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SOUTH CAROLINA v. U.S. ARMY CORPS OF ENGINEERS

No. 21-1085.

66 F.4th 189 (2023)

State of SOUTH CAROLINA; South Carolina Department of Health and Environmental Control; Savannah River Maritime Commission; Augusta, Georgia, Plaintiffs-Appellees, and Savannah Riverkeeper, Inc., Intervenor/Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS; United States Army Corps of Engineers Savannah District; Christine Wormuth, in her official capacity as Secretary of the Army; Lieutenant General Todd T. Semonite, in his official capacity as Commanding General and Chief of Engineers, U.S. Army Corps of Engineers; Major General Diana M. Holland, in her official capacity as Commanding General, South Atlantic Division, U.S. Army Corps of Engineers; Colonel Daniel H. Hibner, in his official capacity as District Engineer, U.S. Army Corps of Engineers, Savannah District, Defendants-Appellants, and Georgia Ports Authority, Intervenor/Defendant. Chamber of Commerce of Greater Augusta, Georgia, Incorporated; PCS Nitrogen Fertilizer, L.P., Amici Supporting Appellee.

United States Court of Appeals, Fourth Circuit.

Decided: April 19, 2023.

Attorney(s) appearing for the Case

ARGUED: Michael Thomas Gray , UNITED STATES DEPARTMENT OF JUSTICE, Jacksonville, Florida, for Appellants. Chad Nicholas Johnston , BURR & FORMAN LLP, Columbia, South Carolina; David Montgomery Moore , EARTH & WATER LAW, LLC, Atlanta, Georgia, for Appellees. ON BRIEF: Todd Kim , Assistant Attorney General, Robert P. Stockman , Environment and Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Jacksonville, Florida; Erica Zilioli , Phillip Paradise , UNITED STATES CORPS OF ENGINEERS, Washington, D.C., for Appellants. Randolph R. Lowell , BURR & FORMAN LLP, Charleston, South Carolina, for Appellees. Susan Bodine , EARTH & WATER LAW, Atlanta, Georgia, for Intervenor/Appellee. Brian C. Lea , Atlanta, Georgia, Megan Lacy Owen , JONES DAY, Washington, D.C., for Amici Curiae.

Vacated and remanded by published opinion. Judge Diaz wrote the opinion, in which Judge King joined. Judge Niemeyer wrote a dissenting opinion.

The New Savannah Bluff Lock and Dam sits on the Savannah River near Augusta, Georgia. For over 80 years, the Dam has raised the height of the Savannah River around it, creating a "pool" of water at the Augusta riverfront. The Augusta community uses the pool for water supply and recreation. Locals dock their boats in the pool...

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