WaterWired

Coming Soon! Climate Action and Support Transparency Training (CASTT) Adaptation Academy!

I scraped most the material below from the AGWA website.

This CASTT AA is about to start - my colleagues Erica Fleishman, Aaron Wolf and I will be leading OSU's participation. Our training partners will be IHE, AIT, KEI with the support of AGWA (John Matthews) and UNFCCC (Bhava Dhungana).

CASTT Adaptation Academy

UNFCCC Climate Action and Support Transparency Training

CASTT is a capacity-building program designed to cater to stakeholders at all levels of competencies within national climate governance and implementation. The CASTT Adaptation Academy is a program starting in 2021 providing multi-week training courses for national climate focal points and ministerial representatives — particularly those from developing countries. The Adaptation Academy is an official initiative of the United Nations Framework Convention on Climate Change (UNFCCC) operated in collaboration with key academic and research institutions across the globe. Partners include the Alliance for Global Water Adaptation (AGWA), Asian Institute of Technology (AIT), IHE Delft Institute for Water Education, Korea Environment Institute (KEI), and Oregon State University.

Advanced Training in Climate Adaptation and Reporting
The CASTT Adaptation Academy aims to enhance the ability of developing countries to conduct vulnerability and adaptation assessments, prepare and report, in timely manner, information resulting from such assessments and the implementation of national adaptation actions, including their Nationally Determined Contributions (NDCs), for their national communications, biennial update reports, and biennial transparency reports under the measurement, reporting and verification (MRV) arrangements of the Convention and the Enhanced Transparency Framework (ETF) of the Paris Agreement. The goal is to enable a systematic, generational stepchange in capacity to meet the ambitions of the Paris Agreement, its associated NDCs, and other climate commitments.

The 3 – 4 weeks training program focuses on imparting technical knowledge in the key components of the MRV and ETF frameworks, the exchange of views, lessons learned and experiences, and internalizing and mainstreaming climate change activities. Other major topics are anticipated to include planning, policy frameworks, coordination across ministries and governance levels, working with the private sector, finance and cost-benefit analyses, vulnerability and risk assessments, ecosystems, infrastructure, transboundary considerations, and social, gender, and cultural equity issues. Specific topics will also explore aspects relating to agriculture, DRR, energy, cities, coastal regions, and mountainous and high-elevation areas. In addition, the training will include components specifically tailored to regional climatic challenges of each node’s participants to put the broader lessons into more usable and practical contexts.

The Target Audience

The primary target will be professionals and experts from developing countries who are involved in providing technical and substantive input for the preparation of their country’s MRV arrangements and the transparency framework, with a specific focus on adaptation reporting.

Key Dates

The Adaptation Academy will launch its application process in August 2021. The first courses will take place in September and October 2021.

Other Links:

UNFCCC’s CASTT Adaptation Academy webpage

Adaptation Academy Launched at Asia-Pacific Climate Week

CASTT Adaptation Academy flyer

Download CASTT Adaptation Academy flyer v3-1

This will be great!

 

Enjoy? You bet!

 

"The real problem of humanity is the following: we have Paleolithic emotions, medieval institutions, and godlike technology." - E.O. Wilson

CRS InFocus Report: 'Overview of the Global Humanitarian and Displacement Crisis'

Rhoda Margesson is the author of this CRS InFocus (2-pager) report (23 July 2021): 'Overview of the Global Humanitarian and Displacement Crisis'  

Download CRS_Report_Overview_Global_Human_Dis_Crisis_23July2021

I have pasted the entire two-pager below and a PDF above. 

Graphics can be enlarged by clicking on them.

One thing the document touches only briefly is the human displacement caused/exacerbated by water and related issues: sea-level rise, salinization of coastal aquifers by sea-water intrusion. Desiccated interior regions (Colorado River Basin, etc.) could cause people to head for the coast or elsewhere. I have a young OSU colleague, David Wrathall, who is looking into this for the IPCC. Just keep that in mind. 

