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Water: the supply is dwindling and we’re polluting what’s left

The availability of clean water in the western Ozarks is becoming acute. The Tri-States Water Coalition and Missouri State University are continuing a public exploration of the supply issues. The New York Times has published the first report of its monumental study of compliance and enforcement of water pollution regulations. Water conservation is a necessary part of the solution, but conservation can do little without changes in agricultural practices.

Supply issues

The level of Ozark aquifer, which only 20 years ago seemed ample, has dropped precipitously, leaving public water supply managers–cities and private water companies–with the challenge of finding alternate sources of water, with the obvious sources being existing and unbuilt surface impoundments in a watershed that includes parts of Missouri, Kansas, and Oklahoma.

On September 17, 2009, the Tri-States Water Coalition and Missouri State University are convening a two-day conference in Springfield entitled “Shaping our Water Future: Working to Provide Adequate, Quality Water Supplies,” which is open to the public for a registration fee of $95 for both days or $65 for one day. Here is the Conference Agenda. Registration phone numbers are (417) 836-6660 or Toll-free (877) 678-2005, or online.

Water from underground aquifers is generally clean, requiring little treatment. But aquifers recharge slowly. As the water level in aquifers drops, the costs of operating the wells increases, as wells must be deepened once the pumps cannot be lowered in the existing wellbores. The rapidly falling levels indicate that future reliance on the aquifer will lead to interruptions in supply and ultimately complete depletion. As a few municipal, industrial and irrigation wells pull down the aquifer, thousands of water wells serving individual farms and households are affected.

Surface water captured in impoundments is a partial solution to the supply problem. Moving surface water from impoundments across state lines, such as from Grand Lake in northeastern Oklahoma to the adjacent area in Missouri around Joplin, raises many legal and political issues, as well as the issue of how to set a price for the water. Building impoundments in the basins of the Neosho River in Kansas or the Spring River in Missouri (which combine to make the Grand River in the northeast corner of Oklahoma near Miami) is a possibility, made less likely because Missouri seems to be sending pollution into the Grand River system via Honey Creek and the Elk River. But the cost of acquiring land and adjudicating water rights is formidable, as is the cost of construction of dams and aqueducts. In addition, impoundments cause ecological damage, interrupt road transportation networks, and require maintenance. Surface water generally requires more treatment than well water to make it safe to drink.

Pollution of surface water

At the same time that we turn to surface water for household uses and many other uses (agriculture, industrial processes, washing all sorts of things), we must look at how well we protect surface water from pollution. In a massive report, the first installment of which was published on September 13, 2009, the New York Times has compiled data from every state to enumerate the number of violations of water pollution permits issued under the National Pollutant Discharge Elimination System (NPDES), providing maps, charts, tables, and agency response reports for every part of the United States. The online version of this report allows the reader to find non-compliant discharges by zip code for the entire United States.

The New York Times report exposes fundamental problems with the NPDES permit and compliance system. Under the Clean Water Act, which authorizes the EPA to define pollutants and restrict their discharge, states are allowed to have “primacy jurisdiction,” whereby a state agency issues permits and enforces the permit terms, as nearly every state has done. State agencies typically attempt to obtain voluntary compliance, rather than attempt prosecution, which would be very costly. State legislatures are being asked by their constituents to keep the government off their backs, rather than to fund enforcement of environmental regulations. In Missouri, the Department of Natural Resources Division of Environmental Quality has never been adequately funded. It may seem ironic that we can fund law enforcement on many issues (overtime parking, deer hunting, possession of marijuana, etc.), but not pollution of our water supply.

Quickly scanning the Missouri data in the New York Times report, it was apparent that many private wastewater treatment facilities were frequently out of compliance. The nature of the non-compliance could be as simple as failing to submit a sample of effluent to be tested or having a couple of monthly samples showing excessive pollutants in a year. Many of these private plants are quite small and their permits are held by homeowners associations. The violations listed in the reports of each state agency are mostly trivial, but collectively they suggest that our permitting and regulatory system is not working to protect the quality of our water.

Even if all the sources of pollution were operating within their limits, we would still be polluting our surface water and groundwater. The permits do not prohibit pollution, but limit it.

Missouri has not fully implemented the next federally-mandated strategy to control water pollution, which sets the total amount of pollution that can be discharged into a drainage basin per day. Rather than an unlimited number of discharge points being given pollution limits under the NPDES system, the Total Maximum Daily Load standards would require that no additional permits be issued once the TMDL limit was met, unless a previously permitted point-source was reduced.

Non-point source pollution continues to be difficult to regulate. The water flowing off pastures, cropland, rooftops, roads and parking lots, for example, carries all sorts of pollution into streams, which finds its way into lakes and aquifers as well as aquatic life. As we look to surface water for more of our drinking water supply, as Springfield and Branson already have, we have to spend to remove fertilizers, insecticides, pesticides, heavy metals, hydrocarbons and other chemicals.

