By: Betsy Smith
Mississippi v. Tennessee et al., 142 S.Ct. 31 (2021)
I. INTRODUCTION
The tap water that comes out of your kitchen sink could be the next source of Supreme Court litigation. Over one-third of Americans rely on groundwater to get their tap water.1 Groundwater is found below the earth’s surface and can come from underground sources like aquifers.2 The Middle Claiborne Aquifer (“MCA”), which runs underneath Mississippi, Tennessee, Alabama, Louisiana, Arkansas, Kentucky, Illinois, and Missouri, is one such source of groundwater.3 With climate change sweeping the nation and droughts in the American West, groundwater wars will likely become more common. Groundwater litigation has involved claims from tortious takings, to commerce clause violations, to equitable apportionment.4 And, states have some choice on how to handle these groundwater wars: litigate or enter into an interstate water compact.5 Mississippi and Tennessee are the most recent states to face this groundwater war decision.
In two separate lawsuits, Mississippi alleged that Memphis and the State of Tennessee were stealing Mississippi’s groundwater from the MCA.6 By choosing litigation over negotiating an interstate water compact, Mississippi is prolonging the MCA groundwater war, and the Supreme Court’s decision that judicial equitable apportionment is the appropriate form of relief lead the parties astray from the better solution: an interstate water compact.
II. FACTS AND HOLDING
Both Mississippi and Tennessee have sat above the MCA for years, even litigating a prior dispute.7
A. Prior Dispute
In a prior lawsuit in 2005, Mississippi’s Attorney General sued the City of Memphis and Memphis’ utility division for wrongfully appropriating groundwater from the MCA through the City’s pumping.8 Mississippi sought hundreds of millions in damages, but the district court dismissed the suit for failure to join the State of Tennessee, an indispensable party, and the Fifth Circuit affirmed.9 Mississippi filed a petition for writ of certiorari, adding Tennessee as a party; however, the Supreme Court declined to grant certiorari, leading Mississippi to sue again in 2014.10
B. Current Dispute
In 2014, Mississippi –invoking original jurisdiction– filed a complaint against Tennessee.11 Mississippi alleged that Tennessee’s pumping of the aquifer was a tortious taking, stealing water once located beneath Mississippi.12 The parties conceded that although some of the wells were near the border, the wells were all drilled straight down and did not cross physical state borders.13 Mississippi argued, however, that the pumping has hastened the existing flow such that Tennessee is now taking water that would have remained under Mississippi for thousands of years.14 Mississippi argued this would require it to drill its own wells deeper and increase electricity costs.15
The Supreme Court of the United States granted Mississippi leave to file its complaint, and then the Court appointed a Special Master to oversee the proceedings.16 The Special Master concluded that equitable apportionment – not tortious taking damages – was the appropriate remedy.17 The Special Master issued a report recommending that the Court dismiss Mississippi’s complaint because the state did not seek equitable apportionment but suggested leave to amend so that it could plead an equitable apportionment claim.18 But, Mississippi never amended the complaint to seek equitable apportionment, so the Court dismissed the complaint.19 The Court held that the MCA’s waters are subject to equitable apportionment in this matter of first impression for interstate groundwater allocation.20
III. LEGAL BACKGROUND
This section will explain equitable apportionment, interstate water compacts, and congressional apportionment and weigh the historic advantages and disadvantages of these approaches.
