests zone of that, engi- 1945, noting according See protect. intended reasonably have an “inci- supply reports, neers’ Ass’n, 479 U.S. Indus. Sec. Clarke Dam; cited stat- dental benefit” 93 L.Ed.2d 399-401, 107 S.Ct. authority to Corps’ utory on limitations (1987). under existing project modify any sub- 3-9, referencing a House WSA, id. at Corps’ contrasting the report committee plainly the WSA 301 of Section “minor modifications” make authority to to a change major operational that a states project” “major changes in from distinct scope requires its falling within of its Corps’ view observing “[t]he Consistent approval.3 Congressional com- in this area authority discretionary long text, plain with at 10-11 Congress,” id. that of with ports to alter its discretion recognized On (quoting Publio Comm. House Congressional operations project’s Study Works, WoRks, Civil To Subcomm. non-major matters. is limited approval Program Report Functions the Civil on in the 1989 RepoRT, acknowledged It Pac Congress Engineers, 82nd might Congressional defense (1952)). legal for reallocation required *8 limit- withdrawals then-existing water twenty percent acre-feet, approximately or to author- footnote, citation ed to a current stor (20%) Lanier’s total of Lake does “the agency stated ity, which in the specified as age meet authority to discretionary have the opinion from legal a the basis of on mu- of the needs supply the current Counsel, the General Office reservoir,” id. surrounding nicipalities request Georgia’s rejected at 2. thirty-five 8 n. acre-feet, 370,930 approximately both by passed two-thirds ap- the President suggested that “the not
3. veto. by over President’s required the statute Congress” Houses proval of Cf. I, a bill or resolution anything than art. other Const, means by signed either is by Houses that passed both face, then, On its reallocating more than cation ever by undertaken with- twenty-two (22%, percent approximately out prior Congressional approval. Oral 241,000 feet) acre of Lake storage (Nov. Lanier’s 2007) Arg. Tape at 45:16.5. capacity uses, to local consumption see Second, Appellees maintain both that Agreement 5-6, constitutes the type of the amount of storage space reallocated major operational change referenced is too to qualify limited as WSA; limitation reallocation’s to a major operational change, and that the “temporary” period twenty years does Agreement’s compensation hydropower change this fact. percent Even nine prevents users the reallocation from con- (9%, 95,000 feet) approximately acre in- stituting major operational change. But crease over twenty years 2002 levels for is in defending Agreement, Appellees significant. Appellees’ contrary argu- provide no rational explain reason to why a ments unpersuasive. are reallocation of approximately thirty-five First, Appellees maintain that (35%) percent of total storage; taking into Agreement simply reflects the quo status account thirty years of needs, future local gradual reallocation, water storage major constitutes a operational change, see consequently does not constitute a Army Legal 9, 12; Memorandum operational change. But appropriate at whereas a reallocation of baseline measuring for impact of the more than twenty-two of total stor- Agreement’s reallocation of water storage age, taking into account twenty years of zero, which was the amount allocated to needs, future local does Agree- not. See storage space for supply when the 5-6, ment at In suggesting that the began Otherwise, lake operation. under Agreement’s compensation for the loss of Appellees’ logic, if even hydropower uses is meaningfully different had simply kept place a series of interim from Georgia’s request agreements that allocated all Lake La- 2000, Appellees ignore the fact that if even nier to storage for consumption, local no compensation provides hydropower pro- major operational change have would oc- ducers the full financial benefit curred —a logic chain of that would effec- have received from use of Lake Lanier in tively 301(d) bypass section the absence of the water storage realloca- 390b(d).4 U.S.C. Even taking the status tion, a major operational change still oc- quo as the consumption level curs because there is less through flow reallocation of approximately nine a result of increased storage (9%, feet) approximately acre local use. storage space twenty-year for a period is still significant. As the Corps Third, acknowl- Appellees maintain that the ab- edged during argument, oral the change sence of a permanent reallocation