Agriculture Beware: Groundwater Future Belongs to SCOTUS
“Drainage. Drainage … My straw reaches across the room and starts to drink your milkshake. I drink your milkshake! I drink it up!” The menacing words of maniacal oilman Daniel Plainview were spoken in the final scene of the searing 2007 film, There Will Be Blood, set in 1927 in California. Ninety years later, questions over ownership of another natural resource hidden in the depths have fueled a new controversy carrying sledgehammer legal implications for agriculture: I drink your groundwater.
Mississippi and Tennessee are tangled in a legal fight over groundwater rights and the Supreme Court of the United States (SCOTUS) has bucked prediction by granting leave and taking the case. U.S. agriculture has a tremendous amount of skin in the game, because with no jurisprudence to draw from regarding groundwater that traverses state lines, an eventual decision will set benchmark precedent and affect water policy at federal, state and private levels. SCOTUS is tackling a slippery, Solomonic question: Who owns groundwater shared by multiple states?
When an ice company drilled into the Delta depths in 1887 and made a sweet-water strike, the citizens of Memphis believed they had tapped the fountains of the deep—and they were right. Roughly 350’ below the city rests the Memphis Sand Aquifer, an 850’-thick water belt of sand, rock and gravel stretching into parts of Arkansas, Mississippi and Tennessee. With pockets untouched for several thousand years, the aquifer water is renowned for its crystalline purity.
Despite Memphis’ perch on the eastern bank of the Mississippi River, which flows by at more than 100,000 cubic feet per second, the city doesn’t rely on the river for a single drop of drinking water. Instead, Memphis dips from an underground cup with a groundwater dependency rate second only to San Antonio, but the gulps have grown at an astounding rate. From 1886 to 1975, groundwater withdrawals swelled from 10 million gallons to 179 million gallons per day. From 1975 to 1995, withdrawals were relatively stable, averaging 166 million gallons per day. By 2005, withdrawals had risen to 187 million gallons per day.
In 2005, Mississippi took the municipally owned utility company, Memphis Light, Gas and Water to court, demanding payment for water sucked from the Mississippi portion of the aquifer. Essentially, Mississippi claimed when faucets are turned on along Beale Street, Memphians guzzle Mississippi water. Yet, Mississippi repeatedly lost in court and the case was headed for the judicial graveyard until the state of Tennessee was dragged into the litigation and SCOTUS gave it new life. Mississippi is asking for $615 million in compensation, but the potential seismic legal precedent would dwarf the financial award.
“The rules about state rights for surface water and groundwater have always been the same,” notes Noah Hall, an associate professor of law at Wayne State University and founder of the Great Lakes Environmental Law Center. “For the first time, the court is agreeing to consider if interstate groundwater goes by different rules.”
The case will set precedent for how the law views transboundary groundwater flowing under multiple state borders. Hall believes a court decision in favor of Mississippi would result in a major upheaval in water law and trigger a legal stampede of interstate and private groundwater cases. “This is the first ever case of one state claiming to outright own groundwater. This is all about money and the Supreme Court should have left this alone,” Hall says.
In the background of the Memphis Sand Aquifer, Mississippi producers are dealing with a steadily diminishing water supply, magnified by increased irrigation demand. Delta farmers pump water from the Mississippi River Alluvial Aquifer (located above the Memphis Sand Aquifer) at a rate of 1.5 million acre-feet per year, resulting in a 300,000 acre-feet annual deficit. According to the Mississippi Department of Environmental Quality, the number of Delta irrigation wells has increased from 2,823 in 1987, to 10,571 in 2000, to 19,410 in 2015. Despite 52” to 55” of annual rainfall, aquifer levels are consistently declining in the Delta. Regardless of aquifer level, groundwater concerns have jumped to the fore.
“People are flocking to groundwater everywhere and it’s a new legal field,” Hall explains. “Fifty years ago, if your well went dry, you couldn’t prove your neighbor used the water. Now you have the science and technology to prove it.”
Across the field of hydrology and water law, no one predicted Mississippi and Tennessee would take center stage as heavyweight groundwater players. Maybe Arizona, California, the Dakotas or the High Plains, but not a region split by the Mississippi River with plenty of annual rainfall. “They’re not fighting over rain,” says Michael Campana, a professor of hydrogeology at Oregon State University and the technical director of the American Water Resources Association. “They’re fighting over what can’t be seen. Legally, this case is in unknown territory and uncharted waters.”
Will Mississippi’s claims hold up to scientific scrutiny in court? SCOTUS is skeptical of what can’t be seen, according to Campana, but he also says the case is extremely difficult to predict, particularly with a deadlocked court and a robe left to fill. “Ultimately, I’d like to see a groundwater compact between states, as we see with river agreements,” he explains. “We need a positive precedent because there are more of these types of conflicts coming in the future.”
SCOTUS decisions are a model for many countries around the world and other governments will be watching the decision, Campana says: “There’s no question. This case has major international implications and will set precedent even beyond U.S. borders.”
The groundwater case is being heard in its initial stages by a Special Master, retired federal judge Eugene Siler from Kentucky. Both parties are preparing cases to provide to Siler before he makes his recommendation to SCOTUS, which will then make a final ruling.
“SCOTUS is a court of appeals, not a trial court. Siler will have to parse the facts and weed through it all before he presents a report to the court,” says Gabriel Eckstein, a professor of law at Texas A&M University and director of the International Water Law Project.
If Mississippi prevails, what are the bottom line implications? “It would mean that, as between states, each state has absolute property rights to the water below its territory,” Eckstein says. “A Mississippi win could certainly transform pumping rights and turn all the present rules upside down. It’s very, very difficult to say what the justices will do.”
Eckstein points to a multiplicity of agreements between states regarding surface water and a complete absence of multi-state agreements over groundwater. Even globally, the case is highly unique. Eckstein estimates 3,600 surface water agreements have been signed in the past 1,200 years. Yet, for trans-boundary aquifer agreements, he notes one between France and Switzerland, one between Jordan and Saudi Arabia and two in North Africa. On the scoreboard: 3,600 to 4.
Eckstein doesn’t see resolution in 2017, and he expects several years of expert opinions and fact gathering: “The best outcome would be for both parties to sit down and hammer out an agreement. One thing for sure: If the court rules, somebody will lose.”
“Frankly, anybody who predicts this case is a bold fool,” Hall echoes. “This case could bring radical change to water law regardless of what state you are in. When fighting starts over natural resources, there will be blood.”