A. Methods of Solving Interstate Water Disputes
Interstate water disputes are becoming increasingly common due to climate change.21 There are three ways to solve interstate water disputes:22 (1) equitable apportionment – a federal common law doctrine that governs interstate disputes regarding rights to use water in an interstate stream, which is accomplished via litigation in the Supreme Court;23 (2) interstate water compacts – contracts between states that are then adopted by Congress and transformed into federal law;24 or (3) congressional apportionment – when Congress passes an act without direct state involvement.25
1. Equitable Apportionment
Equitable apportionment stands for the principle of “equality of right.”26 Courts apply the equitable apportionment doctrine to disputed interstate waters by balancing state sovereign interests.27 Courts do not use a formulaic approach, but instead look at various relevant factors ranging from priority of use to conservation.28 Thus, equitable apportionment does not mean “equal division,” but rather that principles of equity should be applied.29
The United States Supreme Court first applied the equitable apportionment doctrine to interstate water disputes in Kansas v. Colorado.30 The Court noted that “[e]ach state stands on the same level with the rest,” and the Court desired to recognize the equal rights of all states and simultaneously establish justice.31 In this case, Kansas sued Colorado for “depleting the flow of water in the Arkansas River,”32 which Kansas said was destroying its legal rights and water access.33 The Court determined that Colorado river flow reduction was recognized as trespass at common law and determined that the federal government has power over navigable waters.34 The Court dismissed the complaint,35 and it concluded that Kansas could institute new proceedings when, “through a material increase in the depletion of the water . . . the substantial interests of Kansas are being injured to the extent of destroying the equitable apportionment of benefits between the two states resulting from the flow of the river.”36
In Nebraska v. Wyoming, the Court walked through factors to consider in equitable apportionment cases.37 Essentially, the Court considers the protection of previously established water uses, geography, climate, and the cost to upstream lands weighed against the benefits to downstream lands.38 The Court also considers the state’s interest, as parens patriae, in getting its share of water from an interstate water source.39 Equitable apportionment has a high bar, requiring that a state show the other state has appropriated “more than her equitable share,”40 working “serious injuries to her substantial interests.”41 Practically, it looks like the Court telling one state how much water they can divert or rejecting a diversion or new use.42
By setting the bar high, the Court has implicitly encouraged interstate water compacts – and has previously explicitly stated that it prefers interstate compacts.43
2. Interstate Water Compacts
Interstate water compacts are common in western states,44 where worsening drought has made water a precious economic resource. States typically prefer interstate compacts to handle water allocation for interstate bodies of water.45 In addition, as interstate water disputes can take years and cost millions of dollars to litigate,46 compacts are favored for “the possibility of avoiding the costs, risks, and delays of judicial equitable apportionment.”47
The federal government has, at times, encouraged states to enter into these kinds of water allocation agreements.48 The Compact Clause of the Constitution governs how such water allocation compacts must be created.49 The Compact Clause provides that:
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.50
This clause also allows compacts to have the power to establish commissions, typically comprised of equal numbers of members from each state and a federal representative, to manage the shared water according to the compact terms.51
Most interstate water compacts were entered into between the 1920s to the 1960s.52 One commonly studied, more recent example is the Apalachicola-Chattahoochee-Flint River Basin Compact among Florida, Georgia, and Alabama.53 In 1992, after struggles with judicial apportionment and litigation, the three states agreed to attempt negotiation of an interstate water compact.54 The agreement to agree served as a sort of interstate “treaty,” which gave the states five years to study the entire river basins and the three states’ water needs.55 From 1997 to 2003, the three states negotiated and even mediated, attempting to reach an agreement and avoid litigation.56 However, politics and competing state interests continued to push back the agreement deadline,57 and ultimately there was no agreement.58
An example of a failed interstate water compact is the Red River Compact among Texas, Oklahoma, Arkansas, and Louisiana.59 In 1978, the states entered into the Red River Compact, attempting to achieve “the equitable and fair apportionment of the water of the Red River and its tributaries.60 But, in 2007, litigation over the compact ensued when Tarrant Regional Water District – a political subdivision of Texas – sued the Oklahoma Water Resources Board.61
