Full opinion text
MEMORANDUM OPINION BOWDRE, District Judge. Before the court are Florida’s [second] Motion to Amend (Doc. 269) and Alabama’s [second] Motion to Amend (Doc. 270). For the reasons set forth below, and for the reasons stated at the June 30, 2005 hearing on the motions, the court grants the motions. Further, the court orders Alabama and Florida to revise their amended complaints to clarify exactly which agency actions they are challenging under each claim, and to make other changes only as necessary to clearly articulate the basis of this court’s jurisdiction. I. Facts and Procedural History On June 28, 1990, Alabama filed a complaint against the United States Army Corps of Engineers and several of the Corps’ officers in their official capacities challenging a number of the Corps’ activities, plans, and actions primarily regarding the management of three reservoirs in Georgia: Carters Lake, Lake Allatoona, and Lake Lanier. Carters Lake and Lake Allatoona are part of the Alabama-Coosa-Tallapoosa (ACT) river basin. Lake Lanier is part of the Apalaehicola-Chattahoo-chee-Flint (ACF) river basin. Alabama and its citizens are downstream from these reservoirs and rely on water from both the ACT and ACF river basins. Beginning soon after Alabama filed suit, a number of entities moved to intervene in the case, including Florida, Georgia, and the Atlanta Regional Commission (ARC). See Doc. 21, Florida’s [Original] Motion to Intervene; Doc. 31, Georgia’s [Original] Motion to Intervene; Doc. 34, Water Supply Intervenors’ Motion to Intervene. Florida sought to intervene as a plaintiff, and Georgia and ARC sought to intervene as defendants. To foster settlement negotiations, on September 14, 1990 Alabama and the Federal Defendants filed a Joint Motion to Stay Proceedings, agreeing that, “until such time as the stay is terminated [under the terms of the joint motion], Defendants agree not to execute any contracts or agreements which are the subject of the complaint in this action unless expressly agreed to, in writing, by Aabama and Florida.” See Doc. 41. The court granted the Joint Motion to Stay, noting that “the court views the parties to this action as bound by the terms of their joint motion.” Doc. 44. That stay was repeatedly extended by every judge who has presided over this case. Following a 1992 stay Order, which preserved rather than superseded the conditions of the 1990 stay Order, the court denied several pending motions, including Florida’s, Georgia’s, and ARC’S motions to intervene, without prejudice to refile in the event the stay was lifted. See February 5, 1992 Order, Doc. 54. In January, 2003, without the Corps first complying with the termination provisions of the 1990 Joint Motion to Stay, the Corps and Georgia entered into a settlement agreement (“the D.C. agreement”) with other parties in related litigation in the United States District Court for the District of Columbia (the “D.C. Case”). Aabama responded on January 27, 2003 by filing a motion in this case for a temporary restraining order and preliminary injunction against the Corps, arguing that the Corps had violated the terms of the 1990 stay Order. Limited litigation activity commenced, interspersed with more stay orders, as requested by the parties, to permit them opportunities to settle the dispute over the D.C. agreement among themselves. On September 8, 2003, Florida renewed its motion to intervene, which was not accompanied by a new proposed complaint. See Doc. 158, Florida’s First Amended Motion to Intervene. In an Order setting the case for a hearing on Aa-bama’s request for a TRO and preliminary injunction, the court granted Florida’s motion to intervene and permitted Florida to file its complaint in intervention by September 12, 2003. Doc. 161, September 10, 2003 Order Granting Florida’s Motion to Intervene. On September 12, 2003, Florida filed its first complaint, which it styled as its “First Amended Complaint” because that complaint was different from its original 1990 proposed complaint in intervention. See Doc. 165, Florida’s First Amended Complaint. No Defendants answered Florida’s First Amended Complaint, presumably because, as discussed below, on November 24, 2003, the court again stayed the case. On September 11, 2003, Georgia renewed its motion to intervene as a defendant, and the court granted the motion. See Doc. 162, Georgia’s Renewed Motion to Intervene; Doc. 183, September 23, 2003 Order Granting Georgia’s Motion to Intervene. On September 23, 2003, Aabama moved to amend its complaint because, “[djuring the thirteen years which have passed since Aabama filed its original complaint and the six years which have passed since the execution of the ACF and ACT compacts, new factual developments have taken place which warrant additional and supplemental factual allegations and legal counts against the Corps and its officials.” See Doc. 184. Alabama attached to its motion a copy of its proposed “First Amended Complaint.” See Doc. 184 Attachment 1. On October 15, 2003, after a hearing on September 24, 2003, the court found that the Corps had violated the September 19, 1990 stay Order, and entered a preliminary injunction prohibiting the Corps from “filing the settlement agreement in [the D.C. Case], implementing the settlement agreement,... or, [without this court’s approval,] entering into any other new storage or withdrawal contracts affecting the [ACF] river basin.” See Doc. 192, October 15, 2003 Preliminary Injunction Order. The court specified that the injunction would last only until this case is resolved on the merits, and may be lifted earlier “for just cause.” Id. p. 11. On November 6, 2003 ARC attempted to make a “special appearance” to contest this court’s jurisdiction to enter the October 15, 2003 preliminary injunction. See Doc. 196. In December, Georgia, the Corps, and ARC (who was not a yet a party) each filed Notices of Appeal from the October 15, Preliminary Injunction Order. See Docs. 204-206. Meanwhile, no party filed an opposition to Alabama’s motion to amend. On November 24, 2003, “recognizing] that the complexion of this litigation has changed considerably over the last thirteen years[,]... in an effort to ensure this dispute resolves on timely matters,” the court granted Alabama’s first Motion to Amend. See November 2k, 2003 Order, Doc. 203. In the same Order, the court stayed the case “until Judge Thomas Penfield Jackson makes an order in Southeastern Federal Power Customers, Inc., v. United States Army Corps of Engineers, C.A. No. 00-2975 (T.P.J.) (D.D.C.), deciding the validity of the proposed settlement in that case.” Id. The court required Alabama to file its amended complaint within 10 days after the lifting of the stay. Id. On February 10, 2004, Judge Jackson entered an Order declaring that the D.C. agreement was “valid and approved, and may be executed and filed and thereafter performed in accordance with its terms; provided, however, that the preliminary injunction entered by N.D. Ala. on October 15, 2003, is first vacated.” Southern Federal Power Customers, Inc. v. Caldera, 301 F.Supp.2d 26, 35 (D.D.C.2004) (the “D.C. Order”). Accordingly, the due date for Alabama’s amended complaint was February 25, 2004. On February 24, 2004, Alabama and Florida