Pro Publica, Gimme a Break! IRS Tax Loophole Can Reward Excessive Water Use in Drought-stricken West:
ProPublica’s reporting on the water crisis in the American West has highlighted any number of confounding contradictions worsening the problem: Farmers are encouraged to waste water so as to protect their legal rights to its dwindling supply in the years ahead; Las Vegas sought to impose restrictions on water use while placing no checks on its explosive population growth; the federal government has encouraged farmers to improve efficiency in watering crops, but continues to subsidize the growing of thirsty crops such as cotton in desert states like Arizona.
Today, we offer another installment in the contradictions amid a crisis.
In parts of the western U.S., wracked by historic drought, you can get a tax break for using an abundance of water.
That’s a typo, right? A joke?
Ah, no. But we understand your bafflement. The Colorado River has been trickling, its largest reservoirs less than half full. As recently as 2014 parts of Texas literally almost dried up. The National Academy of Sciences predicts the Southwest may be on the cusp of its worst dry spell in 1,000 years. Scientists are warning that the backup plan — groundwater aquifers from California to Nebraska — are all being sucked dry.
But, yes, the tax break exists — in parts of eight High Plains states.
Here’s how it works: Farmers — or anyone who uses water in a business — can ask the Internal Revenue Service for a tax write-off for what’s called a “depleted asset.” In certain places, water counts as an asset, just like oil, or minerals like copper. The more water gets used, the more cash credit farmers can claim against their income tax. And that’s just what almost 3,000 Texas landowners in just one water district appear to have done last year — a year in which nearly half of Texas was in a state of “severe” or “extreme” drought.” ...
Let’s get back to depleted assets. So when did this tax break start?
About 50 years ago. A farmer in the Texas panhandle — along with his local water district — successfully sued the IRS, arguing that the roughly 200 million gallons he drew from his groundwater each year was no different than the depletion of the state’s other great natural resource, oil. He won, and the IRS was obliged to create rule 65–296 — the special allowance for tax credits that the IRS almost forgot about.
Again, it was supposed to be limited — just to a slice of Texas and eastern New Mexico. The court even went so far as to warn that the case shouldn’t become a precedent for groundwater tax claims elsewhere, saying the conditions in that area of the country were unique. But it didn’t take long for the rule to be expanded, albeit just a little bit. By the mid 1980’s any landowner overlying the sprawling Ogallala aquifer — a giant underground vault of precious but dwindling water — was eligible to file for the deductions, not just in North Texas and New Mexico.