By David Pendered
The proposal to mine sand near the Okefenokee Swamp could be affected by a groundbreaking ruling on water rights issued by the U.S. Supreme Court.
For the first time, justices have determined the same laws that apply to water flowing above ground apply to water in multi-state underground aquifers.
“This court has never before held that an interstate aquifer is subject to equitable apportionment,” Chief Justice John Roberts wrote in a unanimous opinion issued Nov. 22, 2021. This doctrine “aims to produce a fair allocation of a shared water resource between two or more States,” according to the ruling.
The ruling sets a legal foundation to manage future disputes over the usage of interstate groundwater. This issue is expected to arise more frequently as drought and climate change poise to alter the United States’ traditional water supplies and challenge agreements among governments to share water.
This ruling could be brought into play at the proposed mine near the Okefenokee, in part because of the amount of water to be extracted for mining operations from the four-state Floridan Aquifer. For that to happen, a party that has standing to file a lawsuit would have to do so on behalf of one or more of the four states that are above the Floridan Aquifer — Florida, Alabama, Georgia and South Carolina. Two of these states have previously litigated Georgia’s use of water from the Chattahoochee and Flint rivers. The Supreme Court ruled against Florida’s claim in April.
Twin Pines Minerals, LLC has filed an application for industrial groundwater withdrawal permit with Georgia environmental regulators. The company intends to mine sand from an area outside the southeastern border of the Okefenokee. Minerals in the sand are valued for their industrial uses.
The permit application seeks to extract 1.44 million gallons of water a day from the Floridan Aquifer. The application noted the U.S. Geological Survey had estimated extraction rate in 2010 of 11.1 million gallons a day by four counties that contain the swamp — Brantley, Charlton, Clinch and Ware counties.
A USGS report unrelated to the Twin Pines Minerals application states an estimated 3,271 million gallons a day were extracted from the Floridan Aquifer, in 2010, to meet the combined demands by agricultural and drinking water consumers.
To establish the precedent of equitable apportionment of an interstate aquifer, justices used a lawsuit filed by Mississippi against Tennessee. Mississippi contended that Tennessee was “siphoning” Mississippi’s water from the Middle Claiborne Aquifer through a network of wells in Tennessee. The aquifer stretches beneath eight states.
Roberts observed that justices disagree with Mississippi’s claim that it has sovereign ownership over all waters beneath its surface.
“Although our past cases have generally concerned streams and rivers, we see no basis for a different result in the context of the Middle Claiborne Aquifer,” Roberts wrote. “When a water resource is shared between several States, each one ‘has an interest which should be respected by the other. Mississippi’s ownership approach would allow an upstream State to completely cut off flow to a downstream one, a result contrary to our equitable apportionment jurisprudence.”
The Floridan Aquifer stretches about 100,000 square miles beneath the entire state of Florida, and parts of Alabama, Georgia, South Carolina, as well as portions of the Gulf of Mexico and the Atlantic Ocean. It is the water source for about 10 million people.
The aquifer provides water for agriculture, and for tourism and wildlife through its “crystal clear water that discharges to springs and streams providing recreational and tourist destinations and unique aquatic habitats,” according to USGS reports.
Twin Pines Minerals intends to conserve water by recycling and recirculating it during the production process, according to the application. Water that is not recycled will have been lost to evaporation or retained in the final product.