Article I: Compact Purposes
This Compact among the States of Alabama and Georgia and the
United States of America has been entered into for the purposes of
promoting interstate comity, removing causes of present and future
controversies, equitably apportioning the surface waters of the ACT,
engaging in water planning, and developing and sharing common data
bases.
Article II: Scope of the Compact
This Compact shall extend to all of the waters arising within the
drainage basin of the ACT in the States of Alabama and Georgia.
Article III: Parties
The parties to this Compact are the States of Alabama and Georgia
and the United States of America.
Article IV: Definitions
For the purposes of this Compact, the following words, phrases
and terms shall have the following meanings:
(a) 'ACT Basin' or 'ACT' means the area of natural drainage into the Alabama River and its tributaries, the Coosa River and its tributaries, and the Tallapoosa River and its tributaries. Any reference to the rivers within this Compact will be designated using the letters `ACT' and when so referenced will mean each of these three rivers and each of the tributaries to each such river.
(b) 'Allocation formula' means the methodology, in whatever form,
by which the ACT Basin Commission determines an equitable apportionment
of surface waters within the ACT Basin among the two States. Such
formula may be represented by a table, chart, mathematical calculation
or any other expression of the Commission's apportionment of waters
pursuant to this compact.
(c) 'Commission' or 'ACT Basin Commission' means the Alabama-
Coosa-Tallapoosa River Basin Commission created and established
pursuant to this Compact.
(d) 'Ground waters' means waters within a saturated zone or
stratum beneath the surface of land, whether or not flowing through
known and definite channels.
(e) 'Person' means any individual, firm, association,
organization, partnership, business, trust, corporation, public
corporation, company, the United States of America, any State, and all
political subdivisions, regions, districts, municipalities, and public
agencies thereof.
(f) 'Surface waters' means waters upon the surface of the earth,
whether contained in bounds created naturally or artificially or
diffused. Water from natural springs shall be considered `surface
waters' when it exits from the spring onto the surface of the earth.
(g) 'United States' means the executive branch of the government
of the United States of America, and any department, agency, bureau or
division thereof.
(h) 'Water Resource Facility' means any facility or project
constructed for the impoundment, diversion, retention, control or
regulation of waters within the ACT Basin for any purpose.
(i) 'Water resources,' or 'waters' means all surface waters and
ground waters contained or otherwise originating within the ACT Basin.
Article V: Conditions Precedent to Legal Viability of the Compact
This Compact shall not be binding on any party until it has been
enacted into law by the legislatures of the States of Alabama and
Georgia and by the Congress of the United States of America.
Article VI: ACT Basin Commission Created
(a) There is hereby created an interstate administrative agency
to be known as the 'ACT Basin Commission.' The Commission shall be
comprised of one member representing the State of Alabama, one member
representing the State of Georgia, and one non-voting member
representing the United States of America. The State members shall be
known as 'State Commissioners' and the Federal member shall be known as
'Federal Commissioner.' The ACT Basin Commission is a body politic and
corporate, with succession for the duration of this Compact.
(b) The Governor of each of the States shall serve as the State
Commissioner for his or her State. Each State Commissioner shall
appoint one or more alternate members and one of such alternates as
designated by the State Commissioner shall serve in the State
Commissioner's place and carry out the functions of the State
Commissioner, including voting on Commission matters, in the event the
State Commissioner is unable to attend a meeting of the Commission. The
alternate members from each State shall be knowledgeable in the field
of water resources management. Unless otherwise provided by law of the
State for which an alternate State Commissioner is appointed, each
alternate State Commissioner shall serve at the pleasure of the State
Commissioner. In the event of a vacancy in the office of an alternate,
it shall be filled in the same manner as an original appointment.
(c) The President of the United States of America shall appoint
the Federal Commissioner who shall serve as the representative of all
Federal agencies with an interest in the ACT. The President shall also
appoint an alternate Federal Commissioner to attend and participate in
the meetings of the Commission in the event the Federal Commissioner is
unable to attend meetings. When at meetings, the alternate Federal
Commissioner shall possess all of the powers of the Federal
Commissioner. The Federal Commissioner and alternate appointed by the
President shall serve until they resign or their replacements are
appointed.