filed a joint, unopposed motion to extend the time to file amended complaints. See Doc. 217. The court granted the motion (Doc. 218), and extended the deadline to March 10, 2005. Both Alabama and Florida filed “Second Amended Complaints” on March 10, 2004. See Doc. 221, Florida’s Second Amended Complaint; Doc. 223, Alabama’s Second Amended Complaint. No Defendants answered Alabama’s or Florida’s Second Amended Complaint, presumably because, on April 1, 2004, the court stayed the action again in light of the appeal taken by the Defendants of the October 15, 2003 Preliminary Injunction Order. See April 1, 200k Order Staying Case, Doc. 231. However, on April 8, 2004, the Eleventh Circuit stayed that appeal for the limited purpose of allowing this court to consider whether to dissolve or modify the injunction based upon the D.C. Order. On September 29, 2004, after the motions to lift the preliminary injunction in light of the D.C. Order were under submission, the court held a hearing on whether to lift the injunction. At the hearing on the preliminary injunction, Alabama and Florida informed the court that they wished to amend their complaints again. On September 30, 2004, because Federal Rule of Civil Procedure 12 has generally abolished special appearances, and because ARC’s participation in this case far exceeded the bounds of a special appearance and was, therefore, a general appearance, the court construed ARC’s motion to appear specially as a motion to intervene and granted the motion. See September SO, ZOOlp Order, Doc. 257. On November 8, 2004, the court entered an Order lifting the stay of the case as to all matters not on appeal, and the case has not been stayed again. See Doc. 262, November 8, 200J/, Order. In the same Order, in accordance with Alabama’s and Florida’s September 29, 2004 notification that they wished to amend again, the court permitted Alabama and Florida to file motions to amend their complaints by January 7, 2005. In accordance with that Order, Alabama and Florida timely filed the motions to amend their complaints now before the court, which the Defendants vigorously oppose. Later, on February 18, 2005, the court entered an Order denying the motions to lift the injunction in light of the D.C. Order. See Docs. 274 & 275, Order & Memorandum Opinion; Alabama v. United States Army Corps of Eng’rs, 357 F.Supp.2d 1313, 1317-18 (N.D.Ala.2005). That Order is presently on appeal. See Georgia’s, Florida’s, and ARC’s Notices of Appeal, Docs. 283, 294, 295. II. Issues Presented Regarding the Current Motions to Amend The Federal Defendants argue that the motions to amend are futile because the court lacks jurisdiction over the claims in the amended complaints because those claims do not challenge final agency actions. In addition, the Federal Defendants argue that the motions to amend are futile because venue is improper as to the amended claims. Georgia and ARC (referred to as the “Georgia Defendants” only for purposes of this Memorandum Opinion) argue, first, that the court has no jurisdiction to grant the motions to amend because the motions seek to introduce complaints that would create jurisdiction where the court had no jurisdiction before. According to the Georgia Defendants, the court had no subject matter jurisdiction to hear the claims in .the original complaint because those claims were not based on final agency-actions. The Georgia Defendants further argue that, even if those claims were justi-ciable, they became moot when the Corps agreed not to execute certain actions challenged in the original complaint. Therefore, according to the Georgia Defendants, the court lacks jurisdiction over the case, and cannot enter an order granting the motions to amend even if the amended complaints would create jurisdiction. Second, the Georgia Defendants argue that the motions before the court are improperly cast as motions to amend under Rule 15(a) because they incorporate recent events. Rather, the Georgia Defendants contend, the motions to amend should be designated as motions to supplement under Rule 15(d) of the Federal Rules of Civil Procedure. Further, the Georgia Defendants maintain that the “motions to supplement” must be denied for several reasons: (1) because they improperly seek to add separate, distinct, and new causes of action in a case that has been dormant and has become moot; (2) because supplementation is futile based on improper venue as to the new claims; (3) because supplementation is futile because the controversy should fall under the Supreme Court’s original, exclusive jurisdiction; and (4) because allowing the motions would prejudice Georgia and the ARC. Finally, without leave of court, months after briefing on the motions to amend was under submission, and mere days before the hearing on those motions, the Georgia Defendants filed an additional brief suggesting that Alabama’s claims are not “valid and bona fide,” and accusing Alabama of illegitimately seeking to keep this lawsuit viable. See Georgia Defendants’ Supplemental Brief, Doc. 325. The court will not consider this supplemental filing because Georgia and ARC unfairly waited until a few days before the hearing to spring their arguments on opposing parties and the court, and because they did not seek leave of court to file a supplemental brief on the propriety of granting the motions to amend. Moreover, the Georgia Defendants level their supplemental arguments at the merits of Alabama’s proposed amended claims. Those arguments, thus, are not germane to the propriety of permitting amendment. III. Standard of Review After service of a responsive pleading, “a party may amend the party’s pleading only by leave of court ... and leave shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a) (emphasis added). “ ‘[I]n the absence of any apparent or declared reason- — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be “freely given.” ’ ” Loggerhead Turtle v. County Council of Volusia, Fla., 148 F.3d 1231, 1255 (11th Cir.1998) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). The Defendants contend that the motions to amend are really motions to supplement. Under Rule 15(d), [u]pon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor. As the Eleventh Circuit recognizes, “[a] supplemental pleading is an appropriate vehicle by which to ‘set forth new facts in order to update the earlier pleading, or change the amount or nature of the relief requested in the original pleading.’ ” Lussier v. Dugger, 904 F.2d 661, 670 (11th Cir.1990) (quoting 6A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, 4 Federal Practice and Procedure § 1504 (footnotes omitted)). Regardless of whether the motions are to amend or supplement, the standard of review is the same, with a few exceptions that do not apply in this case. The court, therefore, will not be sidetracked by a technicality that raises form over substance. See discussion infra; see, e.g., Franks v. Ross, 313 F.3d 184, 198 (4th Cir.2002); 6A Charles Alan Wright & Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1504 (2d ed.1990) (explaining the difference between a motion to supplement and a motion to amend). IV. Discussion A. Whether the Court has Subject Matter Jurisdiction Over the Amended Claims The Defendants argue that allowing Alabama and Florida to file their amended complaints would be futile because the court has no jurisdiction over the amended claims on several theories, including asserting that the court lacks jurisdiction over the original complaint. Whenever questions surface about the court’s subject matter jurisdiction-even fifteen years after the complaint was filed-the court must make a serious and studied examination of the issue. See Reahard v. Lee County, 978 F.2d 1212, 1213 (11th Cir.1992) (noting that a court “always must investigate questions of subject matter jurisdiction, whether or not they are raised by the parties to the case.” (citing Fitzgerald v. Seaboard Sys. R.R., 760 F.2d 1249, 1251 (11th Cir.1985))). 