For the most part, the federal government has stayed out of groundwater quantity questions except indirectly where groundwater production has impacted interstate surface-water allocations (for example, see Texas v. New Mexico on the Pecos River [and now on the Rio Grande] and Kansas v. Colorado on the Arkansas River). The federal government doesn’t have an agreement with either Mexico or Canada on shared aquifers, something the states tend to fight because they do not want to invite federal control of what is presently considered state resources. Therefore, Mississippi suing Tennessee for damages in federal court for pumping-induced flow from the Magnolia State to the Volunteer State is a BIG deal.
Last week, the U.S. Supreme Court heard arguments on the case, the first direct groundwater quantity case to come before the court. The ruling, expected in late spring/early summer, could have massive consequences for groundwater management across the country, including Texas.
Mississippi filed a complaint in federal court in 2014 alleging that Tennessee is allowing Memphis, through its pumping of the Memphis Sand Aquifer (part of the Sparta Sand), to pull groundwater from Mississippi across the state line. Mississippi alleges that the Memphis pumping has pulled about 800,000 acre-feet from their state and seeks $600 million in damages (about $750 an acre-foot). A quick peek at the exhibits reveals that, indeed, pumping in the Memphis area has resulted in a cone of depression that has redirected flow from Mississippi into Tennessee. Apparently, there is some question as to whether or not this has happened, but a comparison of pre-development (pre-pumping) water levels to current water levels unequivocally shows the impacts of pumping in the Memphis area.
One of the key questions in the case is whether or not groundwater is subject to the court’s Equitable Apportionment Doctrine, something the Supremes have used for over a hundred years to resolve surface-water disputes between states. The Equitable Apportionment Doctrine holds that states have equal rights to water. When equally apportioned, the court follows four principles: (1) states have co-equal rights to reasonably use water, (2) the apportionment is based in part on the conflict, (3) the affected state has to conclusively make the case that it has been harmed, and (4) the court considers all relevant factors, including consumptive use, climate, physical properties. In these determinations, the court has stated in previous cases that while existing rights and use are important, they are not controlling in equitable apportionment. In other words, their apportionment supersedes existing state laws.
Mississippi is seeking damages from Tennessee without the court invoking the Equitable Apportionment Doctrine. However, the questioning during arguments before the court included a quite bit about equitable apportionment. Unfortunately, the justices used a lake as an analogy for an aquifer in that water taken out of one part of the lake by one state affects states with interests in the entire lake. That gives me the heebie-jeebies because the Sparta Sand extends into Texas, and pumping of the Sparta in Texas has no impact on this border issue between Mississippi and Tennessee (although it could between Texas and Arkansas who share a border with the Sparta underneath). On the other hand, giving them the benefit of the doubt, the justices may be using a lake as an analogy to conceptually connecting groundwater to something familiar in the surface water legal world. Regardless, one hopes that if the court undergoes an equitable apportionment, it will consider hydrogeology rather than limnology.
If the court rules for Mississippi, the ruling will have massive impacts for interstate aquifer management. I can imagine New Mexico drooling at the prospect (after finishing a plate of green chile enchiladas lapped up with sopapillas) of suing Texas over its use of the Hueco and Mesilla Bolsons Aquifer (the Ogallala would be a problematic lawsuit…). The court invoking equitable apportionment would also reverberate through the groundwater world, probably setting off a slew of negotiations for congressionally-approved interstate groundwater compacts. Most likely (imho), the court will deny Mississippi’s request and but allow it to decide its next step: petition for equitable apportionment, pursue an interstate compact, or look the other way. As a wise man once told me: beware of going to court; you never know what you are going to get.
Sources:
mississippi today (I’m quoted in here!)
so secret, occult, and concealed 