DNR outlines groundwater sustainability needs

What would it take for Minnesota officials to do a significantly better job of assuring our groundwater is used sustainably and protected for future generations?

To do that, the Department of Natural Resources says in a new report, the Legislature should:

  •   Require many – probably most – of the owners of high-capacity wells in the state to install new tamper-proof meters to accurately record the more than 200 billion gallons of groundwater those wells pump each year.
  •   Give the DNR new authority monitor those meters to ensure that well owners accurately report their water use and pay required fees.
  •  Allow the DNR to impose civil fines, rather than seeking criminal prosecution, against well owners who fail to seek required permits.
  •  Set new penalties for large water users who fail to report their use each year.
  •  Bar the DNR from issuing water appropriation permits for so-called “open loop” geothermal heating and cooling systems that pump groundwater, run it through a heat-exchange device and then discharge it to a wetland, stream or lake.
  •  Allow the DNR to waive water-appropriation fees for people and businesses that capture and use storm water, instead of pumping groundwater.
  •  Direct the DNR, Pollution Control Agency and other agencies to study a possible change in state rules that now generally bar the injection of storm water, so-called “gray water” and treated  sewage effluent into groundwater aquifers.

Cover of "Minnesota's Groundwater: Is our use sustainable?"The DNR, titled “Report to the Minnesota State Legislature : Additional Tools to Implement Groundwater Sustainability,” responded to a mandate in a funding bill enacted last May. The report details – more explicitly than in the past – problems in the DNR’s current system of permitting and keeping track of water use by well owners pumping 10,000 gallons per day or 1 million gallons per year.

Many of the new policy changes  the DNR seeks were recommended in an
April 2013 Freshwater Society report, “Minnesota’s Groundwater: Is our use sustainable?” 

Read those Freshwater recommendations. Read a Minnesota Public Radio report on the new DNR requests for legislation.

The Freshwater Society report included a statistical analysis estimating that groundwater pumping reported to the DNR by well owners increased 2.8 billion gallons per year – a total 31 percent increase – form 1988 through 2011.

The requirement that the DNR submit the new report was included in an appropriation bill that gave the DNR $1 million in new money this fiscal year, and $6 million in the year beginning July 1, 2014, to dramatically improve the agency’s monitoring of groundwater levels and its regulation of groundwater use. The legislation gave the DNR new authority to review requests for water-use permits before, rather than after, high-capacity wells are drilled.

The appropriation bill also required the DNR to recommend “additional tools” the agency needs to meet groundwater sustainability standards set in law. Those standards require the DNR to consider ecosystem needs and the “ability of future generations to meet their own needs” when the agency set limits on how much water individuals and businesses can pump today.

The Jan. 15 report responded outlined those additional tools the DNR thinks could improve its ability to comply with the law.

State Rep. Jean Wagenius, a Minneapolis DFLer and chair of the House Environment, Natural Resources and Agriculture Finance Committee who has pushed the DNR to do more to ensure the sustainability of groundwater, praised the latest report and said her committee probably will hold a hearing on it.

Wagenius said the recommendations for the tamper-proof flow meters and for authority for the DNR to pursue civil fines instead of misdemeanor prosecutions were the most important parts of the report.

She said legislation this year to give the DNR the law changes the report recommended will depend on how aggressively the DNR pushes for them and – especially – on whether Gov. Mark Dayton backs the civil-fine authority.  Several times in the past, the DNR has sought that authority and has been rebuffed by the Legislature.

Wagenius said legislative action on some of the DNR recommendations might come in 2015.

The new DNR report’s emphasis on finding ways to ensure that all well owners who are supposed to have water-use permits actually apply for them, and the emphasis on finding ways to make the self-reported water use more accurate were strongly recommended in the 2013 Freshwater report.

That Freshwater report questioned the DNR’s enforcement of state rules requiring people and businesses using more than 10,000 gallons of water per day or 1 million gallons per year to obtain water-appropriation permits from the state, report their annual use and then pay fees based on their use.

A Freshwater comparison of two state data bases – one from the Health Department that records wells drilled, and one from the DNR that records those water-appropriation permits – produced circumstantial evidence that over a decade more than 25 percent of the large wells drilled in Minnesota did not end up being covered by a use permit.

The DNR’s Jan. 15 report to the Legislature explicitly acknowledged that problem of unpermitted and unreported — or under-reported — water use.

“Lack of compliance with water appropriation permit requirements is relatively common, indicating that better compliance incentives may be needed,” the new report said.

It added:

“In 2012 and 2013, DNR staff systematically reviewed wells, water appropriations and aerial photos to identify non-permitted appropriations. Those efforts found that between 2 percent and 20 percent of agricultural irrigation systems in some parts of Minnesota were operating without a permit.”

