The Law Q&A | Fight over water can leave states drained - Champaign/Urbana News-Gazette
Earlier this year, we discussed water rights by boaters.
Today, let us repair to the topic of riparian rights between states. Must a state compensate a neighboring state for using water taken from that neighbor?
Maybe.
More specifically, does a state have unfettered control over aquifers existing in its own boundaries?
Not necessarily.
The U.S. Supreme Court recently made such a ruling in a lawsuit filed by Mississippi against Tennessee seeking compensation in the hundreds of millions of dollars. Mississippi claimed the Volunteer State was involuntarily taking water originating from an aquifer in the Magnolia State
SCOTUS has long ruled that when a water resource is shared between several states, each should be respected by the other in their use. It’s a doctrine called equitable apportionment. The doctrine aims to produce a fair allocation of shared water resources between two or more states based on the principle that states have an equal right to reasonable use of those shared resources.
The court has applied the doctrine to interstate rivers and streams, and where the pumping of groundwater has affected the flow of interstate surface waters.
Mississippi argued it had sovereign ownership of all groundwater beneath its surface to which equitable apportionment did not apply. This is an aquifer and that’s different, said Mississippi.
No previous court case ever involved aquifers.
The court washed away that argument, however. It stated that while each state has full control over beds of streams or other waters within its boundaries, it doesn’t have unfettered, exclusive ownership or control of interstate waters flowing within its boundaries.
The court noted that while past cases have concerned streams and rivers, it’s no different with the aquifer in question. When a water resource is shared between several states, each should be respected by the other.
But your honors, argued Mississippi, this aquifer is not really interstate. Its natural flow is “extremely slow” — only 1 or 2 inches a day, at most.
SCOTUS was extremely fast in concluding that speed of flow is irrelevant — 1 or 2 inches a day equals 10 billion gallons a year, which is no mere drop in the bucket.
The Tennessean wells were all drilled straight down and didn’t cross the Mississippi border. The origin of an interstate water resource may be relevant to the terms of an equitable apportionment. But that feature alone cannot place the resource outside the doctrine.
Equitable apportionment requires evidence not only of the physical properties and flow of a water resource, but also existing uses, the availability of alternatives, practical effects, and the costs and benefits to the states involved.
Mississippi, however, did not offer a single fathom of evidence on any of those points to support its claim for compensation. It hung its fish trophy on the sole issue that it had complete sovereignty over its aquifers.
SCOTUS thus ruled in favor of Tennessee and kicked the Magnolia State’s claim back to the bayous.
Which by now may have had 170 billion gallons drained out of them by Tennessee since the suit was first filed.
But that’s water over the dam, now.
And the ‘dam’ the Mississippi officials are now thinking about might be spelled with an additional ‘n’.
Along with a few other letters.
Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. Send questions to The Law Q&A, 302 N. First St., Champaign, IL 61820.
source: https://www.news-gazette.com/opinion/columns/the-law-q-a-fight-over-water-can-leave-states-drained/article_bb15a768-5cd5-56fe-a770-0a2a7ce0741f.html
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