The Importance of Regulating Transboundary Groundwater Aquifers

Author:Emily Brophy
Position:J.D. candidate, May 2012, at American University Washington College of Law
the importance of regulating tranSbounDary
grounDwater aQuiferS
by Emily Brophy*
If the United St ates Supreme Court grants certiorari in a
case between Mississippi and Tennessee,1 the Court will have its
first opportunity to determine if and how transboundary aquifers
should be regulated. The ap plications of this case are far from
surface lev el. Regulated ground water allocation woul d protect
envi ronmenta l and econ omic
sustainability by restricting over-
pumping, thereby tempering the
harmfu l effects of groundwa-
ter deplet ion, a nd prot ecting
all part ies to a transboun dary
aquifer from losing a freshwater
source due to another’s careless
usage.2 Over-pumping of aqu i-
fers results in significant harm,
includin g incr eased water pol-
lution, changes in stream flow,
and increase d costs.3 If g round-
water continues to be m anaged
at the state level,4 then the lac k
of standardized data and regula-
tion across multi-state aquifers
may prolong the pr oblem o f
over-pumping, turning our nation’s
groundwater sources into a tragedy of the commons.5
In Hood v. City of Memphis, Mississippi seeks damages
from the City of Memphis for the theft of billions of gallons
of water that the city sold to the public through the city’s water
utility.6 By pumping water from a tra nsboundary aquifer over
the course of several decades, the utility has effectively changed
the aqu ifer’s flow.7 As a result , water that would natura lly be
located belo w Mississippi now flows towards Mem phis where
it accounts for about one-third of all water supplied through the
public utility.8
This case illustrates the detri mental effects that a lack of
regulati on ca n have on ground water sources. In the United
States, fresh groundwater use is rising steadily, increasing five-
percent between 1990 and 2000, compared to no change in total
freshwater use and only a one-percent increase in fresh surface-
water us e.9 In a city such as Memphis that pumps water from
a tran sboundary aquifer, the absence of regulatory groundwa-
ter allocation magni fies the detrimental effects of the increased
pumping on all users of the aquifer. Water experts alread y
expect groundwater shortages in at least forty-one states in the
next twenty years due to social and environmental pressu res.10
Furthermore, cli mate change threatens to increase the pr essure
on fresh groun dwater suppl ied by possibly affecting drought
cycles, aquife r recharge and discharge, and human reliance on
groundwater resources.11
The transbound ary i mplications of unregulated grou nd-
water pumping extend beyond
chang es in aquife r flow s as
exper ienced b etween M issis-
sippi a nd Tennesse e. Declin-
ing wate r levels may lead t o
the diminishe d water quality of
the aq uifer, affecting the water
supply of all who draw from the
system.12 Because of the inter-
connectedness of the hydrologic
system, a decrease in groundwa-
ter l evels due to over-pumping
may re sult in a drop in surface
water lev els, affectin g r ivers,
lake s, wet lands, and similar
features.13 These and additional
conse quences of ov er-pump-
ing illumin ate the importance
of implemen ting regulation over
transboundary aquifers.
1 See Hood v. City of Memphis, 533 F. Supp. 2d 646 (N.D. Miss. 2008), aff’d,
570 F.3d 625, petition for cert. filed, (U.S. Sept. 2, 2009) (No. 09-289).
2 See A. Dan Tarlock, Water Law Reform in West Virginia, 106 w. va.
l. rev., 495, 530 (2004) (“The best guarantee that water will be used in an
environmentally sustainable manner to serve the full range of uses from basic
human consumption to aquatic ecosystem conservation is an effective state
water law regime.”).
3 See J.r. bartolino & w.l. cunningham, uS geological Survey, grounD-
water Depletion acroSS the nation[hereinafter Depletion], available at
4 See generally fooD anD water watch, unmeaSureD Danger: americaS hiD-
Den grounDwater criSiS 5 (2009), available at http://www.foodandwaterwatch.
crisis (pointing out that groundwater is managed at the state level, not at the
federal level, which creates discrepancies over data collection across the states,
giving an incomplete view of the state of a transboundary aquifer as a whole).
* Emily Brop hy is a J.D. candida te, May 2012, at Amer ican Universit y
Washington College of Law.
Over-pumping of aquifers
results in significant
harm, including increased
water pollution, changes
in stream flow, and
increased costs
Endnotes: The Importance of Regulating Transboundary
Groundwater Aquifers continued on page 81