Humanitarian and displacement crises worldwide have become significantly worse in the past five years. The ongoing Coronavirus Disease 2019 (COVID-19) pandemic has exacerbated humanitarian need. In addition, the lockdowns and economic recession caused by the pandemic created far-reaching secondary impacts such as increased food insecurity, gender-based violence, and poverty, and reduced access to education and health. The United Nations (U.N.) anticipates that globally more than 238 million people will require humanitarian assistance and protection due to conflict, disaster, and the pandemic in 2021 (a near 30% increase over 2020). The United States is the single largest humanitarian and emergency food assistance donor, consistently providing nearly one-third of total assistance worldwide (more than $9.6 billion in FY2021, excluding American Relief Plan Act funds).

Types of Crises and Affected Populations
As of late 2020 (latest global data available), more than 82.4 million people were forcibly displaced worldwide due to armed conflict, widespread or indiscriminate violence, or human rights violations. According to the United Nations, those displaced included 26.4 million refugees, 4.1 million asylum seekers, 48 million Internally Displaced Persons (IDPs), and 3.9 million Venezuelans displaced abroad. An estimated 10 million people remained stateless. (See definitions of key populations of concern below.)

Natural disasters and climate-related impacts further affect millions of people a year. They often require urgent and prolonged assistance due to sudden events (such as earthquakes or storms) or protracted ones (like drought conditions). On average, disasters displace 26 million people annually.

Some populations move voluntarily, while others have to flee. Economic migrants, who often leave poverty and unemployment to seek better livelihood opportunities or family reunification, numbered approximately 281 million in 2020 (roughly 3.6% of the world’s population). Refugees and others forcibly displaced, including vulnerable migrants, often face a different set of circumstances. They are forced to leave their homes for reasons such as ethnic strife, violence, human rights violations, or natural disasters. In 2020, more than two-thirds (68%) of all refugees and Venezuelans displaced abroad came from five countries (the same reported in 2019): Syria, Venezuela, Afghanistan, South Sudan, and Burma. (See Figure 1 for worldwide snapshot of forced displacement.)

U.S. Policy
The United States is a major contributor to international humanitarian relief efforts, with funding provided through the U.S. Agency for International Development, the Department of State, the Department of Defense, and the Department of Agriculture. On a bipartisan basis, Congress has consistently supported humanitarian efforts as a means of responding in the short- and long-term to natural disasters and conflict-induced crises, mitigating humanitarian impacts, and promoting a U.S. presence. It generally gives the President broad authority on humanitarian issues and flexibility to respond to disasters with a wide range of assistance. In a long-standing trend across Administrations, it typically funds global humanitarian efforts at appropriation levels well above the budget request through established global humanitarian and emergency food accounts in annual State, Foreign Operations and Related Programs and other appropriations bills. In practice, the provision of U.S. humanitarian assistance is typically case- and time-specific and includes assistance through humanitarian partners and multilateral mechanisms. These efforts are based on need and include supporting protection activities for vulnerable populations and countries and communities hosting the displaced, encouraging donor contributions, and building response capacity. The Biden Administration’s budget request for FY2022 aims to strengthen U.S. global humanitarian leadership and calls for $10.1 billion in humanitarian assistance to support displaced and vulnerable persons worldwide. 

Selected Issues and Challenges
COVID-19.COVID-19 added a complicated layer to the global humanitarian landscape in 2020. The conditions in which vulnerable, displaced populations live make them particularly susceptible to coronavirus spread and present additional challenges for humanitarian response and virus containment. COVID-19 cases and deaths in humanitarian and conflict settings are likely underreported, and testing remains limited and uneven. Pandemic restrictions continue to affect the mobility of vulnerable populations and limit humanitarian access and operations (such as delivery of goods and services and activities of personnel in the field). Experts predict barriers for displaced populations and vulnerable migrants to access vaccines. Four specific sectors emerged as priorities during the pandemic: severe food insecurity, urgent health care access and services, protection of women and girls amid increases in the incidence of gender-based violence, and sustained access to education for displaced children and youth. In addition, refugee returns to countries of origin and refugee resettlement, which declined due to COVID-19, are important parts of the long-term solution to displacement.

Emergence of New Crises and Underfunding.A major challenge facing the humanitarian community is the emergence of new crises (including the pandemic), which means lifesaving assistance and protection activities takeprecedence over long-term development and the search for durable solutions. Chronic underfunding of existing U.N. and other humanitarian appeals means that urgent needs frequently outpace available budgets for operations. The 2021 revised U.N. global humanitarian appeal for $36.1 billion is the highest ever and aims to help populations in 56 countries meet basic needs such as food, water, shelter, and medical services, including those related to COVID-19.