3. Congressional Apportionment
Finally, congressional apportionment is the most recently created method of interstate water allocation.62 Congress has only used it twice.63
Between the three choices of methods to solve interstate water disputes,64 Mississippi chose the litigation route, but it did not seek equitable apportionment.65 Rather, Mississippi argued that tortious taking principles apply to interstate groundwater disputes, an argument the Court did not accept.66
IV. INSTANT DECISION
In Mississippi, the Supreme Court held that the MCA’s groundwater is subject to judicial equitable apportionment.67 The Special Master determined that the aquifer is an interstate water resource, and thus, equitable apportionment is the appropriate remedy.68 In its holding in this issue of first impression, the Court identified three elements in determining whether equitable apportionment is appropriate to govern an interstate aquifer dispute:69 (1) existence of transboundary resources;70 (2) waters naturally flow between states;71 and (3) actions “reach through the agency of natural laws” to impact the interstate groundwater.72
The Court noted that Mississippi conceded that the aquifer is a transboundary resource, so the first element was met.73 Next, the Court concluded that even though the natural flow of the aquifer is “extremely slow,”74 more than 35 million gallons of water per day flow between the litigating states,75 which was enough for the court to place this aquifer in the realm of equitable apportionment.76 Finally, the Court addressed Tennessee’s pumping actions, which have “contributed to a cone of depression that extends miles into northern Mississippi.”77 Mississippi argued that this cone of depression has reduced Mississippi’s storage for groundwater, and the Court concluded that “such interstate effects are a hallmark of [its] equitable apportionment cases.”78 Finally, the Court discussed the procedural implications that come from its decision, noting that Mississippi “disavowed equitable apportionment entirely” in its initial pleading.79 Thus, as the Court held that equitable apportionment was the appropriate remedy for an interstate water resource, it determined that the case should be dismissed because Mississippi did not seek equitable apportionment.80
V. COMMENT
Before Mississippi v. Tennessee, the Supreme Court had never heard a case about an interstate groundwater dispute.81 However, it had consistently applied equitable apportionment to controversies over interstate surface water,82 and it had enforced interstate water compacts in cases concerning those compacts.83 In Mississippi v. Tennessee, the Court held that the judicial remedy of equitable apportionment was applicable to interstate groundwater arguments.84 This matter of first impression case expanded equitable apportionment jurisprudence by clearly applying it to the interstate groundwater of the MCA.85 But, the Court ignored determining how practicable or ideal equitable apportionment is as a solution to interstate water disputes compared to interstate water compacts.
While the unanimous holding did “provide[] a framework for other legal battles that may emerge in coming decades,”86 it has raised some concerns from water law scholars over whether this is the best framework.87 Many believe that the future of groundwater dispute resolution is the interstate water compact.88 So, why did the Court choose to expand a doctrine of relief not sought by Mississippi, when it could have dismissed the complaint and told the parties to figure it out themselves?
Interstate water compacts are advantageous over equitable apportionment for four main reasons. Most importantly, compacts give states the most flexibility and control over the shared water resource.89 Through negotiation, states can ensure that their needs and wants are met, rather than letting a court decide what allocation it believes is equitable.90 While equitable apportionment remedies can be unpredictable by nature of being a multi-factor balancing test, compacts can help states definitively determine whether they can cross state lines to access water or not.91 Secondly, water compacts are based on more complete information than judges or politicians have access to because states negotiate these compacts after studies about present and future water use.92 Courts and legislatures often do not have the requisite knowledge to make a fully informed decision when exercising apportionment.93 Third, the states that are party to the compact can choose an enforcement mechanism.94 States can either treat the compact as a contract and risk the expense of litigation if enforcement is needed, or states can create enforcement commissions to make sure the compact adapts to new circumstances as they arise.95 For these reasons, interstate water compacts are more promising solutions for states in interstate water disputes.
