Earth Protect Blog

By Dionne Searcey and Delger Erdenesanaa

The New York Times

America’s stewardship of one of its most precious resources, groundwater, relies on a patchwork of state and local rules so lax and outdated that in many places, oversight is all but nonexistent, a New York Times analysis has found.

The majority of states don’t know how many wells they have, the analysis revealed. Many have incomplete records of older wells, including some that pump large volumes of water, and many states don’t register the millions of household wells that dot the country.

Even states that do try to count wells or regulate groundwater use often have other problems: Some carve out exemptions for powerful industries like agriculture, one of the nation’s biggest users of groundwater. And every state relies to some extent on well owners self-reporting their water use, the Times analysis found. That policy raises the risk of underreporting or deception by users big and small.

Regulations in some states, including Oklahoma, are guided by a principle of letting users extract groundwater at rates that exceed an aquifer’s ability to recharge. Some hydrologists call it groundwater “mining.”

“I hate to say this, but essentially, we don’t care if everything goes dry,” said Christopher Neel, a division chief at the Oklahoma Water Resources Board, although he added that this mindset is starting to change as groundwater becomes scarcer.

Oklahoma does limit pumping in certain areas and is studying how much water remains in its aquifers, information that lawmakers could use to set limits on pumping. Nevertheless, in parts of the state, the expansive Ogallala Aquifer, which irrigates farms across the middle of the country, is dozens of feet lower than it was in the 1950s.

For generations, groundwater regulations around the country routinely were based on legal principles or economic forces that prioritized the needs of the moment, such as farming and ranching in the West or urban expansion in Eastern states. At the time, states often had little or no idea how much water aquifers held or how they might interact with lakes and rivers.

There is no shortage of rules. In fact, states have created such a tangle of regulations that it can be difficult to understand how much water is being extracted from aquifers, complicating the efforts to protect them. Yet groundwater is more important than ever as climate change intensifies heat, drought and erratic rainfall, making rivers and streams less reliable as water sources.

The Times asked officials in all 50 states detailed questions about how they track and regulate groundwater use — the drilling of wells, the pumping of water and the punishment of overusers. It is part of an investigative project revealing a nationwide groundwater crisis that is draining and damaging valuable aquifers.

The depletion threatens not only the tap water that supplies just over one-third of America’s drinking water but also some of the most productive farmland in the world, which has become increasingly reliant on groundwater.

Although farmers face severe risks from groundwater depletion, many warn that too much regulation would harm their livelihoods and the nation’s food supply.

“Farming would not exist as we know it in California without the use of groundwater,” said Chris Scheuring, a water attorney at the California Farm Bureau and a family farmer himself. Groundwater has helped much of the American West to become “marvelously productive,” he said, despite the region being a dry landscape where farmers can’t rely on rainfall and surface water alone. “And you know, farming is all of us.”

Nationwide, the jumble of regulations that the Times identified has fed an industry of lawyers and consultants who help big users follow the rules — and, sometimes, to take advantage of them. “People are shopping around for where they can exploit groundwater,” said Reba Epler, a lawyer who works on water rights cases in Wyoming and New Mexico.

Some players in the industry are global giants, like the consulting firm Arup, which helps data centers sift through layers of rules to make sure they have enough water for cooling their computer systems. Others operate regionally — for example, Water365 in Wisconsin, which works with municipalities in the Great Lakes region. California’s State Water Resources Control Board provides a list of some 85 firms that help clients who have questions about water rights there.

Historically, Congress has left the policing of wells and aquifers to individual states for myriad reasons, including that groundwater has been so poorly understood. As late as the early 1900s, court rulings cited the “secret, occult and concealed” movement of groundwater to argue that administering rules on its use would be an exercise in “hopeless uncertainty.”

Today, in places with some of the weakest oversight, irrigation is on the rise. In the parts of the lower Mississippi River region, where states including Missouri, Arkansas and Louisiana have wide tracts of land with few or no restrictions on pumping groundwater, irrigation for water-intensive crops such as cotton, corn and soybeans soared in recent years as farmers sought higher yields amid worsening drought linked to climate change.

The vast majority of irrigation in this region comes from groundwater.

An official Missouri website, in fact, boasts that the state “has some of the loosest water laws in the country.” The state allows well owners, under most circumstances, to pump as much as they like without oversight.

“We’re just blessed” with water resources, said Andrew Sheeley, a spokesperson for the Missouri Department of Natural Resources.

Missouri has two major rivers, and it sits atop the immense Ozark Aquifer, which is more than 1,000 feet deep in places. But more than 85% of the state is experiencing drought, and wells that monitor conditions in the Ozark Aquifer show declines and historic lows in a handful of places.

Last month, at a state committee meeting to address the drought, speakers invoked the Dust Bowl of the 1930s and the back-to-back droughts leading up to it and raised concerns about increased fire threats. “This is probably one of the most important things that we’re going to be dealing with for the people in Missouri for a while,” Gov. Mike Parson said.

Among the states that do set limits on pumping, some make exceptions for prominent industries, emergency use or everyday activities including lawn care. States including Kentucky and Vermont generally exempt agricultural irrigation, one of the top users of groundwater nationwide. In Oregon, firefighting gets a pass, and, most of the time, so do small lawns and personal gardens.