Displacement and Host Countries. Economic migrants, refugees, asylum seekers, stateless persons, trafficked persons, and unaccompanied children, usually in a mix of nationalities or ethnic groups, may travel the same routes together. Many of these individuals lack required documentation, and may use unauthorized border crossings, often with the assistance of smugglers. An individual’s decision to move is based on a complex mix of factors. Even if they do not qualify as refugees, experts say a significant number of those fleeing may need humanitarian assistance, international protection, and opportunities to regularize their status. However, states concerned about the economic burden of those seeking help and the potential security issues resulting from uncontrolled migration (raised in part because of the threat of terrorism) argue for stricter enforcement of asylum and immigration policies.

Protracted Displacement.Refugees and IDPs may be separated from their homes for long periods, particularly in instances of large-scale, protracted crises or ongoing-armed conflicts where political solutions prove elusive. The global population of those forcibly displaced increased by 75% in the past two decades, and on average, a person is displaced as a refugee for 20 years. Displaced populations are often not confined to camps, placing a heavy burden on governments and host communities. National governments carry primary responsibility for all displaced people in their territory; however, in many cases they are unable or unwilling to fulfill this obligation, complicating the humanitarian response. In 2020, the countries with the largest populations of IDPs were the Democratic Republic of the Congo, Syria, and Sudan. The top countries hosting refugees included Turkey, Colombia, Pakistan, and Uganda. Less than 1% of global refugees are resettled each year.

Operational Constraints and Access.
Displaced populations require protection, the basis of which may be found in international humanitarian law (IHL) and reflected in humanitarian assistance provided by a variety of actors and organizations. Local, national, and regional authorities have a role in the provision of assistance, law enforcement, and access control. Systematic violations of human rights and IHL have been widespread in some conflicts, resulting in high levels of civilian casualties, exposure to explosive hazards, and indiscriminate attacks. This has severely constrained national and international humanitarian efforts, hindering aid delivery or restricting access altogether, while threatening the safety of humanitarian personnel and the populations they aim to assist and protect.

Enjoy!

 "If climate change is a shark, water is its teeth." - Gemma Boag

CRS Report: 'Management of the Colorado River - Water Allocations, Drought, and the Federal Role'

Charles V. Stern and Pervaze A. Sheikh have updated (1 July 2021) their excellent CRS report: 'Management of the Colorado River: Water Allocations, Drought, and the Federal Role'.

Download CRS_Report_Mgmt_CO_River_Water_Allocations_Drought_Fed_Role_1July2021

The graphics are not placed where they occur in the report. Click on a graphic to enlarge it. Click here for an updated map of the basin.

Summary
The Colorado River Basin covers more than 246,000 square miles in seven U.S. states (Wyoming, Colorado, Utah, New Mexico, Arizona, Nevada, and California) and Mexico. Pursuant to federal law, the Bureau of Reclamation (part of the Department of the Interior) manages much of the basin’s water supplies. Colorado River water is used primarily for agricultural irrigation and municipal and industrial (M&I) uses; it is also important for hydropower production, fish and wildlife, and recreational uses.

Apportioned Colorado River water is widely acknowledged to be in excess of the river’s natural flows, and consumptive use of these waters typically exceeds natural flows. This causes an imbalance in the basin’s available water supply and demand. Stress on basin water supplies is exacerbated by a long-term drought dating to 2000. In the future, observers expect ongoing strain on the basin’s limited water supplies, which will be further stressed by climate change.

River Management
The Law of the River is the commonly used shorthand for the multiple laws, court decisions, and other documents governing Colorado River operations; its foundational document is the Colorado River Compact of 1922. Pursuant to the compact, the basin states established a framework to apportion water supplies between the river’s Upper and Lower Basins, with the dividing line between the two basins at Lee Ferry, AZ. Each basin was allocated 7.5 million acre-feet (MAF) annually under the compact, and an additional 1.5 MAF in annual flows was made available to Mexico under a 1944 treaty. Further agreements and court decisions addressed other issues (e.g., intrastate allocations of flows), and subsequent federal legislation provided authority and funding for federal facilities that allowed users to develop their allocations. A 1963 Supreme Court ruling confirmed that Congress designated the Secretary of the Interior as the water master for the Lower Basin, a role in which the federal government manages the delivery of all water below Hoover Dam.

