Tag: water rights

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Tennessee Wins Water Case in Unanimous Supreme Court Decision

Credit: U.S. Supreme Court

Tennessee won a 16-year legal battle over water rights in the U.S. Supreme Court Monday. 

Lawyers for the state of Mississippi have argued for more than a decade that Tennessee is stealing its water from the Middle Claiborne Aquifer, an expansion of underground water that flows beneath eight states. Oral arguments in the case went before the Supreme Court in early October. Mississippi sought $615 million in damages.

Justices were unanimous in their verdict issued Monday morning. “Mississippi’s complaint is dismissed without leave to amend,” reads the opinion, which means officials there cannot change their argument and bring the issue back to court. Should lawyers bring the case back to the court, they’ll have to file a new case.

In its latest argument, Mississippi lawyers told justices that water pumping in Tennessee sucks up water from Mississippi under the state line. Mississippi claimed an absolute ownership right to all groundwater beneath its surface — even after that water has crossed its borders. Lawyers claimed Tennessee’s wells violated Mississippi’s sovereign ownership rights to the water. 

Justices agreed that pumping in Tennessee “clearly” has effects on water levels in Mississippi. Memphis Light, Gas & Water pumps about 120 million gallons from the aquifer each day from more than 160 wells in and around Memphis, according to the court. 

“Tennessee’s pumping has contributed to a cone of depression that extends miles into northern Mississippi, and Mississippi itself contends that this cone of depression has reduced groundwater storage and pressure in northern Mississippi,” reads the opinion. 

However, instances like these are a “hallmark,” justices said, of similar cases remedied by equitable apportionment, meaning the states have to share the water equally. Though, the Mississippi case is the first time equitable apportionment laws would be applied to aquifers. 

But Justice John Roberts, writing for the court, said the rule should not be different for aquifers and when water is shared between two states, “each one has an interest which should be respected by the other.”

“Mississippi suggests the Middle Claiborne Aquifer is distinguishable from interstate rivers and streams because its natural flow is ‘extremely slow,’” reads the opinion by Chief Justice John Roberts, writing for the court. “But we have long applied equitable apportionment even to streams that run dry from time to time. 

“And although the transboundary flow here may be a mere ‘one or two inches per day,’ that amounts to over 35 million gallons of water per day, and over 10,000,000,000 gallons per year. So, the speed of the flow, at least in the context of this case, does not place the aquifer beyond equitable apportionment.”

If Mississippi returned the case to the court, it would be to ask for terms of equitable apportionment and “must prove by clear and convincing evidence some real and substantial injury for damage.”

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Fog and Wild Horses: U.S. Supremes Hear Mississippi’s Water Battle with Tennessee

Credit: U.S> Supreme Court

Mississippi took its 16-year battle against Tennessee for water rights to the U.S. Supreme Court Monday and Justices compared the issue to wild horses in Mexico and fog over San Francisco.

John Coghlan, attorney for the state of Mississippi in the case, said the court should reject the Special Master’s conclusions to the case. Last year, the judge said, basically, that Tennessee has not been stealing water from Mississippi. 

However, Coghlan said the case is not about whether or not Tennessee is asking more than its fair share of the water. He said the Supremes should focus on another question: Can Tennessee control groundwater while it’s located in Mississippi’s sovereign territory? 

“Even if the aquifer is an interstate resource, Mississippi still possesses sole and exclusive control over groundwater within its sovereign territory, as recognized in [Tarrant Regional Water District versus Herrmann] and ensured by the Constitution,” Coghlan said. “And [Tennessee] cannot force groundwater across the border without violating this sovereignty.”

In questioning by Justice Clarence Thomas, Coghlan admitted that the Tarrant decision was a “cross-border situation.” But this case is, also, he said, as Tennessee’s “wells are physically located in Tennessee, but the pumping is physically crossing the border, unnaturally changing the pressure levels in this aquifer.”

Justice Thomas replied, “But couldn’t Tennessee make the exact same argument about you? Couldn’t Tennessee, Arkansas, Missouri all make the same argument that whenever you pump you’re causing similar problems for them?”

