Can the Arkansas Natural Resources Commission order Cabot to stop using its alluvial aquifer wells, and what's the legal basis?

Plain-English summary

The City of Cabot has six water wells in the Mississippi River alluvial aquifer. They were approved in 1999 as interim supply, intended to operate until the Lonoke/White Public Water Authority project came online. The Arkansas Natural Resources Commission (ANRC) extended the compliance certification through October 1, 2026, on the condition that Cabot would then cap and decommission the wells. Cabot's representatives are asking whether ANRC has authority to make Cabot stop. Representative Evans relayed eight questions to the AG.

The AG's answer changes the framing of the dispute. Cabot's questions assume ANRC is acting under the Arkansas Groundwater Protection and Management Act ("Groundwater Act," A.C.A. § 15-22-901 et seq.). That assumption is wrong. ANRC has not started regulating any critical groundwater area in Arkansas under the Groundwater Act. The Cabot situation is about a different statute: the Arkansas Water Plan (A.C.A. § 15-22-503), which requires municipalities to get Commission approval for water-development projects.

The 1999 background. Cabot's project to add six wells was approved as compliant with the Arkansas Water Plan. The approval was time-limited: the wells were "an interim groundwater supply to be used until the completion of the Lonoke/White Project." Once that project came online, Cabot's six interim wells were supposed to be retired.

Cabot kept asking for extensions. In 2007, Cabot asked to extend the wells beyond January 1, 2023. ANRC denied. In 2018, Cabot asked again, this time to extend until October 15, 2029. ANRC partially granted: extension to October 1, 2026, with conditions.

The Groundwater Act framework Cabot is invoking does not apply. The Groundwater Act allows ANRC to designate critical groundwater areas (which it has, for much of Lonoke County), to promulgate rules, and to limit groundwater withdrawals through water rights. But starting any of those regulatory functions requires public notice and hearings under the Arkansas Administrative Procedure Act. ANRC has not done that yet. The "critical groundwater area" designation is currently non-regulatory: it is used for education, voluntary conservation, and prioritizing financial assistance.

The Water Plan framework that does apply leaves Cabot's situation legally clear. Under § 15-22-503, no municipality can engage in a water-development project without Commission approval that the project is consistent with the Arkansas Water Plan. The Commission approved Cabot's project in 1999 with conditions; one condition was that the wells were interim. The Commission's 2020 order is an extension of that approval with new conditions, not a free-standing regulatory order.

So the answers to all eight questions are versions of "the Groundwater Act statutes Cabot is asking about don't apply here, because ANRC isn't acting under them. ANRC is enforcing the conditions of Cabot's own Water Plan compliance certification."

What this means for you

City water managers and municipal authorities

When you negotiate water-project approvals with ANRC, read the conditions carefully. If a Water Plan compliance certification specifies a sunset date for interim wells, that date binds you. You cannot defeat the sunset by later invoking Groundwater Act statutes; the sunset is a Water Plan condition, not a Groundwater Act regulation.

If you need extensions, request them before the deadline. ANRC may grant, deny, or condition. The Cabot pattern (request, denial, longer-out request, partial grant with conditions) is informative: ANRC has discretion and uses it.

If your project includes interim infrastructure, plan for the sunset. The Lonoke/White project that was supposed to replace Cabot's interim wells is now operating; Cabot's continued reliance on the original interim wells goes against the original plan. Build out replacement supply on the same timeline.

Public water suppliers in critical groundwater areas

The "critical groundwater area" designation in Arkansas is not currently regulatory. ANRC has not started restricting withdrawals or issuing water rights for these areas. So a designation does not, today, mean restrictions on your withdrawals. But the designation is still a signal: ANRC has identified the area as stressed, and the regulatory machinery to limit withdrawals exists. Plan for a future where the regulation activates.

Use the designation period to invest in conservation, alternative supply, and infrastructure. Voluntary measures count toward demonstrating good faith if regulation later begins.

State legislators

If you want ANRC to actually regulate groundwater withdrawals (rather than relying on Water Plan project approval), the path is to direct or fund ANRC to complete the rulemaking and notice/hearing process required under §§ 15-22-908 and -909. The Groundwater Act has been on the books for decades; the regulatory machinery has not been triggered. Whether that is the right policy is a different question; the legal point is that the machinery exists and can be activated.

