WATER SUPPLY CHALLENGES FACING TENNESSEE: CASE STUDY ANALYSES AND THE NEED FOR LONG-TERM PLANNING

CHAPTER 1.  INTRODUCTION

Tennessee’s economy, quality of life, and magnificent environmental amenities are in no small measure attributable to the state’s abundant water resources.  However, despite its vital importance to agriculture, industry, transportation, energy production, recreation, and the state’s diverse flora and fauna, Tennessee’s water is a finite and increasingly threatened resource.  Periodic drought, population shifts, urban development and sprawl, and growing competition among users is generating concern over the availability of a stable, dependable supply of water for Tennesseans - now and into the future (e.g., Freeman, et. al., 1996; Hutson, 1998). 

In addition, Tennessee’s water resources are the subject of emerging interstate and intrastate conflicts.  Competition between Tennessee and its neighbors over ground- and surface water supplies poses unprecedented challenges for which previous policy paths may be inadequate and future policy direction uncertain.  Moreover, competing demands among users in different Tennessee communities is also raising questions about how to satisfy divergent needs equitably, efficiently, and amicably.  These emerging conflicts may require innovative remedies, including dispute resolution, citizen involvement in monitoring problems and measuring progress toward their resolution, and renewed interest in applying water law.¹ 

1.1 Study Objective and Framework

This study’s primary objective is to examine how these emerging water conflicts may be resolved effectively and judiciously through legal and policy tools.  We have focused upon two principal conflicts as a means of grasping how they - and the long-term problems giving rise to them - may be addressed:

·                     The possible diversion of the Tennessee River near Chattanooga to supply the needs of metropolitan Atlanta, Georgia; and,

·                     Competition between users in West Tennessee and Northern Mississippi over the Memphis Sand Aquifer.

These cases were selected because they constitute serious, long-term water supply challenges.  They also exemplify a wide range of issues that are not only important to understanding potential interstate water conflicts affecting Tennessee and its neighbors, but because they reflect broader trends that affect intrastate conflicts among Tennessee communities.  These trends  include growing demands and competition among users. 

The challenges posed by these case studies have not arisen in a policy vacuum.  In order to understand their sources and how to alleviate them before they become intractable, we must first understand the context within which they have arisen.  Tennessee’s water problems are comprised of three major parts: baseline conditions; threats to these conditions; & options for managing these threats.  In our study, existing law and water supply constitute the “baseline;” the Atlanta and Memphis Sand Aquifer cases represent “threats;” and our legal and policy analysis, coupled with a water stakeholders’ survey (see below) comprise initial assessments of viable “options.”  We studied these three major parts in the following ways:

(1)  “Baseline” issues were examined by reviewing U.S. and Tennessee water law, including relevant constitutional law, legislation, case law and riparian doctrine. Water supply conditions were studied by incorporating information assessing the distribution of Tennessee’s water and water use patterns.

(2) Threats to water conditions were studied by examining press reports, government documents, and legal precedents relevant to the two case studies and to water supply problems in the state in general (e.g., drought, inter- or intrastate diversion of water, climate change, and increased consumptive water use - human activities which remove water from streams or aquifers).                                       

(3) Policy options were examined in light of legal precedent and public opinion.  A user group survey, administered to nearly 40 stakeholders,² was undertaken to gauge the views of major water users and others regarding the conditions and problems facing the state’s water supply and the impact and acceptability of possible reforms to its management.

In discussing options for managing these threats, we focused on how the constraints of political acceptability and public opinion may affect their likelihood of adoption.  Thus, in our discussion of possible options (e.g., reforms to existing law, public information strategies, economic tools for water management) we consider the extent to which they would be politically viable. 

 

Baseline Water Issues	Threats to Baseline Conditions	Policy Options (examples)
1. Surface water availability 2. Groundwater availability 3. Existing laws & regulations 4. Existing water institutions	1. Drought/low flow 2. Climate change 3. Interbasin demands/diversion 4. Supply deficits 5. Population & economic growth	1. Interstate compacts 2. Water markets 3. Water law reform 4. Water withdrawal permitting

 

Figure 1.1   A Framework for Assessing Threats to Tennessee’s Water Resources

1.2 Summary of Major Findings

We were asked to address six major questions in this study.  These questions encompass the water rights of Tennessee and neighboring states and the options policy makers may use to deal with interstate water conflicts.  The questions are depicted below and followed by a summary of our answers to them.  Expanded answers are embedded in various report chapters - as noted.

·                     What are Tennessee’s rights to water supplies within its boundaries? 

·                     What are its rights to be consulted regarding adjacent states’ water development? 

·                     What is the state’s legal responsibility to upstream states? 

·                     What are the “rights to use” held by adjoining states if Tennessee reduces current use or limits opportunities of users in those states? 

·                     What legal and political strategies are currently being used by neighboring states, other U.S. regions, and other areas of the world to address water needs, and what have these regions learned that can be of benefit to Tennessee? 

·                     What changes to current law, or new laws or institutions, might be needed to better facilitate solutions to the state’s water supply problems while avoiding, or significantly lessening, interstate conflicts?

