Does Minnesota water law make it easier or harder to deal with conflicts?

Rain and snow fell in California last week, not ending the drought but easing some of the short-term angst. So it's an opportunity to point out that things are different there than they are in Minnesota.

It's drier, yes. And they transport a lot more water much greater distances than Minnesota has ever needed to. But they also have different rules about who owns what and how to share a limited resource.

So the fourth in this series of question-and-answer posts about water deals with how water rights are defined. If you think that sounds pretty theoretical, here's just a small example -- from Idaho -- of what's at stake when someone with rights invokes them. And, if parts of Minnesota are headed for more tension over sharing water, it's helpful to know where we stand.

Beneath the Surface: Minnesota’s Pending Groundwater Challenge

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FROM THE PUBLIC INSIGHT NETWORK:   How does the fact that water law in Minnesota is different than water law in the West, for example, make dealing with this issue harder or easier here?


Patrick Sweeney, Research and Communications Director, Freshwater Society

Under western water law, the right to use water generally belongs to the people who own property above the groundwater they want to pump or alongside of the stream they want to pump from – particularly if they have owned the property for a long period and have a legally established allotment of a certain amount of water.

The legal doctrine, called Prior Appropriation, is summed up in the phrase: First in time, first in right.

During droughts, the earlier users take precedence over newer users. In some circumstances, water users can buy and sell their water rights.

In Minnesota, which follows eastern – Riparian Rights -- water law, groundwater, lakes and streams are defined in law as “waters of the state” and we all share the right to use them and to enjoy the benefits they provide to ecosystems.

That difference in law cuts both ways when it comes to regulating water use. The Department of Natural Resources has some authority western regulators don’t have.  But it also means that the DNR cannot tell a new would-be water user “You can’t have any. It’s all spoken for. ” Instead, the DNR has to authorize some water for the new user, and – if necessary – reduce the permitted pumping by all the existing users.

That’s a tough, complex step that the DNR is just beginning to take in some groundwater management areas. If we’re going to ensure groundwater pumping is sustainable into the future, the DNR has to be willing to do that.

Phil Kunkel, attorney, Gray Plant Mooty

What are our water rights?

Under Minnesota’s riparian rights doctrine, a person or entity may take water for domestic and agricultural purposes, but cannot unreasonably interfere with another downstream user or affect the ecosystem.

As for groundwater usage, Minnesota generally adheres to the “correlative rights doctrine.”  While landowners are permitted to use groundwater, those rights are not unlimited.  Minnesota law establishes priorities for water usage if there is not enough water for all intended uses.  In addition, to tap groundwater, landowners must obtain a permit from Minnesota’s Department of Natural Resources if their intended water use exceeds 10,000 gallons per day or 1 million gallons per year.  And, under a 2013 law, permits may be required for smaller groundwater appropriations within groundwater management areas determined by the DNR.  Historically, these permits have been granted readily.

Whether surface or groundwater, this combination of riparian and correlative rights doctrines was designed to keep one person or organization from monopolizing a single water source to the point of depletion. Though these models have worked for some time, the state is now reconsidering its approach because the water sources are not replenishing as quickly as we are using water.

What do other states do?

In many western states, where rivers, lakes and aquifers are scarcer, the water rights model has generally been based upon the “prior appropriation” doctrine, which reflects a  “first in time, first in right” system. Under this model, the people who first tapped a surface or groundwater source could use it indefinitely, so long as that water is being used in a “beneficial manner,” which would include drinking, washing, and for business or agricultural purposes.  Should a water shortage arise, though, the individual or organization that first laid claim to the source can use a larger quantity of water, whereas subsequent users’ rights to that water source may be limited.

In recent years, several states have realized that this model did not account for environmental and recreational uses, not to mention significant population growth, increased water demands, and agricultural and industrial business expansion. Thus, few states continue to rely upon a pure prior appropriation system.  Rather, most states have developed elaborate permitting systems.

 Is there a perfect model for ground water regulation?

No model is perfect. As we’ve seen, what may be appropriate for one or two decades may not work for other decades with increased water demands.

Prior appropriation appeared to work in Western states for a time. However, that model created immense conflict between users and government when it came time to revise laws.  Still, there is tension in places like California, where appropriators feel their rights were usurped.

Minnesota’s model also worked for a while. However, we now see discontented homeowners around shrinking bodies of water, claiming the DNR was not diligent in its water oversight. Meanwhile other organizations are content with minimal regulation.

Clearly, each regulatory method has its pros and cons.

Fortunately, the Minnesota’s legal framework bodes well for the future because it’s equitable. Ultimately, the law benefits all users – versus a single person who claimed a source – which will help the state adapt.

What’s next?

Minnesota’s Department of Natural Resources is now seeking to tighten water regulations.  In a report to the legislature, the agency is requesting that it be granted more authority to enforce permitting and usage regulations. It is also recommending that tamper-proof flow meters be added to all groundwater pumps to gather accurate usage data.

Large water users, including commercial agriculture, food processors, ethanol producers and other businesses highlight job creation in rural Minnesota and their impact upon local economies. These groups worry that increased scrutiny of groundwater usage could affect their operations.  These industries also note the confusing jurisdiction of the DNR, Department of Agriculture and Pollution Control Agency.

It’s important to think beyond penalties. Minnesota businesses are already pushing for incentives that would promote efficient water use. For example, high water use individuals and organizations that recycle their water or achieve efficiency standards could be eligible for tax credits, similar to wind and solar energy. Also, groups would like to see incentives for harvesting rainwater from roofs, reusing storm water and reclaiming municipal wastewater.

Unfortunately, there’s no silver bullet for solving groundwater scarcity. But, one thing is certain: We must consider all stakeholders when developing a 21st century groundwater policy that protects Minnesota’s resources while promoting economic growth.

Question 1. Should water cost us more?

Question 2. Should farmers be forced to change?

Question 3. Why would a farmer drain land and irrigate it?