By Candice Ludlow
http://stream.publicbroadcasting.net/production/mp3/wkno/local-wkno-873314.mp3
Memphis, TN – For years, Memphis has pulled water from a source deep below the Earth's surface. Now, Mississippi says Memphis is stealing that water. The water war has wound its way to the nation's highest court.
Mississippi has filed papers with the Supreme Court in a precedent-setting water fight between Mississippi and the city of Memphis, its utility company Memphis Light Gas and Water and the state of Tennessee.
The water war is over the pumping of water from the Memphis Sands Aquifer, also known as the Sparta Aquifer which underlies East Arkansas, North Mississippi, West Tennessee and Southwest Kentucky.
Jim Hood is the Attorney General for Mississippi. He said, "See, we're basing this on a study that was commissioned by the city of Memphis. I mean this is a study that was put together by the city of Memphis that says flat out they're stealing our water. I, as the Attorney General, could not sit idly and let resources be taken from the state of Mississippi."
Actually, David Feldman, who co-authored the report, says he was commissioned by the state of Tennessee to look at the state's potential water conflicts with other states, namely Georgia and Mississippi. The report was produced by the Energy, Environment and Resources Center at the University of Tennessee, Knoxville in June 2000 and is based on primary and secondary reports.
"As the focus of litigation as a political scientist that studies water disputes, I'm always surprised when you would rely on something that's more of a policy analysis report than a really hydrological investigation of of the issues at hand," Feldman said.
In September, Mississippi filed a Writ of Certiorari - or an appeal - with the Supreme Court asking them to overturn the Fifth Circuit Court of Appeal's decision that it's an issue between states. In case the Court refuses to hear the appeal, Mississippi has also filed a Motion asking the Court to hear the case. If that happens, water law attorney Joe Dellapenna says the Court will appoint a Special Master to apportion the aquifer, which he says will take years, possibly decades to resolve. In that case, Arkansas will probably intervene. They depend heavily on the aquifer for agricultural and municipal use.
"It could involve ordering somebody to pay money damages. It's more likely to order a specific type of behavior. For example, a cap on how much water Memphis can pump or a decision that there is no cap," Feldman said.
Mississippi originally filed suit in a Mississippi court against the City of Memphis and the utility company in 2005. In 2008, on the first day of the trial, the judge asked why Tennessee wasn't enjoined to the case, and then dismissed the case without prejudice, saying it's a case issue between states. And only the Supreme Court can hear a case between states. In June, the Fifth Circuit Court of Appeal's in New Orleans upheld the lower court's decision.
Mississippi says MLGW is over-pumping its wells along the state line, which has caused a "cone of depression" forcing the ground-water to change direction from east to west and head northward into Memphis. Feldman describes the cone of depression this way, "Think of, you go to a fastfood restaurant and you order a thick milkshake and you put your straw, which is sort of like the well, and you stick your straw in the center of the milkshake and you drink your milk shake. And what happens to the flow of the milkshake? If you can think of it as sort of ground, with liquid congregating at the bottom, there tends to be a cone that centers around that straw."
Mississippi is seeking up to a billion dollars for stealing water from 1965 to 2006, and more than 100 million for additional damages from 2007 to 2017. They also want Memphis to stop pumping from three of its well fields along the state line - or up to 22 percent of Shelby County's water supply.
Mississippi claims the water under Mississippi belongs to Mississippi. Therefore, there's no need to apportion. Dellapenna says in the Eastern United States, riparian water rights follow land ownership. For instance, if a river runs through your property, you have rights to reasonable use of that water source, but you don't own all the water running through.
Dellapenna explains that "Mississippi acquired sovereign rights over the natural resources within its borders, but it didn't acquire ownership in the narrow technical sense of this is my water, this is my land the way you might think about your house or your car. Confusing different sense of ownership there."
In the West, water rights are based on prior appropriation and not attached to the land. For instance, Southern California has rights to water diverted from the Colorado River.
Memphis began pumping water from the Memphis Sands Aquifer in the 1880's. And it's one of the largest cities in the nation to rely on groundwater. Most big cities pull their water from surface water sources, such as rivers, lakes and reservoirs. Mississippi Attorney General Jim Hood says they initially filed suit to get Memphis to draw its water from another source.
Hood explains, "If the wells are along the state line and the city of Memphis are creating a depression and effecting the wells in DeSoto County, we believe that Memphis should build some type of water treatment plant, get their water from a lake or the Mississippi River because it effects our development south of the state line."
Randy Gentry is a groundwater hydrologist and the director of the Institute for A Secure and Sustainable Environment at University of Tennessee, Knoxville. He says, "For the Special Master or the Supreme Court to say no, stop using the resource. You have to go wholesale to surface water now, for example. I would find that an extreme case, an extreme case, extreme economic burden, an infrastructure that exists that could not be changed quickly over to that type of regime to meet the needs of the population in that metropolitan area."
DeSoto County is one of the fastest growing counties in the country, and its population has more than doubled since 1990.
Feldman says, "The very fact that you've been using the water and perhaps using for a longtime without being contested in your use of it, actually entitles you in some respects to continue to use it."
Feldman says water disputes are becoming more common in the Southeast because of "growing demand. There have been periodic droughts, and those droughts have grown in intensity. Some people are attributing these long-term droughts to climate change or climate variability, but the big permanent change is the growth in demands."
The city of Memphis and Tennessee's responses are due tomorrow. Still, it's difficult to predict IF they'll entertain either of Mississippi's motions to appeal or file a complaint with the Supreme Court. If the justices decide not to take the case - either on appeal or to apportion the aquifer, then the case is moot. If they choose to hear Mississippi's appeal, it's possible they'll agree with Mississippi and the case will go back to the District Court in Mississippi for trial. If the Court decides to appoint a Special Master, the case may not be resolved for many years to come.