The Free Press, Mankato, MN

February 27, 2013

Despite drought, Minnesota lets water users exceed limits

By Mark Steil
Minnesota Public Radio News

WORTHINGTON — At a time when drought threatens state water supplies, scores of water permit holders in Minnesota are illegally using billions of gallons more water then they're entitled to.

Over the last six years, hundreds of individuals, businesses and even state government agencies have pumped more than their permit allows, according to state Department of Natural Resources records. But violators face few consequences for these misdemeanor violations. Even in a two-year drought, DNR officials admit they don't spend much time enforcing permit limits.

The violations come from nearly every category of water user: cities, crop irrigators, power companies, private businesses, golf courses, schools, government agencies, even a church. All have a state permit which lets them take a set amount of water each year from underground wells, rivers, lakes and wetlands. But many aren't obeying the terms of their permit.

"There's no doubt that a lot of them are appropriating more water than they're currently authorized," Dale Homuth, manager of the department's conservation assistance and regulations section.

The DNR could enforce the permits. But Homuth said stopping the excessive pumping is not a high priority. Instead, he said, the DNR's top objectives include processing new water permits.

"The number of new permit applications we're dealing with are at record levels the last couple of years," Homuth said. "Everyone of those is complicated, controversial, takes a lot of staff time. And we have the same staffing levels we've had for 20 years dealing on these water appropriation permits."

Another top priority is finding and dealing with illegal, non-permitted wells, he said.

But state Rep. Jean Wagenius, who chairs of the Environment, Natural Resources and Agriculture Finance Committee, disagrees with the policy.

Wagenius, DFL-Minneapolis, said drought is stretching the state's water resources. She said the DNR should give over-pumping equal priority to processing new permits and finding illegal pumping.

"DNR needs to do all three," Wagenius said.

But so far that hasn't happened. The DNR's water permit data show the vast majority of the state's more than 7,000 permit holders stay well under their maximum allotment. But others seem to ignore it.

The Gerdau Ameristeel plant in Duluth, for example, has taken as much as five times its permit limit of 100 million gallons a year from Lake Superior. In central Minnesota, the Green Lake Nursery far exceeded its pumping limit from the Redwood River practically every year for two decades. One year it pumped 46.4 million gallons or 57 times its limit. The Twin Cities suburb of Ramsey consistently exceeds one of its permits, some years using as much as five times the amount allowed to water athletic fields.

The Brainerd school district has a permit maximum of three million gallons a year, but according to DNR data the district's actual pumping reached nearly 19 million gallons in 2006.

MPR News contacted several permit violators, none of them remembered any letter, phone call, email or personal visit from the DNR alerting them that they were taking more water than their permit allowed.

Permit holders that exceed their limits rarely face any penalties, even though the DNR is authorized to step in. Homuth said that's because he doesn't have enough staff to identify violators.

"We're struggling with a 20- to 30-year-old data base system," Homuth said. "We still get paper that we have to mail out and get back from over 7,000 appropriators, and then manually enter all this data into this data base."

MPR News was able to identify serial violators with just a couple hours of work and a spreadsheet program, and review the complete files for 11 of the biggest abusers.

But Homuth said the DNR has not assigned an employee to make a yearly assessment of entities that violate water permits.

In only one case did DNR officials alert the permit holder. In 1998, the department notified Green Lake Nursery, of Spicer, Minn., that it had exceed its maximum. However, there's no evidence in the file that the DNR took any further action, and the nursery continued to exceed its water limit for another decade or so, according to DNR water permit pumping data.

According to Minnesota law, exceeding the permitted water limit is a misdemeanor. But Homuth said to his knowledge no one has ever been charged. He said it would cost too much to prosecute.

DNR officials can also modify, restrict or cancel a permit for over-pumping. But there's no evidence in the files that the DNR has taken any of those actions against a water use violator.

Pat Sweeney, research and communications director for the Freshwater Society, a Twin Cities based group that works to protect water resources, said the DNR should at least contact anyone who exceeds their pumping limit to call it to their attention.

"If the DNR invested more time and energy and effort, I think they could clear up some of these problems," Sweeney said.

Over-pumping can cause real world problems.

In at least one case in recent years, over-pumping by a neighbor contributed to a rural well going dry. Last year, with the drought impact growing, well owners filed nearly a dozen more so-called well interference complaints. The DNR has not yet determined if excessive pumping played a role in any of those well disruptions. But a dry well is a big problem, particularly in southwest Minnesota, which has endured drought conditions for the last two years.

Many residents of rural Minnesota have seen the drought shrink the size of the underground aquifer they depend on. Among them is Wade Anderson, whose backyard well -- his only source of water -- has occasionally run dry.

"With a family of five, it's tough to have to worry about getting water," said Anderson, who lives near Worthington, Minn. "There's just not a lot of good options out there."

There's no indication that heavy water use by others has limited Anderson's water supply. But Wagenius said the drought is a good reason why the DNR should more actively enforce water permit limits.

"You want to make sure that someone doesn't use more than their fair share," Wagenius said. "Because if they use more than their fair share, then the neighbor may have to dig a new well -- and new wells and deeper wells are very expensive."

Over-pumping could also accelerate water depletion in underground supplies of water called aquifers. A recent U.S. Geological Survey study said falling aquifer supplies likely caused declining water levels in White Bear Lake. Metropolitan Council water supply planning manager Ali Elhassan said heavy demand has dramatically dropped water levels in that major aquifer under the Twin Cities by about 40 feet in the last 35 years in some locations.

"We are starting seeing trends that are not sustainable," Elhassan said. "And if we continue business as usual, pumping ground water to meet our growth in the future, we'll start seeing even further adverse impacts into our aquifers."

But if DNR is looking the other way on over-pumping, the agency is focused on at least one part of the water permit program: collecting fees from water permit holders. With few exceptions, they pay for the water they pump, and when they exceed their limit, they must pay more. The agency collects about $4 million a year from those fees.

Homuth said collecting money is big DNR priority.

"As long as they pay we're happy," he said.

But for Sweeney, of the Freshwater Society, money is a secondary issue. He said enforcing the pumping limits should be one of the agency's top concerns.

"More important than the revenue is protecting the resource," he said.

Among the over-pumpers MPR News contacted, a clear pattern emerged. While it's not a scientific sample, most permit violations appeared to be based on a misunderstanding of permit requirements.

After hearing from MPR News, administrators at St. Patrick's Catholic Church in Cedar, Minn., learned that they had reported using too much water in 2007 and adjusted their water use. As a result, the DNR will refund the church several hundred dollars in overpaid water fees for that year. But the church hasn't explained other years of over pumping.

Confusion over exactly what a state permit requires also appears to be the cause of over pumping at the Gerdau Ameristeel plant in Duluth.

The company regularly reports withdrawing more water from Lake Superior than its permit allows.

Gerdau officials said the company returns nearly all the water it takes from Superior back to the lake. So to calculate how much water the company uses, they subtract the gallons of returned water from what they pump.

Homuth said the company should reduce the amount of water they pump or seek an amended permit that increases their yearly pumping rate.

"They only think they need a permit for how much they actually consume," he said, "not how much they're pumping out of the lake, which is wrong."

DNR officials predict that better enforcement of water permit pumping levels will come with a new permit monitoring system slated to be operational later this year. When the new system is up and running and tracking over-pumpers, it should flag the DNR itself.

The agency's own data shows the DNR holds 65 water permits and has over-pumped half a dozen of them, some in multiple years.