1. The Supreme Court’s Original Jurisdiction The Georgia Defendants argue that, because this case involves interstate water allocation, this suit presents a “controversy between two or more states,” and, therefore, falls within the exclusive jurisdiction of the Supreme Court. Under 28 U.S.C. § 1251(a), “[t]he Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.” (Emphasis added). In addition “[t]he Supreme Court shall have original but not exclusive jurisdiction of ... [a]ll controversies between the United States and a State.” 28 U.S.C. § 1251(b). At this point, the case does not fall under the Supreme Court’s original and exclusive jurisdiction. Even though the Supreme Court occasionally exercises original jurisdiction in interstate water disputes, 28 U.S.C. § 1251 circumscribes the Supreme Court’s original jurisdiction based on the identity of the parties to a dispute, not based on the siibject of the dispute between the parties. Therefore, the Georgia Defendants’ argument that “interstate water disputes” automatically fall within the Supreme Court’s original exclusive jurisdiction because the general subject implicates states’ competing interests in water is misplaced. See United States v. Nevada, 412 U.S. 534, 537, 93 S.Ct. 2763, 37 L.Ed.2d 132 (1973) (per curiam) (holding that, in a declaratory-judgment action in which the United States sued two states with opposing interests in the federal water allocation decisions at issue and in which the two states did not seek relief from one another, the case fell outside § 1251(a) jurisdiction); Mississippi v. Louisiana, 506 U.S. 73, 78, 113 S.Ct. 549, 121 L.Ed.2d 466 (1992) (noting that a district court could properly decide a boundary dispute between private parties even though the district court’s decision would necessarily determine the boundary line between two states, because § 1251 “speaks not in terms of claims or issues, but in terms of parties ”) (emphasis added). Just because states pursue opposing interests in a case does not necessarily mean a “controversy” exists between or among them, or that the Supreme Court will exercise original jurisdiction: The exclusive jurisdiction of the Supreme court [under 28 U.S.C. § 1251(a) ] is limited to cases in which the states are and remain opponents in the controversy, regardless of their formal alignment. [See ] United States v. Nevada, 412 U.S. 534, 538-40, 93 S.Ct. 2763, 37 L.Ed.2d 132 (1973); California v. Nevada, 447 U.S. 125, 133, 100 S.Ct. 2064, 65 L.Ed.2d 1. On the other hand, provided at least one state is on each side of the controversy, the presence of nonstate parties, even indispensable parties, does not affect the exclusive original jurisdiction of the Supreme Court. [E.g.], Arizona v. California, 373 U.S. 546, 564, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963); California v. Arizona, 440 U.S. 59, 61, 99 S.Ct. 919, 59 L.Ed.2d 144 (1979)[; see also ] Maryland v. Louisiana, 451 U.S. 725, 735-44, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981); Louisiana v. Mississippi, 516 U.S. 122, 116 S.Ct. 560, 133 L.Ed.2d 459 (1995) (settling a boundary dispute between Louisiana and Mississippi and denying Louisiana’s title claim against a private defendant). Thus, when the United States and a state are opposing parties-a case of concurrent jurisdiction under 28 U.S.C. § 1251(b)(2)-the Supreme Court nevertheless retains exclusive jurisdiction if the suit also involves a controversy between two states. [See] California v. Arizona, [440 U.S. at 67, 99 S.Ct. 919]. Robert L. Stern et al., Supreme Court Practice 554-555 (8th ed.2002) (emphasis in original). The Supreme Court’s characteristically conservative nature regarding its jurisdiction extends even to its statutorily exclusive jurisdiction over controversies between two or more states. The Supreme Court has commented on its philosophy of invoking its § 1251 original jurisdiction sparingly: We construe 28 U.S.C. s 1251(a)(1), as we do Art. Ill, s 2, cl. 2, to honor our original jurisdiction but to make it obligatory only in appropriate cases.... We incline to a sparing use of our original jurisdiction so that our increasing duties with the appellate docket will not suffer. Illinois v. City of Milwaukee, Wis., 406 U.S. 91, 93-94, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972) (citations omitted). The Supreme Court will only exercise jurisdiction in cases where the issue is first of all “serious.” “‘The model case for invocation of this Court’s original jurisdiction is a dispute between States of such seriousness that it would amount to casus belli if the States were fully sovereign.’ ” Mississippi v. Louisiana, 506 U.S. 73, 77, 113 S.Ct. 549, 121 L.Ed.2d 466 (1992) (quoting Texas v. New Mexico, 462 U.S. 554, 571, 103 S.Ct. 2558, 77 L.Ed.2d 1 (1983)). Second, the Court considers “the availability of an alternative forum in which the issue tendered can be resolved.” Id. Because the Supreme Court’s original jurisdiction over controversies between two or more states is exclusive, it alone has the prerogative to apply the two-part test to decide whether it will exercise that jurisdiction. The district court must dismiss the action whenever it involves “a controversy between two or more states,” regardless of whether the case appears to be one over which the Supreme Court will, in its discretion, exercise jurisdiction. A controversy between two or more states exists only when, unlike this case at this time, the states are actually seeking relief from one another. See Mississippi v. Louisiana, 506 U.S. at 78 n. 2, 113 S.Ct. 549 (stating, in dicta, “Louisiana’s intervention is also unaffected by § 1251(a) because it does not seek relief against Mississippi”); United States v. Nevada, 412 U.S. 534, 537, 93 S.Ct. 2763, 37 L.Ed.2d 132 (1973) (per curiam). This case presents precisely the kind of dispute the Eighth Circuit found to fall outside the Supreme Court’s exclusive jurisdiction in South Dakota v. Ubbelohde, 330 F.3d 1014 (8th Cir.2003), cert. denied, 541 U.S. 987, 124 S.Ct. 2015, 158 L.Ed.2d 490 (2004). There, the court held that, “the controversy is between each of the states and the Corps. Although the states would have had adverse interests, each state would be seeking relief from the Court against the Corps. Thus, allowing intervention by Nebraska would not strip the District Court of jurisdiction” under § 1251(a). Id. at 1025-26. The most instructive Eleventh Circuit case on this point is none other than Georgia v. United States Army Corps of Engineers, 302 F.3d 1242 (11th Cir.2002)-a