Water Well Journal
Issue link: https://read.dmtmag.com/i/752472
Awaiting the Decision Now that the Supreme Court has agreed to hear the case, we anxiously await a ruling that could have a marked impact on groundwater deposits throughout the country. Although the Court can potentially decide this case without siding with either state's arguments, it seems unlikely they would allow Mississippi to file the complaint, only to dodge substantively ruling on the matter. If the Tennessee parties win the day, perhaps the rule of equitable apportionment is conclusively applied to interstate groundwater deposits throughout the country not otherwise allocated by agreement or order. The Court, though, has the opportunity to limit the ruling to only this groundwater deposit or only this particular dispute. If the Court would side with Mississippi, it could set off a wide range of consequences. Perhaps the Court decides unmoving or little-moving underwater deposits are indeed part and parcel of the state's sovereign territory. If that is the case, what is the state owed if you pump water out of its territory? To what extent must other states and oper- ators conduct geological surveys to determine the ownership of a groundwater deposit attributable to each state in a multi- state area? Will the Court be convinced by Mississippi's argument saying ownership stems from the sand outcroppings located within Mississippi's borders that supply a great deal of the water in the Sparta-Memphis aquifer? If so, a state with large outcroppings of a particular deposit but relatively little of that deposit underground could poten- tially have claim to a portion of resources underlying a neigh- boring state. The Supreme Court denied Mississippi's attempt to file a similar complaint in 2010. In that case, the federal govern- ment objected to the hearing of the case and urged the Court to deny Mississippi's motion to file. Yet, despite the precedent and opposition from the U.S. Department of Justice, the Court allowed Mississippi to file this claim and the outcome is relatively unpredictable. We may reasonably assume any ruling on this case will limit its application to sovereign states, municipalities, and their various traditional government function divisions. This ruling may not reach private operators to any particu- lar extent, but we don't know. The value of groundwater con- tinues to increase and the Supreme Court is taking a first step toward resolving what may be the first of multiple disputes. We will watch this case carefully and update the ground- water industry when the Court reaches its decision. A decision is not expected before early 2017. WWJ Scott M. Doran, Esq., is chair of the Kegler, Brown, Hill + Ritter energy and environmental practice group in Columbus, Ohio, and represents clients with respect to environmental and natural resource issues. He can be reached at (614) 462-5400. William J. Levendusky, Esq, is an associate attorney at Kegler, Brown, Hill + Ritter and represents clients with respect to mineral, energy, and environmental issues. He can be reached at (614) 462-5400 or at wlevendusky@keglerbrown.com. Kegler, Brown, Hill + Ritter serves as general counsel for the National Ground Water Association. Twitter @WaterWellJournl WWJ December 2016 39 CRUSH THROUGH OVERBURDEN DRILLS THE STRAIGHTEST HOLES TRUSTED WORLDWIDE SINCE 1979 Foremost DR drills have been proven repeatedly in some of the toughest unconsolidated overburden formations, including sand, gravel, glacial till, and boulders. The rotation of the casing by the lower drive results in a very straight hole making it ideal for shaft holes and foundation piles. This also minimizes stress on casing and casing welds, and eases the task of installing screens and pumps in water well applications. Foremost's Dual Rotary drills continue to make significant contributions to the productivity and profitability of operators worldwide. For a growing number of contractors, there's simply no better way to drill. To learn more, visit foremost.ca or call 1.800.661.9190 (Canada/U.S.A.) 1.403.295.5800 (Worldwide)