Friday, August 28, 2009

Water Rights Conservation Program

Somewhere around the late-1970's as the water supplies became fully developed, Kansas consciously began the transition of its water law interpretation from "development" oriented, to a "water management" orientation. The laws weren't actually changing much, but their interpretations were - and I think rightfully so.

One of the knottier issues in this change was the "use it or lose it" mindset. Under development mode, those not using the water needed to give way to others who wanted to use it so that maximum economic benefit could be achieved right up to the moment of fully appropriating all the water supplies. By the process of forfeiting non-used water rights for maximum economic gain, non-used water rights were disadvantaged - some say penalized.

However, in the new, management phase of water, non-use needed to be rewarded rather than disadvantged - especially in areas that were over-appropriated and no one else could be given the water to use if it was forfeited. The common perception was that owners were using the water simply to keep their water rights intact. If this were true, where is the conservation ethic in this system? This is where the Kansas Water Rights Conservation Program (WRCP) came into existence.

WRCP allowed water rights in over-appropriated areas to be set aside for 5 to 10 years for conservation, and to re-enroll for another 5 to 10 years afterwards. Each of these years was then considered "due and sufficient cause" for non-use (enrolled in a government program for conservation) so the water right could not be forfeited for non-use. This allowed water right owners the choice of not using their water while retaining ownership - but only in over-appropriated areas. Today, there are 977 water rights in this program statewide, not using 260,000 acrefeet of appropriated water.

Due to budget cuts, the state is poised to end WRCP, which by the way is not a statutorily mandated effort, but was crafted in this new, management-oriented interpretation period by regulation. I don't know how many of the people enrolled will start using their water again as they come out of their current contracts, but I suspect most will rather than face abandoning and forfeiting these property rights. This decision simply appears to me to be "penny wise and pound foolish" as the colonials would say, and certain to make water management a bit harder as we move on from here.

I think the state may also be concerned about keeping all the WRCP water rights "on the books" for the next few decades as this will pose other water management problems for a later time. But these later problems I think will be less-knotty then than the problems related to eliminating WRCP are going to be now.

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