under from usage current local storage to removes the need envisioned Agree- levels congressional approval. itBut is unrea- ment would be largest acre-foot reallo- sonable to believe that Congress intended court, 4. The responding de- were the court to original address the Con- *9 approval fense of its of has no gressional purposes of Lake Lanier alluded to opine occasion to Corps’ previ- whether the colleague, our see id. any at 1326-27. In storage ous reallocations were unlawful. See event, "draconian,” hardly it is id. at to Concurring Op. at 1326-27. The court relies Congress’ explicit follow prior instructions for only on initial allocations of water —a approval major operational of changes. more presented limited issue than be would 11; date, see, e.g., Agreement at future make authority to deny the (Nov. 2007) 47:00.0, at assent, Arg. Tape Oral yet its changes without operational text of the plain accord with the to use a does not be Corps to able for the meant long as WSA. changes as these to allow loophole frames, time specific are limited understandably may The infinite theoretically span an could
which situation,” it a “difficult the view that faces respond attempt Appellees’ period. 2007) (Nov. 51:38.8, at Tape Arg. Oral ninety-nine period time suggesting multiple in- attempting to balance and is ” “ impact,’ cause a serious ‘might years solution,” a “creative and achieve terests counsel (quoting n. 6 at 38 Appellees’ Br. However, Congress envi- id. at 52:04.2. before argument during oral or “dif- changed circumstances sioned that court, of Oral Transcript D.C. district specified might arise and ficult situations” 2005) (Feb. 8, Fed. Se. Argument opera- involving “major any solution Caldera, Customers Power au- required prior its changes” tional ... (D.D.C.2004)), explain fails to F.Supp.2d 26 301(d), § 43 U.S.C. thorization. WSA not cause term would twenty year why a 390b(d). need not reach therefore We impact.” the same “serious contentions the other Agreement’s reallocation Florida. it conceivable circumstances other to local storage capacity Lake Lanier’s minor and a between a that the difference change major operational consumption is a an am- change might major operational 301(d) WSA, 43 that under section where Court degree, biguous matter 390b(d), may not occur U.S.C. au- agency’s whether consider According- Congress’ prior authorization. be accord- interpretation should thoritative been ob- no ly, because authorization step two under Chevron ed deference tained, the district court we hold “major term defining the re- Agreement and approving erred at 1327-28. Concurring Op. change,” cf. verse. of over Agreement’s But the (22%) Lanier’s percent Lake
twenty-two SILBERMAN, Judge, that situa- present Circuit storage space does Senior unambiguously enough judgment: large concurring It is tion. major operational type of constitute conclusion majority’s I with the agree 301(d) of the which section change for scope limited that, notwithstanding our 390b(d), requires U.S.C. of a approval court’s review of conclusion approval. This Congressional obliged to we are agreement, settlement consider- Corps’ prior by the is reinforced to dis- separately I one. write reject this PAC see proposals, ation of reallocation I think appellants raise cuss issues RepoRT 12; Army Legal Memorandum be re- should disposed of—and should be applies to conclusion at 8-12. same further any complicate not to jected so as nine approximately reallocation of disagree with litigation possible —and storage space, for Lanier’s of Lake important point. one my colleagues on is illus- ambiguity. This no presents too argued Appellants acknowledgment
trated (“FCA”), as Act scale, Control violated the Flood unprecedented the reallocation’s (“WSA”). I Act 2007) (Nov. well as Water at 45:16.5. Arg. Tape Oral weak. quite claim is that alternative think request Congres- committing to Vaguely states: of the FCA provision The relevant at some of the reallocation sional *10 surplus of Sale waters for domestic tained that an incidental benefit of the uses; disposition and industrial of project provide was to metropolitan Atlan- moneys Secretary Army of the ta with supply.) water —The Id. One authorized to make contracts with project’s thus, primary purposes, was to States, municipalities, private concerns, provide hydroelectric power to down- individuals, or prices at such and on stream users. The it is con- may reasonable, such terms as he deem Florida, tended Alabama and will re- for domestic and industrial