case involving some of the very same issues raised in this case. In that case, Florida sought to intervene as a defendant in a suit between Georgia and the Corps regarding the Corps’ actions as to some of the very same waters at issue in the suit before this court. The district court denied Florida’s motion to intervene, but the Eleventh Circuit reversed. In so doing, the Eleventh Circuit concluded: [Pjermitting Florida to intervene [would] not .deprive the district court of jurisdiction over the case. Indeed, to constitute “a justiciable controversy between the States ... it must appear that the complaining State has suffered a wrong through the action of the other State, furnishing ground for judicial redress, or is asserting a right against the other State which is susceptible of judicial enforcement according to the accepted principles of the common law or equity systems of jurisprudence.” Massachusetts v. Missouri, 308 U.S. 1, 15, 60 S.Ct. 39, 84 L.Ed. 3 (1939). Further, to invoke the Supreme Court’s original and exclusive jurisdiction, “a plaintiff State must first demonstrate that the injury for which it seeks redress was directly caused by the actions of another State.” Pennsylvania v. New Jersey, 426 U.S. 660, 663, 96 S.Ct. 2333, 49 L.Ed.2d 124 (1976).... In this case, there is no such dispute between Florida and Georgia. The states do not seek relief from each other but, rather, want the Corps to act on the water supply request in opposite ways— Georgia seeks to have the Corps grant its request, while Florida wants to have it denied. Thus, although Florida technically will be a defendant and Georgia a plaintiff, Georgia does not seek redress for any harm caused by Florida, and Florida will not be subjected directly to any ruling of the district court. Accordingly, permitting Florida to intervene in this case will not deprive the district court of jurisdiction. Georgia v. United States Army Corps of Eng’rs, 302 F.3d at 1256 n. 11 (emphasis added). Similarly, in the case before the court, Alabama and Florida do not seek relief from Georgia or each other but, rather, want the Corps to allocate water in its reservoirs in a different manner than Georgia desires. Nowhere do Alabama or Florida indicate that their injury was “directly caused by” Georgia; on the contrary, they allege that the Corps is causing their injury by illegally allocating water. Therefore, at this time, this case does not present a “controversy between two or more States” triggering the Supreme Court’s exclusive jurisdiction under 28 U.S.C. § 1251. Instead, this case presents a controversy under 28 U.S.C. § 1251(b)(2) between the United States and states, over which the Supreme Court has original but not exclusive jurisdiction, which it shares with the district courts. As such, this case is similar to United States v. Nevada, 412 U.S. 534, 93 S.Ct. 2763, 37 L.Ed.2d 132 (1973), in which the United States filed a declaratory judgment action in the Supreme Court against two states with opposing interests in federal water allocation decisions. There, the Supreme Court looked to the allegations in the complaint and held that, because the two states did not seek relief from one another, “[t]he complaint ... is not one alleging a case or controversy between two States within the exclusive jurisdiction of this Court... but a dispute between the United States and two States over which this Court has original but not exclusive jurisdiction.” Id. at 537, 93 S.Ct. 2763. Only after determining that the case fell outside its exclusive jurisdiction did the Supreme Court look to the subject of the controversy to determine that the suit did not substantially implicate interstate concerns and that it would, therefore, decline jurisdiction in favor of an action in a district court. Id. at 538-40, 93 S.Ct. 2763. The Georgia Defendants argue that the court’s 2003 Preliminary Injunction converts this case into a controversy between two or more states. As the Georgia Defendants acknowledge, however, the court’s Order does not enjoin Georgia, only the Corps. See Order Granting Preliminary Injunction, Doc. 192; Georgia Defendants’ Brief, Doc. 281 at 39 n.2. The Georgia Defendants argue that, “as a practical matter[, the injunction] keeps Georgia from implementing the D.C. Settlement Agreement, and this indirect injunction against Georgia violates 28 U.S.C. § 1251(a) just the same.” Id. The Georgia Defendants offer no legal support for their theory that an “indirect injunction” can somehow create a controversy between two or more states or establish original and exclusive Supreme Court jurisdiction, and the court has found none. Moreover, given the Supreme Court’s innately conservative nature regarding its jurisdiction, this court will not dismiss the case on creative and unsupported theories suggesting the Supreme Court’s jurisdiction is more expansive than the Supreme Court itself has yet found it to be. If this case someday evolves into a controversy between two states, then the court will have to dismiss for lack of jurisdiction. See Mississippi v. Louisiana, 506 U.S. 73, 78, 113 S.Ct. 549, 121 L.Ed.2d 466 (1992) (“Though phrased in terms of a grant of jurisdiction to this Court, the description of our jurisdiction as ‘exclusive’ necessarily denies jurisdiction of such cases to any other federal court.”); see also Georgia v. United States Army Corps of Eng’rs, 302 F.3d at 1256 n. 11 (noting that “granting Florida’s motion to intervene ... raises a serious jurisdictional question. Specifically, the addition of Florida as a defendant in this lawsuit brought by Georgia might create a suit between two states within the original and exclusive jurisdiction of the Supreme Court. If that were true, the district court would he required to dismiss the case for lack of jurisdiction.” (emphasis added). That day, however, has not arrived. 2. This Court’s Jurisdiction Under the Administrative Procedures Act The Defendants raise two jurisdictional arguments under the Administrative Procedures Act. First, the Georgia Defendants argue that the claims in the original complaint were never justiciable under the APA because they were not based on final agency actions. Therefore, according to the Georgia Defendants, the court never had subject matter jurisdiction over the case, and cannot enter an order granting the motions to amend even if the amended complaints would fall within the court’s jurisdiction. See Georgia Defendants’ Brief, Doc. 281, at 23-24. In response, Alabama and Florida argue that whether the court had subject matter jurisdiction over the claims in the original complaint does not matter now that Alabama has already amended the complaint once, and now that Florida has intervened and previously amended its complaint, as well. See Alabama’s and Florida’s Reply Brief Doc. 312, at 21-23. Second, without explaining why the specific allegations in the Third Amended Complaints are “broad programmatic attacks” rather than challenges to “discrete final agency actions,” the Federal Defendants argue that the court has no jurisdiction over the amended claims because, under the Administrative Procedures Act, the court can only review final, discrete agency actions. See Federal Defendants’ Brief, Doc. 277, at 13-17. In