So far, the DNR has focused efforts to improve compliance with the permitting rules on irrigation systems, whose tell-tale circular patterns are relatively easy to spot in satellite images and aerial photographs.

If an irrigation system in one of the images does not correspond to a permitted well, the DNR assumes that pumping has exceeded the 10,000-gallon per day or 1 million gallons per year threshold and notifies the well owner that he or she may need a permit and may be required pay back fees for water used. In most cases so far, the well owners have acknowledged they needed permits and applied for them.

It is much more difficult for the DNR to assert that an industrial or commercial well has exceeded that threshold.

In an interview and email correspondence, Steven Colvin,  deputy director of the DNR’s Ecological and Water Resources Division, said the agency’s beefed-up permit enforcement effort found 73 unpermitted wells in the Bonanza Valley, a heavily irrigated area near Willmar. Fifty unpermitted wells were found in Dakota County by a joint enforcement effort between the DNR and the county.

In Morrison County, according to Colvin, two irrigators learned of the compliance push and applied for permits covering water pumped from 20 wells not previously covered by water-use permits.

The DNR is investigating about 80 irrigation wells that may lack permits in Isanti, Kanabec and Chisago counties, Colvin said. And the agency is in the early stages of a permitting enforcement push in Stearns County in Central Minnesota, in 22 counties in Northwestern Minnesota and along the Interstate-94 corridor between the Twin Cities and St. Cloud, he said.

Last year, the Freshwater Society report  said there was “little ability – or effort – by the DNR to verify the accuracy of water use totals reported by well owners who do have appropriation permits.”

The DNR’s request for law changes requiring flow meters on all high-capacity wells and new authority for the DNR to examine the meters and check up to seven years of water use records is an attempt to improve the accuracy of self-reported pumping.

The DNR said that, based on reported water use, about 28 percent of the well owners who have water-use permits employ flow meters. It said 49 percent of the owners of high-capacity wells who are required to report their water use rely on pumping rate and time records to calculate total use. The remainder did not tell the DNR how they measured use or employ other means of calculating their use.

“Our review of water use reports suggests that we are receiving some systematically inaccurate information,” the report to lawmaker said. “For example, some permittees report exactly the same amount of use for each month; some permittees report the same exact amount each year.”

Requiring the flow meters would not come cheap. The report estimated their cost at $1,000 to $5,000 each.

The report also asked lawmakers to give the DNR tools to address what the report called “egregious or repeat violators of water laws.” Under current law, the DNR has to persuade a county attorney to file a misdemeanor charge, then push the case to a resolution.

The report seeks new authority for a civil process that would allow the DNR commissioner to levy fines for violations. The Minnesota Pollution Control Agency and the state Health Department now have authority to impose those administrative fines. Several times in the past, the DNR has sought that authority and has failed to persuade lawmakers to authorize it.

The proposed ban on DNR water-appropriation permits for the open loop geothermal heating and cooling systems is aimed at halting the growing sales of such systems for residential use. Similar, much larger once-through cooling systems once were common in theaters, office buildings and other structures. A 1989 law required that they be phase out of use by 2010.

The DNR has long warned that water from the residential systems could contaminate surface water or damage fish and other organisms because of temperature differences between the water coming out of the system and the water it flows into.

Under current law, owners of the residential systems are required to obtain a DNR permit if they pump and dispose of 10,000 gallons per day or 1 million gallons per year.  Most of the systems’ owners are not aware they need a permit and do not pay the $420 per million gallons fee they should pay, the report to the Legislature says.

“The state can set clear expectations for efficient use of water by prohibiting new open loop systems,” the DNR report says.

It argues that close loop systems that cycle a food-grade liquid into and out of the ground to provide heat and cooling are viable alternatives.

In addition to requests for specific changes in legislation, the DNR made a more vague suggestion that the Legislature should do something to resolve a conflict that now exists between state agencies on their various responsibilities for protecting groundwater from contamination.

Under current law, the Health Department is charged with protecting public water supplies, but has little authority over the quality of water pumped from private wells. The Department of Agriculture is responsible for regulating agricultural chemicals and fertilizers and their impact on groundwater, and the Pollution Control Agency is responsible for preventing contamination by other chemicals.

The DNR, meanwhile, is mainly charged in state law with protecting the “quantity” of water that is available, not the quality. But one of the statutes on groundwater sustainability says the DNR may not approve water-use permits that will “degrade” water. The DNR report includes an open-ended suggestion that the Legislature take some – unspecified – action to sort out the agencies’ conflicting responsibilities.