(d) Each State shall have one vote on the ACT Basin Commission
and the Commission shall make all decisions and exercise all powers by
unanimous vote of the two State Commissioners. The Federal Commissioner
shall not have a vote but shall attend and participate in all meetings
of the ACT Basin Commission to the same extent as the State
Commissioners.
(e) The ACT Basin Commission shall meet at least once a year at a
date set at its initial meeting. Such initial meeting shall take place
within ninety days of the ratification of the Compact by the Congress
of the United States and shall be called by the chairman of the
Commission. Special meetings of the Commission may be called at the
discretion of the chairman of the Commission and shall be called by the
chairman of the Commission upon written request of any member of the
Commission. All members shall be notified of the time and place
designated for any regular or special meeting at least five days prior
to such meeting in one of the following ways: by written notice mailed
to the last mailing address given to the Commission by each member, by
facsimile, telegram or by telephone. The Chairmanship of the Commission
shall rotate annually among the voting members of the Commission on an
alphabetical basis, with the first chairman to be the State
Commissioner representing the State of Alabama.
(f) All meetings of the Commission shall be open to the public.
(g) The ACT Basin Commission, so long as the exercise of power is
consistent with this Compact, shall have the following general powers:
- to adopt bylaws and procedures governing its conduct;
- to sue and be sued in any court of competent jurisdiction;
- to retain and discharge professional, technical, clerical and other staff and such consultants as are necessary to accomplish the purposes of this Compact;
- to receive funds from any lawful source and expend funds for any lawful purpose;
- to enter into agreements or contracts, where appropriate, in order to accomplish the purposes of this Compact;
- to create committees and delegate responsibilities;
- to plan, coordinate, monitor, and make recommendations for the water resources of the ACT Basin for the purposes of, but not limited to, minimizing adverse impacts of floods and droughts and improving water quality, water supply, and conservation as may be deemed necessary by the Commission;
- to participate with other governmental and non-governmental entities in carrying out the purposes of this Compact;
- to conduct studies, to generate information regarding the water resources of the ACT Basin, and to share this information among the Commission members and with others;
- to cooperate with appropriate State, Federal, and local agencies or any other person in the development, ownership, sponsorship, and operation of water resource facilities in the ACT Basin; provided, however, that the Commission shall not own or operate a federally-owned water resource facility unless authorized by the United States Congress;
- to acquire, receive, hold and convey such personal and real property as may be necessary for the performance of its duties under the Compact; provided, however, that nothing in this Compact shall be construed as granting the ACT Basin Commission authority to issue bonds or to exercise any right of eminent domain or power of condemnation;
- to establish and modify an allocation formula for apportioning the surface waters of the ACT Basin among the States of Alabama and Georgia; and
- to perform all functions required of it by this Compact and to do all things necessary, proper or convenient in the performance of its duties hereunder, either independently or in cooperation with any State or the United States.
Article VII: Equitable Apportionment
(a) It is the intent of the parties to this Compact to develop an
allocation formula for equitably apportioning the surface waters of the
ACT Basin among the States while protecting the water quality, ecology
and biodiversity of the ACT, as provided in the Clean Water Act, 33
U.S.C. Sections 1251 et seq., the Endangered Species Act, 16 U.S.C.
Sections 1532 et seq., the National Environmental Policy Act, 42 U.S.C.
Sections 4321 et seq., the Rivers and Harbors Act of 1899, 33 U.S.C.
Sections 401 et seq., and other applicable Federal laws. For this
purpose, all members of the ACT Basin Commission, including the Federal
Commissioner, shall have full rights to notice of and participation in
all meetings of the ACT Basin Commission and technical committees in
which the basis and terms and conditions of the allocation formula are
to be discussed or negotiated. When an allocation formula is
unanimously approved by the State Commissioners, there shall be an
agreement among the States regarding an allocation formula. The
allocation formula thus agreed upon shall become effective and binding
upon the parties to this Compact upon receipt by the Commission of a
letter of concurrence with said formula from the Federal Commissioner.
