Jesse J. Richardson of the West Virginia University College of Law and Lead Land
Use Attorney for Land Use and Sustainable Development Law Clinic is one of the smartest WaterWonks I know. He's graced these pages before, often with an item that is somewhat off the beaten track.
Today's post is an exception; it involves a lawsuit in which two states, Mississippi and Tennessee, are disputing groundwater that Mississippi claims Tennessee is stealing its groundwater. It is the first case of its kind to reach the Supreme Court - a journey that began in 2006.
Several years ago the Supreme Court appointed a Special Master, Eugene E. Siler, Jr., a retired Federal judge, to hear the case and make a recommendation. Last week, Judge Siler made his recommendation. You can access it here or download the PDF:
Download MS v. TN 5Nov2020
Here is an article from the Memphis Flyer.
Remember - Siler's recommendation must be acted upon by the Supreme Court, and the parties will be able to make final presentations before the Court.
I asked Jesse if he would mind writing something up for WaterWired and he graciously agreed to do so and sent it to me within two days.
Download Mississippi_v_Tennessee_JJR_8Nov2020
I added the graphics. Click on them to enlarge them.
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Mississippi v. Tennessee
Jesse J. Richardson
West Virginia University College of Law
8 November 2020
On November 5, 2020, the Special Master released a report in Mississippi v. Tennessee, a case presently pending before the United States Supreme Court involving the right to the groundwater in the Claiborne Aquifer. This case represents the first water war focusing on groundwater. The litigation began in 2006, when Mississippi filed suit against the City of Memphis and Memphis Light, Gas and Water Division (MLGW). Essentially, Mississippi alleged that MLGW, by pumping groundwater near the state boundary, was stealing groundwater from the state. Absent the pumping by MLGW, according to Mississippi, the water would remain in the aquifer beneath Mississippi. However, the pumping causes the water to artificially migrate to Tennessee, resulting in a theft.

The initial litigation failed, as the federal courts dismissed the lawsuit, finding that Tennessee must be a party and lawsuits between states must be filed with the Supreme Court of the United States (SCOTUS). SCOTUS initially refused to hear the amended lawsuit. However, Mississippi tried again in 2014, and against the recommendations of the Obama Administration, SCOTUS agreed to take the case. Since then, the Special Master, an attorney appointed by SCOTUS to gather evidence, hold hearings and make recommendations to the Court, has been guiding the parties.
The main issue has been whether the Claiborne Aquifer is an interstate or intrastate aquifer. Mississippi claims that, due to the complex hydrology and various rock formations, the water lying beneath that state should be distinguished from other water in the aquifer and be reserved for Mississippi. Mississippi asks the Court to enjoin further pumping and compensate the state for the water already pumped. Mississippi has never requested an equitable apportionment. Equitable apportionment is the method that SCOTUS has used for decades to divide surface water between competing states.
Proceedings focusing on whether the aquifer is intrastate or interstate culminated in this report. Mississippi objected to testimony from experts as to the characteristics of the aquifer as interstate or intrastate. The Special Master overruled the objection and considered the evidence in his report. After reviewing the expert testimony and hearing the arguments of the parties, the Special Master recommended that SCOTUS find that the aquifer is interstate and that the lawsuit be dismissed, with a right to amend to add an equitable apportionment request.
First, the Middle Claiborne Aquifer and the groundwater inside it is a single hydrogeological unit beneath several states. Mississippi did not challenge expert testimony, but alleged that the aquifer should not be viewed as a whole. Instead, differences such as thickness and permeability justify segmenting the aquifer into parts, one of which lies solely beneath Mississippi. The Special Master rejected this argument.
Second, Tennessee’s water pumping affected the groundwater beneath Mississippi, showing that the aquifer is an interconnected resource. Tennessee did not used slanted drilling, nor did Tennessee physically enter Mississippi to pump water. The fact that the pumping in Tennessee draws groundwater from Mississippi shows that the resource is interstate.
Third, natural flow patterns indicate that the water inside the aquifer would ultimately, if slowly, flow across state boundaries. The expert testimony showed that groundwater naturally migrates very slowly, perhaps inches per day, from Mississippi to Tennessee. Even gradual migration indicates that the resource is interstate.
Fourth, the water inside the aquifer interacts with, and discharges into, interstate water resources. The groundwater in the Middle Claiborne Aquifer outcrop zone meets the surface water in the Wolf River, which flows from Mississippi, eventually discharging into the Mississippi.
Therefore, reasoned the Special Master, the Middle Claiborne Aquifer is part of a single interconnected hydrogeological unit beneath multiple states, and thus an interstate resource. Equitable apportionment is the appropriate and exclusive remedy. The Special Master recommends that the complaint be dismissed with lave to amend to include a claim for equitable apportionment.
Equitable apportionment has never been applied to groundwater. The report acknowledges that application to groundwater may be more difficult than application to surface water. However, the Special Master concludes that equitable apportionment applies to groundwater.
Mississippi and Tennessee will now each be given an opportunity to file objections to the report. Outside parties wishing to weigh in will be able to file amicus (or friend-of-court) briefs. SCOTUS will then either rule upon the recommendations of the report without oral argument or, more likely, hold arguments and then rule on the recommendations.
The report notably and meticulously relies on expert testimony for the conclusions. Although the holding that equitable apportionment applies to groundwater disputes between states would be a first, the case law precedents clearly point in that direction. In my opinion, SCOTUS will accept the recommendations of the Special Master in this case. Should Mississippi “decline the favor” of leave to amend to request equitable apportionment, the case will likely be dismissed.
Significant takeaways from the Special Master’s report include the importance of expert testimony in water disputes, particularly in complex groundwater cases. If the case moves forward as an equitable apportionment case, many different stakeholders will be watching, as the rulings will set precedents that will govern future groundwater wars, wars that will inevitably occur.
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My Ten Cents
Some items.
1) Judge Siler got it right: the groundwater in dispute is an interstate resource and Mississippi's case should be dismissed. Like Jesse, I believe SCOTUS will accept his recommendation.
2) 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. Strikes me as more of a Western US issue - water quantity. Shape of things to come? I think so. States are looking at transboundary aquifers; Indiana, Michigan, Ohio and Kentucky are four that I know of. As climate change desiccates surface waters we will see more interest in groundwater use.
3) This case may have international implications. As friend Gabriel Eckstein of the Texas A&M School of Law pointed out, other countries often look to SCOTUS for guidance. This could be one of those cases. He also noted that when it comes to written agreements involving groundwater use between countries there are only four of them in the world: two between France and Switzerland, one between Jordan and Saudi Arabia, and another in North Africa. There are over 1,200 such agreements for surface water.
4) I would love to see Mississippi, Tennessee and Arkansas (it pumps from the Memphis Sand/Middle Claiborne aquifer but was not involved in the dispute) sit down and devise a governance and management plan from the bottom up. Maybe even sign a compact? My MS student Holly Mondo wrote a thesis on this a few years ago (the graphic is from her work).

5) I probably have down fifteen different PPTs and countless presentations/blog posts on this topic. One more, I suppose. My ride is about to end.
6) Had a nice phone conversation with a Mississippi newspaper reporter yesterday. He had come across one of my 15 PPTs.
7) Many thanks to Tom Charlier of the Memphis Commercial Appeal who phoned me out of the blue in 2006 or 2007 to get my take on the case. It's all his fault.
8) I once heard that this suit was about money more than anything else. The first time around Mississippi wanted damages of over $1B; the second time around it dropped to a little over $600M.
9) This must be the only SCOTUS case in which two states, each with three pairs of consecutive identical letters, are litigants in a groundwater case. I probably didn't state this correctly: MiSSiSSiPPi v. TeNNeSSEE. And each has four letters with the 'e' sound. Get it?
10) Thanks, Jesse!
Here's an article from the DeSoto Times-Tribune and my latest PPT (as a PDF):
Download MS_TN_GW_Nov2020
11) And no, Judge Siler did not say 'Water is infinite." The newspaper got it wrong. See below.
Enjoy!
"The history of [groundwater law] is as thrilling as ignorance, inertia, and timidity could have made it." - Mark N. Goodman
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