Lawmakers approve tougher enforcement, penalties for water permit violators

A tractor pulls equipment in a field with an irrigation system.
The bill gives state regulators stronger authority to crack down on violators who pump more water than they're permitted.
Paul Middlestaedt for MPR News 2021

Tucked inside a major environmental bill state lawmakers passed last week were new protections for Minnesota's groundwater.

The bill gives state regulators stronger authority, including bigger fines, to crack down on violators who pump more water than they're permitted. 

“We've just seen instances of non-compliance, and recognize that we didn't have the suite of tools necessary to address those,” said Katie Smith, director of ecological and water resources at the Minnesota Department of Natural Resources.

Water-use permits are required for cities, industries, farmers or anyone else who draws more than 1 million gallons a year. Permit holders are required to report their water use to the DNR.

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Pumping water from the ground faster than it can recharge can deplete aquifers, cause neighboring wells to run dry and ecologically damage nearby lakes, streams and wetlands.

DNR request

For the past two years, the DNR has asked state lawmakers to give it a slate of new accountability measures for water users who violate their permits, or withdraw water without a permit. 

“We felt it was necessary because the DNR plays an important role in ensuring our water resources or resources are protected, and that there's a sustainable water supply available for future generations,” Smith said.

This year, the DFL-controlled Legislature agreed. The new language doubles the maximum administrative penalty for violations to $40,000. And it requires repeat or serious offenders to pay, instead of forgiving the penalty if the violations are corrected.

Smith said the worst offenders, including those who harm the state's waters or profit financially from the violation, could be subject to stipulation agreements and civil penalties of up to $10,000 a day.

“The use of this tool and this level of penalties would be reserved for really egregious violations, which will hopefully be rare,” she said.

Changes needed

The DNR first proposed stronger enforcement authority water-use violations last year, after Canadian company Enbridge punctured aquifers while building the new Line 3 oil pipeline across northern Minnesota in 2021.

Millions of gallons of groundwater flowed to the surface. Some breaches took months to repair. The state did eventually order Enbridge to pay millions of dollars for the loss of groundwater and to repair any damage to a nearby rare wetland.

But state regulators said back then their options for enforcing Minnesota's water-use rules were inadequate to deal with serious, ongoing violations by a large corporation.

Pipeline construction is not the only culprit. When the state was hit with a major drought in 2021, Minnesota farmers overdrew millions of gallons of water to keep their crops alive, according to an analysis of water use data collected by the DNR.

That included potato-growing giant R.D. Offutt Co. It operates farms in north-central Minnesota, where sandy soils require more irrigation, but also make the groundwater vulnerable to contamination from fertilizer. 

A spokesperson for R.D. Offutt did not make anyone available for an interview.

A pipe is lowered into a ditch.
Protesters interrupt construction on the Enbridge Line 3 pipeline North of Aitkin, Minn.
Ben Hovland for MPR News | 2021

Protecting a resource 

Advocates for Minnesota's groundwater say the changes to the state’s enforcement authority were needed to help protect a valuable resource under threat.

“We're really pleased that the DNR is moving in this direction, because they needed improved tools to improve groundwater sustainability,” said Carrie Jennings, research and policy director for the nonprofit advocacy group Freshwater.

Jennings is happy the bill also raises fees on cities, golf courses and landscape irrigators that use more water in the summer, when there's more pressure on groundwater. And she likes that it allows the DNR to set limits on water use based on long-term impacts.

“It's the deep groundwater that's not rechargeable on a human time scale that is especially vulnerable to depletion,” Jennings said. “We think that the language in this bill draws attention to the future generations and long-term sustainability of that deep groundwater."

Some Minnesota cities exceeded their permit amounts during the drought too, Jennings said. She said there needs to be better ways to address water use during drought years, such as increased lawn watering bans.

“It’s not just farmers,” she said. “It’s certainly suburban residents as well, who have less shade and more yard.”

Cities initially opposed the bill when it was proposed last year, concerned that they could face new restrictions or requirements on their water use.

Craig Johnson, intergovernmental relations director with the League of Minnesota Cities, said the bill was changed to make it clear that the severe penalties will only apply to permit holders who refuse to comply with an administrative order.

“We took them at their word that the intent of this is to deal with the intentional bad actors that they right now don't feel they have the tools to address,” Johnson said.

Farmer concerns

Still, farmers who pump water to irrigate their crops worry they could face hefty fines if they exceed their permit limits.

“Those kinds of penalties hurt small farmers more than big farmers,” said Anna Bregier, vice president of the Irrigators Association of Minnesota and co-owner of a farm near Rice that grows potatoes, corn, kidney beans and peas.

Farmers track how much water they use for irrigation, Breiger said, and most years, they stay within their permit limits.

“Every once in a while when we're not, it's suddenly sort of scrutinized, like we're abusing the system when we're really not,” she said. “Farmers are making those decisions to water crops when they really need to. And in drought years, it's really hard.”

The DNR says its intent is not to throw the book at small farmers. Smith said they’ll assess each violation on a case-by-case basis, and consider other factors such as how much the permit holder exceeded their limit, their history of compliance and whether any water resources such as trout streams were affected.

“Compliance is really the DNR’s ultimate goal,” she said. “We always want to start with education when we come across violations. And we really want to reserve penalties for those egregious or repeated violations.”