Chapter 4

Table of Contents

Chapter 6

CHAPTER 5. THE TENNESSEE RIVER-ATLANTA DIVERSION AND MEMPHIS SAND AQUIFER CASE STUDIES AS WATER ALLOCATION CONTROVERSIES

5.1 Introduction

Tennessee-American Water Company (TAWC) is a corporation doing business in Tennessee.  The company was originally chartered in Tennessee and subsequently organized under state statute as a water supply company.  TAWC is currently a wholly-owned subsidiary of a New Jersey corporation.  The company owns riparian land along the Tennessee River off Amnicola Highway in Chattanooga.  Thus, TAWC is a riparian with all of the rights and duties of a riparian under common law.  The company is currently withdrawing water from a point on this riparian property and selling it to the City of Chattanooga and other municipalities in the general area. 

TAWC apparently does not treat return wastewater from these municipalities.  Instead, each entity served by the company treats its own waste and returns the effluent to the Tennessee River or to streams within the drainage of the Tennessee River.  In the absence of any information to the contrary, we have assumed that the most likely point of withdrawal for water to be sold to Atlanta is on the Amnicola Highway site.  Thus, the diversion would take place in Tennessee and any conflicts that arose would be decided under Tennessee law and in Tennessee courts.  The diversion would also potentially be modified by the interests of TVA and the navigation interests of other federal agencies in the larger Mississippi system.

TAWC’s service territory encompasses a major portion of Hamilton County and a small portion of Marion County in Tennessee.  It also includes sections of Catoosa, Dade, and Walker Counties in Georgia.  Within Hamilton County the Company operates in the cities of Chattanooga, East Ridge, Red Bank, Ridgeside, and the town of Lookout Mountain.  The service area in Georgia includes the cities of Rossville and Lookout Mountain in Walker County and unincorporated areas of Catoosa and Dade Counties.  Additionally, the company sells water for resale to the Eastside Utility District, and the town of Signal Mountain in Tennessee as well as the town of Fort Oglethorpe, Georgia.  Tennessee-American serves a population of about 240, 000.  It has 68,000 customers in 5 counties.  Over a 12-month period the system delivers 13,111,396,000 gallons of water.  The average daily demand for the system is 38 million gallons of water all drawn from the Tennessee River.  In addition to 1,210 miles of water mains, the company has 26 storage vessels with capacity of 19.44 million gallons. ¹⁰

The Tennessee River forms north of Knoxville, in East Tennessee, from the confluence of the Holston and French Broad rivers.  The river is augmented by flows from the Little Tennessee, Clinch, Hiwassee and other rivers before it flows past Chattanooga.  The headwaters of some of the tributaries of the Tennessee, or of rivers that flow into these tributaries arise in the mountainous area of northwest Georgia (i.e., Lookout and South Chickamauga creeks).  No part of the Tennessee River, as such, flows through Georgia.

The Tennessee River first flows through Tennessee, then into Alabama, Mississippi, back into Tennessee, and then into Kentucky before emptying into the Ohio River in Kentucky shortly before the Ohio empties into the Mississippi.  The river is navigable throughout its reach.  There are numerous dam and reservoir projects along it, all of which have locks to allow river traffic to pass.  Releases from these dams, and thus flows in the river, are controlled by TVA for the statutory purposes of enhancing navigation, providing flood control, producing hydro- and thermal-electric power, supporting recreation, and promoting economic development in the river basin and its tributaries.¹¹  TVA manages the river in coordination with the Army Corps of Engineers which manages the Ohio and the Mississippi rivers for flood control and navigation.

We have previously noted that the federal government generally defers to state law regarding water withdrawals for private, municipal, or industrial use.  However, on federally managed rivers, the federal government regulates any actions, such as the placement of pipes to withdraw water, which may affect navigation.  In addition, the flow of a regulated river (that is, the amount of water in the watercourse) is greatly affected by decisions that are made daily by the federal managing agency in carrying out its mandated purposes.  Furthermore, federal agencies with responsibilities for programs to protect water quality (e.g., the Environmental Protection Agency [EPA]), fish and wildlife (the Fish and Wildlife Service [USFWS]), or with other responsibilities may have a say in any action affecting waters in an interstate watercourse that might affect them.  This is true even if the action is carried out completely within one state.