Critics of interstate water compacts note three disadvantages. First, they cite that compacts can be ambiguous and difficult to interpret.96 However, equitable apportionment jurisprudence has its own ambiguity problem and has been called “haphazard and insufficient” when trying to balance water efficiency.97 Next, they argue that the time it can take to negotiate makes compacts impracticable due to the possibility of political cycles derailing compacts.98 Judicial apportionment, however, is also not a quick solution. Mississippi filed two suits against Tennessee to settle the MCA dispute and still did not have an answer after sixteen years of on-and-off litigation.99 A final concern of interstate compacts is that the enforcement commission members are not fully autonomous, as they often have to answer to their state governor or legislature.100 While the judicial branch is the most autonomous, the information deficit that judges face compared to compact commissioners with vast knowledge of the specifics of these disputes mitigates this lack of autonomy concern. Interstate water compacts are an imperfect solution,101 but they are a more robust solution than judicial apportionment.
Interstate water compacts are the future of groundwater dispute resolution. Optimistic scholars are hopeful that the high burden set by the Court in its equitable apportionment remedy holding will lead more states to choose to enter into water compacts.102 Notably, the Court has explicitly stated that it prefers these compacts.103 However, Mississippi v. Tennessee would have been an appropriate time for the Court to remind states that interstate compacts are its preferred course of action, if that is still the case. But, the Court ruled that equitable apportionment is the appropriate remedy and dismissed the case, even though Mississippi did not initially seek equitable apportionment, did not amend the complaint to seek equitable apportionment, and did not seek leave to amend the complaint.104
Ideally, the Supreme Court would have reconfirmed its preference for interstate water compacts.105 Even more ideally, Mississippi would have taken a hint from the precedent it relied on in its argument and would have negotiated a water compact with Tennessee.106 Suing in 2014 was Mississippi’s mistake – trying to negotiate an interstate water compact with Tennessee after studies and discussions would have furthered Mississippi’s interests in the water. Instead, it is now 2022, and Mississippi does not have answers – or rights to the groundwater of the MCA.
VI. CONCLUSION
Groundwater wars will be a reality moving forward in the United States as climate change progresses and droughts worsen,107 and it is important for states to be well-equipped and prepared to handle shared water resource allocation. States – and their residents– will be better off choosing to negotiate interstate water compacts, a flexible, adaptive solution that allows states to decide what is actually an equitable solution on their own terms.
FOOTNOTES
[1] CDC, Groundwater Awareness Week, https://www.cdc.gov/healthywater/drinking/groundwater-awareness-week.html#:~:text=Groundwater%20supplies%20water%20to%20wells,water%20from%20a%20groundwater%20source (last visited Sept. 19, 2022). Groundwater makes up about half of the municipal, domestic, and agricultural water supply. Madeline Carlisle, The Supreme Court’s Decision on the Mississippi-Tennessee Aquifer Conflict Will Change U.S. Water Wars, Time (Nov. 23, 2021) https://time.com/6122947/supreme-court-water-mississippi-tennessee/; U.S. EPA, Groundwater https://www.epa.gov/sites/default/files/documents/groundwater.pdf (last visited Sept. 19, 2022).
[2] CDC, supra note 1.
[3] Robin Craig, In Dispute Over Groundwater, Court Tells Mississippi It’s Equitable Apportionment or Nothing, ScotusBlog (Nov. 23, 2021) https://www.scotusblog.com/2021/11/in-dispute-over-groundwater-court-tells-mississippi-its-equitable-apportionment-or-nothing/.
[4] Mississippi v. Tennessee et al., 142 S. Ct. 31, 36 (2021); see Tarrant Reg’l Water Dist. v. Herrmann, 569 U.S. 614, 133 S. Ct. 2120 (2013).
[5] Andrew Thornley, A Tale of Two River Basins: The Southeast Finds Itself in a Rare Interstate Water Struggle, 9 U. Denv. Water L.Rev. 97, 115–16 (2005). Congressional apportionment is another way to settle interstate water disputes. This is decided by Congress, not the states, and it is extremely rare. Douglas L. Grant, Interstate Water Allocation Compacts: When the Virtue of Permanence Becomes the Vice of Inflexibility, 74 U. Colo. L. Rev. 105, 174 (2003).
