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When Memphis, Tennessee, started drawing water from the Middle Claiborne Aquifer, Mississippi objected, saying it had rights to the water. The Supreme Court disagreed.

With groundwater supply down and demand up, new sharing policy demands a creative approach that can include water reuse and aquifer recharge

A United States Supreme Court decision that a Memphis, Tennessee, water utility wasn’t illegally taking groundwater from Mississippi could have nationwide ramifications over increasingly scarce groundwater, according to legal experts. In the unanimous 2021 decision, the Supreme Court rejected a claim concerning the Middle Claiborne Aquifer, which straddles the state line between Mississippi and Tennessee, and extends into Arkansas, Louisiana, Mississippi, and Alabama.

Mississippi sought $615 million in damages from Tennessee, claiming sovereign ownership of the water since the state entered the union in 1817. The Supreme Court disagreed in its decision and extended to groundwater the same legal doctrine of equitable apportionment already in place for interstate surface water resources.

Historically, access to the Middle Claiborne Aquifer was not an issue, but as groundwater supplies are depleted, conflict over water supplies is becoming increasingly common. Droughts are being exacerbated by climate change, increasing demand, and groundwater contamination, all of which make safe, reliable access to drinking water increasingly difficult.

In the Western U.S., experts say groundwater will become more valuable, likely leading to more interstate groundwater disputes. Utah and Nevada have nearly gone to court over groundwater. The High Plains (Ogallala) Aquifer under the Great Plains states also is rapidly being depleted, and dozens of other transboundary aquifers can be found around the nation.

States Must Share Groundwater

The Supreme Court decision means Mississippi and Tennessee must share groundwater the same way surface water is shared. If they want a decree that establishes proportional sharing, they will have to take the issue back to court to go through the same equitable apportionment process used for surface water disputes.

Citing three criteria — the transboundary nature of the aquifer, the natural flow of water between the states, and the fact that one state’s use of the aquifer affects the other — Chief Justice John Roberts said, “We hold that the waters of the Middle Claiborne Aquifer are subject to the judicial remedy of equitable apportionment.”

The decision likely will result in more interstate trading of water resources, whether above or below ground. Because of the legal burden of proof of injury required in equitable apportionment cases, legal experts say the ruling will encourage states to negotiate interstate compacts among themselves rather than taking matters to court.

Aquifer Management Strategies

A number of strategies can be used to better manage groundwater and keep states out of court. For instance, major growers above the Eastern Snake Plain Aquifer were able to reverse the groundwater depletion process through cooperation in their planting practices. Groundwater banking and managed aquifer recharge are also effective at stopping or reversing groundwater depletion.

Additionally, wastewater reuse can provide a nontraditional source of water to either recharge aquifers or take the place of water that would otherwise be pumped from them. Within this strategy, membrane aerated biofilm reactor (MABR) technology is a highly efficient version of biological wastewater treatment noted for its exceptionally high nutrient removal. Fluence provides MABR treatment in its containerized Aspiral™ units and in SUBRE modules, which can be used for upgrading existing plants or for new construction. Effluent from Aspiral™ and SUBRE meets the highest water reuse standards in the world, including California’s Title 22 and China’s Class 1A.

Another way to lessen demand on aquifers is through the desalination of brackish water, which is far more efficient than seawater desalination. NIROBOX™ reverse-osmosis desalination units from Fluence can transform a previously unusable brackish aquifer into a valuable nontraditional source of fresh water for irrigation or drinking water.

With groundwater resources becoming increasingly contentious, it’s time to get serious about your region’s water supply. With Fluence’s Water Management Services, you can even get the infrastructure you need with no upfront investment. Contact our experts to explore the many ways you can make the most of your increasingly valuable water resources.

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