Reclamation and basin stakeholders closely track the status of two large reservoirs—Lake Powell in the Upper Basin and Lake Mead in the Lower Basin—as an indicator of basin storage conditions. Under criteria agreed upon by basin states, dam releases from these facilities are tied to specific water storage levels. As of late June 2021, Reclamation projected an extremely high likelihood of delivery curtailments (i.e., a Tier One or greater shortage condition) in the Lower Basin beginning in 2022. If Reclamation declares a Tier One shortage condition for 2022, it will be the first instance of such a declaration and the accompanying delivery curtailments.

Operational Changes and Drought Contingency Plans
The federal government has led multiple efforts attempting to improve the basin’s water supply outlook, resulting in previous collaborative agreements in 2003 and 2007. After several years of negotiations, in 2019 Reclamation and the basin states agreed on a new set of plans to alleviate the strain on basin water supplies. Congress authorized these drought contingency plans (DCPs) for the Upper and Lower Basins in 2019 in the Colorado River Drought Contingency Plan Authorization Act (P.L. 116-14). Among other things, the DCPs required reductions beyond previous curtailment plans based on Lake Mead storage levels, committed Reclamation to additional water conservation efforts, and put in place plans to coordinate Upper Basin operations to enhance Lake Powell storage levels and hydropower generation. Although the DCPs were widely lauded for their consensus-based development, many remain concerned about the basin’s long-term water supply imbalance and the related potential for a compact call (a “call” on water rights between the Lower and Upper Basins). A central question facing decisionmakers is whether to renew interim agreements (including the DCPs) prior to their expiration in 2026, along with what (if any) additional changes might be necessary to prevent future shortages.

Congressional Role
Congress plays a multifaceted role in federal management of the Colorado River Basin. Congress funds and oversees management of basin facilities and has held oversight hearings on drought in the basin and elsewhere. Congress also has enacted legislation involving allocation of Colorado River waters (e.g., authorization of Indian water rights settlements; new water storage facilities) and authorities to mitigate water shortages (i.e., the DCPs and other related efforts). In the future, Congress may be asked to amend or extend these authorities to combat long-term water shortages.

Introduction
From its headwaters in Colorado and Wyoming to its terminus in the Gulf of California, the Colorado River Basin covers more than 246,000 square miles. The river runs through seven U.S. states (Wyoming, Colorado, Utah, New Mexico, Arizona, Nevada, and California) and Mexico. Pursuant to federal law, the Bureau of Reclamation (Reclamation, part of the Department of the Interior [DOI]) plays a prominent role in the management of the basin’s waters. In the Lower Basin (i.e., Arizona, Nevada, and California), Reclamation also serves as water master on behalf of the Secretary of the Interior, a role that elevates the status of the federal government in basin water management. The federal role in the management of Colorado River water is magnified by the multiple federally owned and operated water storage and conveyance facilities in the basin, which provide low-cost water and hydropower supplies to water users.

Colorado River water is used primarily for agricultural irrigation and municipal and industrial (M&I) purposes. The river’s flow and stored water also are important for power production, fish and wildlife, and recreation, among other uses. A majority (70%) of basin water supplies are used to irrigate 5.5 million acres of land; basin waters also provide M&I water supplies to nearly 40 million people. Much of the area that depends on the river for water supplies is outside of the drainage area for the Colorado River Basin. Storage and conveyance facilities on the Colorado River provide trans-basin diversions that serve areas such as Cheyenne, WY; multiple cities in Colorado’s Front Range (e.g., Fort Collins, Denver, Boulder, and Colorado Springs, CO); Provo, UT; Albuquerque and Santa Fe, NM; and Los Angeles, San Diego, and the Imperial Valley in Southern California (Figure 1). Colorado River hydropower facilities can provide up to 4,200 megawatts of electrical power per year. The river also provides habitat for a wide range of species, including several federally endangered species. It flows through 7 national wildlife refuges and 11 National Park Service (NPS) units; these and other areas of the river support important recreational opportunities.