response, Alabama and Florida list “unlawful agency actions and failures to act by the Corps” drawn from their proposed complaints. See Alabama’s and Florida’s Reply Brief, Doc. 312, at 23-25. The parties asserting jurisdiction, i.e., Alabama and Florida, bear the burden of establishing that the court has jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 376, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). a.) Legal Standard for Court Review of Administrative Action Under the APA Ordinarily, the federal government and its agencies are immune from suit. See Estrada v. Ahrens, 296 F.2d 690, 698-99 (5th Cir.1961). However, Congress waived the United States’ sovereign immunity concerning claims that fall within the scope of the Administrative Procedures Act, 5 U.S.C. §§ 551-706. See 5 U.S.C. § 702; see also Estrada, 296 F.2d at 698. Under the APA, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. “ ‘[Ajgency action’ includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). The legislative material explaining the APA “manifests a congressional intention that it cover a broad spectrum of administrative actions,” see Abbott Labs. v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 105-106, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). However, the APA only permits challenges to discrete agency actions within those categories set forth in 5 U.S.C. § 551(13). See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 890 & n. 2, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Under the APA, this court may grant two basic types of relief. First, the court may “compel agency action unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1), but only if the agency action to be compelled is an action legally required. S. Utah Wilderness Alliance, 542 U.S. at-, 124 S.Ct. at 2379. Thus, if the law requires the Corps to act, but leaves the manner of the action to the Corps’ discretion, the court can compel the Corps to act, but the court has no power to specify what the action must be. S. Utah Wilderness Alliance, 542 U.S. at-, 124 S.Ct. at 2380 (citation omitted); see also id., 542 U.S. at — , 124 S.Ct. at 2379 (stating that § 706(1) “empowers a court only to compel an agency to perform a ministerial or non-discretionary act, or to take action upon a matter, without directing how it shall act”). Second, as more fully set out in 5 U.S.C. § 706(2), the court may grant relief by holding unlawful and setting aside agency actions, findings, and conclusions the court finds illegal, unconstitutional, unsupported by law or fact, or abusive of agency discretion. 5 U.S.C. § 706. In addition, to prevent irreparable injury while the court reviews an agency action challenged under the APA, the court may enter orders as necessary to postpone the effective date of the agency action or to preserve the status quo or rights pending conclusion of the review proceedings, and the court has done so in this case. See 5 U.S.C. § 705; see also, e.g., February 5, 1992 Order, Doc. 54; Doc. 192, October 15, 2003 Preliminary Injunction Order, pp. 2-4. Finally, when, as in this case, the plaintiffs seek review only under the general review provisions of the APA-as opposed to seeking review under specific authorization in the substantive statute-the plaintiffs must challenge a final agency action. Nat’l Wildlife Fed’n, 497 U.S. at 882, 110 S.Ct. 3177. The finality requirement comes from 5 U.S.C. § 704, which also provides for review of “a preliminary, procedural, or intermediate agency action or ruling [i.e., an action that is not final],.. on the review of the final agency action.” Id. Whether the complaints in this case challenge a final agency action presents an important question because the APA’s finality requirement is a jurisdictional prerequisite to judicial review. See Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229, 1236 (11th Cir.2003). Thus, if the agency actions Alabama and Florida challenge are not final, the court cannot reach the merits of this dispute. See id. (quoting Indep. Petroleum Ass’n of Am. v. Babbitt, 235 F.3d 588, 594 (D.C.Cir.2001) (quoting DRG Funding Corp. v. Sec. of Hous. & Urban Dev., 76 F.3d 1212, 1214 (D.C.Cir.1996))). b.) APA Jurisdiction Over the Original Complaint. The Georgia Defendants argue that the court never had jurisdiction over Alabama’s original complaint because the complaint did not challenge discrete, final agency actions. This argument presents two questions for the court to consider: first, whether the court’s jurisdiction over the claims in the original complaint matters fifteen years later when Alabama previously amended its complaint, and Florida has intervened and has also previously amended its complaint; and, if so, second, whether the claims in the original complaint were ripe for review in 1990 when Alabama filed the complaint. Contrary to Alabama’s and Florida’s arguments in response to the Georgia Defendants, see Alabama’s and Florida’s Brief, Doc. 312, p.22-23, subject matter jurisdiction is never waived, and “[a] federal court must always dismiss a case upon determining that it lacks subject matter jurisdiction, regardless of the stage of the proceedings.” Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1331 n. 6 (11th Cir.2001). Further, “because a federal court is powerless to act beyond its statutory grant of subject matter jurisdiction, a court must zealously insure that jurisdiction exists over a case, and should itself raise the question of subject matter jurisdiction at any point in the litigation where a doubt about jurisdiction arises.” See Smith v. GTE Corp. 236 F.3d 1292, 1299 (11th Cir.2001) (quoting Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1260-61 (11th Cir.2000)). Importance of Jurisdiction Over the Original Complaint Alabama and Florida argue that the Georgia Defendants’ attacks on the court’s jurisdiction over Alabama’s original complaint are irrelevant because Alabama’s Second Amended Complaint superseded the original complaint. See Alabama’s and Florida’s Brief, Doc. 312, p.21. The court has found no statute or Eleventh Circuit case directly on point. Of course, the court recognizes that “[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” 28 U.S.C.A. § 1653 (emphasis added). See Majd-Pour v. Georgiana Cmty. Hosp., Inc., 724 F.2d 901, 903 n. 1 (11th Cir.1984) (instructing a district court that, on remand, it should permit plaintiff time for discovery necessary to prove substance of allegations of jurisdiction, but that, if the court found the allegations themselves to be deficient, it should permit the plaintiff to amend because “leave to amend should be freely granted when necessary to cure a failure to allege jurisdiction properly.” (emphasis added)). However, when the court has no jurisdiction over the claims in the original complaint, it must dismiss the case, and it has no jurisdiction to permit an amendment. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (noting that “a change [in the wording of 28 U.S.C.A. § 1653] that would empower federal courts to amend a complaint so as to produce jurisdiction where none actually existed before” would be a departure from the status quo); Stafford v. Mobil Oil Corp., 945 F.2d 803, 806 (1991) (holding that, where the jurisdictional defect is actual and substantive rather than formal, amendment is not allowed (citing Russell v. Basila Mfg. Co., 246 F.2d 432, 433 (5th Cir.1957))); 3 James Wm. Moore et ah, Moore’s Federal Practice ¶ 15.14 (3rd ed. 2005) (“Essentially a plaintiff may correct the complaint to show that jurisdiction does in fact exist; however, if there is no federal jurisdiction, it may not be created by amendment.”); Moore, supra, at ¶ 15.30 (noting that the standard for evaluating motions to amend is essentially the same as the standard for allowing motions to supplement); see also Fed.R.Civ.P. 12(h)(3) (“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” (emphasis added)); cf. Tucker v. Phyfer, 819 F.2d 1030, 1033 (11th Cir.1987) (holding that a district court could not allow a motion to intervene to reestablish jurisdiction over a case that became moot when the original class representative lost standing to bring the case). But see Neumianr-Green, 490 U.S. at 832, 109 S.Ct. 2218 (noting a district court’s power under Rule 21 to dismiss a dispensable, nondiverse party to preserve diversity jurisdiction). Thus, if the court had no jurisdiction over the original complaint, it had no jurisdiction to permit Alabama to amend in 2003, and it could not create jurisdiction by allowing that amendment. Therefore, the court concludes that whether it had jurisdiction over the original complaint does matter, despite the fact that Alabama has already amended the complaint once. As Alabama and Florida point out, Rule 15(d) permits courts to grant motions to supplement pleadings even if the original pleading is defective in stating a claim or defense. Furthermore, to eliminate the rigidity and formalism of needlessly subjecting a plaintiff to the difficulties of commencing a new action even if events occurring after the filing of the original complaint establish a right to relief, the advisory committee notes to Rule 15(d) specifically direct courts to freely allow supplemental pleadings in the interest of justice when the original complaint states no claim for which relief can be granted. See Fed.R.Civ.P. 15 advisory committee’s note. However, the court is not convinced by the Plaintiffs’ arguments that the Advisory Committee and the drafters of the Rule intended to instruct courts to allow supplements when no jurisdiction exists over the claims in the original complaint. In practice, failure to state a claim and lack of jurisdiction often appear related. Thus, for example, defendants sometimes move for dismissal for failure to state a claim on which relief can be granted because the court lacks subject matter jurisdiction. In actuality, however, the defense of lack of subject matter jurisdiction, which requires a court to look beyond the pleadings to the substantive question whether jurisdiction actually exists and to resolve doubts in favor of dismissal, is distinct from the defense of failure to state a claim upon which relief can be granted, which requires only a review of the allegations in the complaint as construed in the light most favorable to the plaintiff. See also In re Bicoastal Corp., 130 B.R. 597 (Bankr.M.D.Fla.1991) (discussing the relationship between the defenses of lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted). Compare 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1355-56 (2d ed.1990) (describing the historical derivation of a motion to dismiss for failure to state a claim upon which relief can be granted, pointing out that such a motion is distinct from other Rule 12 motions, and noting that such a motion is leveled only at the formal sufficiency of the allegations in the complaint), with Wright & Miller, supra, at § 1350 (noting that a motion to dismiss for lack of subject matter jurisdiction presents the fundamental, substantive question of whether subject matter jurisdiction actually exists). The two defenses are not merely distinct in theory, however. The Federal Rules clearly distinguish them from one another. See Fed.R.Civ.P. 12 (setting out failure to state a claim for which relief can be granted as a separate defense from lack of subject matter jurisdiction). Because the Rules themselves do not conflate failure to state a claim and lack of subject matter jurisdiction, but instead unambiguously recognize them as distinct defenses, the Rule and the advisory committee notes would have referred to both defenses explicitly if they were meant to instruct courts to allow supplementation when a complaint fails to effectively state a claim and when no jurisdiction exists over the claims in the original complaint. Rather than containing such a reference, however, the advisory committee notes unequivocally state that the amendment to Rule 15(d) expressly permitting a supplemental pleading where an original pleading fails to state a viable claim for relief “does not attempt to deal with such questions as the relation of the statute of limitations to supplemental pleadings, the operation of the doctrine of laches, or the availability of other defenses.” See Fed.R.Civ.P. 15 advisory committee’s note (emphasis added). Therefore, and in light of the authority set out supra regarding the court’s inability to allow a party to create jurisdiction by amendment or supplement, the court finds that Rule 15(d) does not allow it to permit supplements when it has no jurisdiction over the original claims. For the reasons stated above, if indeed the court never had jurisdiction over any of the allegations in the original complaint, the court had no jurisdiction to enter any of the subsequent orders it has entered over the last fifteen years or to grant motions to amend and to intervene, and it has no jurisdiction today. On the other hand, if the court had subject matter jurisdiction over at least one of the claims in the original complaint, the court had jurisdiction to enter various orders and allow subsequent amendments, and it has jurisdiction to consider the motions to amend now before it. Accordingly, the court concludes that jurisdiction over the claims in the original complaint is a prerequisite to its jurisdiction to consider the motions to amend. Finality of Agency Actions Challenged in the Original Complaint Because the court is of the opinion that whether the court had jurisdiction over the original complaint does matter, the court sets forth below the reasons why the original complaint challenges at least one final agency action and triggers subject matter jurisdiction. As a preliminary note, from a jurisdictional standpoint, Alabama’s original complaint was very poorly drafted. Thus, the court sympathizes with the Federal Defendants’ and Georgia’s difficulty in figuring out what agency actions Alabama challenged in each count of the complaint. However, having reviewed the complaint carefully, the court disagrees with the Defendants’ conclusions as to what agency actions Alabama challenged in the original complaint. Among other things, Alabama based its original complaint on the following alleged Corps activities: a.) entering into water withdrawal contracts with ARC, Gwinnett County, Georgia, and the cities of Gainesville, Buford, and Cumming, Georgia, to allow the withdrawal of water from Lake Lanier at an average of 327 thousand gallons per day and at a peak