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VOL. 125 | NO. 17 | Wednesday, January 27, 2010

Only Remaining Avenue in Miss. Water Case is to Sue Tenn.

By Bill Dries

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“These matters take awhile to get through the courts, and while they are making their way through courts, it creates so much instability. ... The stakes are immense.”

– A C Wharton Jr., Memphis mayor

If Mississippi wants to pursue its water rights lawsuit against Memphis, it will have to sue the state of Tennessee.

That’s the effect of this week’s decision by the U.S. Supreme Court not to hear an appeal by Mississippi’s attorneys. The nation’s highest court passed on hearing the case against Memphis and Memphis Light, Gas and Water Division without comment.

The court’s decision leaves in place a Fifth U.S. Circuit Court of Appeals ruling from June that dismissed Mississippi’s lawsuit against the city of Memphis. The fight was over Memphis’ alleged draining of a common aquifer.

“The aquifer is an interstate water source,” read the appeals court opinion. “And the amount of water to which each state is entitled from a disputed interstate water source must be allocated before one state may sue an entity for invading its share.”

The appeals court decision also held that the Fifth Circuit couldn’t simply add Tennessee to the lawsuit.

Oxford, Miss., attorney Alan Cameron could not be reached for comment on the Supreme Court ruling.

The state of Mississippi, through the case filings, claimed Memphis was pumping water from an underground aquifer that is at least partially under Mississippi.

The discovery of the underground water source through artesian wells in the 1870s was crucial to the city’s growth and development.

“Memphis may possibly be the most water-rich city in the country,” said MLGW President Jerry Collins. “We have this huge river that flows past us every day. We don’t take a single drop of water out of it. We are blessed with aquifers that are hundreds of feet below ground. … Memphis is a very lucky city and our water is a great asset.”

In reacting to this week’s Supreme Court decision, Memphis Mayor A C Wharton Jr. said the challenge to the city’s water supply had to be taken seriously.

“It also lifts a burden many times that we face when we are seeking to recruit businesses to come here,” Wharton said. “It does underscore that to the degree questions come up that we feel the better way to resolve those is for all of us to sit down and discuss any issues that might arise.”

Asked how much the city spent defending itself from the challenge, Wharton said he wasn’t sure but added it was “dollars that were well spent.”

“From a financial standpoint, it’s unthinkable,” he said of what the cost to the city would have been had it lost. “These matters take awhile to get through the courts, and while they are making their way through courts, it creates so much instability. … The stakes are immense.”

Wharton confirmed the city is competing for high-tech businesses that use large amounts of untreated water. He doubted the city lost any industrial prospects because of the water rights court fight that lasted several years.

“But anything that brings it into question is an impediment,” he added.

Two similar lawsuits are still being pursued in Oxford federal court. One is a lawsuit filed by DeSoto County against Memphis and MLGW. The other is a proposed class-action lawsuit.

Attorney David Bearman, one of several attorneys representing the city of Memphis and MLGW, described those court challenges as “roughly equivalent” to the challenge dismissed by the Supreme Court. He declined further comment because the cases are pending.

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