Precipitation and runoff in the basin are highly variable. Water conditions on the river depend largely on snowmelt in the basin’s northern areas. Observed historical data (1906-2018) show that overall, natural flows in the Colorado River Basin averaged about 14.8 million acre-feet (MAF) annually. Flows have dipped significantly during the current drought, which dates to 2000; natural flows from 2000 to 2018 averaged approximately 12.4 MAF per year. Reclamation has estimated that the 19-year period from2000 to 2018 was the driest period in more than 100 years of record keeping. The dry conditions are consistent with prior droughts in the basin that were identified through tree ring studies; some of these droughts lasted for decades. Climate change impacts, including warmer temperatures and altered precipitation patterns, may further increase the likelihood of prolonged drought in the basin.

Pursuant to the multiple compacts, federal laws, court decisions and decrees, contracts, and regulatory guidelines governing Colorado River operations (collectively known as the Law of the River), Congress and the federal government play a prominent role in the management of the Colorado River. Specifically, Congress funds and oversees Reclamation’s management of Colorado River Basin facilities, including facility operations and programs to protect and restore endangered species. Congress has also approved and continues to actively consider Indian water rights settlements involving Colorado River waters, and development of new and expanded water storage in the basin. In addition, Congress has approved funding to mitigate drought and stretch basin water supplies and has considered new authorities for Reclamation to combat drought and enter into agreements with states and Colorado River contractors.

This report provides background on management of the Colorado River, with a focus on recent developments. It also discusses the congressional role in the management of basin waters.

Cutting to the chase...

Issues for Congress 

Funding and Oversight of Existing Facilities and Programs
The principal role of Congress as it relates to storage facilities on the Colorado River is funding and oversight of facility operations, construction, and programs to protect and restore endangered species (e.g., Glen Canyon Dam Adaptive Management Program and the Upper Colorado River Endangered Fish Program). In the Upper Basin, Colorado River facilities include the 17 active participating units in the Colorado River Storage Projects, as well as the Navajo-Gallup Water Supply Project. In the Lower Basin, major facilities include the Salt River Project and Theodore Roosevelt Dam, Hoover Dam and All-American Canal, Yuma and Gila Projects, Parker-Davis Project, Central Arizona Project, and Robert B. Griffith Project (now Southern Nevada Water System). 

Congressional appropriations in support of Colorado River projects and programs typically account for a portion of overall project budgets. For example, for the most recent year available (FY2018), the Lower Colorado Region’s operating budget was $559.5 million; $134.8 million of this total was provided by discretionary appropriations, and the remainder of funding came from power revenues (which are made available without further appropriation) and nonfederal partners. In recent years, Congress has also authorized and appropriated funding that has targeted the Colorado River Basin in general (e.g., the Pilot System Conservation Plan). Congress may choose to extend or amend these and other authorities specific to the basin. 

While discretionary appropriations for the Colorado River are of regular interest to Congress, Congress may also be asked to weigh in on Colorado River funding that is not subject to regular appropriations. For instance, in the coming years, the Lower Colorado River Basin Development Fund is projected to face a decrease in revenues104 and may thus have less funding available for congressionally established funding priorities for the Development Fund. 

Indian Water Rights Settlements
Congress has previously approved Indian water rights settlements associated with more than 2 MAF of tribal diversion rights on the Colorado River. Only a portion of this water has been developed. Congress likely will face ongoing decisions regarding whether to fund development of previously authorized infrastructure associated with Indian water rights settlements in the Colorado River Basin. For example, the Navajo-Gallup Water Supply Project is being built to serve the Jicarilla Apache Nation, the Navajo Nation, and the City of Gallup, New Mexico. Congress may also be asked to consider new settlements that may result in tribal rights to more Colorado River water. 

Plans for New and Augmented Water Storage, Conveyance
Some states in the Upper Basin have indicated their intent to further develop their Colorado River water entitlements. For example, in the 115th Congress, Section 4310 of America’s Water Infrastructure Act (P.L. 115-270) authorized the Secretary of the Interior to enter into an agreement with the State of Wyoming whereby the state would fund a project to add erosion control to Fontenelle Reservoir in the Upper Basin. The project would allow the state to potentially utilize an additional 80,000 acre-feet of water storage on the Green River, a tributary of the Colorado River. 