Landowners in Tennessee, Alabama and Mississippi whose property abuts the Tennessee River are riparians and have rights to withdraw and use water equal to TAWC’s rights.  These riparians share the legal expectation that the flow of the river will not be artificially diminished by the unreasonable actions of an upstream riparian.¹²  Some landowners whose property abuts the reservoirs created by TVA are not riparians as such.  Rather, they have rights to use the water as granted to them by that agency.  When the federal government buys or takes land by eminent domain for reservoir projects, it acquires the riparian rights that go along with the land.  In Tennessee, TVA is authorized to flood to a certain elevation, but does not always own the shoreline.  In instances where TVA only purchased flowage easement rights and not the land fee simple, the landowners are riparians.  Moreover, if land bordering on the reservoirs is later sold or transferred to a non-federal entity, any rights to water that go with the land are determined by the agency in the deeds to the land. 

The State of Tennessee, as both sovereign and trustee for its citizens, holds title to all of the waters of the state.  The State has the power to regulate all activities on navigable streams that might affect their navigability.  The State has police powers that can be used to control uses of state watercourses where such action is required to protect public health, aquatic life and habitat, or existing reasonable uses.  If the state's use of its powers comes into conflict with a clearly articulated federal purpose, the supremacy of federal law will probably prevail. 

5.3.2 Implications of Aquatic Resource Alteration Permits

The General Assembly of Tennessee has passed legislation that requires registration of all withdrawals of 50,000 gallons per day or more with the Division of Water Supply.¹³  The legislation requires that the state be notified of any increase in capacity of 10% or more to withdraw water at an existing installation.¹⁴  If a water withdrawal would affect aquatic resources, the state can require that an Aquatic Resource Alteration Permit (ARAP) be issued before the withdrawal is allowed.¹⁵  The state is empowered to refuse to issue an ARAP if damage to aquatic environments would be unavoidably significant.  If the state has refused to issue an ARAP and an entity persists in withdrawing water, the state can go to court and have the withdrawal enjoined permanently, or until water conditions change. 

TAWC’s right to withdraw water from the Tennessee River is subject to the rights of all downstream riparians, both within Tennessee and in downstream states.  Generally, in a common law state such as Tennessee, no action is taken to control withdrawals and use unless another riparian complains about, and proves injury to, his/her rights.  However, under riparian law, inter-basin transfers do not usually require proof of damage for issuance of an injunction if a complaint is made.  There has never been a case deciding this issue under Tennessee law.  TAWC is currently selling water to municipalities in Georgia.  The locations of these municipalities lie within the Tennessee River drainage.  The wastewater return flow from all of Tennessee-American's sales is not returned to the watercourse at the same point from which it was withdrawn but is, in apparently all cases, returned to the drainage basin of the Tennessee River.  The proposed sale of water to Atlanta and/or its suburbs would take Tennessee River water completely out of the Tennessee River basin and, in fact, out of the larger Mississippi drainage.  The return flow would likely be released into watercourses that ultimately drain into the Chattahoochee or Coosa Rivers and thence, into the Gulf of Mexico. 

TAWC has stated that, to be economically feasible, the amount of water proposed for diversion would have to be 30 million gallons per day or more (about 1.5% of the lowest average daily flow of the Tennessee River from April to October each year).  This amount is almost double what is currently being withdrawn and sold by the company.   If the company were to proceed with a project to supply water to Atlanta it would probably have to enlarge its facility.  TAWC might, of course, acquire additional riparian land and install withdrawal facilities there.  If existing intake structures were modified, then it  would have to acquire a 26a permit from TVA for the new pipes and would have to notify the State of Tennessee Water Supply Division of the new installation.  The Water Supply Division might require that the company apply for an ARAP.  If, in evaluating the impact on the existing uses and aquatic habitats of the Tennessee River, either TVA or the State concludes, as is likely, that such a large diversion without return flow is unacceptably damaging to the river or its current uses, TAWC would not be able to proceed with the diversion. 

