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

Plain-English summary

Representative Brian Evans asked eight questions about the Arkansas Natural Resources Commission's authority over the City of Cabot's groundwater wells. He described a requirement to cap six wells by October 1, 2026. The Attorney General said the questions largely assumed the Commission was regulating withdrawals under the Arkansas Groundwater Protection and Management Act. He instead read the supplied orders as a conditional extension of a water-development project's certification under the Arkansas Water Plan.

According to the opinion, the Commission approved six new wells in 1999 as an interim supply until completion of the Lonoke/White Project. Cabot later asked to extend their use. The Commission conditionally extended the Water Plan compliance certification through October 1, 2026, with a condition that the city then abandon and cap those wells. The AG said the Commission had not started regulating any critical groundwater area under the Groundwater Act at the time of his opinion, so the Groundwater Act provisions invoked in the request did not control this extension.

The opinion explains that Groundwater Act regulation to limit or stop withdrawals in a critical area would require notice and public hearings. It also says A.C.A. § 15-22-902 calls for “every effort” to delegate water management powers to qualified local districts if water-rights limits become necessary; it does not guarantee delegation. The AG regarded the delegation question as moot for Cabot's Water Plan extension.

The opinion does not discuss emergencies or an emergency exception to the October 1, 2026 condition. It also does not decide whether any later request to extend the certification would be granted.

What this means for you

Municipal water providers

Identify which legal authority appears in an actual Commission order. This opinion treats Cabot's six-well extension as a Water Plan compliance matter and distinguishes it from a Groundwater Act limit on withdrawals. Its conclusions rest on the documents described in the request.

Readers assessing the October 2026 condition

The AG describes the extension as conditional on abandoning and capping the six wells at that date. The opinion supplies no emergency exception and no ruling about a future extension.

Common questions

Did the Commission use the Groundwater Act to order Cabot to stop pumping? The AG said it did not. He interpreted the supplied documents as a Water Plan compliance certification and extension, with conditions for the six interim wells.

Does § 15-22-902 forbid the Commission from regulating groundwater? No. The AG said it requires an effort to delegate water management powers to qualified local districts if withdrawal limits through water rights become necessary, but the section was not relevant to the Cabot extension.

Could Cabot keep using the wells after October 1, 2026 in an emergency? The opinion does not discuss that scenario or identify an emergency exception. It describes the condition in the extension order.

Background and statutory framework

A.C.A. § 15-22-503 governs Arkansas Water Plan compliance for water-development projects. The opinion describes the separate Groundwater Protection and Management Act, A.C.A. §§ 15-22-901 et seq., including procedures before withdrawal limits could be imposed in a critical groundwater area. Footnotes 15 and 16 cite the orders submitted with the request for the original interim-well plan and the later extension.

Citations

• A.C.A. § 15-22-503
• A.C.A. §§ 15-22-901 et seq.
• A.C.A. §§ 15-22-902, 15-22-905, 15-22-909, and 15-22-910(a)
• Arkansas Soil and Water Conservation Com’n v. City of Bentonville, 351 Ark. 289, 92 S.W.3d 47 (2002)

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; 1

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
This amended order corrected a scrivener’s error in the original order, dated August 30, 1999. A copy of the original order and its related correspondence are also included as part of Exhibit 2. The Honorable Brian S. Evans State Representative Opinion No. 2023-045 Page 2

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?
The Honorable Brian S. Evans
State Representative
Opinion No. 2023-045
Page 3

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.’” 2 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. 3

2
A.C.A. § 15-22-503(a).
3
See A.C.A. § 15-22-503(e)(1); Arkansas Soil and Water Conservation Com’n v. City of Bentonville, 351 Ark. 289, 298–99, 92 S.W.3d 47, 53 (2002); see also Arkansas Natural Resources Commission Rules, Rule 1, § 601.1 (defining “project”). The Honorable Brian S. Evans State Representative Opinion No. 2023-045 Page 4

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. 4 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.” 5

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.” 6 The Groundwater Act (1) authorizes the Commission to promulgate rules for groundwater use 7 and (2)

4
Exhibit 2, p. 1.
5
Exhibit 2, p. 2.
6
A.C.A. § 15-22-902.
7
See A.C.A. § 15-22-904.
The Honorable Brian S. Evans
State Representative
Opinion No. 2023-045
Page 5

charges the Commission to develop “a comprehensive groundwater protection program.” 8 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. 9 And having done that, the Commission cannot start regulating within a designated critical groundwater area without additional notice and hearings. 10 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. 11

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. 12

The Commission did not utilize its authority under the Groundwater Act when it extended the water plan compliance certification for Cabot’s well field. 13

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

8
A.C.A. § 15-22-906(a).
9
See A.C.A. § 15-22-908.
10
See A.C.A. § 15-22-909.
11
See A.C.A. §§ 15-22-905, -910, -911.
12
See Arkansas Department of Agriculture, Natural Resources, Water Resources Management Division, Groundwater Protection and Management Program. Critical Groundwater Areas. https://www.agriculture.arkansas.gov/natural-resources/divisions/water-management/groundwater- protection-and-management-program/critical-groundwater-areas/. 13 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. The Honorable Brian S. Evans State Representative Opinion No. 2023-045 Page 6

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. 14 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

14
See A.C.A. § 15-22-909.
The Honorable Brian S. Evans
State Representative
Opinion No. 2023-045
Page 7

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.” 15 These six new wells were meant to supplement the three “existing wells Cabot use[d] as well as the water purchased from Jacksonville.” 16 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.” 17 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

15
Exhibit 3, p. 2.
16
Exhibit 2, p. 2.
17
A.C.A. § 15-22-902 (emphasis added).