Another project that would develop Upper Basin waters is the proposed Lake Powell Pipeline (LPP), which would direct approximately 86,000 acre-feet of Utah’s Upper Basin Colorado River Basin apportionment from Lake Powell to Washington County, UT (i.e., the St. George, UT, area, which is technically located within the Lower Basin drainage area). The pipeline would begin near Glen Canyon Dam in Arizona and would run through Arizona and Utah to Sand Hollow Reservoir near St. George, UT. Reclamation has been designated the lead agency for the project under NEPA and is coordinating an Environmental Impact Statement (EIS) for the most recently proposed version of the project. Supporters in Utah argue that the pipeline is needed to provide a second primary water source for the St. George area, in addition to the Virgin River. Some environmental groups have argued that the proposed development and diversion of additional Upper Basin waters is ill-advised in light of climate change and the basin’s issues with over-allocation. These groups have argued for major changes to the scope of the EIS. The six other Colorado River Basin states have raised concerns related to the proposed LPP’s “legal and operational issues,” and they have raised concerns with the LPP NEPA process as the de facto forum for resolving a conflict among basin states. The six states have requested that Reclamation refrain from issuing a final EIS until these issues can be resolved on a consensus basis.

Drought Contingency Plan Implementation and Future Basin Agreements Congress is likely to remain interested in the status of drought in the basin in general,110 as well as in the implementation of the DCPs and other related agreements and their success or failure at stemming further delivery curtailments and adding water to the basin’s storage reservoirs. Similarly, Congress may be interested in the overall hydrologic status of the Colorado River Basin, including new and existing efforts to plan for increased demand in the basin and stretch limited basin water supplies. 

Federally led efforts to extend the 2007 Interim Guidelines (including the DCPs), which expire at the end of 2026, look to be the next major hurdle in the consensus-based management of the Colorado River. These reconsultation efforts, including any major alterations to the existing agreements, are key to managing the basin’s future water resources. Insofar as these agreements involve new federal authorities, Congress may be asked to play a part in their approval. 

Enjoy!

"History never repeats itself, but it does often rhyme.” - Mark Twain

One More Article on MS v. TN! 'States' Feud Delivers Supreme Court's First Groundwater Test'

This article by E & E News was sent to me by a colleague. It contains some information on MS v. TN that I had not seen. My latest post on this issue was last November (see here) when Special Master Eugene Siler ruled in Tennessee's favor. But it's not finished - the Supreme Court will likely hear the case during its next term. Graphics are from me.  

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States' feud delivers Supreme Court's first groundwater test
Pamela King, E&E News reporter. Published: Thursday, June 17, 2021

The Supreme Court may hear its first groundwater battle later this year — and the case could force the justices to consider an unusual claim.

Unlike other interstate water wars that reach the high court, Mississippi has argued that it has sole legal rights to groundwater in an aquifer that straddles the Tennessee border.

The claim is a novel departure from the Supreme Court's traditional approach of dividing water supplies equitably and has set off alarm bells for other states that share water with their neighbors.

Mississippi's argument: For decades, Memphis Light, Gas and Water Division has unlawfully sucked up billions of gallons of groundwater in a sub-unit of the Middle Claiborne Aquifer that is exclusively owned by the Magnolia State.

The result is a massive drawdown in the aquifer — known as a "cone of depression" — that makes it so Mississippi has to dig deeper and more expensive wells to bring the water it needs to the surface. Because the resource has already been unfairly developed, Mississippi argues, the remainder of the aquifer's water can't now be fairly divided. The state is seeking more than $600 million in damages.

"What Tennessee has done is robbed the ability of the people of Mississippi to fully develop the aquifer," said Richard Spruill, principal hydrogeologist and president of Groundwater Management Associates Inc. in North Carolina. Spruill has worked as an expert for Mississippi in the case.

The fight is one of a slew of interstate water wars that have reached the nation's highest bench in recent months. The disputes invoke the Supreme Court's original jurisdiction to resolve legal battles between states.