If no new installation requiring a permit is needed, TAWC would still have to notify the Water Supply Division of a greater than 10% increase in capacity.  Statute requires notification "within 30 days of the increase."  Even if TAWC waits to notify the Division until it has increased its capacity, the State would not be barred from requiring an ARAP or seeking an injunction.  If no notification to the state is made, the state can act on knowledge of the impending or present diversion if it would adversely affect navigation, water quality, or aquatic habitat.

5.3.3 Downstream Impacts and Their Implications

If TVA and the State of Tennessee allowed a diversion, all downstream riparians in Tennessee, Alabama, Mississippi, and Kentucky would potentially have a cause of action to enjoin TAWC or to require the company to pay them damages for impairment of their rights to the water of the Tennessee River.  These actions could be brought under Tennessee law in a Tennessee court, or they could be the basis for a suit to adjudicate rights to the water of an interstate watercourse, brought either in the lower riparian state court or in federal court.  As previously noted, under common law, inter-basin transfers do not usually require proof of damage before an injunction can issue.  Such transfers are per se unreasonable because the riparian expectation of flow being returned to the watercourse cannot usually be satisfied.  If the courts rule that damages must be proven, under riparian law, the damage must be to existing uses, not future expectations.  Because the flows in the Tennessee River are regulated by TVA, it is difficult to perceive the seasonal changes that occur naturally.  Nevertheless, existing uses, especially for thermal-electric power generation, have stressed aquatic life at some locations because of low dissolved oxygen concentrations in past droughts.  Drought years must be used as the standard for judging damage. ¹⁶

One argument advanced to support the notion of diverting Tennessee River water to help alleviate possible water shortages in Georgia is that there is "excess" water in the Tennessee River that no one is using.  In riparian law, there is no such thing as "excess" water.  Riparians along the river have the legal expectation that they will receive the natural flow of the river reduced by the reasonable uses of other riparians.  Whether under flood conditions or drought, their right is to the river’s natural flow.  Of course, the natural flow is considerably changed by the actions of TVA, which impounds water to prevent flooding and diverts water to produce hydro- and thermal-electric power.  This does not change the riparians' rights, however. ¹⁷

Figure 5.2 depicts daily withdrawals from the Tennessee River and its tributaries and illustrates the uses to which the withdrawn water is put.  Each use provides a different percentage of return flow because of the nature of that use.  Return flow for each use also varies throughout the seasons depending on climatological conditions.  Figure 5.2 shows that there are two existing inter-basin transfers which remove water from the river but have no return flow.  These are the 20 Mgal/d diversion to the Fort Payne Water Works (half of which actually goes to the Sand Mountain area in the Tennessee Valley watershed) and 268.5 Mgal/d diversion through the Tennessee-Tombigbee Waterway.  The latter diverts water out of the Tennessee-Ohio-Mississippi drainage.  These subtractions from the natural flow of the river increase the likelihood that downstream riparians would complain about an inter-basin diversion of 30 Mgal/d at Chattanooga, and that such a diversion would be found by the courts to be unreasonable.

There are three other ways that Tennessee River water might be diverted for use in Georgia.  First, if the City of Chattanooga succeeded in taking over Tennessee-American, it might see the increased sale of water to Georgia as a means of raising revenue to pay off the bonds issued to acquire the company.  The City of Chattanooga would be subject to the same strictures of law as would TAWC when acting as a publicly-held corporation.  The City would then be a riparian with riparian rights and duties.  As a municipality, it is possible that rights could be found to be greater than other non-municipal riparians.  Nevertheless, other downstream municipalities and government entities would be co-equals with the City of Chattanooga, and their rights would have to be respected. 

