Be careful what you wish for; it may come true. That's a well-worn saying with which we're all familiar.
But it could be true with respect to the case of Mississippi v. Tennessee, which involves the City of Memphis' utility - Memphis Light, Gas and Water (MLGW) - and its groundwater pumping from the productive Memphis Sand (aka Sparta Sand in some regions) aquifer. Mississippi has long claimed that MLGW is 'stealing' its groundwater and sought damages in excess of $1B. In 2010 the U.S. Supreme Court (SCOTUS) declined to hear the case and dismissed it without prejudice.
The graphic below shows groundwater flowing from MS to TN and MLGW wells
(from my latest PPT/PDF on topic: Download MEM_GEO_335H_14May2015).
Note that Waldron and Larsen claim that groundwater flow from MS to TN has decreased since pre-development conditions ('Pre-Development Groundwater Conditions Surrounding Memphis, Tennessee: Controversy and Unexpected Outcomes'). Download a copy of their paper here.
I have blogged a number of times about this fascinating issue since 2008; check my 14 October 2014 post for links to previous posts. Here is my original 2 February 2008 post on this issue, which included the following vertical cross section (with the extreme vertical exaggeration to show sufficient detail) of the lithology beneath the area:
In brief, Mississippi lost twice in Federal courts before the case reached SCOTUS. The main points against Mississippi were that: 1) it could not prove damages; and 2) its water was not being stolen because water from the aquifer, which underlies large parts of Arkansas, Tennessee and Mississippi and a small part of Kentucky had not been allocated among the riparians - similar to the various surface water compacts we have in the USA.
Many USA and foreign legal and groundwater people, myself included, were hoping that SCOTUS would rule on the case because it had never considered a groundwater dispute before. It would be a first.
Well, we may now get our wish.
Friend and colleague Todd Jarvis informed me that SCOTUS has agreed to hear the case.
From Law360, 29 June 2015:
Law360, New York (June 29, 2015, 2:19 PM ET) -- The U.S. Supreme Court on Monday agreed to take up Mississippi’s request to pursue a $615 million claim that Tennessee is stealing its groundwater through a large commercial water well that pumps from fields near the states’ border.
The justices — going against the recommendations of the solicitor general, whose input the court sought in May — determined that the Magnolia State can pursue its claims against Tennessee and the Memphis Light, Gas & Water Division for allegedly extracting high-quality groundwater from Mississippi and bringing it into Tennessee for sale by MLGW.
“The motion for leave to file a bill of complaint is granted,” the justices wrote in their order list. “The defendants are allowed 30 days within which to file an answer.”
The Supreme Court asked U.S. Solicitor General Donald B. Verrilli Jr. for his input in October, several months after Mississippi asked it to review Tennessee and MLGW's authorization, construction and operation of the fields.
Verrilli responded that as the Supreme Court said in a 2010 order denying Mississippi leave to file a similar bill of complaint against defendants, Mississippi can’t claim that Tennessee is taking its water until the aquifer — an interstate water source — has been apportioned.
“Mississippi has not alleged injuries to its present or expected future uses of the water that are sufficiently specific to justify this court’s immediate commitment of resources to resolve the claims in the complaint,” the solicitor general said. “Accordingly, the court should deny Mississippi leave to file its complaint without prejudice to refiling a properly framed complaint for an equitable apportionment of the aquifer premised on concrete allegations of real and substantial injury.”
According to Mississippi's complaint, the groundwater at issue was naturally collected and stored in a distinct deep sandstone geological formation known as the Sparta Sand. The complaint alleges that MLGW pumps groundwater from what it has called the Memphis Sand Aquifer, a feature that the U.S. Geological Survey has determined is supplied in large part by the Sparta Sand.
Mississippi claims that MLGW’s pumping from its well fields is affecting the pressure and groundwater storage in the Sparta Sand, adding that MLGW’s water needs could be met through alternatives, including the relocation of its water wells to the north and east of MLGW’s distribution system, or the use of Mississippi River water.
In its brief in opposition, Tennessee and MLGW said that in 2010 the Supreme Court denied Mississippi’s earlier motion for leave to file an original action against them alleging wrongful conversion of groundwater.
The defendants also pointed out that the high court in 2010 also denied Mississippi’s petition for certiorari challenging the Fifth Circuit’s ruling in a separate action that the doctrine of equitable apportionment, rather than state property law, governs Mississippi’s rights to the groundwater.
Tennessee, Memphis and MLGW said that as with Mississippi’s first two attempts to secure the Supreme Court’s review of its damages claims, the present effort fails on the merits and because of issue preclusion from an earlier suit.
In a statement to Law360 on Monday, the Tennessee Attorney General's office maintained its right to use water from the aquifer.
“The state of Tennessee’s position is that the Memphis Sand/Sparta Aquifer is an interstate water source to be shared by Tennessee, Mississippi and multiple other states in the region," Harlow B. Sumerford, the office's communications director, said. "We look forward to defending our position through the normal legal process.”
Mississippi is represented by its Office of the Attorney General, John W. Barrett and David M. McMullan Jr. of Barrett Law Group PA, C. Michael Ellingburg and Larry D. Moffett of Daniel Coker Horton & Bell PA, George B. Ready of the Law Office of George B. Ready and Charles Barrett of Charles Barrett PC.
The defendants are represented by the Tennessee Office of the Attorney General and David C. Frederick, Derek T. Ho and Joshua D. Branson of Kellogg Huber Hansen Todd Evans & Figel PLLC.
The case is State of Mississippi v. State of Tennessee et al., case number 22O143 ORG, in the U.S. Supreme Court.
--Additional reporting by Juan Carlos Rodriguez. Editing by Stephen Berg.
Perhaps the impending SCOTUS action will encourage the development of a compact among the riparians - the first groundwater-only compact in the USA - and a regional management/governance mechanism. Nothing like the threat of litigation to spur accommodation. One can only hope...
Here is the SCOTUSblog entry.
This should be interesting.
“May you get exactly what you want and live long enough to regret it.” - Sherrilyn Kenyon
"Nobody ever forgets where he buried the hatchet." -- Frank Hubbard