If you want to give cities like Cabot more leeway, the path is to amend the Water Plan statute (§ 15-22-503) or fund alternative supply infrastructure that lets cities transition off interim wells.

Environmental and water-law attorneys

This opinion is a useful clarifier of the two-track Arkansas water regulatory framework. Track 1 (Water Plan) is project-approval based and currently active. Track 2 (Groundwater Act) is withdrawals-regulation based and currently inactive. The two tracks have different procedures, different remedies, and different statutory bases.

For litigation, identify which track the agency is using. Cabot's apparent confusion about which track applies created a weaker legal argument than focusing on Water Plan compliance specifically.

Agricultural producers and other groundwater users

The Groundwater Act, when active, would require water rights for beneficial use. Currently it is not active for regulatory purposes. If you are in a designated critical groundwater area and have not been required to obtain a water right, that does not mean a future requirement is impossible; it means the regulatory machinery has not been triggered yet. Track ANRC's policy direction.

State agencies developing groundwater policy

Note the key procedural prerequisite: under § 15-22-908, ANRC cannot designate a critical groundwater area without notice and hearings. Under § 15-22-909, ANRC cannot start regulating within a designated area without additional notice and hearings. These are layered procedural requirements that take time to satisfy. Build the timeline accordingly.

Common questions

Why didn't ANRC just regulate Cabot under the Groundwater Act?
Because doing so would require ANRC to first complete public notice and hearings under the Administrative Procedure Act, and ANRC has not done that for any critical groundwater area. The Water Plan approach was already in place (Cabot's project had Water Plan certification), so ANRC enforced the Water Plan conditions instead.

Can Cabot continue using the wells past October 1, 2026?
Not under the current order. The Commission's 2020 order conditionally approved continued use until that date. Cabot would need to request another extension (which ANRC could grant, deny, or condition).

What if Cabot needs the wells for emergency supply?
Emergency provisions exist in various Arkansas water statutes. If a true supply emergency arises, Cabot would need to request authorization through whatever statutory channel applies. The October 2026 sunset is not an absolute bar in an emergency, but planning around the sunset is the cleaner path.

Has ANRC ever started regulating a critical groundwater area?
Not as of this opinion. The Groundwater Act has been on the books for decades; ANRC has used the critical-area designation as a soft tool (education, conservation, financial incentives) but has not triggered the formal regulatory machinery.

What is the Arkansas Water Plan?
A statewide planning document, prepared by ANRC, for managing the state's water and related land resources. Municipalities cannot engage in water-development projects without Commission approval that the project is consistent with the Plan. Approvals are time-limited and conditioned.

Does this opinion change the Cabot dispute's outcome?
The opinion does not bind the Commission or a court. But it explains the legal framework correctly: Cabot's challenge needs to focus on the Water Plan conditions and the Commission's discretion under § 15-22-503, not on the Groundwater Act statutes the city has been citing.

Background and statutory framework

Arkansas's water regulatory framework has two main tracks:

Track 1: Arkansas Water Plan (§ 15-22-503). Charges ANRC with comprehensive planning for the state's water resources. Municipalities (and other entities) cannot engage in water-development projects without Commission approval that the project is consistent with the Plan. Approvals are time-limited and may include conditions. The Commission can extend approvals on request. Arkansas Soil and Water Conservation Com'n v. City of Bentonville, 351 Ark. 289, 92 S.W.3d 47 (2002), confirms the Commission's authority to require Water Plan compliance for municipal water projects.

Track 2: Arkansas Groundwater Protection and Management Act (§ 15-22-901 et seq.). Authorizes ANRC to designate critical groundwater areas, promulgate rules for groundwater use, and develop a comprehensive groundwater protection program. The regulatory machinery requires multiple layers of public notice and hearings (§§ 15-22-908, -909). Once activated, the Commission must issue water rights for beneficial use to existing well operators (§ 15-22-910(a)). Limits on withdrawals must comply with separate procedures (§ 15-22-905).

ANRC has used Track 2's designation power (designating much of Lonoke County as a critical groundwater area) but has not activated the regulatory machinery. The designation is currently non-regulatory.

The Cabot situation is governed by Track 1: Water Plan certification with conditions (1999 approval; 2020 extension to October 1, 2026, with conditions). The Groundwater Act statutes do not apply because the Commission is not acting under that authority.