During the 2020 term, which ends this summer, the justices reviewed fights between Texas and New Mexico over stored floodwaters on the Pecos River and between Florida and Georgia over flows through the Apalachicola-Chattahoochee-Flint (ACF) River Basin.

Many more such cases are expected to come up as the planet warms and water supplies dry up (Greenwire, May 6, 2020).

Mississippi v. Tennessee is the first groundwater case to reach the Supreme Court.

Mississippi's novel argument is unlikely to fly with the justices, who use the legal doctrine of equitable apportionment — or fair distribution — to divvy up water between states, said Robin Kundis Craig, an incoming law professor at the University of Southern California.

"Pretty much everyone is lined up against Mississippi to say: 'You're making a stupid argument,'" she said.

The Biden administration, a group of law professors and a bipartisan coalition of eight states are backing Tennessee in the aquifer battle.

No one has gotten involved on behalf of Mississippi.

Because equitable apportionment is a forward-looking remedy, it makes sense that Mississippi wouldn't root its arguments in

that doctrine if the state wants to be paid for past withdrawals from the aquifer, said Dave Owen, a professor at the University of California, Hastings College of the Law.

But it has a long, uphill battle if it wants to convince the Supreme Court to deviate from that approach, he said.

"This is a court that wants to rule on grand constitutional questions," Owen said. "It doesn't want to be a water rights court."

Special master's view

Tennessee has one other key expert in its corner — the "special master" the Supreme Court has assigned to decide how the groundwater in the aquifer should be shared.

In a November 2020 report, Senior Judge Eugene Siler Jr. for the 6th U.S. Circuit Court of Appeals found that the aquifer is in fact a continuous interstate resource and that equitable apportionment is the appropriate mechanism to divide it.

"When states fight over interstate water resources, equitable apportionment is the remedy," wrote Siler, who was appointed during the George H.W. Bush administration. "Mississippi presents no compelling reason to chart a new path for groundwater resources."

He gave Mississippi a shot at amending its complaint. For more than a decade, the state has held firm in its argument that it is the sole owner of the aquifer and that Tennessee has stolen its water.

Mississippi declined to change its position. The water, the state says, moves through the ground so slowly that it was never naturally available to Tennessee and is now forever lost to Mississippi.

Earlier this year, the state filed exceptions to Siler's report, a step that is expected to prompt the Supreme Court to take a closer ook at the dispute.

Drawdown by the Memphis utility, under Tennessee's supervision, means that the aquifer must recharge using younger — and potentially contaminated — water, Mississippi wrote. It has also reduced the amount of groundwater a well in Mississippi can recover, the state said.

The reduction, Mississippi wrote, "means that more wells and more pumps — at great expense — are required to recover the water needs of Mississippi's producers; and the power costs of those producers have also been increased."

Tennessee filed its own reply urging the justices to reject Mississippi's claims.

"This is the third attempt by Mississippi to seek more than $600 million in alleged damages concerning groundwater in the Memphis Sands Aquifer, which is an underground water resource that underlies parts of both Mississippi and Tennessee," wrote lawyers for the Volunteer State.

"Mississippi, however, still cannot plead or prove that a single Mississippi resident has suffered a water shortage from Memphis's use of the Aquifer," Tennessee continued.

'Dangerous uncertainty'

Other states that share water with their neighbors are pleading with the Supreme Court not to side with Mississippi's unusual claim to exclusive rights over the aquifer.

Eight states led by both Democratic and Republican attorneys general joined forces earlier this year to argue that penalizing Tennessee for pumping without first establishing terms for use of the aquifer would create "dangerous uncertainty" for other water-sharing states (Greenwire, May 3).

"If states can be liable for damages even without a known duty to another state, then they cannot plan for the future or effectively regulate natural resources use within their borders," the states wrote in their "friend-of-the-court" brief.

"The Court should not create a new way for states to resolve their disputes over natural resource use that addresses past violations of unknown duties and does not solve the problem of how states can share a natural resource going forward," they continued.

Colorado, whose Rocky Mountains serve as the starting point for several major river systems, led the multistate brief. Idaho, Nebraska, North Carolina, North Dakota, Oregon, South Dakota and Wyoming also joined.

A ruling for Mississippi would leave municipalities and farmers in other parts of the country vulnerable to sudden water claims by neighboring states, the state coalition wrote. Such an outcome would suppress investment and increase the cost of any business venture that depends on water for its operations.

