Court rulings give states new power to protect groundwater

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

In Nevada, Idaho and Montana, a series of court decisions have strengthened states’ ability to limit groundwater overpumping. California is considering punishing 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 really exciting,” said Upmanu Lall, director of both the Arizona State University Water Institute and Columbia University’s Columbia Water Center. “There have been things like this from time to time, but not in such a short period of time in the Western states.”

Groundwater levels have dropped significantly across the country over the past four decades, according to data collected and analyzed by tens of thousands of monitoring wells in a New York Times investigation last year.

The water used to support industrial farms and sprawling cities could take centuries or millennia to replenish, if it recovers at all. Climate change is accelerating this depletion, threatening irreversible damage to American society.

Groundwater supplies 90 percent of the country’s drinking water systems, meaning that draining aquifers could make some communities unliveable. Groundwater loss has also reduced crop yields in some areas and caused soils to subside in much of the country.

State governments have traditionally been the primary source of regulation for groundwater use. And since the start of the year, a handful of states with particularly pronounced groundwater declines have started taking action.

According to The Times investigation, Idaho is experiencing the worst groundwater decline in the country, as measured by the number of wells that have shown a drop in water levels since 1980. Much of that water is used to irrigate crops, especially 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 into streams and rivers has also decreased. In response, state officials have ordered farmers in parts of the state to reduce the amount of water they draw from those sources.

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

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

More than half of Nevada’s monitoring wells have shown significant water level declines since 1980. And nearly one in five monitoring wells has reached a low point in the past decade, the Times notes.

But major water users, including real estate developers and mining companies, have pushed back, arguing the state is exceeding its authority to restrict pumping. One proposed development, which could have led to tens of thousands of new homes about an hour north of Las Vegas, became embroiled 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 subsequently did not become law.

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

The ramifications of that ruling are far-reaching, said Adam Sullivan, the state’s top water regulator. He said the ruling essentially does what last year’s bill would have accomplished. “It helps us move in the direction of being realistic about the science,” Mr. 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 restrictions 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 being impacted by groundwater depletion. But the decision’s effect will be felt more broadly, experts say, by forcing the Montana Department of Natural Resources and Conservation to apply a higher standard before approving similar developments.

The push for stricter groundwater regulation does not only come from the courts. Some of the worst impacts of aquifer depletion in the United States are occurring 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 begins to impose sanctions. In April, the State Water Resources Control Board will hold a hearing to decide whether the first of these basins, the Tulare Lake groundwater basin south of Fresno, should be placed on probation.

That could mean that farmers in the area, who use groundwater to irrigate tomatoes, cotton, nuts and other crops, would have 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 farmers to pump less water.

The state water board has announced plans to hold pilot hearings for the other five groundwater basins in the coming year. After Tulare Lake, the next area to face potential 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 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. These hearings “indicate that efforts by local governments responsible for groundwater management remain flawed.”

Late last year, the White House asked some of the scientists mentioned in the Times’ groundwater reporting 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 at the council meeting December 1 briefingaccording to an email that the organizer sent to the scientists and which contained a link to The Times research.

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

A spokeswoman for the council, Jackie F. McGuinness, did not answer questions about what steps the council took following the briefing.