Citations

• A.C.A. § 15-22-503 (Arkansas Water Plan)
• A.C.A. § 15-22-503(a) (Commission's planning charge)
• A.C.A. § 15-22-503(e)(1) (project approval requirement)
• A.C.A. § 15-22-901 et seq. (Arkansas Groundwater Protection and Management Act)
• A.C.A. § 15-22-902 (purpose of the Groundwater Act)
• A.C.A. § 15-22-904 (rulemaking authority)
• A.C.A. § 15-22-905 (limits on regulatory authority)
• A.C.A. § 15-22-906(a) (groundwater protection program)
• A.C.A. § 15-22-908 (designation of critical groundwater areas)
• A.C.A. § 15-22-909 (regulating within designated areas)
• A.C.A. § 15-22-910(a) (water rights for existing wells)
• A.C.A. § 15-22-911 (additional regulatory limits)
• Arkansas Soil and Water Conservation Com'n v. City of Bentonville, 351 Ark. 289, 92 S.W.3d 47 (2002)
• ANRC Rules, Rule 1, § 601.1 (definition of "project")

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2023-045
July 28, 2023
The Honorable Brian S. Evans
State Representative
Post Office Box 1365
Cabot, Arkansas 72023

Dear Representative Evans:

I am writing in response to your request for an opinion "regarding the authority of the Arkansas Natural Resources Commission to regulate a municipal water provider's use of groundwater." Your opinion request provides extensive background information regarding a dispute between the City of Cabot and the Commission. You state that the Commission has "in accordance with its purported authority to regulate water in a critical ground area," ordered Cabot to cap the wells it uses to draw groundwater from the Mississippi River alluvial aquifer and to "remove all equipment associated with them by October 1, 2026." You have also attached three exhibits to your request:

Exhibit 1: a document titled "Wellhead Protection Program Phase 1: Delineation of the Wellhead Protection Area for the City of Cabot Public Water System";
Exhibit 2: an amended final determination order from the Commission's predecessor, dated April 4, 2001, approving the city's water development project as consistent with the Arkansas Water Plan;
Exhibit 3: a final determination order and letter from the Commission, dated July 8, 2020, approving the City of Cabot's request to extend the use of its well field, on certain conditions, and declaring that the project complies with the Arkansas Water Plan.

Against this background, you have asked the following questions, some of which are grouped together because of their overlapping subject matter:

1. Does A.C.A. § 15-22-902 prohibit or limit the Arkansas Natural Resources Commission's authority to regulate the use of groundwater by a public water supplier like the City of Cabot?

Brief answer: No, A.C.A. § 15-22-902 does not prohibit the Commission from regulating groundwater use, but it does require the Commission to make every effort "to delegate water management powers to qualified local districts" if it becomes necessary to limit groundwater withdrawals through the use of water rights. This section is not relevant to the situation you describe.

2. If yes, what is the full authority of the Commission's authority to regulate the use of groundwater by a public water supplier like the City of Cabot?

Brief answer: My response to Question 1 renders this question moot.

3. Does the Arkansas Natural Resources Commission have the regulatory authority to order a public water supplier like the City of Cabot to stop using its previously approved wells to draw groundwater?

Brief answer: The Commission cannot limit or stop the withdrawal of groundwater in a critical groundwater area unless it notifies the public of its plan to do so and holds public hearings. Even then, additional statutes limit its authority. But these statutes are not relevant to the situation you describe.

4. If yes, what Arkansas law authorizes the Commission to make such an order?

Brief answer: My response to Question 3 renders this question moot.

5. The City of Cabot had wells drawing water from the alluvial aquifer under a right granted prior to 1991. Does the Arkansas Natural Resources Commission have the regulatory authority to order the City of Cabot to stop drawing water from wells and replacing those then existing wells?

Brief answer: No, the Commission cannot simply order a city to stop drawing groundwater from its wells, but that is not what the Commission has done here.

6. If yes, what Arkansas law authorizes the Commission to make such an order?

Brief answer: My response to Question 5 renders this question moot.

7. Does A.C.A. § 15-22-902 require the Arkansas Natural Resources Commission to delegate decision-making related to the limitation of groundwater withdrawals to local districts?

Brief answer: No, A.C.A. § 15-22-902 only requires the Commission to make "every effort" to delegate water management powers to qualified local districts. This statute is not relevant to the situation you describe.

