Legal Update

LEGAL UPDATE By: Colin Colverson and Sydney Nenni

Tennessee Valley Authority

LORD WILLING AND THE CREEK DON’T RISE: A LOOK AT SOUTHEASTERN WATER DISPUTES

“When the well is dry, we know the worth of water.” – Benjamin Franklin

When we look at the verdant landscape and flowing rivers of Tennessee, it is sometimes hard to appreciate the value of water. In the western United States, however, that appreciation is growing by the day—81% of the western United States is currently experiencing extreme drought, with America’s two largest reservoirs reaching 30-year lows in amount of water stored.1 Water has traditionally been more plentiful in the southeastern United States, which may have influenced the adoption of riparian rights2 as the predominant common law theory of water law east of the Mississippi River.3 Still, riparian states have also initiated legal disputes over access and use of interstate waters for many decades,4 even when their water has historically been so plentiful. These legal disputes come in many forms—a state can seek to resolve the dispute through legislative apportionment, judicial apportionment, or by entering an interstate compact.5 This article focuses on apportionment, by highlighting one legislative proposal and two recent Supreme Court cases which bear particular importance to Tennesseans and our state’s water usage.

Legislative Proposal

Near the small town of New Hope, Tennessee, a centuries long border disagreement between Tennessee and Georgia has developed into a case study in the value of water in the eastern United States. Congress established Tennessee as a state in 1796, and declared the north 35th latitude parallel the new state’s southern border with Georgia.6 The state of Georgia has attempted to alter that border several times,7 most recently in 2020 with the Georgia Senate passing a resolution authorizing the Georgia executive branch to negotiate with Tennessee and North Carolina about a revised northern border.8 Why has Georgia had such a long standing and persistent interest in a sliver of land to their north? Because of the Tennessee River, where the Nickajack Reservoir would be squarely within Georgia’s border if the line were redrawn as contemplated, meaning Georgia would have riparian rights to those waters in addition to Tennessee.9 While Georgia has not petitioned the federal courts to alter the border with Tennessee,10 the next significant drought in north Georgia may change that calculus.

Judicial Intervention

In addition to using legislative action to acquire rights to water, states may pursue judicial intervention for interstate water disputes and petition the Supreme Court to invoke original jurisdiction.11 In doing so, the moving state “must prove a threatened or actual injury ‘of serious magnitude’” caused by the defending state, and that “the benefits of the [apportionment] substantially outweigh the harm that might result” to the non-moving state.12 When faced with an interstate water dispute, the Court applies the judicial doctrine of equitable apportionment, which takes into consideration the underlying states common law standard13 and apportions water usage among the states.14

The most recent case seeking judicial resolution of an interstate surface water dispute arose in 2013 when Florida petitioned the Supreme Court, asking the Court to invoke original jurisdiction and issue a decree equitably apportioning waters of the Apalachicola–Chattahoochee–Flint River Basin (“ACF Basin”) along the Georgia, Florida, and Alabama borders.15 At the heart of the dispute were claims that Georgia overconsumed waters of the ACF Basin, which in turn reduced interstate water flow into Florida, “damaged numerous species and habitats,” and harmed “the overall economic, environmental, and social health and viability of the region.”16 After being heard by two different courtappointed special masters in 201717 and again in 2019,18 the case finally made its way back to the Supreme Court and was officially disposed of in April of 2021, when Justice Barrett, in writing for a unanimous bench, dismissed Florida’s case for failure to demonstrate that Georgia’s overconsumption of interstate waters was a substantial factor contributing to, or the sole cause of, Florida’s alleged injuries.19 Although the contours of the equitable apportionment doctrine seem well established, a novel lawsuit involving interstate groundwater usage now seeks to muddy the waters. At its most basic level, the case— Mississippi v. Tennessee20—involved allegations that Tennessee, the City of Memphis, and Memphis Light, Gas & Water (MLGW) impermissibly withdrew groundwater from Mississippi’s sovereign territory—portions of the Sparta–Memphis Aquifer (Sparta Sand formation) which lies below Mississippi’s border.21 In essence, Mississippi argued that, because MLGW extracted groundwater from the aquifer and depleted water levels beneath Mississippi lands, Mississippi was entitled to injunctive relief and monetary damages for the unauthorized trespass and taking.22 Rather than pursue a claim for equitable apportionment, however, Mississippi instead expressly denied the application of that principle, on the grounds that the equitable apportionment doctrine only applies to surface waters in natural conditions—not groundwater.23 The Courtappointed Special Master disagreed, noting that although surface waters and groundwater behave differently, “[w]hen states fight over interstate water resources, equitable apportionment is the remedy.”24 Thus, “Mississippi present[ed] no compelling reason” to deviate from equitable apportionment of the resources.25 On this basis, the Special Master recommended “Mississippi’s complaint be dismissed with leave to amend the complaint to include a claim for equitable apportionment.”26 The Justices heard oral argument on October 4, 2021, and must now determine, among other procedural questions, whether Mississippi has sole sovereign authority and control over groundwater that flows within its borders and is entitled to relief for the volume of groundwater taken.27 continued on page 20