Environmental – Savannah River Dam – Sturgeon Passage Structure – Pool Level

Congress’s requirement that a fish-passage structure “maintain” a Savannah pool “for water supply and recreational activities, as in existence on the date of the enactment of this Act” does not require the U.S. Army Corps of Engineers to keep the pool at precisely the elevation it measured on the day the President signed the bill into law.

We reverse the district court’s ruling to the contrary.

In the Water Infrastructure Improvements for the Nation (WIIN) Act, Congress required the U.S. Army Corps of Engineers to design a fish-passage structure to allow Atlantic and shortnose sturgeon to migrate upstream despite the New Savannah Bluff Lock and Dam. WIIN Act § 1319(c)(1)(A)(ii) requires “a structure that is able to maintain the [Savannah] pool for water supply and recreational activities, as in existence on the date of enactment of this Act.”

The parties offer competing readings of the statutory text: “a structure that is able to maintain the pool for water supply and recreational activities, as in existence on the date of enactment of this Act.” WIIN Act § 1319(c)(1)(A)(ii). The Corps contends that the clause beginning “as in existence” applies to “water supply and recreational activities,” so the Corps “must maintain the pool for those purposes as they existed when Congress passed the WIIN Act.” Plaintiffs respond that the statute “clearly requires that the pool itself be ‘maintain[ed]’ as in existence on the date of the enactment,” and that the Corps’ interpretation imports a “functionality” requirement not found in the statute. We think the Corps has the better reading.

In plaintiffs’ reading, the prepositional phrase, “for water supply and recreational activities” is irrelevant. In the Corps’ reading, the phrase does real work.

Moreover, applying the rule of the last antecedent, we find that the “as in existence” clause modifies the entire integrated phrase, “the pool for water supply and recreational activities.” This reading gives effect to every word in the statute.

The district court found the Corps’ interpretation flawed because it added the word “sufficient” – i.e., the Corps must build a structure “able to maintain the pool [sufficient] for water supply and recreational activities.” But “sufficient” is suggested by the word “for.”

We conclude that the “as in existence” clause modifies “the pool for water supply and recreational activities.” And to give effect to the “for” clause, the benchmark for whether the Corps has “maintain[ed]” the pool is whether the pool supports the water supply and recreational uses in existence when Congress enacted the Act.

We also agree with the Corps that pinning the required pool height to the “arbitrary and unknowable-to-Congress date that the President signed the legislation” leads to “absurd results.” Had the elevation of the pool been exceptionally low or high on December 16, 2016, the district court’s interpretation would have held the Corps to that level regardless. In response, plaintiffs suggest that the statute only obligates the Corps to maintain the pool at its “normal operating range.” But neither the statute nor the district court’s order makes clear this permissible “range.”

Vacated and remanded.

Dissent

(Niemeyer, J.) The weir proposed by the Corps would not be able to maintain the pool at the level as it existed under the Corps’ own maintenance of the Savannah River Dam on the date that the WIIN Act was enacted, and the Corps concedes this. Therefore, the weir would not comply with the Act’s clear requirement. The Corps’ defense is a rationalization that the weir would nonetheless serve the statutory purposes of the pool. This argument, however, does not absolve the Corps’ noncompliance.

South Carolina v. United States Army Corps of Engineers (Lawyers Weekly No. 001-055-23, 30 pp.) (Albert Diaz, J.) (Paul Niemeyer, J., dissenting) No. 21-1085. Appealed from USDC at Aiken, S.C. (Richard Gergel, J.) Michael Thomas Gray, Todd Kim, Robert Stockman, Erica Zilioli and Phillip Paradise for appellants; Chad Nicholas Johnston, David Montgomery Moore and Randolph Lowell for appellees; Susan Bodine for intervenor-appellee; Brian Lea and Megan Lacy Owen for amici curiae. United States Court of Appeals for the Fourth Circuit