The Importance of Regulating Transboundary Groundwater Aquifers

• Author: Emily Brophy
• Position: J.D. candidate, May 2012, at American University Washington College of Law
• Pages: 19-19

19 SUSTAINABLE DEVELOPMENT LAW & POLICY

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.

Endnotes:

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

http://pubs.usgs.gov/fs/fs-103-03/JBartolinoFS(2.13.04).pdf.

4 See generally fooD anD water watch, unmeaSureD Danger: america’S hiD-

Den grounDwater criSiS 5 (2009), available at http://www.foodandwaterwatch.

org/water/pubs/reports/unmeasured-danger-america2019s-hidden-groundwater-

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