If, however, the Federal Commissioner fails to submit a letter of
concurrence to the Commission within two hundred ten (210) days after
the allocation formula is agreed upon by the State Commissioners, the
Federal Commissioner shall within forty-five (45) days thereafter
submit to the ACT Basin Commission a letter of nonconcurrence with the
allocation formula setting forth therein specifically and in detail the
reasons for nonconcurrence; provided, however, the reasons for
nonconcurrence as contained in the letter of nonconcurrence shall be
based solely upon Federal law. The allocation formula shall also become
effective and binding upon the parties to this Compact if the Federal
Commissioner fails to submit to the ACT Basin Commission a letter of
nonconcurrence in accordance with this Article. Once adopted pursuant
to this Article, the allocation formula may only be modified by
unanimous decision of the State Commissioners and the concurrence by
the Federal Commissioner in accordance with the procedures set forth in
this Article.
(b) The parties to this Compact recognize that the United States
operates certain projects within the ACT Basin that may influence the
water resources within the ACT Basin. The parties to this Compact
further acknowledge and recognize that various agencies of the United
States have responsibilities for administering certain Federal laws and
exercising certain Federal powers that may influence the water
resources within the ACT Basin. It is the intent of the parties to this
Compact, including the United States, to achieve compliance with the
allocation formula adopted in accordance with this Article.
Accordingly, once an allocation formula is adopted, each and every
officer, agency, and instrumentality of the United States shall have an
obligation and duty, to the maximum extent practicable, to exercise
their powers, authority, and discretion in a manner consistent with the
allocation formula so long as the exercise of such powers, authority,
and discretion is not in conflict with Federal law.
(c) Between the effective date of this Compact and the approval
of the allocation formula under this Article, the signatories to this
Compact agree that any person who is withdrawing, diverting, or
consuming water resources of the ACT Basin as of the effective date of
this Compact, may continue to withdraw, divert or consume such water
resources in accordance with the laws of the State where such person
resides or does business and in accordance with applicable Federal
laws. The parties to this Compact further agree that any such person
may increase the amount of water resources withdrawn, diverted or
consumed to satisfy reasonable increases in the demand of such person
for water between the effective date of this Compact and the date on
which an allocation formula is approved by the ACT Basin Commission as
permitted by applicable law. Each of the State parties to this Compact
further agree to provide written notice to each of the other parties to
this Compact in the event any person increases the withdrawal,
diversion or consumption of such water resources by more than 10
million gallons per day on an average annual daily basis, or in the
event any person, who was not withdrawing, diverting or consuming any
water resources from the ACT Basin as of the effective date of this
Compact, seeks to withdraw, divert or consume more than one million
gallons per day on an average annual daily basis from such resources.
This Article shall not be construed as granting any permanent, vested
or perpetual rights to the amounts of water used between January 3,
1992 and the date on which the Commission adopts an allocation formula.
(d) As the owner, operator, licensor, permitting authority or
regulator of a water resource facility under its jurisdiction, each
State shall be responsible for using its best efforts to achieve
compliance with the allocation formula adopted pursuant to this
Article. Each such State agrees to take such actions as may be
necessary to achieve compliance with the allocation formula.
(e) This Compact shall not commit any State to agree to any data
generated by any study or commit any State to any allocation formula
not acceptable to such State.
Article VIII: Conditions Resulting in Termination of the Compact
(a) This Compact shall be terminated and thereby be void and of
no further force and effect if any of the following events occur:
- The legislatures of the States of Alabama and Georgia each agree by general laws enacted by each State within any three consecutive years that this Compact should be terminated.
- The United States Congress enacts a law expressly repealing this Compact.
- The States of Alabama and Georgia fail to agree on an equitable apportionment of the surface waters of the ACT as provided in Article VII(a) of this Compact by December 31, 1998, unless the voting members of the ACT Basin Commission unanimously agree to extend this deadline.
- The Federal Commissioner submits to the Commission a letter of nonconcurrence in the initial allocation formula in accordance with Article VII(a) of the Compact, unless the voting members of the ACT Basin Commission unanimously agree to allow a single 45 day period in which the non-voting Federal Commissioner and the voting State Commissioners may renegotiate an allocation formula and the Federal Commissioner withdraws the letter of nonconcurrence upon completion of this renegotiation.