8. If yes, has the Arkansas Natural Resources Commission complied with that requirement?

Brief answer: My response to Question 7 renders this question moot.

DISCUSSION

You have asked for my opinion on a multiyear dispute between the City of Cabot and the Commission. Your opinion request includes the three exhibits described above, which date to 1999, 2001, 2002, and 2020. These exhibits reference other documents, such as a 2007 request for modification from the City of Cabot, the Commission Executive Director's Final Determination in response to that request, the Commission's partial reversal of the Executive Director's Final Determination, and another 2018 request from the City of Cabot. I have not reviewed these other documents, and because I am not a factfinder when rendering opinions, this opinion is based solely on information contained in the documents you have provided.

The key to resolving your questions is identifying the legal authority on which the Commission relied when it directed the City of Cabot to stop using its wells by October 1, 2026. Your correspondence and questions suggest that the Commission was exercising its authority under the Arkansas Groundwater Protection and Management Act, codified at A.C.A. § 15-22-901 et seq. But the exhibits attached to your request suggest that the Commission acted under a different statutory authority regarding the Arkansas Water Plan, codified at A.C.A. § 15-22-503. While related, these statutes and the authority they confer upon the Commission differ, so I will briefly discuss them and their relevance to this case before turning to your specific questions.

1. The Arkansas Water Plan. The General Assembly has charged the Commission "with the duty of preparing, developing, formulating, and engaging in a comprehensive program for the orderly development and management of the state's water and related land resources, to be referred to as the 'Arkansas Water Plan.'" Municipalities cannot engage in any water development project until a preliminary survey and report is filed with the Commission and approved by the Commission as compliant with the Arkansas Water Plan.

In 1999, the City of Cabot asked the Commission's predecessor to approve a water-development project that involved, among other things, the construction of treatment plant and six water wells. Among other things, the Commission found that:

• the City of Cabot was a major component of the proposed Lonoke/White Community Services water project;
• one phase of the project was constructing an interim groundwater supply for Cabot;
• the new treatment plant and well fields would supplement Cabot's water needs until the new project could be constructed; and
• the new well field would supplement both Cabot's existing wells and water the city purchased from Jacksonville.

Based on these findings, the Commission approved the project as compliant with the Arkansas Water Plan. This certification was to "remain valid for as long as reasonable progress toward project completion [could] be documented, and/or for the amortized life of the project."

It is my understanding that the Lonoke/White Community Service water project has been completed and is now the Lonoke White Public Water Authority. The documents you have provided also suggest that one or more of the above conditions have been met, making the original certification invalid. Exhibit 3 references Cabot's request to the Commission in 2007 to increase the amount of water withdrawn from its well field and to delay the date by which the city would have to cease using the well field from January 1, 2023, to January 1, 2030. This request was denied, and the city again made a request to the Commission in 2018, asking to extend the use of its well field until October 15, 2029. The Commission conditionally approved this request to extend the project's water plan compliance certification, allowing the city to continue using the well field until October 1, 2026, but imposing certain conditions and restrictions on the use of the well field.

2. The Arkansas Groundwater Protection and Management Act. The purpose of the Arkansas Groundwater Protection and Management Act ("The Groundwater Act") is "to protect groundwater for the future" by "reduc[ing] groundwater use." The Groundwater Act (1) authorizes the Commission to promulgate rules for groundwater use and (2) charges the Commission to develop "a comprehensive groundwater protection program." But the Groundwater Act also includes restrictions on this regulatory authority. Among other limitations, the Commission cannot designate an area as a "critical groundwater area" without notice and hearings. And having done that, the Commission cannot start regulating within a designated critical groundwater area without additional notice and hearings. Even when both sets of notice and hearing been conducted, the Commission's authority to regulate is restricted by other statutes, including ones that govern the issuance of water rights.

The Commission has designated much of Lonoke County a critical groundwater area, including the area encompassing Cabot's well fields. Yet the Commission has not started exercising its regulatory authority over this area or any other critical groundwater area in the state. Rather, the designation of an area as a "critical groundwater area" is non-regulatory. The Commission has used this designation to help educate the public, encourage voluntary water conservation, and prioritize the area for state and federal financial incentives.