Second, the State of Georgia might buy riparian land along the Tennessee and try to withdraw water and ship it to the Atlanta area.  Again, the restrictions would be the same.  The State of Georgia would be a riparian in the State of Tennessee and thus, subject to Tennessee law.  Georgia might bring suit for the equitable apportionment of an interstate water course.  The suit would originate in the U.S. Supreme Court.  However, the Court has never allocated interstate waters to a state that has no existing rights to the water. ¹⁸   While it is never wise to state unequivocally what the Court will do in an area where it has never before acted, it is unlikely that the Court would hear the case because it does not create rights; rather it adjudicates under existing law and the Constitution.  Georgia is not a riparian to the Tennessee River.  Hence, it has no rights in the river.

A third possibility is that Congress might mandate and fund a project to build water lines from the Tennessee River to Atlanta in connection with, for instance, construction of a federally-funded high-speed rail project.  While this is probably within Congress' power under the Commerce Clause, it is not likely to happen given the cost to federal taxpayers as well as the potential disruption to existing federal interests in commerce and navigation along the Tennessee, Ohio and Mississippi and the Tennessee-Tombigbee Waterway.   Again, the disruption must be evaluated at the lowest flow, not at times of abundant flow.  In past drought years, navigation on the Mississippi has been halted because there was insufficient water in the river to float barges.  A large diversion from the Mississippi basin to Georgia which would return directly to the Gulf of Mexico would make such disruption more likely.  Moreover, the costs of such a project would not be limited to construction of a pipeline and pumping works.  Such a large-scale diversion might be considered a taking, post-Lucas,¹⁹  and require compensation to affected downstream riparians.  Alabama, because of existing conflict over the waters of the Chattahoochee and the Alabama-Coosa, might be uncertain about the advisability of diverting the Tennessee River.  However, it appears certain that Mississippi, Kentucky and other states benefiting from navigation on the Mississippi would oppose such an action by Congress.

5.3.4 Summation - Diverting Tennessee River Water to Georgia

Tennessee-American has riparian rights to withdraw and use water from the Tennessee River but those rights are limited by the equal rights of downstream riparians.  The company has no right to withdraw a large amount of water from the river for sale completely out of the Tennessee River basin if any downstream riparians object.  The State of Tennessee holds the waters of the state in trust for the people of the state.  Even absent specific statutory requirements that a permit be issued before water is withdrawn, the state can act to prevent withdrawals that may damage aquatic environments or existing uses of the river. Moreover, although the headwaters of several Tennessee tributaries rise in Georgia, Georgia is not a riparian to the Tennessee River.  Courts are unlikely to apportion water to a state that is not a riparian. 

5.4 West Tennessee, Northern Mississippi, and the Memphis Sand Aquifer - Background

Memphis is one of the largest cities in the world to rely solely on groundwater wells for its water supply.²⁰  The city’s water is provided by a publicly-owned municipal utility, Memphis Light, Gas, and Water (MLGW).  MLGW’s wells tap into the Memphis Sand Aquifer and the Fort Pillow Sand Aquifer.  The former aquifer is an underground reservoir that underlies nearly 7400 mi² in West Tennessee, an appreciable extent of Northern Mississippi, a small section of Southwestern Kentucky, and a portion of Eastern Arkansas (see Figure 5.3).  Memphis is currently the largest user of the aquifer.  However, DeSoto County, Mississippi - an area experiencing rapid economic and population growth, in part due to the “suburbanization” of Memphis - views the aquifer as a potential source of future water supply.  According to one estimate, twenty to forty Mgal/d of the City of Memphis groundwater withdrawn from the Memphis Sand Aquifer is thought to come from beneath DeSoto County.²¹  Consequently, demands have been increasing to pursue a more integrated, regional, interstate approach to management of the aquifer. 