[6] Samuel Hardiman, How a Supreme Court Decision Could Change the Future of Memphis’ and the South’s Drinking Water,” Memphis Com. Appeal, https://www.commercialappeal.com/story/news/2021/11/30/supreme-court-decision-could-change-future-memphis-sand-aquifer/6344790001/ (Dec. 2, 2021).
[7] Mississippi, 142 S. Ct. at 36. The Middle Claiborne Aquifer was discovered in 1886 by workers drilling for the Bohlen-Huse Ice Company. Id.
[8] Id. at 37.
[9] Id. (citing Hood ex rel. Mississippi v. City of Memphis, 533 F. Supp. 2d 646, 651 (N.D. Miss. 2008)).
[10] Mississippi v. City of Memphis, 559 U.S. 904 (2010).
[11] Mississippi v. Tennessee et al., 142 S.Ct. 31, 36 (2021).
[12] Id.
[13] Id. at 37.
[14] Id.
[15] Id. at 38.
[16] Id. at 36.
[17] Id. at 38.
[18] Id. at 38–39.
[19] Id.
[20] Id. at 40.
[21] Carlisle, supra note 1.
[22] Thornley, supra note 5, at 115–16.
[23] Colorado v. New Mexico, 459 U.S. 176, 183 (1982).
[24] Amelia I.P. Frenkel, Interstate Water Rights: Take No Drop For Granted, 40 Harv. Env. L.Rev. 253, 260 (2016).
[25] Id. at 259.
[26] Id.
[27] Water Law Update: The Equitable Apportionment Doctrine: It’s Not Just For Rivers and Streams Anymore, JD Supra, (Dec. 8, 2021) https://www.jdsupra.com/legalnews/water-law-update-the-equitable-7251464/. For equitable apportionment of interstate rivers, courts “will protect the rights of established senior users but will also consider additional factors . . . such as, conservation measures available to both states and the balance of harm and benefit that might result from the diversion.” Colorado, 459 U.S. 176. For equitable apportionment of interstate streams, the court uses a strict priority apportionment, but the apportionment “should not be adopted where such method would deprive each state of full freedom of intrastate administration of its share of the water.” Nebraska v. Wyoming, 325 U.S. 589 (1945).
[28] § 5:34. Interstate Equitable Apportionment of Water (And Fish), 1 Pub. Nat. Resources L. § 5:34 (2nd ed.); see infra note 66.
[29] State of Connecticut v. Com. of Mass., 282 U.S. 660 (1931).
[30] See Kansas v. Colorado, 206 U.S. 46 (1907).
[31] Id. at 97–88.
[32] Id. at 49. The Court has also applied equitable apportionment to streams, river basins, and interstate surface waters. Wyoming v. Colorado, 259 U.S. 419 (1922); Florida v. Georgia, 141 S.Ct. 1175 (2021); Nebraska v. Wyoming, 515 U.S. 1 (1995).
[33] Kansas, 206 U.S. at 47.
[34] Id. at 85–86.
[35] Id. at 80.
[36] Id. at 118.
[37] Nebraska, 325 U.S. at 618.
[38] Id. Upstream is defined as “in the direction opposite to the flow of a stream.” Downstream is defined as “in the direction of or nearer to the mouth of a stream.” Merriam-Webster, https://www.merriam-webster.com/dictionary/downstream (last visited Apr. 13, 2022).
[39] South Carolina v. North Carolina, 558 U.S. 256, 274 (2010). The doctrine of parens patriae allows states to sue to prevent or repair harm on behalf of the state’s quasi-sovereign interests. N. Arapaho Tribe v. Burwell, 118 F. Supp. 3d 1264, 1277 (D. Wyo. 2015).
[40] Colorado v. Kansas, 320 U.S. 383, 391–92 (1943).
[41] Id.
[42] Bernadette R. Nelson, Muddy Water Blues: How the Murky Doctrine of Equitable Apportionment Should Be Applied, 105 Iowa L. Rev. 1827 (2020).
