Pumping from the Memphis Sand Aquifer: Is Memphis Kicking Sand in Mississippi's Face?

So what business do I have posting on the Memphis Sand aquifer and the lawsuit between Mississippi and Memphis it has spawned? None, really, except that I was quoted in an article by Tom Charlier about the impending trial in Oxford, MS, in last Sunday's edition of the Memphis Commercial-Appeal. And I just finished a 30-minute phone interview with reporter Stephen Koranda from Mississippi Public Broadcasting (MPB).

I am reminded of an adage we used back in the 1970s:

Definition of an expert: someone who comes from more than 500 miles away and has colored transparencies.

In this case, I did not even have colored transparencies.

I am not an expert on this aquifer; I was contacted to opine because I know something about transboundary aquifers. And one reason for seeking out-of-area experts is that local ones may be called upon to testify and don't want to make comments to the media.

In a nutshell, the case boils down to Mississippi claiming that Memphis Light, Gas and Water (MLGW), the municipally-owned utility for the Memphis area (Shelby County), is deriving about 30% of the water it pumps from the Memphis Sand aquifer (aka the Sparta aquifer) from beneath Mississippi. This amounts to about 60 mgd (million gallons per day) coming from beneath the Mississipians' land. Total MLGW pumpage from the aquifer is about 160-200 mgd. The Memphis Sand's water is reputedly some of the best ground water in the USA, and the aquifer supplies drinking water to over 1.1 million residents of Shelby County.

This is no nickel-and-dime lawsuit; the damages sought by Mississippi amount to $1 billion, and if the Memphis utility loses, it would be forced to reduce its pumping and obtain some of its water from the Mississippi River, which would entail the construction of an expensive water treatment plant.

Most of the "harm" to Mississippi occurs in DeSoto County, a rapidly-growing suburb of Memphis. Well water levels there have been dropping -- that's what happens when you pump water from an aquifer, folks, until you increase recharge or decrease discharge to offset the pumping rate.  Mississippi contends that some of the declines are due to Memphis' pumping and constitute "harm". Memphis claims that its use is "reasonable" and not reducing the water availability in Mississippi.

Here are some additional background articles (thanks to Ricky Clifton):

1. Business TN (February 2007); and
2. U.S. Water News (March 2005)

The Memphis Sand underlies about 10,000 square miles of AR, TN, MS and KY; some reports state that parts of it extend into IL, MO, and northern LA. It occurs within a geologic-physiographic feature known as the Mississippi Embayment, a northward extension of the Mississippi River Delta's fluvial sediments from southern Louisiana to the Mississippi's confluence with the Ohio River at Cairo (that's "Cay-ro"), IL (see relief diagram). It is a topographic low, filled with sediments.

The cross-section from Mississippi State University's Department of Geosciences shows the Memphis Sand, which is up to 700 feet thick beneath Memphis and estimated to contain up to 1 trillion gallons of high-quality water. Note that the vertical exaggeration of the cross section is huge; the dip angles of the individual strata are under 1 degree.

 

Here is what the University of Tennessee's Energy, Environment and Resources Center (EERC) said about the case in a report several years ago (from the Business TN article):

*The appellate court in Tennessee has rejected the absolute dominion rule, which allows a surface owner to pump any amount of water from an aquifer regardless of the damage it does to the rights of other landowners overlying the same aquifer. The court concluded that overlying landowners are restricted to a reasonable exercise of their mutual rights in the common source.

* Under common law, water pumped from an aquifer can only be used on land overlying the aquifer that is owned by the pumper. This is a situation where the common law has not yet caught up with the contemporary reality of large scale pumping for use [and sale] off-site.

*If MLGW has been pumping water from the aquifer so as to diminish the flow and pressure to others wells for a period sufficient to allow the company to acquire rights to the water through prescription (probably 20 years), then the company may have acquired rights to this water.

*Under Tennessee law, incomplete as the record is, if the volume that MLGW is pumping is unreasonably high, much more than their share of the water from the aquifer, their actions are illegal if another overlying user complains.

*Because the Memphis Sand aquifer underlies land in several states, it is entirely possible that this dispute could also lead to a suit for apportionment of the waters of the aquifer … Such a suit would likely originate in the U.S. Supreme Court as an equitable apportionment suit. The Supreme Court has never apportioned the water in an underground aquifer ... the outcome might be unfavorable to MLGW and Memphis water users because there is another source, the Mississippi River.

This a fascinating case; it is more akin to what we'd expect out here in the West. My water-lawyer friends also agree this is a very interesting case, what with a state suing a city utility in another state for supplying water to its residents. It may result in the states agreeing to the allocation of the aquifer's water. That's what should be happening now.

The trial begins 4 February 2008. Stay tuned.

                                       Happy World Wetlands Day!

Update, 4 February 2008: Well, that was quick - the judge dismissed the case, saying that the Supreme Court has jurisdiction (thanks again to Ricky Clifton). See my post.

"Nobody ever forgets where he buried the hatchet." -- Frank Hubbard

Comments

[Ross Catalano]

Thank you Michael,

As you stated it is possible, but the cost, environmental and legal obstacles would be daunting. This I understand but Of the Billions that is now needed to be spent on repairing the damages caused by the flooding not to mention the lost lives it might be a good idea to at the very least have a study on the cost,environmental and legal obstacles.

Thank you Again,

Ross

[Michael]

Hi, Ross.

Thanks for commenting.

This idea has been proposed, as recently as a few years ago by Pat Mulroy of the Southern Nevada Water Authority. I heard about it as a U of AZ graduate student over 40 years ago, with a pipeline and nuclear-powered pumping stations to be built to lift the water about 1000 meters or so. That project would have specifically recharged the High Plains (aka Ogallala) aquifer.

It's certainly possible, but the cost, environmental and legal obstacles would be daunting.

[Ross Catalano]

With all of the surplus flood waters from the Mississippi River, one would think that it would be amenable and legal to pump the excess flood waters to the Desert States and create manmade lakes “Just a Thought"

Thank you,

Ross Catalano
rcatalan@rochester.rr.com