The aquifer, consisting of a 400 - 900 ft. thick layer of very fine to very coarse sand interlaced with beds of clay and silt, has long provided moderate to large volumes of water for public and industrial use in Tennessee and smaller quantities to domestic, farm, municipal, and industrial users in southwestern Kentucky and northwestern Mississippi.  Public and industrial wells in the aquifer range from 80 - 922 feet deep and yield from 10 - 2300 gallons per minute. ²²

Withdrawals from the aquifer have been steadily growing in recent years.  For example, in 1983, withdrawals averaged 227 Mgal/d - 183 Mgal/d of which were in the Memphis-Shelby County metro area.  In 1995, groundwater withdrawals in Shelby County alone totaled 208 Mgal/d.²³  In addition to growing aquifer use, however, there are four major policy challenges facing its management which underscore the complexity of this issue and its policy challenges:

Memphis Sand Aquifer recharge occurs along a broad outcrop belt that stretches across West Tennessee.  Its source is precipitation falling above the outcrop, combined with downward infiltration from overlying fluvial deposits and alluvium.  Water moves westward down the dip of the aquifer and toward the major streams draining the area.  In recent years, scientists have learned that the recharge area begins just inside southeast  Shelby County - where high levels of development are occurring.²⁴  Thus, balancing local growth against the need to protect the recharge area remains a major challenge which has sparked local efforts (e.g., Collierville, Germantown) to require ‘open space’ and to place limits on development so as to permit natural ‘ponding’ of standing water and aquifer recharge. 

As a result of long-term pumping (begun in 1886), a cone of depression has developed in the Memphis area.  However, it is unclear what long-term effects this may have.  Data from observation wells shows that the water level in Shelby county declined nearly 77 ft. between 1928-1985, an average rate of decline of 1.3 ft/yr.  Water levels also are declining in areas away from a “cone” at the center of the aquifer in Memphis., and smaller cones are found around major well field in the city of Memphis.  In DeSoto County, Mississippi, for example, declines of one foot or more a year have been reported due to the effects of local pumping, as well as pumping in Memphis.²⁵    It has not been determined if any “overdrafting” has occurred; i.e., that water levels could not return to normal if pumping ceased.  Nor has it been proven that there has been a significant decline in water levels in Mississippi or a measurable effect on well yields in northern Mississippi. 

The Memphis Sand Aquifer is susceptible to contamination. Trace constituents of arsenic, barium, cadmium, chromium, copper, lead, mercury, strontium, and zinc - in very small concentrations - have been found in the aquifer.  While well below EPA’s maximum allowable concentrations for drinking water supplies, their discovery is a cause for concern because the aquifer system constitutes the principal potable water supply source for Memphis and outlying areas.  Moreover, it had previously been thought that the aquifer was overlain by a thick, impermeable clay layer protecting it from contamination.  Officials now realize the potential for contamination in the vicinity of waste disposal sites, and contaminants are known to be present in water-table aquifers in the Memphis area at several abandoned dump sites.²⁶

Mississippi is concerned with declining water levels in the aquifer.  Currently, that state derives 80% (2.6 out of a total of 3.3 BGD) of its daily potable water supply from underground sources.  Calls for a comprehensive study of groundwater use, groundwater movement between the two states, and the causes of groundwater level declines have been growing, particularly among Mississippi officials.  Uncertainty still surrounds the movement of groundwater beneath the two states.  It is possible that parties in either Tennessee or Mississippi could be impairing the rights of users in the other state if they pump in high quantities.  Local experts concur that any multi-jurisdictional approach to managing groundwater will require consensus among many stakeholders.  At least one study has attempted to gauge stakeholder attitudes regarding these issues and has concluded that stakeholders in each state perceive a potential threat to its groundwater from users in the other state.  In addition, a collaborative study involving several institutions has begun, with involvement by USGS and the Groundwater Institute of the University of Memphis.²⁷   Mississippi’s Department of Environmental Quality is also expected to become a study participant. 

The Memphis Sand Aquifer currently faces three interrelated challenges.  First, an increase in the current rate of water withdrawal in and around Memphis could have various “recharge” effects.  It might serve to continue to lower the water table.  On the other hand, it might actually accelerate groundwater recharge by downward leakage from the near surface water tables - so called alluvium and fluvial deposits.  This, too, is problematic because the quality of the groundwater varies between different aquifers and even within the same aquifer.²⁸  Second, as DeSoto County and other areas of northwestern Mississippi continue to grow, competition over available groundwater, and debate over who properly “owns” it, also will grow.  Finally, increased water withdrawal as well as improperly managed patterns of land use development may threaten both the recharge of the aquifer and its possible contamination.