David Frederick, attorney for Memphis Light, Gas and Water in the case, told the court that Tennessee has lawfully pumped water from the Middle Claiborne Aquifer for more than 130 years. Traditional water-sharing rules don’t apply in the case and, therefore, Mississippi’s claim for $600 million in damages should be dismissed. 

“The undisputed facts are the aquifer’’s water volume in the greater Memphis and northern Mississippi area has changed very little in the past 100 years,” Frederic said. “The aquifer is fully saturated and in a state of equilibrium, and Mississippi has increased its own pumping dramatically and can extract all the water it needs.”

Chief Justice John Roberts clarified that Mississippi’s argument goes past equitable apportionment, the equal sharing of natural resources that flow between states. Coghlan agreed that it did, as Tennessee was reaching across its border and exercising control in waters located in Mississippi. 

Coghlan conceded that water in the aquifer flowed from Mississippi into Tennessee. But he argued it was irrelevant whether or not it was classified as interstate water to be shared. 

Justice Sonia Sotomayor reminded Coghlan of the case’s long legal history and asked, “When is enough enough?”

“You’ve been litigating this case for over 16 years,” Sotomayor began. “You started in the Fifth Circuit. You went to the district court, you went to the circuit court; both courts told you you’ve got to seek equitable apportionment. 

“You came here in 2010. We tell you the same thing. Now this is the third time you’ve done this. This time you explicitly disclaim any claim for equitable apportionment. When is enough enough? When should you be stopped from amending and seeking equitable apportionment, assuming you lose?”

Coghlan explained the case is relevant still as it is for future damages, not rectifying not seeking damages for the past. This is, in part, he argued, why simply sharing the water is the wrong legal remedy. It doesn’t address the sovereign control of the water. 

If the court ruled against Mississippi in the case this time around, Coghlan explained to Justice Sotomayor that, yes, the state would want the option to change its argument and pursue the matter in courts in the future. He said, we would want to obtain “whatever relief is possible for Mississippi.”

The Justices then began comparing the water that flows beneath Mississippi and Tennessee to natural resources that flow freely in other states. 

Chief Justice Roberts: “In the western states, they have these, I don’t know, wild horses or wild burrows, whatever they are, and they don’t obey the state lines and they’re wandering around and they — let’s just say they go from, you know, New Mexico to wherever.

“Let’s suppose that they’re — I know they’re pests, I guess, in some places, but let’s suppose they’re a valuable resource. If they were in Mississippi and crossed into Tennessee and Tennessee seized them at that point, would that be damaging Mississippi, or could Tennessee say, ‘Look, they’re on our territory, they’re under our physical control. We can exercise dominion over them, period’?”

Justice Stephen Breyer: “My understanding — and you have to — it’s very elementary. I mean, I think water falls from the sky. Some of it’s evaporated back. Others of it goes into oceans or lakes or streams. A huge amount goes underwater — underground. It’s groundwater, and it runs all over the place. That’s why I like the wild horses. My idea of that groundwater is it’s going all over the place.

“San Francisco has beautiful fog. Suppose somebody came by in an airplane and took some of that beautiful fog and flew it to Colorado, which has its own beautiful water — air. And somebody took it and flew it to Massachusetts or some other place. I mean, do you understand how I’m suddenly seeing this and I’m totally at sea? It’s that the water runs around. And whose water is it? I don’t know. So you have a lot to explain to me, unfortunately, and I will forgive you if you don’t.”

At this point, Coghlan explained that he’s not arguing that Mississippi owns the water. He said he’s arguing the state has the right to control the water while it’s within the borders of the state. Tennessee, he said, should not have the right to control it, by pumping it while it’s under Mississippi ground. 

Chief Justice Roberts looked to the future of the case, noting that, if Mississippi won the suit, then Tennessee could bring a counterclaim with the exact same argument: that Mississippi was controlling water under its sovereign border. Coghlan agreed. 

Roberts said if Tennessee did sue, “The normal thing would be [that] I’d take whatever … Tennessee owes you, whatever you owe Tennessee, and set it off against the other.” Coghlan agreed and Roberts said, “That starts to sound a lot like equitable apportionment.” Coghlan said that remedy would “be similar to equitable apportionment.” 

