Water Well Journal
Issue link: https://read.dmtmag.com/i/752472
T he Supreme Court of the United States will consider a remarkable groundwater dispute between the states of Mississippi and Tennessee. At the center of the controversy is the Sparta-Memphis aquifer which, according to the U.S. Geological Survey, stretches from the southern tip of Illinois, west into Texas, and east across northern Louisiana and central Mississippi toward the Florida panhandle. This case is interesting because it is an original action be- tween two sovereign states, making it a part of the Supreme Court's original jurisdiction. That means the case is first con- sidered in the Supreme Court rather than coming to it on appeal from a lower federal court or a state supreme court. To file a case with original jurisdiction, the law required Mississippi request leave to file its complaint against the state of Tennessee; the city of Memphis, Tennessee; and the Memphis Light, Gas and Water Division. The Supreme Court granted leave on June 29, 2015, and the parties will now try the facts before the Supreme Court. Depriving of the Resource Memphis authorities began pumping water out of the Sparta-Memphis aquifer more than a century ago. Mississippi claims as a result of the pumping in Tennessee, groundwater levels of the aquifer underlying portions of Mississippi have been lowered—and in effect, Mississippians have been deprived of the resource. Mississippi refers to the water within the portion of the lo- cated aquifer underneath the territorial boundaries of the state as "Mississippi's groundwater." The state argues because the water is naturally trapped beneath the surface and does not flow long distances without unnatural intervention (contrary to a river which relatively rapidly flows through state terri- tory), the water can be considered a part of the state of Mississippi. Additionally, the state of Mississippi argues the aquifer is primarily fed by sand outcroppings located within its borders, so rainfall in Mississippi is directly responsible for the contin- ued viability of the Sparta-Memphis aquifer. Right now there is no law recognizing the groundwater as belonging to Mississippi. The state of Mississippi is arguing the taking of its groundwater is a violation of the state's sovereignty under the U.S. Constitution. The state of Tennessee, the city of Memphis, and the Mem- phis Light, Gas and Water Division—all three the defendants in this case—argue the Sparta-Memphis aquifer is an inter- state resource, ownership of which has not been attributed to one state. The Tennessee parties also feel the aquifer is not legally distinguished from a river and any movement of the water happens as a result of nature. They further argue if the Court should find Mississippi does not own its aquifer, the ground- water rights should be apportioned between the parties. As of the filing, the Sparta-Memphis aquifer has not been apportioned by judicial decree, agreement between states, or legislation. The various Tennessee parties argue equitable apportionment is the correct and only way to divide the ownership of the aquifer. Equitable apportionment is a long-established doctrine of federal law focusing on equality of right rather than equality of outcome. Mississippi claims the Tennessee parties have illegally pumped more than 400 billion gallons of its territorial re- source out from under Mississippi since 1985. Mississippi contends Tennessee pumps and sells nearly 20 million to 27 million gallons of water out of Mississippi each day. However, the Tennessee parties argue, under the doctrine of equitable apportionment, there is no taking because: (1) the resource does not belong to any one state's sovereign territory, and (2) the Memphis authorities' pumping of the aquifer using facilities located within Tennessee does not limit or reduce Mississippi's right of access to similarly pump water from the aquifer. They feel any migration of water from Mississippi to Tennessee happens as a function of the natural laws. Mississippi, though, claims equitable apportionment is not the correct remedy. Mississippi is seeking a declaratory judg- ment by the Supreme Court confirming a part of the Sparta- Memphis aquifer is a sovereign part of Mississippi. In addition, Mississippi would like compensatory damages for converted resources they claim amount to $197 million plus interest. Although the Court is not required to accept Mississippi's damages claim, one can certainly imagine dam- ages climbing high if the Court agrees Tennessee has been taking Mississippi's valuable groundwater resource. SCOTT M. DORAN IT'S THE LAW DO STATES OWN THEIR GROUNDWATER? The U.S. Supreme Court is going to decide. WILLIAM J. LEVENDUSKY The value of groundwater continues to increase and the Supreme Court is taking a first step toward resolving what may be the first of multiple disputes. waterwelljournal.com 38 December 2016 WWJ