Court Rulings Give States New Power to Protect Groundwater

After years of dangerous decline in the nation’s groundwater, a series of developments in Western states indicate that state and federal officials may begin tightening protections for the dwindling resource.

In Nevada, Idaho and Montana, a string of court decisions have strengthened states’ ability to restrict overpumping of groundwater. California is considering penalizing local officials for draining their aquifers. And the White House has asked scientists who focus on groundwater to advise how the federal government can help.

“This is truly exciting,” said Upmanu Lall, director of both the Water Institute at Arizona State University and the Columbia Water Center at Columbia University in New York. “There has been stuff like this off and on, but not in such a short period of time across the Western states.”

Groundwater levels have fallen significantly around the country in the past four decades, according to data gathered and analyzed by from tens of thousands of monitoring wells in a New York Times investigation last year.

That water, used to support industrial farms and sprawling cities, could take centuries or millenniums to replenish, if it recovers at all. Climate change is accelerating that depletion, which threatens irreversible harm to American society.

Groundwater supplies 90% of the nation’s drinking-water systems, which means draining aquifers could render some communities unlivable. Groundwater loss has also reduced crop yields in some areas and caused the ground to subside in much of the country.

State governments have traditionally been the main source of regulation for groundwater use. And since the beginning of the year, a handful of states with particularly pronounced groundwater decline began taking action.

Idaho has the worst rate of groundwater decline in the country, as measured by the share of monitoring wells that have shown a decline in water levels since 1980, according to the Times’ investigation. Much of that water is used to irrigate crops, particularly alfalfa grown to feed one of the nation’s largest collections of dairy cattle.

As farmers pump more groundwater from wells, the amount of water flowing to streams and rivers has declined as well. In response, state officials have directed farmers in parts of the state to reduce the amount of water they draw from those wells.

Some farmers objected, saying the state is exceeding its authority. But on Jan. 12, the Idaho Supreme Court ruled in favor of the state, a ruling that will make it easier for the state to demand cutbacks in other areas, according to Brian E. Olmstead, a member of the Idaho Water Resource Board and a former farmer.

Two weeks later came another significant ruling on groundwater, this time from the Nevada Supreme Court.

More than half of Nevada’s monitoring wells show significant decreases in water levels since 1980. And almost 1 in 5 monitoring wells hit record lows in the past decade, the Times found.

But large water users, including real estate developers and mining companies, have pushed back, arguing the state is exceeding its authority to curtail pumping. One proposed development, which could have led to tens of thousands of new homes about an hour north of Las Vegas, became mired in lawsuits after the state warned it would harm water supplies.

Last year, a state lawmaker introduced a bill that would have clarified the state’s ability to say no to such projects. Water users, particularly Barrick Gold, one of the world’s largest gold mining companies, objected to the bill, which then failed to become law.

On Jan. 25, the Nevada Supreme Court issued a ruling affirming the state’s ability to block the development north of Las Vegas. A lawyer for the development, Emilia Cargill, said in an interview that the decision means hundreds of millions of dollars worth of infrastructure for the new development is now “useless.”

The ramifications of that ruling are sweeping, according to Adam Sullivan, the state’s top water regulator. He said the ruling essentially does the same thing that last year’s bill would have accomplished. “It’s helping us move in the direction of being realistic about the science,” Sullivan said in an interview.

A few weeks later came a third ruling, this time in Montana, where a judge ruled that the state had failed to impose adequate limits on the construction of new homes that rely on groundwater.

The decision blocks a proposed housing development in a valley east of Helena, which is already experiencing the effects of groundwater depletion. But result of the decision will be felt more widely, experts say, by compelling the Montana Department of Natural Resources and Conservation to apply a higher standard before approving similar developments.

The push toward stricter groundwater regulation isn’t coming only from the courts. Some of the worst effects of aquifer depletion in the United States are in California. In some parts of the state, including the Central Valley, so much groundwater has been extracted that the ground has sunk 20 feet or more.

A decade ago, state lawmakers passed a law to limit overpumping, requiring local officials to eventually reduce pumping to sustainable levels. And last March, the state determined that officials in six groundwater basins had failed to develop adequate plans.

California is beginning to impose penalties. In April, the State Water Resources Control Board will hold a hearing to decide whether to put the first of those basins, the Tulare Lake groundwater basin south of Fresno, on probation.

That could mean that farmers in the area, who use groundwater to irrigate tomatoes, cotton, tree nuts and other crops, would need to install meters to measure their water use, and start paying a fee for the water they use. It could also lead to the state forcing those farmers to pump less water.

The state water board has announced plans to hold probationary hearings for the other five groundwater basins over the next year or so. After Tulare Lake, the next area to face possible penalties is the Tule basin, also in the Central Valley, one of the most agriculturally important regions in the country.

The state is focusing on areas where overpumping poses the greatest threat to drinking water, as well as areas with the greatest rates of subsidence, officials said.

The state’s decision to hold probationary hearings is significant, James Nachbaur, director of the office of research, planning and performance at the California state water board, said in an interview. Those hearings “indicate that the efforts of local governments responsible for managing groundwater still have deficiencies.”

At the end of last year, the White House asked several of the scientists cited in the Times’ groundwater coverage to brief the President’s Council of Advisors on Science and Technology. “How much trouble are we in?” was one of the questions the council asked the experts to address in the Dec. 1 briefing, according to an email sent by the organizer to the scientists, which included a link to the Times’ investigation.

The White House also asked the experts to address how much time is available for the government to take action, and what might the federal government, and particularly the president and executive branch, be able to do to address the concerns.

A spokesperson for the council, Jackie F. McGuinness, didn’t answer questions about what steps the council has taken following the briefing.

This article originally appeared in The New York Times .