The Justice Department and a group of law professors also submitted amicus briefs in favor of Tennessee in the case.

The International Law Committee of the New York City Bar Association wrote a brief in support of neither party but noted that the court could use international groundwater law as a framework for deciding whether equitable apportionment applies in Mississippi v. Tennessee.

"Consider that, under international law, if the Middle Claiborne Aquifer crossed an international boundary, it would be subject to the principle of 'equitable and reasonable utilization,'" the committee wrote in its brief.

The principle, the brief continued, "is fundamentally similar to the Court's doctrine of equitable apportionment."

What next?

The Supreme Court could hear arguments in Mississippi v. Tennessee as early as this fall, and legal experts say the justices could come to a quick — and potentially unanimous — conclusion in the case.

Interstate water disputes don't tend to divide the justices along ideological lines, and the court handed back swift and unanimous opinions in the Texas v. New Mexico and Florida v. Georgia water cases this term.

Mississippi's fight could also bounce back and forth between the Supreme Court and the special master for years to come, as did

Florida and Georgia's battle over the ACF River Basin. This term's ruling in favor of upstream Georgia in the case was the high court's second in the yearslong legal war (Greenwire, April 1).

And while Mississippi's groundwater fight may be the first to reach the Supreme Court, said Craig of USC, it won't be the last.

Just as the high court is expected to take up an increasing number of surface water disputes as the planet warms, groundwater battles will also become more heated and more frequent, she said.

One potential battleground is the massive Ogallala Aquifer underlying eight states in the middle of the United States. The aquifer sits beneath states such as Colorado, New Mexico and Texas that are already gripped by drought and competing for increasingly scarce river flows.

"When people can't get to surface water," Craig said, "they turn to groundwater."

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My money's on Tennessee. Seriously - I'd love to see MS, TN and AR get together and develop a water management & governance plan by which all three collaborate to ensure sustainable development and aquifer protection. This would (I think) be a first in the USA in terms fo interstate groundwater management.  The three states were meeting in 2005 to see about collaborating when MS withdrew from the talks and filed suit against Memphis in 2006.

Take a look at Holly Mondo's thesis: 'A Look Beneath the Surface: Developing a Transboundary Groundwater Governance Framework and Agreement for the Memphis Sand Aquifer'.

Enjoy!

"The history of [groundwater law] is as thrilling as ignorance, inertia,and timidity could have made it." - Mark N. Goodman (thanks to W. and R. Alley)

From AWEA: 'Flooding the Courtroom - SE Interstate Water Cases in the Supreme Court’s 2020-2021 Session'

Consider this blog post as my mea culpa for neglecting interstate water conflict issues in the southeastern US states - with the obvious exceptions of the Mississippi v. Tennessee Memphis Sand groundwater case and, to a lesser degree, the recently-decided Florida v. Georgia case in the Apalachicola-Chattahoochee-Flint (ACF) River Basin. The latter case has been decided (9-0) by the Supreme Court in favor of Georgia; the former has been not been heard by the Court but the Special Master has recommended that Tennessee should prevail. It will likely be heard by the Court this fall.

So why am I going on about this? Well, friend and colleague Todd Jarvis sent me a PDF of the Summer 2021 issue of Alabama's Water Environment Association publication The Wave. It contained Part 2 of Flooding the Courtroom - Southeastern Interstate Water Cases in the Supreme Court’s 2020-2021 Session. I saw that it was Part 2 so I went to the AWEA website and found the Spring 2021 issue of The Wave and downloaded Part 1.

Part 1: Download Alabama Wave Spring 2021

Part 2: Download Alabama_Wave_Summer 2021

Here are some graphics from Part 1:

The following two graphics are directly related to the ACF Basin:

The MS v. TN case is discussed in Part 2, along with more FL v. GA.

Here are some comments on  FL v. GA, MS v. TN and TX v. NM from Jesse J. Richardson: https://youtu.be/Gq6DVlPGy4Iandhttps://bit.ly/3wbSl5. Here are JJR and yours truly on MS v. TN.

Enjoy!

"With the water wars, it's never over." - Jesse J. Richardson @JesseJames8785