Some types of contaminants are not regulated and are not tested for or removed from the drinking water supply. We know that hormones and pharmaceutical chemicals are in surface water and aquifers, though acceptable limits are not established for many of the thousands of organic compounds in our water. At some point, this potential source of health problems must be confronted, and the expense of doing so will not be small.

The Conservation Strategy

We’re often exhorted to use water wisely, and we should. But household water consumption is a small part of the total consumption, probably about 25% in the western Ozarks.

The Argonne National Laboratory’s summary of its technical memorandum on water consumption associated with biofuels production began with this:

Over the next 20 years, the water consumed by energy production is projected to increase at a faster rate than that for any other sector. In addition, the amount of water projected to be consumed by energy production is greater than that for any other sector except irrigation.

Geotimes reports that a report of the University of Texas’s Bureau of Economic Geology indicated that irrigation for agriculture accounted for 90% of the world’s freshwater use, with the unfortunate result that use of water for irrigation resulted in the water becoming mineralized (salty) and carrying with it fertilizers, pesticides and herbicides. The same article in Geotimes also cites an Iowa State University scientist who says that production of a gallon on ethanol requires the consumption of four gallons of water, though this estimate strikes me as understatement.

This scathing report on water consumption and pollution by Missouri’s major swine producers, if true, is frightening.

This report from the United States Geological Survey summarizes findings about the effects of agriculture on the health of Ozarks streams and groundwater. Agriculture is a major water user, and the water used in agriculture adversely affects our water supply and the health of our streams.

The Confrontations

The increasing scarcity of clean water in the western Ozarks indicates that major confrontations will take place in the legislatures and courts. Municipalities will confront agricultural users. The attorneys general of Missouri, Oklahoma, Kansas and Arkansas will probably see more of one another in federal courtrooms (Arkansas and Oklahoma have been litigating for years over pollution of the Illinois River and Lee Creek in Arkansas that is entering Oklahoma, and Oklahoma and Missouri have also been fighting over pollution in Honey Creek and the Elk River in Missouri entering Oklahoma).

The prospect of persuading the relatively arid states of Oklahoma and Kansas to allow the transfer of surface water to Missouri seems to be a very tall order.

The Missouri legislature’s commitment to funding water pollution control has always been weak, especially in the face of strong agricultural interests. But we cannot solve the problem without concessions from agriculture.

Most economists, including many conservatives such as Greg Mankiw, look to the ideas of the late English economist Pigou for pricing of resources, in instances in which the market does not adequately value negative externalities, as an alternative to regulation.

A “Pigovian tax” would be added to the price of the resource so that the government, on behalf of the public, would receive compensation for the negatives associated with the use of the resource. For example, a tax to cover the cost of removing the pollutants might be added to a water bill of an industrial user who returns the water to the public with contaminants in it. The higher total price would limit the quantity used and provide funding for solving the pollution problem.

Since Missouri doesn’t regulate well-water production quantities, a municipality, confinement feeding operation or industrial user can put in a large well and use the bulk of the remaining aquifer without paying anything. The only incentives for conservation by the large users are the cost of pumping the water, the cost of whatever clean-up of effluent is required and the cost of dealing with lawsuit in which neighbors try to enforce their poorly-defined rights to the shared water resource. Of course, when the water is gone, the enterprise has no value, but it might pay for itself by that time.

Pigovian taxes seemed to have helped to limit the emissions causing acid rain.

The controversy over “cap-and-trade” proposals for limiting emissions of greenhouse gases seems to heavily influenced by the debate over whether the global warming is occurring and whether it is cause by human activity, rather than a debate over whether cap-and-trade would work.

A Pigovian tax tied to the TMDL program might be in our future to protect our water supply. But the time for implementing a better system for controlling water quality and consumption is here.


About Harry Styron

I'm a lawyer and mediator who lives in Branson, Missouri, whose professional interests involve real estate, nonprofits, and local government. As of 2022, I'm shrinking my legal practice so that I have more time to mediate real estate disputes. I'm happy to mediate using video platforms like Zoom and WebEx, or in person anywhere in Missouri.

3 responses »

  1. In addition to Mr. Styron’s comments: I leave you two points:

    1) Another consideration for the groundwater use issues in SW Missouri, NW Arkansas and NE Oklahoma is the federal designation of the region as the Ozark Cavefish National Refuge, with certain known sites being “jewels on the string” where they have been reported. Ozark cavefish are small, blind, and white officially designated federally threatened fish under the Endangered Species Act. These subterranean fish live in the aquifer in this region generally…the only contact most people have with them is in wet caves, or when they wash out of springs. Usually a maximum of 2 inches long, they have redesigned an airport in Arkansas (to direct tarmac runoff away from a sinkhole inlet to a major known cavefish cave, been used to promote tourism at a major show cave (Fantastic Caverns) and are the subject of recovery research at USF&W in Neosho, amongst other things. Their existence is responsible for some of the most creative development ordinances and regulations in the country (Springfield and Greene County). The fish, like trout, requires cold, clean, well-oxygenated water to thrive. If cavefish can live in the water, people, with only small amounts of treatment, can drink it. The fish also only occurs in limestone rock. If regional drawdown were to lower the water table into the dolomite, their existence would be problematical. The type locality for it, and Missouri species of concern, the bristly cave crayfish (Cambarus setosus) is Sarcoxie Cave in Sarcoxie Missouri.