In the end, the court was skeptical of Mississippi’s argument that it owned the water “simply by virtue of having passed through Mississippi’s territory,” said Frederick Liu, who filed a brief supporting Tennessee on behalf of the federal government. 

The court also worried the case could set a precedent. If Mississippi prevailed and Tennessee had to pay for water in the future, that other states would begin suing one another for water rights.

The case was submitted for an opinion Monday.

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Federal Judge Sides With Tennessee in Water Rights Case

Corey Owens/Greater Memphis Chamber

A diagram shows the layer of aquifers underneath Memphis.

Tennessee has not been stealing billions of gallons of Mississippi’s waters for years, according to an opinion issued Thursday in a legal battle over water rights here that began in 2006.

The original suit claimed wells drilled in Memphis siphoned off water that belonged, exclusively, to Mississippi. Mississippi officials wanted the U.S. Supreme Court to recognize the state’s right to the water and wanted Tennessee to pay $615 million for the water Tennessee had already consumed.

But a federal judge working on the case opined against Mississippi’s claim Thursday. Judge Eugene Siler, appointed as Special Master on the water suit, recommended that the suit be dismissed and for the states to share the water.

The core of Siler’s ruling was that the disputed waters flow between many states. Thus, they become an “interstate resource,” meaning rights to the water are held by many states. Mississippi officials claimed the water is stored under their state boundaries and belongs only to them, making the water an “intrastate resource.”

“Mississippi’s claims are simple: Tennessee has, by pumping in Shelby County, Tennessee, taken groundwater that would have remained in Mississippi for centuries,” reads Siler’s ruling. “Over more than a decade of litigation, at every level in the federal court system, the core of Mississippi’s claims has not wavered. Mississippi thinks Tennessee has stolen and continues to steal its water. Easy enough.”

But Siler says surface boundaries and rights are easier when compared to the the “various rock formation and complex hydrology” found underground.

“And Mississippi claims those subsurface differences require distinguishing its water from the water that sits below other states,” Siler said. “Tennessee, on the other hand, thinks any of those geological differences are much ado about nothing. The Special Master agrees with Tennessee.”

Officials in Mississippi claim waters in the Sparta Sand Aquifer are stored only under the Magnolia State, making it an intrastate resource, only available for one state. Mississippi argued that “it owns a fixed portion of the aquifer because it controls the resources within its state boundaries.”

Officials in Tennessee claimed the Sparta and the Memphis Sand Aquifer were connected, making waters there an interstate resource, available for many states.

Siler said both aquifers are part of a much larger aquifer — the Middle Claiborne Aquifer. This massive aquifer lies beneath Alabama, Arkansas, Illinois, Kentucky, Louisiana, Missouri, Mississippi, and Tennessee.
U.S. Supreme Court

The Memphis Sand comprises much of this aquifer’s northern portion. The Sparta Sand takes up much of the southern portion, according to the suit.

But Mississippi’s suit seeks to separate the two. With that, officials there believe Memphis — specifically Memphis Light, Gas & Water (MLGW) — has “’forcibly siphoned’ off its water to the tune of billions of gallons. And that without modern pumping technology, none of that water would be available to Tennessee.”
[pullquote-1-center] The water and the water pressure in the Sparta Sand are both down because of MLGW’s pumping, according to the suit. Tennessee’s “heist” of groundwater is so fast and so great, Mississippi now has to drill deeper wells. That has increased the cost on Mississippians who rely on the aquifer for their groundwater.

Siler said Mississippi’s claim of a water drawdown proves that the aquifers are connected and, thus, should be a resource shared by the states. Mississippi officials claim, though, that Tennessee can only get the water if they pump it out.

Siler recommends Mississippi and Tennessee simply share the water. However, Mississippi “specifically rejects the application of equitable apportionment to this case.”

U.S. Supreme Court

“While Mississippi acknowledges that the aquifer extends underneath both states, it alleges that the groundwater is stored only underneath Mississippi,” reads the ruling. “In fact, its position is Tennessee can only access the water underneath Mississippi by pumping it out. As a result, Mississippi believes that the groundwater ‘is neither interstate water nor a naturally shared resource.’ Therefore, it claims that Tennessee has no right to the water. Thus, equitable apportionment cannot apply.”

