WaterWired

Jesse J. Richardson Opines on Mississippi v. Tennessee. Nearing the End for Mississippi?

Jesse J. Richardson, one of the smartest water lawyers I know, has written a number
of times about groundwater, especially the seminal Mississippi v. Tennessee case, which the Supreme Court heard on 4 October 2021. His most recent MS v. TN WaterWired article was on the Special Master's decision in November 2020, which did not support Mississippi's position. 

I just received this article from him. I inserted the graphics.

                                       Mississippi v. Tennessee
                                           Jesse J. Richardson
                            West Virginia University College of Law
                                           

On Monday, October 4 the United States Supreme Court heard oral arguments in the Mississippi v. Tennessee. Both states have filed exceptions to the latest recommendations of Special Master. Mississippi filed suit arguing, essentially, that Memphis, Tennessee has stolen the groundwater from beneath Mississippi by placing several high volume water wells near the state line.

The litigation began in 2005, when Mississippi filed suit against the Memphis public water supplier in federal court. The district court and court of appeals both found that Mississippi needed to file suit against Tennessee and request that the United States Supreme Court divide the groundwater between the states (“equitable apportionment”). The United States, without comment, refused to hear the appeal and denied Mississippi’s motion to file a bill of complaint, in 2010.

In 2014, Mississippi again filed a motion for leave to file a bill of complaint. This time, the United States Supreme Court granted the motion. The Special Master, in the latest report, recommended that the Court dismiss the present action and grant leave to Mississippi to file an amended complaint asking the Court to equitably apportion the water. Mississippi objected to the recommendation to dismiss and Tennessee objected to the recommendation to allow Mississippi to amend to request equitable apportionment.

The arguments and questions from the justices spanned a wide range of topics, making it difficult to pinpoint one or two main points. Although most press reports have indicated that the justices expressed skepticism towards the claims by Mississippi, which they did, the reports leave out the pointed questions aimed at Tennessee as well.

Starting with the second question, some justices expressed frustration with Mississippi’s insistence on not pursuing an equitable apportionment claim, with one justice exclaiming that this started in 2005, “[w]hen is enough, enough”? Others, however, seemed to believe that Mississippi should be given that chance if this case is dismissed. Most seemed to wonder why the Court had to say anything at all- can’t Mississippi file leave to amend if and when they wish? I believe the Court will, out of fairness, allow Mississippi to amend if the Court rules against them.

As to whether Mississippi’s claim will survive this round, most justices expressed skepticism. My thought prior to this argument was that Mississippi has a steep hill to climb. I believe that the hill is still steep. However, during the latter part of the argument, some questions were asked about how groundwater is different than surface water and whether that means that equitable apportionment should not apply. Note that the Court has never considered a case involving apportionment of groundwater so this is the first time the Court would rule on that issue.

Other questions seemed to indicate that some justices think that equitable apportionment should apply, but may be different with respect to groundwater. The Chief Justice joked about his lack of knowledge of groundwater but the joke reinforced statements in other oral arguments that the justices are not comfortable with the technical issues involved in water cases. The Court is in a very different role in these types of cases than the usual appeal to the Court.

Some questions revealed a concern about what the ruling here would mean for the Court’s workload. If the Court rules in favor of Mississippi would a flood of litigation result? Or would allowing equitable apportionment of groundwater mean more states filing suit over interstate aquifers?

I was left with more uncertainty than prior to the oral arguments, but I will stick to my pre-argument prediction and say that the Court is likely to dismiss the present action by Mississippi and allow the state to amend the complaint to ask for equitable apportionment. If my prediction is correct, the arguments start all over again about how equitable apportionment should apply to groundwater, if at all. The level of complexity and uncertainty remain very high, but any result will impact groundwater management in profound ways.

On a personal note, Justice Sotomayor referred to an amicus brief that I co-authored with several other law professors during her questioning of Tennessee’s attorney. To have the United States Supreme Court explicitly recognize your work is quite humbling and I am very grateful for the chance to provide input at this highest level of legal debate.

Water Systems Council will continue to monitor this case and keep you advised of the latest developments. We expect a ruling in early 2022.

Great job, Jesse!

Enjoy!

"The history of [groundwater law] is as thrilling as ignorance, inertia, and timidity could have made it." — Mark N. Goodman

CRS InFocus Report: 'Recent Developments in Everglades Restoration'

Anna E. Normand and Pervaze A. Sheikh have updated (28 September 2021) this CRS report: 'Recent Developments in Everglades Restoration'.

Download CRS_InFocus_Report_Recent_Devel_Everglades_Restoration_28Sept2021

Click on the graphics to enlarge them.

Overview
What Is the Everglades? The Everglades is a unique network of subtropical wetlands in South Florida. Due in part to federal water supply and flood control projects (as well as agricultural and urban runoff), the ecosystem was degraded and was approximately half its historical size by the end of the 20th century. The ecosystem is home to a number of unique species, including 67 species listed under the Endangered Species Act (16 U.S.C. §§1531 et seq.).

What Is CERP? Congress approved the Comprehensive Everglades Restoration Plan (CERP) in the Water Resources Development Act of 2000 (WRDA 2000; P.L. 106-541). CERP is a framework under which the federal government, with the State of Florida, is attempting to restore the Everglades and improve the timing, distribution, and quality of the water flowing south from Lake Okeechobee to the Everglades. Under CERP, the federal government, through the U.S. Army Corps of Engineers (USACE) and the Department of the Interior (DOI), is to fund half the costs of restoration; the State of Florida is to contribute the other half. Several tribal and local agencies also are involved in this restoration effort. Originally, CERP was to include 60 projects to be completed over 30 years at a cost of $8.2 billion in 2000 dollars (equivalent to $13.2 billion in 2021 after accounting for inflation). Subsequent reports to Congress projected CERP would take approximately 50 years from its authorization to implement at a total cost of $23.2 billion (in FY2020 dollars). As of FY2021, the federal government has provided more than $2.0 billion and the State of Florida has spent an estimated $5.0 billion on CERP in nominal dollars (although much of this state funding is not yet officially credited toward Florida’s share of the cost).

Outside of CERP, complementary efforts to restore the Everglades (most of which predate CERP) are ongoing. Construction of a major project, Kissimmee River Restoration, was completed in July 2021 after 22 years. The federal government has spent more than $3.7 billion on these efforts, collectively referred to as non-CERP projects.

CERP Projects Must Be Authorized by Congress WRDA 2000 approved CERP and the process for its implementation. The law also authorized several pilot projects. Subsequent projects require study by USACE and congressional authorization before they can receive federal appropriations for construction, including credit or reimbursement for nonfederal work undertaken in advance. Several laws subsequent to WRDA 2000 authorized projects contemplated under CERP. Some projects receivedappropriations and are under construction. Studies for other CERP projects are in progress (see Table 1).

Selected Project Authorizations
Central Everglades Planning Project. The Central Everglades Planning Project (CEPP) is a CERP restoration project that Congress authorized in the Water Resources Development Act of 2016 (Title I of P.L. 114-322). CEPP prioritizes restoration projects (e.g., CEPP South, CEPP North, and CEPP New Water) in the central portion of the Everglades and aims to address issues associated with the quantity, quality, timing, and distribution of freshwater flows south of Lake Okeechobee into the central Everglades and Everglades National Park. Congress designated CEPP as a new construction start for FY2020 and provided appropriations to begin construction on the CEPP South sub-project. 

Everglades Agricultural Area Reservoir Storage Project. The Water Resources Development Act of 2018 (WRDA 2018; Title I of P.L. 115-270) authorized the Everglades Agricultural Area Reservoir Storage Project (EAA Storage), which nonfederal sponsors proposed as an addendum to CEPP. EAA Storage aims to provide approximately 350,000 acre-feet of storage for water flows coming from Lake Okeechobee and a stormwater treatment area (i.e., a wetland area that removes excess nutrients from runoff to improve water quality). 

More to come! - one more page.

Enjoy!

"Horse sense is a good judgment which keeps horses from betting on humans." - W.C. Fields

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

GAO Report: 'USACE - Information on the Navigation and Ecosystem Sustainability Program'

From the GAO - just published an released to the public on 22 January 2021: U.S. Army Corps of Engineers: Information on the Navigation and Ecosystem Sustainability Program.