[43] Nebraska v. Wyoming 325 U.S. 589, 615 (1945) (“[T]hese controversies between States over the waters of interstate streams involve the interests of quasi-sovereigns, present complicated and delicate questions, and, due to the possibility of future change of conditions, necessitate expert administration rather than judicial imposition of a hard and fast rule. Such controversies may appropriately be composed by negotiation and agreement, pursuant to the compact clause of the Federal constitution.”); Frenkel, supra note 24, at 259–60.
[44] Grant, supra note 5, at 105. Interstate compacts have also historically been used to address “boundary disputes, information sharing, horse racing, and the management of low-level radioactive waste.” Alexandra Campbell-Ferrari, Managing Interstate Water Resources: Tarrant Regional And Beyond, 44 Tex. Env. L.J. 235, 237–38 (Sep. 2014).
[45] Grant, supra note 5, at 105.
[46] Frenkel, supra note 24, at 261.
[47] H. David Gold, Supreme Court Struggles with Damage Assessment in Water Dispute as Interstate Compact Breaks Down, 29 Ecology L.Q. 427, 429 (2002).
[48] Frenkel, supra note 24, at 260.
[49] U.S. Const. Art. I, § 10, cl. 3.
[50] Id. When states desire to enter into a compact, there is a procedure to follow. First, Congress approves that the states wish to negotiate terms of control over the interstate water resource. Josh Clemons, Interstate Water Disputes: A Road Map for States, Miss.-Ala. Sea Grant Legal Program, http://masglp.olemiss.edu/acf.htm (last visited Sept. 26, 2022). Then, signatory states must approve the compact terms, and finally, Congress’s consent concludes the agreement. Frenkel, supra note 24, at 260. Once Congress gives its authorization, the compact “transforms into a law of the United States.” Texas v. New Mexico, 462 U.S. 554, 564 (1983).
[51] Clemons, supra note 53. One example of an interstate water compact commission is the Red River Compact Commission, which is comprised of the directors of the state water agency from all four states that are party to the contract, as well four basin residents appointed by each state’s governor, and one federal representative. Red River Compact Commission, Oklahoma Water Resources Board, https://www.owrb.ok.gov/rrccommission/rrccommission.html (last visited Sept. 26, 2022).
[52] Grant, supra note 5, at 106.
[53] Dustin S. Stephenson, The Tri-State Compact: Falling Waters and Fading Opportunities, 16 Fla. State U. J. of Land Use and Env’t. 83, 100 (Apr. 2018); see Florida v. Georgia, 141 S.Ct. 1175 (2021).
[54] Stephenson, supra note 56, at 100.
[55] Id. at 100–01.
[56] Alyssa S. Lothrop, A Tale of Three States: Equitable Apportionment of the Apalachicola-Chattahoochee-Flint River Basin, 36 Fl. S. U. L.Rev. 4, 870 (2009).
[57] Stephenson, supra note 56, at 102–05.
[58] Lothrop, supra note 59, at 871.
[59] See Tarrant Regional Water Dist. v. Herrmann, 569 U.S. 614 (2013); see Mississippi v. Tennessee, 142 S.Ct. 31, 40 (2021); see generally, Campbell-Ferrari, supra note 47.
[60] Campbell-Ferrari, supra note 47, at 247.
[61] Tarrant Regional Water Dist., 569 U.S. 614.
[62] Frenkel, supra note 24, at 259; Grant, supra note 5, at 174.
[63] Grant, supra note 5, at 174. Congress has only used this method for “badly-needed federal water projects” and concerns over tribal access to disputed water. Grant, supra note 5, at 174. Clemons, supra note 53. Typically, Native American tribes prefer negotiating interstate water compacts over adjudicating the issues due to the expense and uncertainty of litigation. Michael R. Moore, Native American Water Rights: Efficiency and Fairness, 29 Nat. Res. J. 3, 763, 768 (1989).
[64] See supra Part II.A.1–3.
[65] Mississippi v. Tennessee, 142 S.Ct. 31, 39 (2021).
