A judge has ruled against Mississippi in its 15-year legal battle with the state of Tennessee over ownership of groundwater from an aquifer that rests under eight states. All groundwater drawn in DeSoto County comes from this aquifer.
Special Master Eugene Siler Jr, a judge on the 6th U.S. Circuit Court of Appeals, was appointed by the U.S. Supreme Court to preside over the precedent-setting case. In a Nov. 5 ruling, Siler recommended that the Court dismiss Mississippi’s case, while also leaving the state the opportunity to request the water in the aquifer be equitably apportioned between the states it rests under.
Mississippi lawyers argued that the state of Tennessee has stolen more than 252 billion gallons of water from within Mississippi through wells in the Memphis area since 1985.
“Water is infinite. 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,” Siler said in his ruling on the case.
Mississippi v. Tennessee now goes back to the U.S. Supreme Court to decide whether to follow the special judge's recommendations. It’s the first case about groundwater rights to reach the highest Court.
A spokesperson for Mississippi Attorney General Lynn Fitch’s office said they are still reviewing the Special Master’s order to determine their next steps. Tennessee Attorney General Herbert Slatery III provided this statement on the ruling:
“We appreciate the Special Master’s recommendation to reject this persistent attempt from one state to seek a multi-million dollar payout against its neighbor for accessing an underground water resource that extends below and beyond several state lines.”
The case has been dismissed multiple times since former Mississippi Attorney General Jim Hood filed the suit against the City of Memphis and its utility company in 2005, seeking $615 million in damages.
Michael Campana, a professor of hydrogeology and water resources management at the College of Earth, Ocean, and Atmospheric Sciences at Oregon State University has been excitedly following the case since its inception.
“You guys live in one of the wettest parts of the US. 50 or so inches of rain per year. You’ve got one of the one of the great rivers of the world right next door, and you're fighting over groundwater. I mean, that's like a soap opera to a hydrogeologist,” Campana said.
Campana said that the case has attracted the eyes of water lawyers internationally, as Supreme Court rulings are held in high regard. He also thinks that as surface waters continue to dry up because of climate change, that the need for groundwater will increase and necessitate agreements between multiple parties with claims over its sources.
“The novelty of it is just really exciting for me as someone who's interested in groundwater,” Campana said.
Campana has re-upped his class presentation on the case with each new development or iteration. The original case was dismissed in District Court, an appellate court and then the U.S. Supreme Court. In those cases, the lower courts said that equitable apportionment was the appropriate recourse and that the State of Tennessee was a necessary party for the case.
Mississippi added Tennessee to its list of defendants in 2014 and sued again. The Supreme Court then took the suit, as it has exclusive jurisdiction over lawsuits between states.
The state of Mississippi has rejected that apportionment is applicable in this case and argued that variations in the geological composition of the aquifer make the area under Mississippi a distinct hydrological unit. Therefore, the state owns its contents since it exists solely in Mississippi territory.
"Our claim is that all groundwater in Mississippi is held by Mississippi in public trust for the use and benefit of its citizens and it's controlled exclusively by Mississippi,” said Larry Moffett, an attorney for the state, during closing arguments for the case.
Siler rejected this claim in his ruling by pointing out that if the area under Mississippi territory was a distinct aquifer, then Tennessee would not be able to capture water from it through wells in Memphis.
“Mississippi provides no reason to reject this basic understanding of aquifers,” Siler said. “Simply, one state cannot reach into another state to collect water.”