(b) If the Compact is terminated in accordance with this Article
it shall be of no further force and effect and shall not be the subject
of any proceeding for the enforcement thereof in any Federal or State
court. Further, if so terminated, no party shall be deemed to have
acquired a specific right to any quantity of water because it has
become a signatory to this Compact.
Article IX: Completion of Studies Pending Adoption of Allocation Formula
The ACT Basin Commission, in conjunction with one or more
interstate, Federal, State or local agencies, is hereby authorized to
participate in any study in process as of the effective date of this
Compact, including, without limitation, all or any part of the Alabama-
Coosa-Tallapoosa/ Apalachicola-Chattahoochee-Flint River Basin
Comprehensive Water Resource Study, as may be determined by the
Commission in its sole discretion.
Article X: Relationship to Other Laws
(a) It is the intent of the party States and of the United States
Congress by ratifying this Compact, that all State and Federal
officials enforcing, implementing or administering other State and
Federal laws affecting the ACT Basin shall, to the maximum extent
practicable, enforce, implement or administer those laws in furtherance
of the purposes of this Compact and the allocation formula adopted by
the Commission insofar as such actions are not in conflict with
applicable Federal laws.
(b) Nothing contained in this Compact shall be deemed to restrict
the executive powers of the President in the event of a national
emergency.
(c) Nothing contained in this Compact shall impair or affect the
constitutional authority of the United States or any of its powers,
rights, functions or jurisdiction under other existing or future laws
in and over the area or waters which are the subject of the Compact,
including projects of the Commission, nor shall any act of the
Commission have the effect of repealing, modifying or amending any
Federal law. All officers, agencies and instrumentalities of the United
States shall exercise their powers and authority over water resources
in the ACT Basin and water resource facilities, and to the maximum
extent practicable, shall exercise their discretion in carrying out
their responsibilities, powers, and authorities over water resources in
the ACT Basin and water resource facilities in the ACT Basin in a
manner consistent with and that effectuates the allocation formula
developed pursuant to this Compact or any modification of the
allocation formula so long as the actions are not in conflict with any
applicable Federal law. The United States Army Corps of Engineers, or
its successors, and all other Federal agencies and instrumentalities
shall cooperate with the ACT Basin Commission in accomplishing the
purposes of the Compact and fulfilling the obligations of each of the
parties to the Compact regarding the allocation formula.
(d) Once adopted by the two States and ratified by the United
States Congress, this Compact shall have the full force and effect of
Federal law, and shall supersede State and local laws operating
contrary to the provisions herein or the purposes of this Compact;
provided, however, nothing contained in this Compact shall be construed
as affecting or intending to affect or in any way to interfere with the
laws of the respective signatory States relating to water quality, and
riparian rights as among persons exclusively within each State.
Article XI: Public Participation
All meetings of the Commission shall be open to the public. The
signatory parties recognize the importance and necessity of public
participation in activities of the Commission, including the
development and adoption of the initial allocation formula and any
modification thereto. Prior to the adoption of the initial allocation
formula, the Commission shall adopt procedures ensuring public
participation in the development, review, and approval of the initial
allocation formula and any subsequent modification thereto. At a
minimum, public notice to interested parties and a comment period shall
be provided. The Commission shall respond in writing to relevant
comments.
Article XII: Funding and Expenses of the Commission
Commissioners shall serve without compensation from the ACT Basin
Commission. All general operational funding required by the Commission
and agreed to by the voting members shall obligate each State to pay an
equal share of such agreed upon funding. Funds remitted to the
Commission by a State in payment of such obligation shall not lapse;
provided, however, that if any State fails to remit payment within 90
days after payment is due, such obligation shall terminate and any
State which has made payment may have such payment returned. Costs of
attendance and participation at meetings of the Commission by the
Federal Commissioner shall be paid by the United States.
Article XIII: Dispute Resolution
(a) In the event of a dispute between the voting members of this
Compact involving a claim relating to compliance with the allocation
formula adopted by the Commission under this Compact, the following
procedures shall govern:
- Notice of claim shall be filed with the Commission by a voting member of this Compact and served upon each member of the Commission. The notice shall provide a written statement of the claim, including a brief narrative of the relevant matters supporting the claimant's position.