rate of 377 million gallons per day (MGD), see Alabama’s Original Complaint, Doc. 1, at ¶ 11; b.) entering into two contracts for water supply storage at Lake Allatoona, see id.; c.) submitting a final Reallocation Report and Environmental Assessment reviewing the impacts of reallocating water in Carters Lake to its Division Engineer for intermediate-level approval and submission to the Corps’ Chief of Engineers for final approval without considering, at any point, objections Alabama made to the draft Report and draft Assessment when they were submitted to the public for comment and review, see id. at ¶ 15; d.) planning to issue a draft Reallocation Report and draft Environmental Assessment for Lake Allatoona for public comment and review without the benefit of a basin-wide study assessing the potential impacts on the entire Alabama-Coosa-Tallapoosa (ACT) river basin, and planning to subsequently submit the final Draft Reallocation Report and Environmental Assessment reviewing the impacts of reallocating water in Carters Lake to its Division Engineer for intermediate-level approval and submission to the Corps’ Chief of Engineers for final approval without considering, at any point, Alabama’s objections to the Report and Assessment that Alabama planned to make at the public comment stage, see id. at ¶ 16; e.) releasing for public comment and review a draft Post Authorization Change (PAC) Notification Report and draft Environmental Assessment proposing an 85 MGD increase in withdrawals from Lake Lanier, see id. at ¶ 17; f.) issuing interim water supply contracts to Cumming and Gainesville authorizing the withdrawal of water from Lake Lanier before finalizing the PAC Report and Environmental Assessment and obtaining Congressional approval of the proposed 85 MGD increase in withdrawals from Lake Lanier, see id.; g.) proposing a two-phased Comprehensive Studies Plan to Congress; in phase one, the Corps would reallocate water from Carters Lake, Lake Lanier, and Lake Allatoona (“the Lakes”) to satisfy water supply needs within Georgia, and, in phase two, the Corps would prepare a comprehensive management plan for the entire basin; thus, according to Alabama, certain unnamed common law rights would vest in Georgia citizens in phase one, preventing Alabama from later remedying any damage caused it by phase one, see id. at ¶ 18-19; h.) in considering how to allocate water withdrawals from the Lakes, failing to consider the impact of already-authorized future reservoirs to be constructed on rivers and tributaries in Georgia in the ACF and ACT river basins, see id. at ¶ 20; i.) in considering increases in water withdrawals from Lake Lanier, failing to consider the potential impact that would result if Georgia authorities granted Atlanta’s petition for an increase in the amount of pollution Atlanta could release into the ACF basin, see id., at ¶ 21; j.) in preparing the proposed Reallocation Reports for Carters Lake and Lake Allatoona, and in preparing the PAC Notification Report for Lake La-nier, failing to prepare an Environmental Impact Statement (EIS) when required, and failing to develop an adequate evidentiary record to support the Corps’ position that no EIS was required, see id. at ¶ 33; and k.) in preparing Environmental Assessments, failing to properly consider potential impacts on the ACF and ACT basins, and failing to develop an adequate evidentiary record, see id. ¶ 34. Based on the above-listed activities and actions by the Corps, Alabama alleged five causes of action in its original complaint. At most, only a few of the above-listed agency actions that Alabama challenged in its original complaint appear on initial observation to be final, discrete, challengea-ble agency actions. As subsequently discussed, however, entering into contracts (see a. and b. above) satisfies the requirements of a final agency action. Of Alabama’s five original causes of action, only one, the Third Cause of Action, clearly challenges those contracts, see Alabama’s Original Complaint, p. 22-23, ¶ 41, & p. 28 ¶ 2, as well as other contracts and proposed contracts mentioned in the complaint. In their submissions and during the hearing, Georgia and the Corps represented that none of the contracts specifically referenced in the complaint had ever been finalized and that all those contracts had been withdrawn. See, e.g., Hearing Transcript at 30-31. However, because of the confusion created by the parties and by the poor draftsmanship of the complaint, the status of all the contracts referenced in the amended complaint remained obscured until the court specifically inquired into matter at the June 30, 2005 hearing and permitted additional submissions on this issue. At the court’s direction, the parties have finally, for the most part, cleared up that confusion. The contracts listed above fall into three main categories: (1) contracts never finalized by the parties to them; (2) contracts that had expired by June 28, 1990 when Alabama filed its complaint, some of which the Corps continues to honor despite their expiration; and (3) contrary to some of the parties’ earlier representations to this court, see, e.g., Hearing Transcript at 30-31, contracts that were in effect in 1990 and remain in effect today. The interim contracts with Cumming and Gainesville for water supply from Lake Lanier listed in (f.) above either had expired at the time Alabama filed suit on June 28, 1990, or were merely proposed contracts that the parties to those contracts never finalized. The Corps withdrew the proposed interim contracts, but continued to operate on the expired contracts it had intended to replace with the proposed interim contracts for Lake Lanier, and made changes to those expired but operative arrangements over time. See All Defendants’ Joint Supplemental Brief, Doc. 327, at 8; Alabama’s Supplemental Brief, Doc. 328 at 3-4. Alabama argues that the expired contracts under which the Corps continued to operate constituted licenses challengeable under the APA. See Alabama’s Supplemental Filing, Doc. 328, p. 4 n.2. The court, however, does not need to reach that argument because the parties do not dispute that at least two sets of contracts listed in (a.) and (b.) above were in effect in 1990 and remain in effect today: permanent water supply contracts from Lake Lanier for Buford and Gaines-ville, and the two storage contracts for Lake Allatoona. See All Defendants’ Joint Supplemental Brief, Doc. 327, at 4-9. In their supplemental filing, the Corps and the Georgia Defendants now argue that, three days after Alabama filed suit, [o]n... July 2, 1990, the Corps issued a draft Water Supply Reallocation Report and Environmental Assessment proposing to permanently reallocate additional storage in Lake Allatoona.... These new storage contracts that the Corps proposed to execute for Lake Allatoona, and not the existing Allatoona contracts, were the subject of the causes of action that Alabama asserted in the 1990 complaint. All Defendants’ Joint Supplemental Brief Doc. 327, p. 6. The court is convinced that, as the Defendants’ argue, the Third Cause of Action of the original complaint did challenge the Corps’ proposals and intended proposals to permanently reallocate additional storage in Lake Lanier, Carters Lake, and