Memphis Sand Aquifer Pumping: U.S. Supreme Court Could Decide Mississippi vs. Memphis

NOTE: in January 2010 I reported that the U.S. Supreme Court declined to hear this case.

Non-sequitur alert: since I am now in Panama, why not update a story about which I posted in early 2008? 

On 2 February 2008 and 5 February 2008 I posted about the court case involving the State of Mississippi, the City of Memphis and Memphis Light, Gas, and Water (MLGW). Mississippi accused the MLGW of stealing water from beneath Mississippi by pumping from the Memphis Sand aquifer, which underlies both states and Arkansas.

From my 2 February 2008 post (where there is more information, including graphics):

In a nutshell, the case boils down to Mississippi claiming that Memphis Light, Gas and Water (MLGW), the municipally-owned utility for the Memphis area (Shelby County), is deriving about 30% of the water it pumps from the Memphis Sand aquifer (aka the Sparta aquifer) from beneath Mississippi. This amounts to about 60 mgd (million gallons per day) coming from beneath the Mississipians' land. Total MLGW pumpage from the aquifer is about 160-200 mgd. The Memphis Sand's water is reputedly some of the best ground water in the USA, and the aquifer supplies drinking water to over 1.1 million residents of Shelby County.

This is no nickel-and-dime lawsuit; the damages sought by Mississippi amount to $1 billion, and if the Memphis utility loses, it would be forced to reduce its pumping and obtain some of its water from the Mississippi River, which would entail the construction of an expensive water treatment plant.

Most of the "harm" to Mississippi occurs in DeSoto County, a rapidly-growing suburb of Memphis. Well water levels there have been dropping -- that's what happens when you pump water from an aquifer, folks, until you increase recharge or decrease discharge to offset the pumping rate.  Mississippi contends that some of the declines are due to Memphis' pumping and constitute "harm". Memphis claims that its use is "reasonable" and not reducing the water availability in Mississippi.

The Supreme Court may decide this case. Here is Tom Charlier's 5 June 2009  Memphis Commerical-Appeal article and the first few paragraphs:

It'll be up to the U.S. Supreme Court to settle the billion-dollar question of whether Memphis has been stealing Mississippi's water.

In a decision hailed by the city, the Fifth Circuit Court of Appeals in New Orleans on Friday affirmed a lower court's dismissal of Mississippi's 2005 lawsuit against Memphis and its municipal utility over the use of water from a aquifer beneath several states.

The case must be refiled with the Supreme Court, which has exclusive jurisdiction in disputes between states, the court said. Tennessee is an "indispensable party" to the suit, the judges said, even though it wasn't named as a defendant.

Here is a copy of the court's decision:

Download 08-60152-CV0

Here is more from Charlier's article:

Affirming a February 2008 decision by U.S. Dist. Judge Glen H. Davidson, the appellate court said that because the aquifer is an interstate resource, the water must be formally divvied up before one state can sue another for "invading its share."

Although it lies hundreds of feet underground, the aquifer, for legal purposes, is "indistinguishable from a lake bordered by multiple states or from a river bordering several states depending on it for water," the court said.

"The aquifer must be allocated like other interstate water resources in which different states have competing sovereign interests."

Mississippi has indicated that it will pursue the case in the USA's highest court. The appellate court's ruling did not judge the merits of the case, only that Tennessee is an 'indispensable party" to the case.

I am intrigued with this case because it involves transboundary groundwater and it's relatively novel to see Eastern USA political jurisdictions involved in a good old-fashioned Western USA-style fight over water quantity (much like the Georgia-Alabama-Florida kerfuffle over the ACF Basin).

Stay tuned.

Note that the U.S. Supreme Court has not yet decided to take this case (thanks to Noah Hall at the Great Lakes Law blog).

As I said earlier, it ain't over till it's over, or:

"The opera isn't over till the fat lady sings." -- Unknown

 

Comments

[Michael]

Hi, Jesse.

Thanks.

People are citing a two-year old post. Here is what I posted last year:

http://aquadoc.typepad.com/waterwired/2010/01/supreme-court-declines-to-hear-mississippi-vs-memphis-lawsuit.html

I never said the SCOTUS decided to hear the case.

[Jesse Richardson]

Michael:

This is being picked up by some who are reporting that the U.S. Supreme Court has accepted an appeal on this or may accept an appeal on this. As I'm sure you know, the U.S. Supreme Court rejected this appeal in 2010 (130 S.Ct. 1317 (Mem)). I don't think there are any new developments. My understanding is that Memphis and Mississippi are trying to work things out.

[Noah Hall]

The Supreme Court has not (at least not yet) decided to take the case - the lower courts simply held that the state of TN should be a party and that the Supreme Court would have original jurisdiction (if it chooses to exercise it) in a case between the states of MS and TN.

[dfb]

Keep an eye on SCOTUS Blog. It is a legal blog that tracks the Supreme Court docket and provides analysis through the whole process for most cases. http://www.scotusblog.com/wp/

Tennessee is an indispensable party because Memphis is a subunit of the state. Interstate disputes between states need to include the states at issue, even if it is just a city or municipal corporation that is the intended party to the suit. In other words, Mississippi sued the state of Tennessee when it filed suit against Memphis, even if the state was not actually named. Tennessee must defend itself.

This should be very interesting. It might come down to the law of groundwater adopted by the two states. If they are the same, it may be easier and the court can lazily use their own rule. The original common law rule, the English rule of capture favors Memphis. They can drain the aquifer and not be held liable. The most likely rule used by the states requires the use be reasonable and on land overlying the aquifer, which Memphis is apparently doing. I would like (and it is possible) for the court force an adjudication of the rights to the aquifer involving all of the states it sits over.