Tuesday, September 8, 2009

Water Politics - Kansas Style

Kansas will never compete with the hardball nature of water politics ala California or Nevada, but we have our moments.  Take for example the issue of authority over special management areas - dubbed IGUCAs (Intensive Groundwater Use Control Areas).  In 1978 the state Legislature amended the groundwater management act to provide new management tools over and above the traditional "administration by priority" when supplies got low.  The actual language says (edited for space):
K.S.A. 82a-1036:  Whenever a GMD recommends the same or whenever a petition signed by not less than three hundred (300) or 5%...of the eligible voters of a GMD, whichever is less, is submitted to the chief engineer, he or she shall initiate...proceedings for the designation of a specifically defined area within such district as an IGUCA. The chief engineer upon his or her own investigation may initiate such proceedings whenever he or she has reason to believe that any...of the following conditions exist in a groundwater use area which is located outside the boundaries of an existing GMD: 
The Legislative debate began with the intent of providing these new management authorities only in the GMDs because the GMDs were asking for them.  Hence the section begins by "Whenever a GMD recommends.."   At the 11th hour, the Legislature amended the bill draft further by adding the last, italicized  sentence - Oh, by the way, outside a GMD the chief engineer can use these tools too, because they are really good tools.  Thus the Legislative intent was:  The chief engineer can initiate an IGUCA within a GMD only upon a recommendation by the GMD, and he or she is free to do so outside a GMD based upon his or her own  study.  The law was read and interpreted by everyone in this manner for the next 24 years. 

In 2002 the attorney general was asked if the chief engineer could initiate an IGUCA within a GMD if the district did not, or would not, request one?  The AG, to everyone's surprise, opined that the chief engineer could indeed do so.  Based on this opinion the chief engineer is now promulgating new regulations to implement this newly conferred authority***.  A few Legislators understand that the AG does not make or change policy or law in the State, but so far this body has not been unable to clarify their 1978 intent - leaving many to ponder their motives.

(*** Clarification - September 11, 2009:   The chief engineer began promulgating 3 separate regulations on IGUCAs following the AG's opinion and other public discussions.  One of these prescribed a procedure for DWR's initiation of an IGUCA within a GMD when not requested by a GMD.  All 3 regulations were heard in public hearing, but the single regulation concerning IGUCAs initiated by the chief engineer inside a GMD when not requested is being withheld and will not be promulgated at this time.)       

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