My two PowerPoints and their abstracts that I presented at the AWRA conference The Science, Management and Governance of Transboundary Groundwater.
1) Here we go - the umpteenth Mississippi v. Tennessee PPT I've done: The Groundbreaking Mississippi v. Tennessee U.S. Supreme Court Case: Coming Soon to an Aquifer near You?
Noah Hall discussed this in the May 2018 issue of Water Resources IMPACT:
Download Hall_MSvTN_IMPACT_May2018
Download Campana_MS_TN_GW_10July2018
Abstract
More than 30 interstate compacts govern the use of water from shared lakes and streams in the United States. However, there is not a single legal agreement in place between states to guide the apportionment of groundwater that crosses state lines. In 2013, Nevada and Utah appeared poised to be the first two states to reach such an agreement, but ultimately failed. Now, with a longstanding groundwater dispute between Mississippi and Tennessee currently before the U.S. Supreme Court, a legal precedent governing the apportionment of interstate groundwater is imminent. The Supreme Court has never ruled on a case involving a groundwater dispute between states.
In its suit, the state of Mississippi claims that the City of Memphis, a political subdivision of the state of Tennessee, and its utility, Memphis Light, Gas, and Water (MLGW), have been ‘stealing’ its groundwater to supply the 1.1 million residents of Memphis and parts of surrounding Shelby County. There is little question that some of MLGW’s groundwater comes from beneath Mississippi. Memphis and Tennessee contend that since the groundwater from the regional Memphis Sand aquifer has never been allocated among the states pumping from the aquifer, it is therefore available for MLGW’s use. Mississippi is seeking over $600 million in damages. The irony of this groundwater dispute is that it has unfolded in a region of the US that averages over 50 inches of precipitation per year and is located on the banks of one of the world’s largest streams – the Mississippi River. At the time of this writing (early March 2018) the states are presenting their case before a Special Master appointed by the Supreme Court. It could be decided before July 2018.
The presentation provides the background and salient points of the case and how possible outcomes might influence interstate management and governance of groundwater in the USA and elsewhere.
2) The Winters Doctrine Goes Underground (long abstract - article from the May 2018 Water Resources IMPACT - Download Campana_WInters_IMPACT_May2018
Download Campana_AWRA_Winters_UG_9July2018
“Nothing motivates like a crisis (and a Supreme Court Decree).” —Greg Lewis (or no decree)
"The history of [groundwater law] is as thrilling as ignorance, inertia, and timidity could have made it."- Mark N. Goodman
Mention the Winters Doctrine to a certified WaterWonk and you're likely to get this response: 'Oh, yeah, I know that one. It's the Supreme Court decision that reserved water rights for federal reservations even though the rights were not specifically granted when the reservation was created.' That's a pretty good definition, although I suspect a few of my legal friends are no doubt rolling their eyes. Many people interpret the word 'reservation' to mean 'Native American reservation' but the term refers to any federal 'reservation' such as a national monument, park, etc.
So how does an article about the Wintersdoctrine and its promise of water rights find its way into an issue on transboundary groundwater? Let me explain, starting with a little bit of repetition.
One of the most important U.S. Supreme Court water decisions is the 1908 Winters v. United Statesdecision in which the court established the federal reserved water rights doctrine. This doctrine, often associated with Native American reservations but also applicable to other federal lands such as national monuments, holds that when the federal government set aside lands it implicitly reserved sufficient water to enable the reserved lands to be used as intended. These reserved rights, or Winters rights as they are frequently called, have traditionally pertained to surface water and not to groundwater. That is about to change.
In the Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Districtcase the tribe sued a number of California water agencies for adversely affecting the quality and quantity of its groundwater by over-pumping a shared aquifer. The tribe further asserted that it had Wintersrights to the groundwater beneath its reservation. The Ninth Circuit Court of Appeals ruled in the tribe's favor, stating that the Wintersdoctrine applies to groundwater as well as surface water. Furthermore, the U.S. Supreme Court declined to hear the case, so the Ninth Circuit Court's decision stands. At this juncture the decision applies only to the states covered by the Ninth Circuit: Alaska, Hawai'i, Washington, Idaho, Oregon, California, Nevada, Arizona, and Montana.
Why is this decision important? Ten states - Nevada, Arizona, Idaho, Nebraska, Arkansas, Wyoming, North Dakota, South Dakota, Texas, and Wisconsin filed an amici curiaebrief supporting the water agencies' position. This action indicates the concern the states have about the ramifications of this decision vis-a-vis their primacy when it comes to water law and allocation of water within their borders. Groundwater underlying tribal reservations could be treated as a transboundary resource subject to water law different from the states.
Furthermore, two aspects of the case are still being litigated - the tribe's claim to ownership of its aquifer's pore space (storage) and degradation of its groundwater quality by the water agencies' use of inferior Colorado River water to recharge a aquifer they share with the tribe.
The pore space issue is particularly important, since, should the tribe prevail, ownership of pore space might interfere with states' or water agencies' efforts to implement managed aquifer recharge (MAR) projects, since the water might enter pores owned by tribes and possibly pollute the tribes' groundwater. It should be noted that the Coachella Valley Water District implements MAR. Its Thomas E. Levy Groundwater Replenishment Facility graced the cover of the September 2017 Water Resources IMPACT. I suspect that its use of Colorado River water might be a reason for the tribe's water quality complaint.
Pore rental or purchase might be available in future water banks.
The aforementioned case is most decidedly a transboundary groundwater case - tribal v. water agencies, or districts, or states or...
For further information and the sources I used for this article, check out these two brief Congressional Research Service publications: Federal Reserved Water Rights and Groundwater: Quantity, Quality, and Pore Spaceby Peter Folger(https://tinyurl.com/ya2rvgs5) andSupreme Court Declines to Review Ninth Circuit Decision Applying Federal Reserved Water Rights Doctrine to Groundwater by Alexandra M. Wyatt(https://tinyurl.com/yd9vmxzq). Both contain far more information than that presented here. Each is only a few pages.
"May you live in interesting times." -Many sources
One thing is certain: when it comes to groundwater, we are living in interesting times. I look forward to the future.
"Water is the true wealth in a dry land." -- Wallace Stegner
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