IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 02-10135

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D. C. Docket No. 01-00026 CV-RWS-2

THE STATE OF GEORGIA,

Plaintiff-Appellee,

LAKE LANIER ASSOCIATION,

Proposed Intervenor,

versus

THE UNITED STATES ARMY CORPS OF ENGINEERS, et al.,

Defendants,

SOUTHEASTERN FEDERAL POWER CUSTOMERS, INC.,

THE STATE OF FLORIDA,

Proposed Intervenors-Appellants.

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Appeals from the United States District Court

for the Northern District of Georgia

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(August 21, 2002)

Before BARKETT and MARCUS, Circuit Judges, and HIGHSMITH (1), District Judge.

BARKETT, Circuit Judge:

The State of Florida and Southeastern Federal Power Customers, Inc. ("SeFPC") appeal from the denial of their motions to intervene as defendants in the State of Georgia's lawsuit against the Army Corps of Engineers (the "Corps"), which seeks to compel the Corps to increase the water supply available to the City of Atlanta from a source under the control of the Corps.

BACKGROUND

Georgia, Alabama and Florida share the water supply provided by interconnected rivers that flow through the three states. The Chattahoochee River originates in the mountains of north Georgia, flows southwesterly through Georgia, and becomes the Apalachicola River at the Florida border. Together with Alabama's Flint River, the Chattahoochee and Apalachicola make up the Apalachicola-Chattahoochee-Flint Basin ("ACF Basin"). In 1997, the Apalachicola-Chattahoochee-Flint Compact ("ACF Compact") was enacted by the legislatures and Governors of Alabama, Florida and Georgia, then passed by Congress. Its purpose includes "promoting interstate comity, removing causes of present and future controversies, equitably apportioning the surface waters of the ACF, engaging in water planning, and developing and sharing common data bases." ACF Compact, Art. I.

The Compact does not contain a formula for determining how much water each state is entitled to receive from the ACF Basin. Rather, the Compact requires the three member states to negotiate a water allocation agreement. ACF Compact, Art. VII(a). Georgia, Florida and Alabama have been in negotiations to determine an allocation formula since they enacted the Compact into law, to no avail. The Compact provides that it

shall be terminated and thereby be void and of no further force and effect if . . . Alabama, Florida and Georgia fail to agree on an equitable apportionment of the surface waters of the ACF . . . by December 31, 1998, unless the voting members of the ACF Basin Commission unanimously agree to extend this deadline.

ACF Compact, Art. VIII(a)(3). Although the three states have not agreed to a water allocation formula, they have agreed to extend the deadline on twelve separate occasions. Most recently, the states agreed to extend the deadline for the determination of an allocation formula until January 31, 2003.

In the 1940s, prior to the enactment of the ACF Compact, Congress authorized the Corps to create Lake Lanier, a reservoir north of Atlanta, by constructing Buford Dam across the Chattahoochee River." (2) The reservoir and dam remain under the management of the Corps. Lake Lanier is contained within the ACF Basin and thus subject to the ACF Compact.

Two years ago, the Governor of Georgia made a written water supply request asking the Corps to commit to making increased releases of water from the Buford Dam until the year 2030 in order to assure a reliable municipal and industrial water supply to the Atlanta region. Specifically, Georgia requested that the Army Corps take the following actions: