Mississippi and Tennessee are currently duking it out before a Special Master appointed by the Supreme Court to hear Mississippi spin its sad story of groundwater theft by Memphis Gas, Light and Water (MLGW), the utility of the City of Memphis. Because Memphis is a political subdivision of Tennessee, which allocates water within its boundaries, Tennessee gets to be the defendant in the case.
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It's not the first time these two have been in court over the water in the Memphis Sand Aquifer (MSA), also called the Sparta Sand or the Middle Claiborne Aquifer. They've been down this road before, but Mississippi was unable to get the Supreme Court to hear its case. So Tennessee and Memphis 'won'. After that I asked a water lawyer friend f he thought Tennessee would sign a water allocation or joint management agreement with Mississippi and presumably Arkansas, also a pumper of water from the MSA. The three states had been meeting on just such an agreement in 2005 when Mississippi withdrew from the talks and filed suit.
So what did my friend say? His reply: 'No, why should Tennessee agree to anything? They won!' That's true, but here they are, back in court again after only six years. If Tennessee wins again, who's to say Mississippi won't come back for a third round? If Mississippi wins, maybe Arkansas will join the fray.
What the three states need is a compact on the MSA and perhaps for associated aquifers, like the Fort Pillow Sand. You know, like the ones we have for rivers - Colorado, Rio Grande, Snake, and almost forty other rivers in the USA. But there is no compact for interstate aquifers.
Why a compact? I've mentioned this before in my Power Point lectures but what really put a burr under my saddle was a presentation by water lawyer and arbitrator extraordinaire, Matthew E. (Matt) Draper of Draper and Draper LLC. Here is his recent AWRA webinar presentation on interstate compacts:
In his excellent presentation, Matt lists the three options for allocating interstate waters: 1) apportionment by Congress; 2) equitable apportionment by the Supreme Court; and 3) compact.
Matt states that compacts are the only water allocation option that gives states some control. Congressional apportionment? Really? Supreme Court equitable apportionment actions are long, costly, and unpredictable. Furthermore, such allocations are not subject to state law and states must show that they are using water responsibly and efficiently. He further states the Supreme Court prefers compacts:
"The reason for judicial caution in adjudicating the relative rights of states in [water allocation] cases is that, while we have jurisdiction of such disputes, they involve the interests of quasi-sovereigns, present complicated and delicate questions, and, due to the possibility of future change of conditions, necessitate expert administration rather than judicial imposition of a hard and fast rule. Such controversies may appropriately be composed by negotiation and agreement, pursuant to the compact clause of the Federal constitution.” - Colorado v. Kansas, 320 U.S. 383, 392 (1943)
Read Matt's entire presentation. It's a real eye-opener.
Compacts are not perfect; they do not prevent litigation. Texas and New Mexico have compacts on the Rio Grande, Pecos, and Canadian rivers. How many times have they gone to court? They are there right now, over the Rio Grande, and that is not the first time. A compact can provide for allocation of the waters as decided by the states and establish governance and management mechanisms. It also keeps states talking, and not always through their attorneys.
Regardless of the outcome of the current Supreme Court litigation, the three states should enter into a compact. It would set a wonderful precedent for the groundwater community and may help deter or mitigate future disagreements among the three states.
It also might help deal with conflict spurred by climate change and the desiccation of surface waters. The time to enter into a compact is when times are relatively peaceful, not when things are going badly.
According (via Chris Bennett of Farm Journal) to friend and colleague Gabriel Eckstein, Professor of Law at Texas A&M University, there have been an estimated 3,600 signed agreements over surface water in the past 1,200 years. The number of groundwater agreements? Four.
3600 to 4. C'mon! It's time, guys! Show us what you can do.
“Whatever the result is ... we are talking a lot of money and a result you may not like.... Again and again and again I’m going to urge you to discuss a settlement seriously.” - Special Master Ralph Lancaster 2 June 2015, Florida v. Georgia (thanks to Matt Draper)