    In general, people and cavefish can coexist as long as groundwater is clean and plentiful. They are known in the area as “springkeepers” for this reason, but they need to be figured into development plans because of their legal status, since the fish moves through interstitial (really small) openings in bedrock where humans cannot go nor census.

    The second point is an anecdote from the other side of the state re pollution taxes. In 2005, the Meramec River was designated a “whole body contact river” in suburban St. Louis. This necessitated increasing municipal sewer systems from secondary to tertiary treatment. We use very little water in my household, and we were used to a $12/month water/sewer bill. Since that time, the bill has increased to $23/month. Our water rates have not changed appreciably, but the sewer rate has tripled in order to fund new sewage treament facilities. What is unusual in this is that the town runs on well water, which only rarely requires treatment, usually after a pipe breaks somewhere, but discharges waste water into the Meramec.

    While we are lucky enough that a doubled water bill (going from 1 part water/1part sewer to 1 part water/3 parts sewer) is not a major crimp in the budget, some town residents with less (usually fixed) income and more household members are indeed hurting. Any attempt to impose a Pigovian tax on a necessity such as water/sewer will have social ramifications as well, especially in cases where actual use of water for both household and sewage use has not changed, but the cost of the commodity rises in accord with rarity or increased costs associated with use.

  2. Jo,
    Thanks for your informative comment.

    Under federal law, endangered species have been in some cases determined to have a right to have enough water of the quality necessary for survival. The most famous case protected the small remaining population of pupfish, an inch-long fish that lives in 92 degree water in small pool in a cave in Nevada known as Devils Hole, which is now in the Ash Meadows National Wildlife Refuge. The United States Supreme Court (Cappaert v. United States, 426 U.S. 128 (1976)) affirmed a lower court’s order that halted groundwater pumping on an adjacent ranch so that the pupfish could survive.

    The Supreme Court’s decision was based on some legal factors not present in southwest Missouri. The pupfish was on a federal property. The court applied the “reserved rights doctrine, sometimes called “Winters rights,” to conclude that when the President by proclamation reserved the Devils Hole cavern, the federal government by implication was reserving, from water then unappropriated under state law, sufficient water to support life as it then existed .

    In other words, the State of Nevada lacked the power to allocate groundwater necessary to maintain the scientific value of Devils Hole. The endangered cavefish and crayfish in Ozarks caves are generally not on federal property. Moreover, the State of Missouri does not have a groundwater allocation system.

    I suspect that water and sewer rates charged by most municipalities and water districts in Missouri do not cover the full cost of replacing the water source, accumulated depreciation of the water and sewer system components, and cleaning the wastewater.

    Generally a minimum rate is set that will allow most users to meet their basic needs, with significant escalations for bigger users. However, none of this affects private wells, some of which draw water from the shared aquifer in volumes that dwarf municipal systems.

  3. If people are interested in “fighting over water” they should visit this website:

    Yes it says ethanol. But since the manufacture of corn based ethanol requires enormous quantities of water both in product and production, (and as Harry notes, groundwater requires the least processing before use) it is really a fight over water rights.

    For many many years, my friend Jerry Vineyard was assistant state geologist and Director of the State Water Plan. His day to day job was to keep the Missouri River flowing from Montana and the Dakotas (states with water law) along the borders of Nebraska, Iowa and Kansas (some water law) and through Missouri — only miniscule water law applying only to specific, ajudicated locations, and to try to help the Army Corps (with legal jurisdiction for the Missouri) keep the farmers and bankside residents, the industrial users, riverside municipalities, recreationists and environmentalists from killing each other by effecting compromises liked by no one but grudgingly acceptable to all.

    As non-lawyer amateur educated in hydrology by degree, I have learned more about how “whiskey is for drinking and water is for fighting” than I have a right to know in this life from Jerry, and a friend who fought the Army Corps over the Meramec Dam by appealing to their interest in engineering numbers, maps, and rock and water data, a good amount of which is now in my basement.

    The elephant hiding in the room lies not just in the wants and desires of humans. It also is in the fact that data on stream flow, quantifying sheet flow of floods and the effects of drought over an uneven 3-dimensional terrain, well yields, local rainfall and infiltration rates, evapotranspiration rates and so forth is actually quite geographically spotty and incomplete over time. Because the data is incomplete, from a scientific standpoint, it can be tortured to confess to almost anything even before anyone with an agenda gets hold of it.

    Keep up the good info, Harry. And the best bet for SW Missouri is to build a big cistern. *|:-)


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