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Dry weather and population booms are triggering a monsoon of litigation over water supplies across the country, with cities and states suing each other over the right to access water. In the West, Montana is suing Wyoming for allegedly withdrawing too much water from two area rivers, leaving Montana residents with insufficient water supplies during droughts. Montana v. Wyoming, No. 137 (U.S.). Along the East Coast, South Carolina is suing North Carolina for allegedly taking too much drinking water from one of its rivers. South Carolina v. North Carolina, No. 138 (U.S.). In the South, Mississippi is pursuing a $1 billion lawsuit against the city of Memphis, Tenn., for allegedly stealing roughly 25 million gallons a day of Mississippi’s water. Hood v. Memphis, No. 2:05 cv 32-D-B (N.D. Miss.). Also in the South, a tri-state legal battle is brewing among Georgia, Florida and Alabama over access to two major river basins. Georgia wants more water, but Florida and Alabama claim Georgia already siphons off too much. In Arizona, two environmental groups have filed a lawsuit alleging that the U.S. Army is draining the San Pedro River basin dry, arguing the drainage could devastate an ecosystem that supports hundreds of mammals and reptiles. Center for Biological Diversity v. Kempthorne, No. 4:2007cv00484 (N.D. Ariz.). And on the Plains, Kansas is threatening to sue Nebraska for allegedly withdrawing too much water � an extra 27 billion gallons in one year � from the Republican River. Kansas sued Nebraska and Colorado over access to the same river in 1998, which led to a settlement that was approved by the U.S. Supreme Court in 2003. Kansas v. Nebraska and Colorado, No. 126. “There is undoubtedly a climatological effect happening that’s creating more water scarcity. And as water becomes a scarce resource, water rights have become more and more valuable,” said David Frederick, who is representing South Carolina in its water lawsuit against North Carolina. Frederick of Washington’s Kellogg, Huber, Hansen, Todd, Evans & Figel is also representing Delaware in a water lawsuit with New Jersey over access to the Delaware River. He said that water wars are nothing new. There’s just a lot more of them now � and more are likely coming. “That seems to be the trend. And there are several dynamics � the heating up of the planet leading to greater scarcity, and the continued growth of the Sunbelt creating tension,” he said. For Mississippi attorney Don Barrett, who is representing Mississippi in its lawsuit against Memphis, his water war isn’t about scarcity. It’s about outright theft, he alleged. “It’s fairly simple � the city of Memphis took something that didn’t belong to them,” Barrett said. “We are blessed with having this great water in northern Mississippi that would assure us water for the millennium, except that Memphis is stealing it from us.” Barrett of the Barrett Law Office in Lexington, Miss., alleges that Memphis is using sophisticated “megapumps” to suck up millions of gallons of groundwater that sits exclusively under Mississippi. Leo Bearman of Baker, Donelson, Bearman, Caldwell & Berkowitz’s Memphis office, who is representing Memphis, denied the allegations. He declined further comment. Florida attorney Ed de la Parte said it’s not that the nation’s water supply has changed over time, but the nation’s population has quadrupled in the past century, which means too many people are fighting for a limited resource. “That’s what’s driving this . . . .The users and those straws in the cup are getting more plentiful,” said de la Parte of de la Parte & Gilbert of Tampa. Even efforts to find alternative water sources are triggering litigation, said de la Parte. Currently, de la Parte is representing Seminole County and the Orlando Utilities Commission in a legal dispute involving a plan to draw water from the St. Johns River as an alternative source of water. The city of Jacksonville, Fla., however, citing environmental concerns, is opposed to the idea and has filed a lawsuit to block the plan. That water war has essentially brought a billion-dollar project to a halt. A similar controversy is unfolding between New Jersey and Delaware, which are fighting over the right to regulate what happens on New Jersey’s side of the Delaware River. Oil giant BP PLC wants to build a gas facility that requires building a pier that extends into the Delaware River to unload cargo. Delaware has blocked the permit to build the pier, so New Jersey is suing. “The case is not about the BP project, but about [New Jersey's] right to regulate what happens on its side of the river,” said Stuart Raphael of Richmond, Va.-based Hunton & Williams’ Washington office, who represents BP and filed an amicus brief in support of New Jersey. The U.S. Supreme Court heard the case in November. A decision is expected in a month or two. Frederick, who is representing Delaware, declined to comment on the case. The New Jersey-Delaware dispute raises an issue that is central to many water wars: Does one state or city have the right to use a body of water for purposes that extend beyond the boundary line into the other side’s territory? In the New Jersey case, the BP project would be on the Garden State’s shores, but the pier would extend into Delaware territory because the boundary between the two states is on the New Jersey shoreline, not the middle of the river. Raphael said the U.S. Supreme Court has already spoken on a similar issue in a 2003 case he successfully argued on behalf of Virginia, which sued Maryland over access rights to the Potomac River. Water authorities in Virginia wanted to build on the river, but they needed to go into Maryland territory to do it. Maryland said no, but the Supreme Court gave Virginia full access to the river, including the right to withdraw water, build piers and other improvements even if they extended beyond the boundary line into Maryland waters. Virginia v. Maryland, 540 U.S. 56 (2003). While some water wars are about development, fair access or more access, some are simply about keeping urban areas alive. So argues Patricia Barmeyer of Atlanta’s King & Spalding, who is representing a group of Atlanta authorities in a long-running war over access to water. Atlanta is currently involved in eight different lawsuits with Florida and Alabama that revolve around a dispute over how to share water, specifically, the Apalachicola-Chattahoochee-Flint river basin. The battle centers around a reservoir near Atlanta, whose waters flow through Georgia, Alabama and Florida. Atlanta is currently fighting to block the release of water from the reservoir � Lake Lanier � arguing that the metropolitan area relies heavily on it, especially during droughts. Releases also have caused water levels to dip dangerously low, Barmeyer said, stressing that Atlanta has not been wasteful in its water usage. “In the case of Atlanta, the water use has not grown as fast as the population. And even so, metro Atlanta’s use of the water is a very small percentage of the water in the basin,” she said. “Right now, the most pressing area of concern is that we need to have Lake Lanier recover.” But holding water back hurts Florida, argues Jim Banks of Hogan & Hartson in Washington, who is representing the state of Florida. “The more they hold it back � especially in the summer � the greater the harm to Florida’s rivers,” Banks said, adding that towns and power plants also rely on the reservoir, as does Alabama for navigational, industrial and municipal uses. He also noted that if “Atlanta is going to grow, they’re going to have to develop additional water resources. They can no longer depend on the storage in this reservoir for that growth.”

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