- Within twenty (20) days of the Commission's receipt of a written statement of a claim, the party or parties to the Compact against whom the complaint is made may prepare a brief narrative of the relevant matters and file it with the Commission and serve it upon each member of the Commission.
- Upon receipt of a claim and any response or responses thereto, the Commission shall convene as soon as reasonably practicable, but in no event later than twenty (20) days from receipt of any response to the claim, and shall determine if a resolution of the dispute is possible.
- A resolution of a dispute under this Article through unanimous vote of the State Commissioners shall be binding upon the State parties and any State party determined to be in violation of the allocation formula shall correct such violation without delay.
- If the Commission is unable to resolve the dispute within 10 days from the date of the meeting convened pursuant to subparagraph (a)(3) of this Article, the Commission shall select, by unanimous decision of the voting members of the Commission, an independent mediator to conduct a non-binding mediation of the dispute. The mediator shall not be a resident or domiciliary of any member State, shall not be an employee or agent of any member of the Commission, shall be a person knowledgeable in water resource management issues, and shall disclose any and all current or prior contractual or other relations to any member of the Commission. The expenses of the mediator shall be paid by the Commission. If the mediator becomes unwilling or unable to serve, the Commission by unanimous decision of the voting members of the Commission, shall appoint another independent mediator.
- If the Commission fails to appoint an independent mediator to conduct a non-binding mediation of the dispute within seventy-five (75) days of the filing of the original claim or within thirty (30) days of the date on which the Commission learns that a mediator is unwilling or unable to serve, the party submitting the claim shall have no further obligation to bring the claim before the Commission and may proceed by pursuing any appropriate remedies, including any and all judicial remedies.
- If an independent mediator is selected, the mediator shall establish the time and location for the mediation session or sessions and may request that each party to the Compact submit, in writing, to the mediator a statement of its position regarding the issue or issues in dispute. Such statements shall not be exchanged by the parties except upon the unanimous agreement of the parties to the mediation.
- The mediator shall not divulge confidential information disclosed to the mediator by the parties or by witnesses, if any, in the course of the mediation. All records, reports, or other documents received by a mediator while serving as a mediator shall be considered confidential. The mediator shall not be compelled in any adversary proceeding or judicial forum to divulge the contents of such documents or the fact that such documents exist or to testify in regard to the mediation.
- Each party to the mediation shall maintain the confidentiality of the information received during the mediation and shall not rely on or introduce in any judicial proceeding as evidence:
- (a) Views expressed or suggestions made by another party regarding a settlement of the dispute;
- (b) Proposals made or views expressed by the mediator; or
- (c) The fact that another party to the hearing had or had not indicated a willingness to accept a proposal for settlement of the dispute.
- The mediator may terminate the nonbinding mediation session or sessions whenever, in the judgment of the mediator, further efforts to resolve the dispute would not lead to a resolution of the dispute between or among the parties. Any party to the dispute may terminate the mediation process at any time by giving written notification to the mediator and the Commission. If terminated prior to reaching a resolution, the party submitting the original claim to the Commission shall have no further obligation to bring its claim before the Commission and may proceed by pursuing any appropriate remedies, including any and all judicial remedies.
- The mediator shall have no authority to require the parties to enter into a settlement of any dispute regarding the Compact. The mediator may simply attempt to assist the parties in reaching a mutually acceptable resolution of their dispute. The mediator is authorized to conduct joint and separate meetings with the parties to the mediation and to make oral or written recommendations for a settlement of the dispute.
- At any time during the mediation process, the Commission is encouraged to take whatever steps it deems necessary to assist the mediator or the parties to resolve the dispute.
- In the event of a proceeding seeking enforcement of the allocation formula, this Compact creates a cause of action solely for equitable relief. No action for money damages may be maintained. The party or parties alleging a violation of the Compact shall have the burden of proof.
(b) In the event of a dispute between any voting member and the
United States relating to a State's noncompliance with the allocation
formula as a result of actions or a refusal to act by officers,
agencies or instrumentalities of the United States, the provisions set
forth in paragraph (a) of this Article (other than the provisions of
subparagraph (a)(4)) shall apply.
(c) The United States may initiate dispute resolution under
paragraph (a) in the same manner as other parties to this Compact.