 

1.2.1 Tennessee’s Rights to Water Supplies Within its Boundaries

The State claims to own all the waters of Tennessee, including groundwater, but excluding atmospheric moisture (e.g., clouds) and to hold them in public trust.  The state’s role as fiduciary for its citizens, and as sovereign, gives it considerable power to regulate water use to protect public health, navigation, wildlife and aquatic habitat, and general public benefit.  Tennessee has no actual property right to the waters of the state except to the extent that the state itself is a riparian (i.e., where state lands adjoin watercourses).  Because Tennessee’s legal system is largely common law riparian, the rights held by the state as a riparian are not ownership rights but rights to use water on land bordering watercourses, subject to availability and the rights of other riparians (see Chapter 3).

1.2.2 Tennessee’s Rights to be Consulted On Adjacent States’ Developments

The State has no statutory rights to be informed of other states’ activities.  However, as a downstream riparian, if an upstream state proposed to reserve or divert the flow of a surface stream, and that action damaged downstream riparians in Tennessee, or the waters of the state, Tennessee could go to federal court and attempt to prevent the action.  Because most interstate waters that flow through Tennessee are all harnessed for flood control and navigation by either the Army Corps of Engineers or Tennessee Valley Authority, it is highly unlikely that a project in an upstream state could be undertaken without the cooperation and/or consent of one or both of these agencies.  Moreover, these agencies would surely involve downstream states in planning. 

If the water source is an aquifer, and the proposed action by another state whose lands overlay the aquifer would infringe on the rights of Tennessee water users overlying this aquifer, then Tennessee could: (1) go to federal court and seek an injunction; or; (2) claim damages for the actions of the other state.  Such litigation would likely result in an equitable apportionment suit originating in the Supreme Court.  Such conflicts are often dealt with through cooperation and negotiation of interstate compacts by all states sharing rights to the interstate waters, rather than litigation.  If the activity were undertaken by a federal agency, Tennessee’s remedies might be limited to political - not legal - options.  However, if a federal project were to affect water rights in a state, the federal government might have to purchase those rights (see Chapters 2, 3, and 4). 

1.2.3 Tennessee’s Responsibilities Toward Upstream and Downstream States

Tennessee has no responsibility to upstream states, absent a clear impact on upstream waters.  Any state action that might impair the flow of an interstate watercourse could result in suits by downstream riparians to prevent the action or to demand damage payments.  Again, because of federal management of interstate watercourses, the federal government would probably become involved at an early planning stage.  This would significantly affect the nature of the action.  For groundwater aquifers, state action could result in a suit for injunction or damages by users of the same aquifer in a neighboring state.  If the suit were brought by neighboring state(s) against Tennessee, because the state permitted actions that damaged citizens of other state(s), an equitable apportionment suit in the Supreme Court would result (see Chapters 2, 3 and 5). 

1.2.4 “Rights to Use” of Adjoining States

Absent an equitable apportionment or interstate compact, Tennessee has no power to affect the actions of citizens in adjoining states regarding water use.  As litigation over the Champion paper mill on the Pigeon River in North Carolina has shown, if the federal government has power to permit an activity, and does so, then affected, adjoining states may have to resort to political remedies which may take time to achieve, if they can be achieved at all (see Chapter 4).

1.2.5 Legal and Political Strategies Used Elsewhere and Their Lessons

Six of the eight states bordering Tennessee (Alabama, Georgia, Kentucky, Mississippi, North Carolina, and Virginia) require permits for most water withdrawals.  Alabama and North Carolina have passed legislation allowing for the designation of areas which are experiencing critical stress.  In these areas where the impacts of water withdrawal have become intensified, use can be restricted.  Virginia has groundwater management areas as well.  Basin-wide management and long term planning for water supplies are being given increasing consideration by these states as they begin to experience water supply problems due to population growth and urbanization.  The U.S. EPA acts to improve water quality throughout the region (and, of course, the entire country) by addressing both point source and non-point source pollution.  In Tennessee, TVA has considerable power to manage the waters of the state in the Tennessee River drainage.  TVA works with local communities to improve watershed management and eliminate non-point source pollution.  More watershed and recharge area protection needs to be done in every state but there is not a lot of activity on this front in the face of development.  The State of Georgia recently took steps to improve regional planning - including water planning - by requiring state involvement in land use planning in the 18-county Atlanta metropolitan area.

In the western U.S., where water is scarce and the prior appropriation doctrine allows more definite claims to specific quantities of water, there is growing movement away from absolute claims of “first in time, first in right” and toward greater emphasis on preserving and protecting in-stream flows regardless of existing appropriative rights.  Efforts to adopt a market approach by allowing the sale and/or transfer of water rights brokered through state or local banks have had mixed success.  A constraint on water transfers is lack of infrastructure (i.e., diversion works) in most states to permit taking water from areas with relative surplus to areas in relative need.

International efforts to protect water sources and to fairly allocate supplies often fail in the face of unequal political power.  Conflicts between Israel and Jordan - and Israel and the Palestinian West Bank - are examples of this (Hassoun, 1998; Luterbacher, et. al., 1998; Elmusa, 1995;  Morris, 1993; 1992).  However, it should be noted that all international schemes for water management espouse the principle of equitable apportionment employed by the U.S. Supreme Court to adjudicate interstate water disputes.  The emphasis, at least ideally, is on a review of all relevant facts and fair consideration of all parties’ rights and needs (see Chapter 7).                                             

1.2.6 Needed Changes to Current Law or Institutions