In Texas, people who own land also own the water under it, which means farmers over the depleting Ogallala Aquifer can claim a tax deduction for irrigation. In effect, the practice rewards high water use in water-stressed areas. (The tax code considers it a “cost depletion” because the water “would be lost to the taxpayer and immediately succeeding generations.”)

Dave Owen, a professor at UC Law San Francisco, said, “If you know water is a shared resource, and nobody is restraining anybody else from pumping, you have a powerful incentive to get yours while you can.” He described groundwater regulation in the United States as “Swiss cheese.”

In September, after publication of the Times’ earlier findings on aquifer depletion nationwide, Sen. Ron Wyden, D-Ore., who leads the Energy and Natural Resource Committee’s Water and Power Subcommittee, held a hearing on what he called the country’s drinking-water crisis. “It’s hard to figure out who’s actually in charge of water policy,” he said during the hearing. “We’ve got to get practical data on the scope of the problem.”

States vary widely in the data that they collect and share.

When officials in Maine were asked if the state keeps a list of water wells, Ryan Gordon, a hydrogeologist at the Maine Geological Survey, responded, “The total is unknown, and we don’t even have a good estimate.”

Through the U.S. Geological Survey, the federal government does collect well-monitoring data around the country.

But overall, the lack of coordination among states on data and regulations has contributed to conflicts breaking out across state lines where laws or activities clash.

Mississippi sued its neighbor Tennessee, claiming that the more than 160 drinking-water wells supplying Memphis were pumping so much that they were siphoning the flow of groundwater away from Mississippi, in some places causing the earth to sink. The years-long fight went all the way to the U.S. Supreme Court, where Mississippi lost.

The court said states sharing a water resource need to respect one another’s interests. “When Tennessee pumps groundwater, it is pumping water located within its own territory,” the 2021 ruling said. “That some of the water was previously located in Mississippi is of no moment.”

“People connect with water at a visceral level in such a way that if you mess with their water, the guns will come out,” said Gabriel Eckstein, a law professor at Texas A&M University who is studying differences in groundwater regulation from state to state.

One practical problem the Times’ research identified is that state water authorities are often small operations relative to their sprawling responsibilities and the growing danger of aquifer damage.

Last year, state regulators in Minnesota, who have complained of being short-staffed, found out about unauthorized wells only after dozens of people reported their faucets had run dry. The reason: The city of Blaine was operating wells without permits and pumping so much that they interfered with household taps a few miles away.

The city had to reimburse residents for costs tied to the episode.

In Wyoming, which has issued tens of thousands of well permits, fewer than two dozen state employees are assigned to handle permitting issues for the ranchers, oil producers, mining companies and irrigators who use them. In the southeastern part of the state, the Ogallala Aquifer is diminishing.

Staff reinforcements can be called in from the state engineer’s office and from other agencies if needed, said Jeremy Manley, assistant administrator of the groundwater division in the engineer’s office. And regulators have the power to fine anyone who abuses groundwater rules. However, he said, officials tend to use a softer approach by first seeking compliance.

That method has led to abuses in places such as Laramie County, where several feedlots have operated unauthorized wells that pump significant volumes of water. “If you want to do it illegally, the state doesn’t have enough people to do anything about it,” said Cody Smith, who owns a well installation service and is a member of a water-use advisory committee for the state engineer’s office.

Most states do have financial penalties in place, the Times analysis found. A well operating outside its permitted use in Colorado could be subject to fines of $500 per day. In Maryland, groundwater abusers can be fined $5,000 a day. But many fines are essentially meaningless for big farms or factories.

Some also divide oversight among several agencies, making it difficult to glean comprehensive information about groundwater use. In Illinois, for example, three separate state agencies oversee different kinds of wells and groundwater uses.

“There are layers and layers of rules and regulations,” said Sharon Megdal, director of the Water Resources Research Center at the University of Arizona. She said only 13 states had statutes setting up formal communication among agencies. Illinois is among them.

There are models for regional cooperation. The Great Lakes Compact, created in 2008, is an agreement between eight states that regulates groundwater and surface water withdrawals across the Great Lakes basin.

It’s an example of governance guided by the water itself, rather than by artificial boundaries on a map, said Elizabeth Cisar, who is director of the environment program at the Joyce Foundation, which provides grants on drinking water in the Great Lakes region. “Hydrology should drive the rules and regulations,” she said, not state lines.

A few states also have toughened oversight.

Last year Arizona expanded bans on new irrigation to more of the state, and this year it put new limits on the construction of homes that rely on groundwater in the Phoenix area. In Kansas, where in some areas, aquifer levels have dipped 40 feet in a decade, the governor has signed into law measures designed to ensure local regulators take action in parts of the state where groundwater use is highest.

In Minnesota, state lawmakers this year increased fines for violators who pump more water than their permits allow. Still, farmers in Minnesota, who count among some of the biggest water users, are allowed to self-report their use.

A handful of states, including Washington, have tested a system of taking remote readings from wells rather than having users report their own withdrawals. But the program applied to only some wells. For many of the others, as in most states, users take their own readings and report them.

“To some extent, we are relying on the water user to not be committing fraud,” Gordon said.