The Commission did not utilize its authority under the Groundwater Act when it extended the water plan compliance certification for Cabot's well field. (The Commission did, however, cite the continued mining of the Mississippi River alluvial aquifer, the water source for Cabot's well field, as a reason for imposing conditions on the extension of the compliance certification.)

Question 1: Does A.C.A. § 15-22-902 prohibit or limit the Arkansas Natural Resources Commission's authority to regulate the use of groundwater by a public water supplier like the City of Cabot?

Question 2: If yes, what is the full authority of the Commission's authority to regulate the use of groundwater by a public water supplier like the City of Cabot?

The section of the Groundwater Act you ask about, A.C.A. § 15-22-902, states the act's purpose. That language does not prohibit the Commission from regulating groundwater use of a public water supplier, but it does require the Commission to make every effort "to delegate water management powers to qualified local districts" if it becomes necessary to limit groundwater withdrawals through the use of water rights. Therefore, section 15-22-902 is not relevant to the situation you have asked about. As explained above, the Commission has not started using its authority under the Groundwater Act to regulate any critical groundwater areas in the state, and it did not act under this authority when approving Cabot's request to extend its water plan compliance certification.

Question 3: Does the Arkansas Natural Resources Commission have the regulatory authority to order a public water supplier like the City of Cabot to stop using its previously approved wells to draw groundwater?

Question 4: If yes, what Arkansas law authorizes the Commission to make such an order?

The Commission cannot exercise regulatory authority to limit or stop the withdrawal of groundwater in a critical groundwater area unless it issues notice and holds public hearings under Arkansas Administrative Procedures Act. The Commission has not done this yet. But even if it does start using its regulatory authority under the Groundwater Act, the Commission must issue water rights for beneficial use to applicants for existing wells as described in A.C.A. § 15-22-910(a). And the Commission can only decide to limit or reduce the withdrawal of groundwater from these existing wells or their replacements if the decision complies with A.C.A. § 15-22-905.

But again, these statutes are not relevant to the situation you ask about. The Commission did not exercise its regulatory authority under the Groundwater Act "to order a public water supplier like the City of Cabot to stop using its previously approved wells to draw groundwater." Rather, the Commission certified the water development project that created the six new wells as compliant with the Arkansas Water Plan in 1999. The documents you have provided suggest that this certification was temporary and that the use of the six new wells were meant to be an interim measure to supply the city with groundwater until the Lonoke/White Project was completed. At the city's request, the Commission extended the compliance certification until October 1, 2026, on the condition that the city will, at that time, abandon and cap the wells.

Question 5: The City of Cabot had wells drawing water from the alluvial aquifer under a right granted prior to 1991. Does the Arkansas Natural Resources Commission have the regulatory authority to order the City of Cabot to stop drawing water from wells and replacing those then existing wells?

Question 6: If yes, what Arkansas law authorizes the Commission to make such an order?

No, the Commission has not started exercising its regulatory authority under the Groundwater Act and cannot simply order a city to stop drawing groundwater from its wells. But that is not what the Commission has done here. In 1999, the Commission approved Cabot's water development project that provided for the construction of "six new water wells as an interim groundwater supply to be used until the completion of the Lonoke/White Project." These six new wells were meant to supplement the three "existing wells Cabot use[d] as well as the water purchased from Jacksonville." You report that the city of Cabot has stopped using the three wells drilled before 1999 and only uses the six newer wells. Yet these six wells were only approved as an interim measure until the completion of the Lonoke/White Project. The fact that Cabot stopped using its original three wells does not mean that the date through which the Commission certified compliance for the six new wells somehow disappears or that the Commission cannot extend that compliance certification with conditions.

Question 7: Does A.C.A. § 15-22-902 require the Arkansas Natural Resources Commission to delegate decision-making related to the limitation of groundwater withdrawals to local districts?

Question 8: If yes, has the Arkansas Natural Resources Commission complied with that requirement?

No, A.C.A. § 15-22-902 does not require the Commission to delegate decision-making related to the limitation of groundwater withdrawals to local districts. Rather, the statute requires the Commission to make "every effort … to delegate water management powers to qualified local districts." This wording suggests that it may not always be possible for the Commission to delegate such decision-making to local districts.

As explained above, the Commission did not use its authority under the Groundwater Act when it conditionally extended the water plan compliance certification for Cabot's well field. Therefore, this question is moot.

Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General