(d) Any signatory party who is affected by any action of the
Commission, other than the adoption or enforcement of or compliance
with the allocation formula, may file a complaint before the ACT Basin
Commission seeking to enforce any provision of this Compact.
- The Commission shall refer the dispute to an independent hearing officer or mediator, to conduct a hearing or mediation of the dispute. If the parties are unable to settle their dispute through mediation, a hearing shall be held by the Commission or its designated hearing officer. Following a hearing conducted by a hearing officer, the hearing officer shall submit a report to the Commission setting forth findings of fact and conclusions of law, and making recommendations to the Commission for the resolution of the dispute.
- The Commission may adopt or modify the recommendations of the hearing officer within 60 days of submittal of the report. If the Commission is unable to reach unanimous agreement on the resolution of the dispute within 60 days of submittal of the report with the concurrence of the Federal Commissioner in disputes involving or affecting Federal interests, the affected party may file an action in any court of competent jurisdiction to enforce the provisions of this Compact. The hearing officer's report shall be of no force and effect and shall not be admissible as evidence in any further proceedings.
(e) All actions under this Article shall be subject to the following provisions:
- The Commission shall adopt guidelines and procedures for the appointment of hearing officers or independent mediators to conduct all hearings and mediations required under this Article. The hearing officer or mediator appointed under this Article shall be compensated by the Commission.
- All hearings or mediations conducted under this article may be conducted utilizing the Federal Administrative Procedures Act, the Federal Rules of Civil Procedure, and the Federal Rules of Evidence. The Commission may also choose to adopt some or all of its own procedural and evidentiary rules for the conduct of hearings or mediations under this Compact.
- Any action brought under this Article shall be limited to equitable relief only. This Compact shall not give rise to a cause of action for money damages.
- Any signatory party bringing an action before the Commission under this Article shall have the burdens of proof and persuasion.
Article XIV: Enforcement
The Commission may, upon unanimous decision, bring an action
against any person to enforce any provision of this Compact, other than
the adoption or enforcement of or compliance with the allocation
formula, in any court of competent jurisdiction.
Article XV: Impacts on Other Stream Systems
This Compact shall not be construed as establishing any general
principle or precedent applicable to any other interstate streams.
Article XVI: Impact of Compact on Use of Water Within the Boundaries of the Compacting States
The provisions of this Compact shall not interfere with the right
or power of any State to regulate the use and control of water within
the boundaries of the State, providing such State action is not
inconsistent with the allocation formula.
Article XVII: Agreement Regarding Water Quality
(a) The States of Alabama and Georgia mutually agree to the
principle of individual State efforts to control man-made water
pollution from sources located and operating within each State and to
the continuing support of each State in active water pollution control
programs.
(b) The States of Alabama and Georgia agree to cooperate, through
their appropriate State agencies, in the investigation, abatement, and
control of sources of alleged interstate pollution within the ACT River
Basin whenever such sources are called to their attention by the
Commission.
(c) The States of Alabama and Georgia agree to cooperate in
maintaining the quality of the waters of the ACT River Basin.
(d) The States of Alabama and Georgia agree that no State may
require another State to provide water for the purpose of water quality
control as a substitute for or in lieu of adequate waste treatment.
Article XVIII: Effect of Over or Under Deliveries Under the Compact
No State shall acquire any right or expectation to the use of
water because of any other State's failure to use the full amount of
water allocated to it under this Compact.
Article XIX: Severability
If any portion of this Compact is held invalid for any reason,
the remaining portions, to the fullest extent possible, shall be
severed from the void portion and given the fullest possible force,
effect, and application.
Article XX: Notice and forms of signature
Notice of ratification of this Compact by the legislature of each
State shall promptly be given by the Governor of the ratifying State to
the Governor of the other participating State. When the two State
legislatures have ratified the Compact, notice of their mutual
ratification shall be forwarded to the Congressional delegation of the
signatory States for submission to the Congress of the United States
for ratification. When the Compact is ratified by the Congress of the
United States, the President, upon signing the Federal ratification
legislation, shall promptly notify the Governors of the participating
States and appoint the Federal Commissioner. The Compact shall be
signed by all three Commissioners as their first order of business at
their first meeting and shall be filed of record in the party
States.
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