Tue December 2, 2008
The Memphis-Mississippi Water Fight Resumes
By Candice Ludlow
Memphis, TN – Wednesday, in New Orleans, attorneys for Memphis, Light, Gas and Water and the city of Memphis and the state of Mississippi begin oral arguments over the water dispute that's been raging for three years. Earlier this year, it was set for trial in the Fifth Circuit Court in Oxford, Mississippi. Judge Glen Davidson dismissed the case without prejudice stating that not all interested parties were involved.
Then, Mississippi appealed his ruling, so they're back in court. Judge Davidson cited Federal Rule Number Nineteen that states all interested parties in a dispute must be joined in the suit.
The lawsuit is Mississippi versus Memphis and MLGW, and doesn't include the states that sit above the Sparta Aquifer.
The Aquifer is part of the Mississippi embayment, which stretches from southern Missouri and Kentucky to Louisiana, and includes parts of Tennessee, Arkansas and Mississippi.
Joe Dellapenna is a water law attorney and professor in Pennsylvania. He says if the Court of Appeals upholds the dismissal based on Rule Number 19, the case could be headed for the Supreme Court.
"The Court of Appeals has to review whether in fact Tennessee is actually an indispensable party. If the Court of Appeals agrees with the trial judge that it is an indispensable party, then it affirms the dismissal, and in affect it says to Mississippi if you want to settle this case in court, file in the Supreme Court against Tennessee. On the other hand, they disagree with the trial judge, then they would simply reverse it and say, 'try the case.'"
In the case, Mississippi claims that MLGW & the city of Memphis are stealing its water by over-pumping its wells near the state border, causing the groundwater to flow backwards under Memphis instead of northern Mississippi.
"The state of Mississippi from a riparian doctrine believes that their water resource that they own, which they're directly above, has been negatively impacted due to lowering of the water table in the area of northern Mississippi where a great deal of development has occurred."
That's Randall Gentry. He's the Director of the Institute For A Secure and Sustainable Environment at University of Tennessee, Knoxville.
"So their position is that due to the pumping of water from the Memphis area, water has moved from Mississippi toward the Memphis area forming a sort of a cone of depression, which simply means if water is pumped from a confined aquifer, the potentiometric surface, the pressure in the aquifer drops and water flows in around that cone of depression to meet that demand. So over the years of pumping, that cone of depression has extended southward, in and around and near the Mississippi border."
The Southeast has traditionally been water rich, which is why we're just beginning to see water rights issues pressed in the east. For instance, west Tennessee is just now coming out of a prolonged drought, and east Tennessee is still recovering.
"We have been pumping from the Memphis Aquifer, in a riparian fashion of ownership, we're directly above the aquifer that we're pumping from, and have been doing so for the last 100 years or so. The very first well that went into the aquifer was in the late 1880's. More developed of the aquifer pumping from that aquifer from that time all the way through World War II and then sort of expansive use of the aquifer after that with industrialization in the area. So they contend that they've been using the aquifer consistent with the common law doctrine and have not negatively impacted Mississippi. Or if there have been impacts, they still have rights to the aquifer and have not exceeded those rights."
If the appeal is upheld, it's likely that Mississippi will pursue it in the Supreme Court. But are there alternatives? If the Supreme Court takes the case, it's likely to cost millions of dollars and perhaps even decades to sort out, says Gentry and Dellapenna. Another option could be to get all parties to the table to determine how to apportion the pristine water from the Sparta Aquifer. For WKNO News, I'm Candice Ludlow.