University of Minnesota Alumni Association


Who Owns Our Water?

Water law in the Land of 10,000 Lakes is complex.

Photo Credit: Christian Dalbec

Headlines about drought and water shortages in the American Southwest have blazed like wildfires recently. “The Colorado River drought is so bad you can see it from space,” read a headline from Vox in August. “Lake Mead has hundreds of bodies waiting to be found,” said Newsweek more morbidly in the same month, after several bodies had indeed been found in the receding waters. 

The water situation in the western part of the U.S. is getting desperate. That has led some to once again speculate about the idea of water-rich states—like Minnesota—being asked to share our liquid riches in the future. 

Generally, states have been left to allocate their water resources how they see fit, with little federal involvement, says University of Minnesota Law School Professor Emeritus Brad Karkkainen, a nationally recognized authority in the fields of environmental and natural resources law, who retired in 2022.  

But in 2021, the federal government declared a water shortage in the Colorado River for the first time ever. Since then, the problem has intensified. In August, with the Colorado River’s two main reservoirs (Lakes Mead and Powell) at all-time lows, the federal government asked the seven Colorado River Basin states to cut water consumption significantly.

Allocation of water among the Colorado River Basin states is governed by a complicated set of legal arrangements known collectively as “The Law of the River.” If that sounds like something out of a Tolkien fantasy novel, well, it’s even older than that. It consists of interstate compacts, Supreme Court decisions, tribal water rights litigation, federal legislation, decisions by the Secretary of the Interior, and a binational treaty with Mexico. The problem is that those water allocations were made when there was much more water in the Colorado River. So far, the states have not been able to agree on a plan for who gets how much of the water that remains, says Karkkainen. 

About those license plates… 

In Minnesota, we take our water seriously. Wisconsin found that out when its tourism secretary somewhat famously declared in 2019 that Wisconsin was the land of 15,000 lakes, with 15,074 “documented lakes,” according to that state’s DNR. Meanwhile, Minnesota’s DNR has documented 11,842 lakes, which of course doesn’t have the same ring to it as “The land of 10,000 lakes,” and leaves us a little short.  

The difference is that Wisconsin defines nearly any body of water as a lake, while in Minnesota a lake must be at least 10 acres to be granted lake status. By the same standard Minnesota uses, Wisconsin is “the land of just under 6,000 lakes.” 

 Put that on a license plate.

Minnesota, meanwhile, is rich in this natural resource. Lake Superior contains 10 percent of the world’s surface freshwater. The Mississippi, which starts in Minnesota and courses through 10 additional states, is one of the top 5 largest watersheds in the world. And as our license plates proudly proclaim, we do have those 10,000 lakes (actually 11,842 lakes—see sidebar). And that’s just what we can see. According to the Minnesota Department of Natural Resources (DNR), which manages Minnesota’s water resources, groundwater supplies 75 percent of Minnesota’s drinking water and 90 percent of its agricultural irrigation. 

On occasion, this abundance has led to speculation about the plausibility of pumping water to the West like oil in a pipeline. “Drought revives ideas to shift water from Mississippi to help West,” read an MPR News story in September.

So is the West coming for our water? Probably not, says Karkkainen.  

“From time to time, there have been suggestions, but there’s never been a serious proposal put forth, and the Great Lake States would fight tooth and nail to keep our water resources here,” he says. In fact, Karkkainen adds that when it comes to Lake Superior, sharing that water would actually violate the law.  

“There’s an interstate compact among the eight states that border the Great Lakes, as well as Ontario and Quebec, that essentially says, with relatively few exceptions, you can’t take water out of the Great Lakes Basin,” says Karkkainen.  

Called the Great Lakes Compact, the legally binding agreement has been in place since 2008.  

“It prohibits the export of water from Lake Superior to other portions of the country,” says Karkkainen—and even to portions of Minnesota.  

“So you can use it in cities that are in the watershed of the Great Lakes, but you can’t pump water from Duluth to, for example, Twin Cities suburbs,” he says.  

Not to worry though—Minneapolis and St. Paul get their water from the Mississippi River, which is essentially off limits as well, says Karkkainen, because of a commitment among the states of Minnesota, Wisconsin, Illinois, Iowa, and Missouri formed in 1981 called the Upper Mississippi River Basin Association (UMRBA).  

Through UMRBA, state governments jointly plan and manage the water resources of the Upper Mississippi River. Still, UMRBA is a commitment, not a binding agreement. Were the governments of those states to agree to pump water to the Southwest, there’s nothing that explicitly prevents them from doing so, beyond the anticipated astronomical cost. 

The situation with Minnesota’s groundwater resources is more murky and conflicts have arisen in the state in the past.  

“We’ve got lots of water. So it comes as a surprise to many people that we’ve actually had some issues over water scarcity,” says Karkkainen. 

Karkkainen points to a lawsuit filed in 2012, which successfully argued that the DNR was issuing groundwater permits to the underlying Prairie du Chien aquifer—which is hydrologically connected to White Bear Lake—without considering the effects on that lake’s water levels. Karkkainen believes groundwater is one area of the law that needs more work. 

“We don’t pay enough attention to what is called conjunctive management of groundwater,” says Karkkainen. “If you pump groundwater, it will reduce the surface water. The water is interconnected. We tend to treat those as separate issues. We also don’t have an adequate inventory of groundwater resources,” he says. 

Today, many states, including Minnesota, allocate groundwater through a regulatory permitting system, with some exceptions for small-scale domestic use. The Minnesota DNR grants those permits, controlling who, how much, and when an entity may use water. 

“Without a complete inventory of groundwater resources, I think that permitting process is potentially flawed,” says Karkkainen. 

“The law, I think, requires some serious work by legal academics and among our legislators. I think our regulatory apparatus is itself underlooked and needs to be re-thought and brought up-to-date if we’re going to address the challenges we’re facing now and in the future.”

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