Klein on Groundwater Exceptionalism and Ownership v. Use

Christine Klein (Florida) has posted Owning Groundwater: The Example of Mississippi v. Tennessee (35 Virginia Envtl. L.J. 474 (2017)) on SSRN. Here's the abstract:

In Mississippi v. Tennessee, a case currently on the U.S. Supreme Court’s docket, Mississippi claims that it owns all groundwater stored underneath its borders that does not cross into Tennessee under “natural predevelopment” conditions—those existing before the advent of modern well technology. Consequently, Mississippi seeks more than $600 million from Tennessee for pumping of wells that tap into a geologic formation that underlies both states. This remarkable claim departs from the U.S. Supreme Court doctrine of “equitable apportionment” under which the Court has resolved interstate surface water conflicts, determining relative rights of use rather than awarding monetary damages based on water ownership. It also departs from the almost uniformly established proposition that the states do not “own” the water within their borders in a physical sense, but instead are authorized to manage that water for the “use” of their citizens. This Article situates the conflict at the crossroads of two broader issues. First, under a phenomenon this Article dubs “groundwater exceptionalism,” the law often treats groundwater differently than surface water, partly as a relic of slow-developing hydrologic knowledge. Second, the dispute goes to the very heart of property law and the meaning of ownership, as distinguished from rights of use. The lower courts have consistently framed this decade-​​long dispute as a matter of competing uses, but have also interjected the rhetoric of ownership into their opinions. This conflation of use and ownership has the potential to affect the outcome of this case, as well as distort future litigation involving equitable apportionment, regulatory takings, state water rights law, and other legal doctrines.