[66] Id. Mississippi argued that the cone of depression created from Tennessee’s pumping caused a drop in pressure, moving the water out from under Mississippi at a faster rate and decreasing groundwater storage in Mississippi. Id. at 40. Mississippi argued that it has an absolute ownership right to all groundwater beneath its surface. Id. The Court pointed out that Mississippi’s requested relief would allow “an upstream State to completely cut off flow to a downstream one.” Id.
[67] Mississippi, 142 S.Ct. at 40.
[68] Id. at 38.
[69] Id. at 39.
[70] Id. at 40.
[71] Id.
[72] Id.
[73] Id.
[74] Id. (quoting Exceptions Brief for Mississippi at 8).
[75] Id. at 40.
[76] Id.
[77] Id.
[78] Id.
[79] Id. at 41.
[80] Id. at 42. However, the Court did note that Mississippi had satisfied the required elements of equitable apportionment. Id.
[81] Id. at 39.
[82] See, e.g., Kansas v. Colorado, 206 U.S. 46 (1907); Nebraska v. Wyoming, 325 U.S. 589 (1945); Colorado v. Kansas, 320 U.S. 383 (1943); South Carolina v. North Carolina, 558 U.S. 256 (2010).
[83] See, e.g., Tarrant Regional Water Dist. v. Herrmann, 569 U.S. 614 (2013).
[84] Mississippi, 142 S.Ct. at 40.
[85] Id. at 41.
[86] Carlisle, supra note 1.
[87] Samuel Hardiman, How a Supreme Court Decision Could Change the Future of Memphis’ and the South’s Drinking Water,” Memphis Com. Appeal (Dec. 2, 2021) https://www.commercialappeal.com/story/news/2021/11/30/supreme-court-decision-could-change-future-memphis-sand-aquifer/6344790001/.
[88] See id.; Grant, supra note 5.
[89] Clemons, supra note 53.
[90] See also, Peter M. Carrozzo, Tenancies in Antiquity: A Transformation of Concurrent Ownership for Modern Relationships, 85 Marq. L. Rev. 423 (2001). Concurrent owners in a property context often have their needs and wants thwarted by partition actions, an equitable action which is comparable to equitable apportionment in an interstate water context. Thus, concurrent owners are often incentivized to enter into agreements about how they will handle aspects of co-ownership. Id. at 428–29.
[91] See Tarrant Regional Water Dist. v. Herrmann, 569 U.S. 614 (2013).
[92] Stephenson, supra note 56, at 93.
[93] Id.
[94] Id. at 98.
[95] Id. at 99. Commissions are a centralized body, so information gathering costs and continuing negotiations costs are negligible when using a commission as compared to litigating the issue down the road. Id.
[96] Burke W. Griggs, Interstate Water Litigation in the West: A Fifty-Year Retrospective, 20 U. Den. L.Rev. 153, 212 (2017).
[97] Frenkel, supra note 24, at 292.
[98] Stephenson, supra note 56, at 103–04; Grant, supra note 5.
[99] Mississippi v. Tennessee, 142 S.Ct. 31, 37 (2021).
[100] Stephenson, supra note 56, at 100.
[101] Campbell-Ferrari, supra note 47, at 264. Other proposed solutions to the interstate water dispute issue range from enacting a national water management plan to creating water markets. Id.; Brian Singleterry, Marketing Interstate Harmony: Interstate Water Markets As An Alternative to Resolving Water Conflicts, 2 Tex. A&M L.Rev. 527, 538 (2015).
[102] Carlisle, supra note 1.
[103] Nebraska v. Wyoming, 325 U.S. 589, 616 (1945).
[104] Mississippi v. Tennessee, 142 S.Ct. 31, 39 (2021).
[105] Nebraska, 325 U.S. at 616.
[106] See Tarrant Regional Water Dist. v. Herrmann, 569 U.S. 614 (2013).
[107] Carlisle, supra note 1.