5.5 Relevant Legal Principles Regarding the Memphis Sand Aquifer - Overview

MLGW, as the name suggests, supplies electric power and natural gas, as well as water to the population of the City of Memphis and surrounding suburbs.  In 1998, MLGW’s maximum pumpage to its distribution system was 227.4 Mgal/d, while its minimum pumpage was 118.9 Mgal/day.   Daily averages from increased from 140.6 Mgal/d in 1994 to 153.4 Mgal/d in 1998. Most of this water is withdrawn from wells in the Memphis Sand Aquifer, a portion of which underlies the city.  MLGW has 10 water pumping stations in Shelby County drawing water from more than 170 wells.  MLGW advertises that the aquifer beneath the city has "an abundant supply of high quality water that could accommodate the daily needs of a city several times the size of Memphis."²⁹ 

The common law of groundwater in Tennessee has not been the subject of much litigation.  The general view of legal scholars is that Tennessee holds that landowners overlying an aquifer have rights to pump water from the aquifer that are correlative to the rights of other landowners whose land overlies the aquifer.  It has been stated that "correlative rights are simply surface riparian law applied to groundwater."³⁰  While some may disagree with this view, the appellate court in Tennessee has rejected the absolute dominion rule which allows a surface owner to pump any amount of water from an aquifer regardless of the damage it does to the rights of other landowners overlying the same aquifer.³¹  The court concluded that overlying landowners are restricted to a reasonable exercise of their mutual rights in the common source.

MLGW has rights to pump water from the Memphis Sand Aquifer by virtue of the company's ownership of land overlying the aquifer.  Under Tennessee law, it is unclear whether MLGW can legally use water from the aquifer to supply water to residents of the city who live on land not overlying the aquifer, if there are any such residents.  Under common law, water pumped from an aquifer can only be used on land overlying the aquifer that is owned by the pumper.  This is a situation where the common law has not yet caught up with the contemporary reality of large scale pumping for use off-site.  However, because MLGW has been pumping water from this aquifer for a considerable period of time, thus far without legal action taken against it, it is unlikely that Tennessee courts would enjoin the company from continuing to pump water and selling it off-site.  Whether the amount that is currently being pumped would be allowed by the courts, if there is a complaint by another landowner, is another matter. 

If MLGW has been pumping water from the aquifer so as to diminish the flow and pressure to others wells for a period sufficient to allow the company to acquire rights to the water through prescription (probably 20 years), then the company may have acquired rights to this water.  However, MLGW must have been pumping during that period with the knowledge that, in fact, it had no right to do so.  Some scholars are of the opinion, based on California cases, that for prescriptive rights to groundwater to be obtained, the loss of pressure and flow must have existed for the entire prescriptive period.³²

5.5.1 Tennessee-Mississippi Liability Problems

Whether or not MLGW has acquired prescriptive rights to more than its share of the water from the Memphis Sand Aquifer, MLGW - or any other user of the aquifer - could potentially be held liable for damages to the ability of other landowners to pump water from the aquifer.  Such parties could also be held liable for creating a public nuisance by creating conditions leading to the contamination of the aquifer. 

If MLGW pumping has damaged the ability of landowners in Mississippi to pump water for their own land, MLGW may be subject to a suit for damages or an injunction brought by the Mississippi landowners in either Tennessee or Mississippi state court.  While the pumping is being done in Tennessee, the damage is occurring in Mississippi.  Likewise, the same scenario would hold true in reverse if Mississippi users impaired Tennessee users’ rights - that is, their courts would have to uphold Tennessee users’ rights, as determined by a court of law. 