uses for sur- duce the amount water released from plus may water that any be available at will, turn, reservoir which reduce reservoir under the control of the De- the water available for Alabama’s partment Provided, Army: power requirements. Florida’s Appellees no contracts for such water shall ad- responded that the Agreement’s compen- versely affect then existing lawful uses sation mechanisms met hydroelectric of such water.... purposes of project. § By terms, U.S.C. plain its this mechanisms, Under those sup- the water provision sets the conditions under which ply providers pay substantially will higher Secretary may “surplus sell water.” rates for storage, and the resulting However, does not contend that revenue will be credited to hydropower Settlement disposes of customers to compensate them for the re- “surplus” water. The does duced water through flows the dam. The reallocate certain amount of reservoir Corps, power customers, and the water capacity to water but storage, reallocations supply providers all agree that this com- governed are Act, not pensation mechanism will ensure 301(d) the Flood Control Act. Section Agreement does not have an adverse effect requires WSA Congressional approval on hydropower generation. “[mjodifications a reservoir I would not reach the merits of this ... which would involve structural ” argument because I do not think or Florida operational changes.... 43 U.S.C. 390b(d). Alabama have standing it. clear, then, It is raise abundantly The two states have Act, not any that the Water Supply identified the Flood cognizable Act, injury Control is the attributable to this governs statute that claim. They do not case, actions in assert that and I citi- their accordingly pay zens will explicitly reject any appellants’ more for as a electricity FCA claims. result Indeed, hy- droelectric companies supplying Florida
Turning to the appellants ar- and Alabama customers —the members gued indeed, it was their main argu- — the Southeastern Federal Power Custom- ment —that the Agreement was unlawful support because the statute, under that not just because con- ers — compensation mechanism adequately does “major operational stituted change,” but offset the supply. reduction because it To was inconsistent with the sure, Florida project’s authorized Alabama do purposes. 43 have U.S.C. 390b(d). standing panel Buford Dam concludes—to was con- ob- —as ject improve alleged structed to navigation, generate “major hydroelectric power, change” and control because flooding. the decreased sup- ply will Engi- have environmental impacts on neers, (11th Cir.2005). However, Florida and Alabama. standing (For many years, has main- must claim, be established for each
1327 water stored amount of many years some Norton, F.3d 434 v. Society Wilderness to) (and city of Atlanta the supplied (D.C.Cir.2006), appellants for 584, 591 conclusion is a draconian illegal. the That that to assert was standing lack purposes by the record. project the warranted I do not think “seriously affect” will reservoir. majority’s the agree with I nevertheless Agree- that the Settlement
determination sure, the defini- To is unlawful. ment my with disagreement My fundamental by no change is major operational tion of Agree- that the determination colleagues’ defer to we would Typically clear. means change” “major operational a ment works ambigu- that interpretation of agency’s an appropri- that the conclusion with their is be- term, do so here we cannot ous but impact measuring baseline ate agency an reviewing are not cause we stor- of water Agreement’s only set- adjudication, but a rulemaking or that the imply to That seems is zero. age (which does not even agreement tlement wa- provide to intended never was language). the crucial interpret to purport Atlanta, is which city of to ter Corp., Mead 533 v. United States See observation 11th Circuit’s tension with 2164, 292 150 L.Ed.2d 121 S.Ct. an issue and is infra, mentioned (2001). agen- to deference given We have not determined agreed settling parties agreements settlement interpretation of cy question open is Agreement; agency granted Congress when briefed. really been that has not approving agree- role “an active 1970s, Corps allo- in the Beginning v. Corp. Fuel Nat’l Gas ment.” of stor- increasing volume steadily a cated (D.C.Cir.1987). FERC, 1571 providers. supply to the water space age that such emphasized But we have U.S.A.C.E., at 1122. v. Alabama where —as inappropriate is deference Flor- Alabama and that appear It does not an interest- itself