Lake Allatoona, and the Corps’ intent to issue contracts in conformance with those proposals without first complying with NEPA. See Alabama’s Original Complaint, Doc. 1, ¶ 38. However, in addition, having thoroughly reviewed the complaint and the parties’ submissions, and having questioned the parties in detail at the hearing, the court finds that, contrary to the Defendants’ argument, Alabama’s original Third Cause of Action also challenged the existing contracts governing the withdrawal from the Lakes, as referenced in paragraph eleven of the original complaint. In the last paragraph under the Third Cause of Action, Alabama alleged that, “under the circumstances set forth in Paragraphs 1 through W [of the complaint], the Defendants have violated NEPA by issuing contracts for the withdrawal of water from Carters Lake, Lake Allatoona, and Lake Lanier without making any attempt to comply with NEPA by conducting the necessary environmental review.” Alabama’s Original Complaint, Doc. 1, ¶ 41 (emphasis added). Thus, consistent with Alabama’s representation at the June 30 hearing, see Hearing Transcript at 48^19, Alabama’s original Third Cause of Action challenged both proposed contracts and contracts already issued for all three lakes. The only contracts for water withdrawal from Lake Allatoona that were already issued and that were referenced in the complaint were the two contracts found in paragraph eleven and referenced in (b.) above. These contracts were in effect in 1990 and are still in effect today, as acknowledged by the Corps at the hearing and in its supplemental brief. Therefore, the Third Cause of Action challenged the Corps’ entry into those contracts for water supply storage at Lake Allatoona without first complying with NEPA. Further, contrary to Georgia’s arguments, Alabama did request relief based on the Corps’ alleged failure to comply with NEPA before entering into the contracts challenged in Count Three of the complaint. Alabama requested in its “Prayer for Relief’ that the court issue a “judicial declaration that the Defendants have violated NEPA by failing to comply with NEPA before entering into water supply contracts for the withdrawal of water from Carters Lake, Lake Allatoona, and Lake Lanier.” See Alabama’s Original Complaint, Doc. 1, p. 28, ¶ 2. Because the court need only have jurisdiction over one claim in the original complaint to have jurisdiction to grant the motions to amend, the court will limit the discussion to whether Count Three creates jurisdiction by challenging a final agency action. The Georgia Defendants cite the two-part test for finality announced in Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Under Bennett, to be a final agency action, “[f]irst, the action must mark the consummation of the agency’s decisionmaking process.... And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett, 520 U.S. at 177-78, 117 S.Ct. 1154. The Supreme Court decided Bennett in 1997, long after Alabama filed suit in 1990. In examining subject matter jurisdiction, the court evaluates jurisdiction as of the time Alabama filed the complaint. See Baggett v. First Nat’l Bank of Gainesville, 117 F.3d 1342, 1352 (11th Cir.1997). Thus, the court should not apply post-complaint law to test jurisdiction over the claims in Alabama’s original complaint. However, the court finds that the Bennett test restates prior law that existed in 1990, and, therefore, is not a new test. The Supreme Court drew part one of the Bennett test from a 1948 case, Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 92 L.Ed. 568. See Bennett, 520 U.S. at 177-78, 117 S.Ct. 1154. The Court drew part two of the Bennett test from a 1970 case, Port of Boston Marine Terminal Ass’n v. Rederiakbiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203. See Bennett, 520 U.S. at 178, 117 S.Ct. 1154. Further, even after Bennett, the Eleventh Circuit Court of Appeals has continued to consider certain factors from the Supreme Court’s pre-Bennett jurisprudence. See TVA v. Whitman, 336 F.3d 1236, 1248 (11th Cir.2003); Atlanta Gas & Light Co. v. FERC, 140 F.3d 1392, 1404 (11th Cir.1998). Thus, to be a final agency action in 1990 and today, the action must have satisfied the first part of the Bennett test for finality by marking the “consummation” of the agency’s decision-making process. Bennett, 520 U.S. at 177-78, 117 S.Ct. 1154 (quoting Chicago & S. Air Lines, 333 U.S. at 113, 68 S.Ct. 431); see, e.g., Avella v. United States Army Corps of Eng’rs, No. 89-100064-CIV-KING, 1990 WL 84499 at *1 (S.D.Fla. Jan.22, 1990) (applying Chicago & S. Air Lines to determine whether an action taken by the Corps was a final agency action). The action must not have been “of a merely tentative or interlocutory nature,” but, rather, it must have been a “ ‘definitive statement on the subject matter it addressed.’ ” See Bennett, 520 U.S. at 177-78, 117 S.Ct. 1154 (interpreting Chicago & S. Air Lines); Chicago & S. Air Lines, 333 U.S. at 112-13, 68 S.Ct. 431 (holding that an agency action that was not a “final determination,” but “merely a step” in the process of reaching a final decision was not a final agency action where the action was still subject to review, amendment, and approval); Aeromar, C. Por A. v. DOT, 767 F.2d 1491, 1493 (11th Cir.1985). The court cannot disrupt an agency’s orderly decision-making process by intervening to correct temporary or interlocutory agency actions or conclusions before the agency reaches a definitive position on an issue. See 5 U.S.C. § 704 (“A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action.”); Port of Boston, 400 U.S. at 71, 91 S.Ct. 203; see, e.g. Barnes Freight Line, Inc. v. Interstate Commerce Comm’n, 569 F.2d 912, 918-919 (11th Cir.1978) (holding that reinstatement of a motor carrier’s temporary operating authority was a final decision; but reinstatement of the motor carrier’s application for permanent operating authority was not final because the Commission had yet to reach a definitive position on whether it would grant permanent operating authority). Further, to be a final agency action at the time Alabama filed its complaint, the action must also have satisfied the second part of the Bennett test: it must have been an action by which “rights or obligations have been determined,” or from which “legal consequences will flow.” See Bennett, 520 U.S. at 177-78, 117 S.Ct. 1154 (quoting Chicago & S. Air Lines, 833 U.S. at 113, 68 S.Ct. 431; Port of Boston, 400 U.S. at 71, 91 S.Ct. 203); see, e.g., Avella, 1990 WL 84499 at *1 (applying Port of Boston to determine whether an action taken by the Corps was a final agency action). In other words, the challenged action must “directly affect the parties.” Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229, 1237 (11th Cir.2003) (quoting Franklin v. Massachusetts, 505 U.S. 788, 797, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992)). An action that does not itself adversely affect a plaintiff, but only adversely affects his rights on the contingency of future administrative action, is not a final agency action. See id. (quoting Am. Airlines, Inc. v. Herman, 176 F.3d 283, 288 (5th Cir.1999) (quoting Rochester Tel. Corp. v. United States, 307 U.S. 125, 130, 59 S.Ct. 754, 83 L.Ed. 1147 (1939))). Both before