Under Tennessee law, incomplete as the record is, if the volume that MLGW is pumping is unreasonably high, much more than their share of the water from the aquifer, their actions are illegal if another overlying user complains.  The courts in Tennessee may only grant damages and not an injunction, however, because the pumping is for municipal purposes

Landowners in Mississippi could bring suit in Mississippi state court if a Tennessee user has damaged the landowners' ability to pump water on their land in Mississippi.  The landowners would have to acquire jurisdiction.  If such a suit were brought and a judgment favorable to the plaintiffs were rendered in Mississippi, the courts in Tennessee would be required to enforce the judgment under the constitutional requirement of “full faith and credit.”  If such a suit were brought upon MLGW, the risk is that courts in Mississippi may not have the same concern for maintaining the City of Memphis' access to groundwater, and may direct that MLGW find another source (e.g., the Mississippi River, whose waters are much less pure - see Chapter 6).  In any case, should it be determined that MLGW's pumping is excessive, it would probably be illegal under Mississippi law.  Mississippi law, which is a regulated riparian system, allows groundwater pumping only by permit for specified amounts.

Because the Memphis Sand aquifer underlies land in several states, it is entirely possible that this dispute could also lead to a suit for apportionment of the waters of the aquifer.  MLGW may be vulnerable to suit by the State of Mississippi, acting in the interests of its citizens, to prevent continued pumping of the aquifer in excess of a reasonable amount.  The State of Tennessee could be joined in the suit, in its role as trustee for the waters of the state.  Such a suit would likely originate in the U.S. Supreme Court as an equitable apportionment suit.  The Supreme Court has never apportioned the water in an underground aquifer.  The Court has apportioned anadromous fish migrating in interstate waters, however.  Thus, its powers to apportion resources are not limited to surface watercourses.  Because the State of Mississippi and the overlying landowners in that state clearly have rights to the water in the Mississippi portion of the aquifer, and because actions by an entity in another state are affecting those rights, it is highly likely that the Court would hear the case.  Again, the outcome might be unfavorable to MLGW and Memphis water users because there is another source, the Mississippi River, and MLGW's current use of the aquifer is not legal or equitable under the laws of either state, nor, probably, under the federal common law used by the Court in making an apportionment.

5.5.2 Legal and Political Options for Resolving Potential Aquifer Disputes

Rather than allowing the current situation to continue and possible lawsuits to be filed, a far better approach would be for the States of Tennessee and Mississippi to work with MLGW and other aquifer users to lower reliance on the Memphis Sand Aquifer, increase recharge and  protect existing recharge areas and the aquifer as a whole, and to continue their efforts in working together to better understand the flow dynamics of the aquifer.  The State of Tennessee and the State of Mississippi could work together toward an agreement or even an interstate compact to apportion the aquifer and seek ways to protect it from pollution and overdraft.  Because most interstate compacts must be ratified by Congress and signed by the President, they appear may to be daunting endeavors.  However, there is no reason that the states cannot work together to find solutions to any over-pumping problems that may exist.  It is reasonable to assume that Mississippi would have an interest in such a joint solution because a lawsuit that charges no present damages but, rather, claims that future development opportunities are being lost will not succeed.  Lost opportunities cannot be recovered under riparian law.  Even Mississippi, which requires permits for water withdrawals and so is no longer strictly a common law state, would not likely allow recovery for lost opportunity.

5.5.3 Summation - Avoiding Memphis Sand Aquifer Disputes

Under common law, MLGW could be held liable if it is shown that it is pumping in quantities that impair the rights of others whose land overlies the aquifer.  Some Mississippi landowners have complained that pumping for Memphis' use is damaging their ability to use the aquifer.  If it is shown that the utility has made no effort to fix the problem, it could be held liable.  A lawsuit against MLGW or other Tennessee water users for damages to the rights of Mississippi water users could be brought in court in Mississippi.  Although the damage was caused by a Tennessee entity, it occurred in Mississippi.  Any judgments rendered by the courts in Mississippi would probably have to be accepted by Tennessee and vice versa.  Under the Full Faith and Credit clause of the U. S. Constitution, Tennessee must enforce a judgment for damages rendered by the courts of another state.  Thus, it might be appropriate for Tennessee to act to restrain the pumping by MLGW and to encourage the city to conserve water.  If the state does not act, the issue may be taken to court, either by individuals claiming damage to their rights in Mississippi or by a suit in the Supreme Court against Tennessee brought by Mississippi acting for its citizens.  As noted earlier, the same scenario would hold true in reverse.  If Mississippi users impaired Tennessee users’ rights, their courts would have to uphold Tennessee users’ rights.