But Siler sided with Tennessee in the case and will recommend to the U.S. Supreme Court that the state should share the water.

“Water is finite,” Siler wrote. “Especially the usable kind. And the Middle Claiborne Aquifer holds lots of it. Unsurprisingly, both Mississippi and Tennessee want it. Luckily, instead of war, the law requires they share it.”

U.S. Supreme Court

Read the Special Master’s report here:

[pdf-1]

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Letter From The Editor Opinion

The Nuttery From Nashville

If it’s February, I’m probably going to be writing at least one column about the Tennessee General Assembly, which gets rolling in late January each year. That column usually includes a rundown of the latest goofy bills brought up for consideration by our reliably loony GOP legislators. This year is, unfortunately, no exception. So here goes …

Last week, Representative James Van Huss (who prefers to go by his “prophet name,” Micah) proposed the following bill, which … Well, just read it:

“Resolves to recognize CNN and The Washington Post as fake news and part of the media wing of the Democratic Party, and further resolves to condemn such media outlets for denigrating our citizens and implying that they are weak-minded followers instead of people exercising their rights that our veterans paid for with their blood.”

The impetus for this stellar bit of law-making was apparently the fact that Van Huss learned that a CNN pundit and a WAPO columnist had dared to suggest that some Trump supporters may not be, er, very bright or sophisticated.

By putting this bill up for consideration in the state House, Trumpster Van Huss pretty much proves the pundits’ point. In fact, Van Huss is the same Einstein who, during last year’s session, read aloud an article from The Onion as the basis for taking a position on another bill, not realizing it was satire. Oops.

But it’s not like Van Huss is breaking new ground here. The stupid has been burning in Nashville for some time now. In recent years, the General Assembly has considered: a bill that mandated abstinence-only sex education; a “gateway body parts” bill that prohibited teachers from using words such as “gay”; a bill to allow teachers to abstain from teaching evolution or climate change; a bill cracking down on “saggy pants”; a bill that addressed the possibility of a mop sink in the capitol building being a possible “foot-washing” sink for Muslims. And on it goes.

In this year’s session, Governor Bill Lee has already signed a bill that would allow some adoption agencies to deny LGBTQ couples the right to adopt, despite enormous pushback from the state’s largest corporations and business interests, who fear that such backward legislation will make it more difficult for them to lure employees to Tennessee, and that it will chase off major conventions and events, such as, say, the NHL or NBA All-Star game.

The legislators are also debating whether to leave a bust of KKK leader Nathan Bedford Forrest in the capitol building or perhaps replace it with one of Dolly Parton. You can’t make this stuff up.

But it’s not all fun and games and bigotry and racism. There are also the usual attempts to screw over Memphis. And this one is a doozy. Consider, if you will, this bill, which came to light on Monday: “Tennessee Code Annotated, Section 69-10-112, is amended by adding the following as a new subsection: In granting a certificate of exemption under this section, no home rule municipality or county operating under a county charter form of government may exercise authority or power over landowner riparian water rights and reasonable use for water to which a landowner has a riparian water right.”

In plain English, this means that in Tennessee a county or city would no longer have control over local water rights. It means, for example, the recent successful efforts by activists such as Save Our Aquifer and the Sierra Club to convince local authorities to prohibit the TVA from drilling into the Memphis Sand Aquifer would no longer be possible. The state would make the call on Shelby County water rights, instead of having it under local control. I have no doubt that the TVA would have won that battle if it had been decided at the state level — and we’d already have five wells dug into our aquifer next to a toxic wastewater site.

The Sierra Club’s Scott Banbury agrees: “If this were in effect when we fought the TVA, the Shelby County Health Department would not have been able to take their groundwater wells away from them,” he said. “This bill would take away Shelby County’s authority to deny well permits or institute any ‘conservation fees’ on private wells. It would undo all the work of the Shelby County Groundwater Board, Shelby County Health Department, and Protect Our Aquifer.”

Enough, already. There needs to be an all-hands-on-deck resistance mounted to stop this bill in its tracks. The mayors, city council, county commission, and all local House and Senate legislators should have their hair on fire about this. This is beyond party. Memphis’ unique and bountiful aquifer is one of its greatest assets. Do we really want to have it controlled by the likes of James Van Huss?