agency [was] here —“the 1990, when until policy challenged ida In such Id. agreement.” to the party ed ap- seeking Congressional Corps was to a court cases, might lead “deference sup- permanent into to enter proval an agency views that self-serving endorse Thus, for 1122-23. Id. at ply contracts. reinterpretation post a hoc might offer in decade, acquiesced the appellants over government Id. The its contract.” large withdrawals. increasingly policy interpreted implicitly to have seems initiated Florida and Even after including not “major” in its brief —as term into entered states litigation we do defer changes incremental —but Corps to that allowed agreements two Bowen litigating positions. mere satisfy “to rea- withdrawals increase water Hosp., 488 U.S. Univ. Georgetown set- demand” while ][ sonable increases (1988). L.Ed.2d pending.1 negotiations were tlement to me consti- appears zero, that the baseline asserting By change” because “major operational suggests that tute implicitly majority storage prior to those to water allocated been agreements do contain disclaimers 1. These Moreover, agreement agreements.) granting as not be construed "shall "chang- as it shall not construed rights states that perpetual any permanent, vested or Army’s quo authoriza- ing the status during settlement water used” the amounts implies This withdrawals.” (It tion of water word appear negotiations. and Alabama very least—Florida that —at only agreements refers in the "used” had the amount not contest nego- did during the settlement water withdrawn Corps prior to 1992. by the authorized space had been tiations, and not to reservoir *12 it substantially increases the “major amount of operational change.” Id. at 49:08. space reservoir allocated to water supply In a letter dated December compared to the allocation in Corps attempted concession, retract this is all we have to conclude. noting The total stor- “in was error.” But the age capacity of Lake 1,049,400 logic Lanier is of this concession was ineluctable. acre-feet. a 2002 memorandum The regard- argued, however, that even if a ing Georgia’s request permanent for more water stor- reallocation of 10% the res- age, the General ervoir Counsel of the would be Depart- deemed “major,” the Set- ment of that, Agreement stated tlement “[cjurrently, does not require Con- municipal gressional and interests, industrial through only because it is direct withdrawals interim measure. That is persuasive. releases from reservoir, requirements utilize the equivalent 145,460 Act apply “major acre-feet of storage in structural Lake Lanier for changes” Thus, supply.” text that statute approxi- draws —the no mately distinction 13.9% of between perma- interim and reservoir’s capacity changes. nent was being used for water supply. Under Settlement 240,858 up to argues that the burden was acre-feet of the reservoir would be set on Florida and Alabama to show that the aside for (175,000 water storage acre-feet Settlement unlawful, 20,675 Gwinnett County, acre-feet for that the plaintiffs-appellants failed to offer City Gainesville, 45,183 acre- sufficient evidence to meet this burden. feet for Commission). the Atlanta Regional explained above, But as the record —in- represents This 95,398 an increase of acre- cluding the Corps’ own documents —shows feet, which is a 65.6% increase over the that the would allocate an addi- Put level. way, another under 95,398 tional acre-feet of reservoir capacity Agreement, approximately 9% more of storage, and would increase the Lake Lanier’s total capacity will be set share of the reservoir allocated aside for water storage 13.9% storage from 13.9% to —in 22.9%. I simply do capacity total was allocated to water not see how we can conclude that is not a supply, but under fig- major change.
ure increased to 22.9%. Like the majority,
I also find it noteworthy that the storage permitted
levels “would largest acre-foot reallocation ever undertaken the Corps THORNTON, GRANT LLP, Petitioner Congressional approval.” Maj. Op. at 1324. OFFICE OF the COMPTROLLER OF At argument, oral counsel for the Corps CURRENCY, THE Respondent.
acknowledged that the Agree- Settlement ment would increase the amount of reser- No. 07-1003.
voir space allocated to storage by approxi- United Court States of Appeals, mately (or acre-feet 10% total District of Columbia Circuit. reservoir capacity), compared to the status Argued Nov. quo prior Tr. of Oral Arg. at Decided Feb. 43:20. Counsel then conceded permanent reallocation of 10% of the capacity reservoir’s constitute