This is actually a letter report, directed to four members of Congress, one of whom is my representative, Peter A. DeFazio (D-OR), Chair of the House Committee on Transportation and Infrastructure.

Download USGAO_USACE_Navi_Eco_Sust_Pgm_22Jan2021

Fast Facts
The Upper Mississippi river system provides about $1 billion in economic benefits annually through commercial boating and fishing. It's home to over 2.5 million acres of habitats, like wetlands, across 5 states.

The U.S. Army Corps of Engineers (Corps) is managing the Navigation and Ecosystem Sustainability Program, consisting of over 1,000 projects along the river to improve navigation delays and restore ecosystems damaged by humans. The program will cost about $7.9 billion over 50 years. Since 2004, the Corps has spent $65 million on technical studies and designs for 47 projects and hasn't secured partners needed to share costs.

Barges like this play a key role in helping keep navigation paths open on the Upper Mississippi River

         Highlights

What GAO Found
The U.S. Army Corps of Engineers (Corps) has taken steps to implement its Navigation and Ecosystem Sustainability Program (NESP)—a dual-purpose program for navigation improvements and ecosystem restoration along the Upper Mississippi River system. Specifically, in 2004 the Corps identified 24 navigation improvement projects and 1,010 ecosystem restoration projects and proposed a plan for implementing them. For example, the Corps plans to construct or extend 12 locks to facilitate commercial barge traffic along the river system (see fig.), which the states of Illinois, Iowa, Minnesota, Missouri, and Wisconsin have generally relied on as their principal conduit for export-bound agricultural products. The Corps also plans to restore floodplains along the river system and backwaters that provide habitat for hundreds of species of wildlife. While the total estimated program cost is $7.9 billion, as of October 2020, the Corps has initiated technical studies and designs for 47 NESP projects at a cost of approximately $65 million.

Barge Tow at Lock and Dam 15 in Rock Island, Illinois

However, the Corps has identified several challenges facing the program, and it has taken steps to mitigate them. Specifically, the Corps was unable to implement NESP projects for 7 years because the program did not receive funding in fiscal years 2011 through 2017, in part because the Corps identified other projects as higher priorities. To mitigate this challenge, the Corps reprogrammed funding to help ensure projects could be executed when funds became available. Another challenge is that the Corps has not yet established partnership agreements that are needed for some NESP ecosystem projects. Corps officials said that about 15 to 20 percent of the ecosystem projects will require partnership agreements in which partners commit to share 35 percent of the project costs, typically through the purchase of land for the project. The officials said that partners may be reluctant to make financial commitments to projects while NESP funding is uncertain. Furthermore, the partnership agreements can take up to 18 months to put in place. To help expedite program implementation, Corps officials said they have pursued projects in fiscal year 2020 that can begin without a commitment from project partners.

Why GAO Did This Study
The Upper Mississippi River system provides approximately $1 billion in annual benefits to the nation’s economy through boating, fishing, and other uses, according to a Corps report. It also supports more than 2.5 million acres of aquatic, wetland, forest, grassland, and agricultural habitats. In 1986, Congress declared its intent to recognize the system as a nationally significant commercial navigation system and a nationally significant ecosystem. However, the Upper Mississippi River’s navigation system has faced significant delays in commercial boating and barge traffic, and human activity has caused a decline in environmental quality, according to a 2004 Corps report.

The Corps initiated studies in 1989 and 1990 to identify ways to improve the river system. The Corps issued a feasibility report in 2004 that identified improvement projects, and in 2007 Congress formally authorized NESP and the projects identified in the report.

GAO was asked to review NESP. This report describes (1) the steps the Corps has taken to implement NESP and (2) the challenges the Corps has identified to fully implementing the program and steps the Corps is taking to address these challenges. To conduct this work, GAO reviewed Corps reports, documents, and data from fiscal year 2005—the year in which the Corps began implementing NESP projects—through fiscal year 2020. GAO also interviewed Corps officials.

For more information, contact Mark Gaffigan at (202) 512-3841 or gaffiganm@gao.gov.

Enjoy!

"A ship ought not to be held by one anchor, nor life by a single hope." - Epictetus