Illinois Needs Updated Water Law

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It’s not unusual for the Illinois Department of Natural Resources to receive calls from well-meaning citizens asking whom they should contact for a permit to take water out of a stream. The answer to this question might surprise you—it’s no one. Although there are highly developed state and federal regulations concerning what can be discharged into Illinois waterways, our state has only very old, very vague rules about taking water out of them.

According to Wayland Eheart, professor of civil and environmental engineering at the U of I, this lack of specific regulations spells trouble as the demand for surface water in our state grows. It both sets the stage for conflict among users of surface water, and threatens water quality, since the levels of pollutants allowed in wastewater discharges are calculated with reference to historical low streamflows.

The rule that applies now in Illinois is known as riparian doctrine. It allows those who own land adjoining a waterway to use a “reasonable” amount of water from it. What constitutes a reasonable amount? Riparian doctrine does not say. But in a future where the demand for surface water could outstrip supply, it would be terrible public policy to have such a fundamental question decided on a case-by-case basis in the courts.

Eheart offers the following scenario to illustrate how a shortage of surface water might come about in the not-so-distant future. Say this year’s drought is followed by another dry year, or two, or three. Under such circumstances, farmers who had not previously irrigated their crops might install irrigation equipment, which is very expensive. That means taking water from streams that are already under stress in times of severe drought. But it also creates an incentive to take water from streams even in times of moderate drought, since the highest cost associated with irrigation—buying the equipment—would already have been paid.

According to Eheart, a typical center-pivot irrigation rig covering a hundred sixty acres can consume water at roughly the same rate as a small town. This is because, by design, little of the water used for irrigation is returned to its source. In contrast, much of the water used by households and industry flows back into waterways after having been treated.

The state water withdrawal law Eheart envisions would avert conflicts between users by allocating each a percentage of the available flow in a stream, and establish priorities for types of water use in times of scarcity. Eheart emphasizes that such a law would protect all water users, including farmers. As he points out, there is nothing in current law that would prevent a factory upstream from putting a pipe into a river and effectively turning a downstream farmer’s irrigation equipment into idle scrap metal.

Eheart also envisions implementing a market for water withdrawal permits, which would allow farmers and industries needing more water to trade for permits with others needing less.

The complexities of developing new laws to govern the withdrawal of surface water in Illinois make it tempting to leave well enough alone. But if we want such laws to achieve a fair balance among the needs of all users and the needs of aquatic ecosystems, we would do well to get them enacted before conditions change for the worse.