Endnotes to Chapter 5

(1) See, for example, Gregg, 1996; Jaffe, 1996; H. J. Res. 91, 1997; Graham, 1999; Seabrook, 1999; Arrandale, 1999.

(22) See: W. Parks and J.K. Carmichael (1990) Geology and Ground-Water Resources of the Memphis Sand in Western Tennessee.  Water Resources Investigations Report 88-4182.  Memphis, TN: U.S. Geological Survey; and W. Parks and J.K. Carmichael, 1990.  Altitude of Potentiometric Surface, Fall, 1985, and Historic Water-level Changes in the Memphis Aquifer in Western Tennessee.  Water-Resources Investigations Report 88-4180.  Memphis, Tennessee: U.S. Geological Survey.  Also, see: J.V. Brahana, et. al. (1987) Quality of Water from Freshwater Aquifers and Principal Well Fields in the Memphis Area, Tennessee.  Prepared in Cooperation with the City of Memphis, Memphis Light, Gas and Water Division.  Water-Resources    Investigations Report 87-405.  Nashville, TN: U.S. Geological Survey.  The aquifer is the major    source  of water for Memphis, Germantown, Bartlett, Arlington, the Town of Collierville and most industrial users in Shelby County.  It is also known as the ''500‑foot'' sand because the aquifer is, in general, about  500 ft. below the surface in the Memphis area. The thickness of the aquifer is from 500-890 ft. in the Memphis area. The aquifer is recharged to the east of Shelby County (see: Ground Water Institute (1995) A Ground Water Flow Analysis of the Memphis Sand Aquifer in the Memphis, Tennessee Area.  Technical Brief #7, Memphis, Tennessee: University of Memphis, February). 

(23) See, “Tennessee Water Use-Data Tabling,” 1998.  (no author).  USGS Website (http:// www.usgs.gov/edu-cgi-bin).  Older sources of withdrawal data can be found in Kingsbury, James A., and  William S. Parks, 1993.  Hydrogeology of the Principal Aquifers and Relation of Faults to Interaquifer Leakage in the Memphis Area, Tennessee.  Prepared in Cooperation with the City of  Memphis, Memphis Light, Gas and Water Division.  Water-Resources Investigations Report 93-4075.  Memphis, Tennessee: U.S. Geological Survey.  Kingsbury and Parks, 1993).

(24) Parks and Carmichael, 1990; also, Robertshaw, 1999.

(25) Charlier, 1999: A9; Ground Water Institute, 1995; Parks and Carmichael, 1990, Altitude of Potentiometric Surface . . . , 1; also: W. Parks and J.K. Carmichael, 1990.  Altitude of Potentiometric Surface, Fall 1985, and Historic Water-level Changes in the Fort Pillow Aquifer in Western Tennessee.  Water Resources Investigations Report 89-4048.  Memphis, Tennessee: U.S. Geological Survey.   

(26) Parks and Carmichael, 1990a; Brahana, Parks, & Gaydos, 1987; Robertshaw, 1999.

(27) For a summary of this stakeholder interview study, see John Wingard (2000), The Community Dynamics of Source Water Protection: the Structure and Dynamics of the Human Dimensions of Source Water Protection in the Memphis Metropolitan Area.  Unpublished manuscript,  Department of Anthropology, the University of Memphis.  For information on the collaborative  study, see: Ground Water Institute (1998)  A Meeting of the Minds.  Source Water Protection Workshops, Coordinated by the Ground Water Institute of the University of Memphis (Memphis, TN: University of Memphis); also, Charlier, 1999).

(28) Brahana, Parks, and Gaydos, 1987.

(29) <www.mlgw.com.> 

(30) Tarlock, A. Dan, Law of Water Rights and Resources, § 4.06(3)

(31) See Nashville, Chattanooga & St. Louis v. Rickert, 19 Tenn. App. 446, 89 S.W.2d 889 (1935), cert  denied (1936).

Chapter 4

Table of Contents

Chapter 6

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