Mike Gershon and James Muela practice in Lloyd Gosselink’s 18-lawyer Water Practice Group, which Gershon chairs. Gershon is also General Counsel for the Texas Water Journal.

Mississippi v. Tennessee, 142 S.Ct. 31 (2021)

At issue: As an issue of first impression, whether an interstate groundwater resource (in this case the Middle Claiborne Aquifer) can be subject to the federal judicial remedy of equitable apportionment.

Held: Equitable apportionment can apply to interstate aquifers. The Court determined that applying equitable apportionment to the Middle Claiborne Aquifer would be “sufficiently similar” to past applications of the doctrine to other interstate resources.

Background: This opinion stemmed from a 2014 bill of complaint filed by the state of Mississippi against the state of Tennessee and the city of Memphis, among others. Mississippi alleged that groundwater from the Middle Claiborne Aquifer was forcibly siphoned out of Mississippi and into Tennessee, which resulted in a substantial drop in pressure and corresponding drawdown. Mississippi claimed an absolute “ownership” right to all groundwater beneath its surface — even after the water had flowed across its border into Tennessee — and sought $615 million in damages.

Under the doctrine of equitable apportionment, the U.S. Supreme Court is empowered to judicially allocate rights to a disputed interstate water resource. Mississippi rejected application of equitable apportionment, however, and instead attempted to assert a “sovereign ownership right” to all water beneath its surface. The Supreme Court determined that the waters of the Middle Claiborne Aquifer were indeed subject to the doctrine of equitable apportionment, but because Mississippi had disavowed the doctrine and never subsequently amended its complaint to request equitable apportionment, the Supreme Court dismissed the case. This case is significant to Texas because a number of Texas aquifers straddle state lines and future disputes could very likely implicate the federal remedy of equitable apportionment. 

Fazzino v. Roe, No. 6:18-cv-00114-JCM, U.S. District Court Western District of Texas, Waco Division, on remand from Stratta v. Roe, 961 F.3d 340 (5th Cir. 2020)

At issue: Whether a property owner, Anthony Fazzino Jr., asserted a viable claim for violation of the equal protection clause when he asserted that the Brazos Valley Groundwater Conservation District (the “District”) treated him different from other property owners.

Held: The court determined that Fazzino’s equal protection claim failed because his complaint did not show (1) unequal treatment or (2) want of rational basis for the alleged disparate treatment. First, the court concluded that Fazzino failed to proffer evidence raising a fact issue as to whether the District intentionally treated Fazzino unequally compared to others similarly situated. While Fazzino tried to identify the city of Bryan as a similarly situated party that was treated differently, the court rejected Fazzino’s attempts to compare himself to the city because of temporal gaps between the city’s actions and Fazzino’s allegedly comparable actions. Second, the court concluded that even if Fazzino had shown unequal treatment, he failed to proffer evidence sufficient to create a genuine issue of material fact that the District’s disparate treatment of Fazzino was not supported by a rational basis. Among other reasons, the court determined it was conceivable for the District to authorize two landowners with equal surface acreage to have different volumes of groundwater authorized by production permits based on other considerations that have a rational basis and are consistent with state groundwater allocation law.

Background: Fazzino singled out some but not all permit holders who had received either existing well or historic use permits, including the cities of Bryan and College Station and the utilities Wickson Creek Special Utility District, Brazos Valley Water Supply Corporation, and OSR Water Supply Corporation. The rules at issue were adopted in 2004 and implemented to award dozens of historic use and existing well permits for several uses, including agricultural, public utility, industrial, and commercial. Fazzino owns a 25% undivided interest in a 26.7-acre tract and requested pumping rights similar to the permit allocation granted to nearby existing well owner the city of Bryan. The District’s rules allow “new users” like Fazzino up to 821 acre-feet of annual pumping rights from property his size and configuration. Fazzino alleged that the city of Bryan was draining his groundwater, although in an earlier proceeding before the State Office of Administrative Hearings, sworn testimony was offered that the city of Bryan’s pumping for nearly a decade “has not drained water from storage under the Fazzino, Jr. property other than in a de minimis amount.” Fazzino’s hydrogeologist concluded that there was plenty of water for Fazzino’s own proposed withdrawal of 3,000 gallons per minute, which “will not cause depletion of the aquifer, as all water will come from a reduction in artesian pressure.” The District has underscored to the court that it relied on express authority in Chapter 36 of the Texas Water Code, enacted under Article XVI of the Texas Constitution and consistent with Texas groundwater case law, and that it is well-established that Texas law does not allow an action for ordinary drainage. This summary focuses on the equal protection claim ruled on by the trial court, which is subject to appeal. The court’s decision on the equal protection claim is significant because it reinforces groundwater conservation districts’ management efforts and permitting frameworks. Trial is set on Fazzino’s takings claim in March 2022.

Waters of the United States – Changing Tides

At issue: The definition of “waters of the United States” and, by association, the scope of the Clean Water Act.

Developments: On December 7, 2021, the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers published a proposed rule in the Federal Register that would revise the definition of the “waters of the United States.” The new rule would change the definition of “waters of the United States” back to the pre-2015 definition, which was first put in place in 1986. The public comment period relating to the proposed change is currently open and will close on February 7, 2022.On January 24, 2022, the U.S. Supreme Court granted a petition for certiorari allowing an appeal to evaluate the test for determining the scope of “waters of the United States” in Sackett v. EPA, No. 21-454 (U.S.). It is conceivable that the federal agencies’ above-referenced rulemaking and future rulemaking will be influenced by the U.S. Supreme Court’s decision to hear Sackett v. EPA and the high court’s ultimate ruling. 

Background: The Clean Water Act regulates discharges into “navigable waters,” which are defined as “waters of the United States.” So the definition of “waters of the United States” has a significant impact on the jurisdictional scope of the Act. In recent years, the definition of this term has undergone numerous changes. President Biden is the third consecutive president to initiate changes to the definition of “waters of the United States.” Sackett v. EPA will present another opportunity for the U.S. Supreme Court to weigh in on the definition.