SOUTHERN INDIANA — Indiana Rep. Steve Stemler is concerned. He has been for about seven years.
The cause of his consternation lies beneath his feet: the Ohio River aquifer — a layer of sand and gravel created by ancient glaciers that stretches the length of the waterway.
The aquifer is saturated with water, which means that water companies the region over, including in the Louisville area, pump it for the resource.
The aquifer also extends past the borders of the river on either side, making it accessible from both Indiana and Kentucky. Both states use it.
That’s what worries Stemler, a Democrat from Jeffersonville who represents District 71 in the Legislature. If the aquifer lies in both states, who owns it and who has the right to draw from it?
That’s not a problem now, as both Indiana and Kentucky peacefully pump from the aquifer, but there’s precedent that says it might become one.
Currently, the states of Tennessee and Mississippi are locked in a lawsuit over who has access to a shared aquifer. Mississippi officials believes that Memphis’ use of groundwater has depleted their supply.
The dispute is now in the Supreme Court after over a decade of quibbling.
Meanwhile, in the south, the state of Florida has spent around $71 million in legal fees to battle Georgia over the ACF River Basin. Florida believes that Georgia’s use of the basin’s water has damaged the sunshine state’s seafood industry.
In anticipation of similarly costly arguments, Stemler has authored a bill that would create a transborder water resources authority in Indiana.
The authority, comprised of 12 members, would study the ownership rights of, not just the Ohio River aquifer, but all Indiana water resources extending across state borders.
The authority's primary responsibility would be investigating the possibility of creating interstate agreements outlining how to manage shared rivers and aquifers.
Those agreements, called interstate compacts, are the preferred way to handle disputes over transborder water resources, said Gabriel Eckstein, a professor of law at Texas A&M University who specializes in water issues.
There are two other options for states: go before the Supreme Court or ask Congress to intervene. The Supreme Court has specified that interstate compacts are the way to go, while Congress is reticent to insert itself into such issues, Eckstein said.
States should want to create compacts, as well.
“Court can be a win-lose situation, and you’re never quite sure who’s going to be on the winning side” Eckstein said.
With compacts, there’s compromise. They still have to be approved by Congress, though.
That doesn’t take too long, Eckstein said — maybe one or two sessions on average. The real work is done before that step, when the states are coming to an agreement.
In Indiana, Stemler’s water resources authority bill has already passed through the legislature and is awaiting Gov. Eric Holcomb’s signature. There’s no such legislation in Kentucky, though — the state Stemler envisions Indiana entering into an interstate compact with regarding the Ohio River aquifer.
That’s not to say there isn’t any interest across the river.
“We’ve had a lot of support between the two states already,” Stemler said.
Iris Wilbur, the director of government affairs and public policy for Greater Louisville Inc., which supports the bill, has seen interest in the issue on the Kentucky side, as well. Her organization is currently on a mission to educate policy makers about the issue.
Despite the difficulty associated with creating one, Eckstein estimates that 30 water-related interstate compacts have been formed in the United States. Indiana is already ahead of the river bend just by considering one.
“I think it’s always good to look ahead, especially if you’re talking about water,” Eckstein said.
Water is a precious resource, not only for people, but businesses, said Jack Wittman, a geoscientist and the vice president of INTERA in Bloomington.
Businesses want to know that the place that they've located to isn't going to enter into a drawn out court battle.
“Stability,” he said. “It’s all about stability.”
A compact clears up questions about who owns a water resource, just in case that ever becomes an issue.