WATER RIGHTS

Issues

Can the state of Mississippi obtain damages or injunctive relief without an equitable apportionment of groundwater from the Middle Claiborne Aquifer, which Mississippi claims was stolen by the state of Tennessee through Tennessee’s pumping operations in Shelby County?

Court below

Original Jurisdiction

This case asks the Supreme Court to determine if groundwater should be classified as an interstate resource and fall within federal common law equitable apportionment jurisprudence. The Special Master determined that the Middle Claiborne Aquifer is an interstate resource and that the Supreme Court should allow Mississippi to amend its complaint to include an equitable apportionment claim. Mississippi disputes the Special Master’s conclusions and argues that groundwater naturally flows from its territorial boundaries. Mississippi asserts that Tennessee's underground pumping violates Mississippi’s territorial sovereignty by disrupting the groundwater’s natural flow within Mississippi’s borders. Tennessee argues that the Special Master is correct in identifying the aquifer as an interstate resource, but that the Supreme Court should not allow Mississippi to amend its complaint because any amendment would create additional costly and time-consuming litigation. The outcome of this case has serious implications for interstate water rights and the apportionment of belowground natural resources.

Questions as Framed for the Court by the Parties

(1) Whether the Court will grant Mississippi leave to file an original action to seek relief from respondents’ use of a pumping operation to take approximately 252 billion gallons of high-quality groundwater; (2) whether Mississippi has sole sovereign authority over and control of groundwater naturally stored within its borders, including in sandstone within Mississippi’s borders; and (3) whether Mississippi is entitled to damages, injunctive, and other equitable relief for the Mississippi intrastate groundwater intentionally and forcibly taken by respondents.

The Middle Claiborne Aquifer is a “hydrogeological unit” that extends through Tennessee, Kentucky, Louisiana, Mississippi, and Alabama and consists of the “Sparta Sand” in the South and the “Memphis Sand” in the North. Report of the Special Master, Eugene E. Siler, Jr.

Additional Resources

K&L Gates, Interstate Water Rights Before the Supreme Court-Mississippi v. Tennessee, The National Law Review, (Nov. 20, 2020).
Catherine Janasie, Mississippi v. Tennessee: Special Masters Finds Aquifer is an Interstate Resource, The National Sea Grant Law Center, (Nov. 13, 2020).
Jamie Huffman, Mississippi v. Tennessee: Analysis and Implications, NYU Environmental Law Journal, (2020).
Peter G. Berris, Mississippi v. Tennessee: Resolving an Interstate Groundwater Dispute, Duke Journal of Constitutional Law & Public Policy Sidebar, (2016).

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Read more about Mississippi v. Tennessee

Tarrant Regional Water District v. Herrmann

Court below

United States Court of Appeals for the Tenth Circuit

Tarrant Regional Water District ("Tarrant") seeks to export water to Texas from multiple sources within Oklahoma which are covered by the Red River Compact ("Compact"), a congressionally approved water apportionment agreement between Arkansas, Louisiana, Oklahoma, and Texas. In 2007, Tarrant sued members of the Oklahoma Water Resources Board ("OWRB"), including Herrmann, in the United States District Court for the Western District of Oklahoma. Tarrant sought a declaratory judgment that certain Oklahoma statutes dealing with water apportionment are unconstitutional and an injunction preventing the OWRB from applying the statutes to Tarrant's application for water. Tarrant argued that the Oklahoma statutes violate the dormant Commerce Clause by burdening interstate commerce and that the statutes are preempted insofar as they conflict with the Compact's language. Tarrant argues that the Compact provides Texas with cross-border rights to access water located in Oklahoma and that Oklahoma’s water permitting statutes violate the dormant Commerce Clause by discriminating against out-of-state water users. OWRB argues that the signatory states to the Compact did not surrender their sovereignty by signing the Compact and that the Commerce Clause does not apply in this case because the Compact shelters Oklahoma’s water laws from scrutiny under the Commerce Clause. Both parties fear that this decision, if decided for the opposing party, will cause severe social, economic, and environmental harm to their states.

Questions as Framed for the Court by the Parties

1. Whether Congress's approval of an interstate water compact that grants the contracting States "equal rights" to certain surface water and - using language present in almost all such compacts - provides that the compact shall not "be deemed … to interfere" with each State's "appropriation, use, and control of water … not inconsistent with its obligations under this Compact," manifests unmistakably clear congressional consent to state laws that expressly burden interstate commerce in water.

2. Whether a provision of a congressionally approved multi-state compact that is designed to ensure an equal share of water among the contracting states preempts protectionist state laws that obstruct other states from accessing the water to which they are entitled by the compact.

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[Questions Presented]
[Issues]
[Facts]
[Discussion]
[Analysis]

Issue(s)

Whether signatories to a multi-state compact agree to give up their sovereign rights to exclusive use within their borders and to the licensing of permits for the use of water within their borders when the compact provides signatory states with equal rights to use of water in areas where the distribution of water is allocated asymmetrically