By Candice Ludlow
http://stream.publicbroadcasting.net/production/mp3/wkno/local-wkno-879107.mp3
Memphis, TN – Memphians have long enjoyed high-quality water that is pulled from deep below the Earth's surface. Now, Mississippi says that some of that water is theirs, and wants Memphis to stop stealing their water and to pay more than a billion dollars in damages. The case has been winding its way through the courts, and today the Supreme Court will consider.
The Supreme Court justices will review a stack of cases in private, including the water fight raging along the border of Mississippi and Tennessee.
Mississippi claims that Memphis and its utility company, Memphis, Light, Gas and Water are stealing water from the Memphis aquifer by withdrawing vast amounts of water, causing a "cone of depression" that has spread into DeSoto County. They say that cone of depression is forcing the groundwater in the Memphis aquifer to move into Tennessee instead of staying within Mississippi's borders.
"If the wells are along the state line and the city of Memphis are creating a depression and effecting the wells in DeSoto County," Mississippi Attorney General Jim Hood said.
"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."
Mississippi filed two motions that are before the Court today - the Writ of Certiorari - or an appeal of the lower court's decision that it's an issue between states because the aquifer in question is beneath several states. The second motion is contingent upon the first. If the Justices refuse to entertain their motion to appeal, they want the court to apportion the aquifer.
Tennessee has joined the case. The city of Memphis is representing itself and MLGW. Tennessee says Mississippi's case is without merit because it must prove harm, but before harm can be proved the groundwater must be apportioned. The aquifer has not been apportioned.
"Mississippi is trying to make a claim that it owns the water in the ground," says water law attorney Joe Dellapenna. He continues about this is a precedent-setting case. "For a water user in another state to pump wells in that other state in a way that causes ground water from Mississippi to flow or percolate across the border is somehow stealing Mississippi's water. That's the claim. If that claim were upheld that would enable lots of state governments to sue lots of water users in nearby states."
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.
"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," Dellapenna said.
Still, the Supreme Court works in mysterious ways. They may choose to hear the appeal. If that happens, it's possible that the case could go back to the district court in Mississippi. Or, they could decide to assign a Special Master to apportion the aquifer. If they take the apportionment case, it may take decades to resolve. And, of course, they could choose to do nothing - which would render the case moot.