Tuesday, February 2, 2010

New, Conservation Water Use Type for Kansas?

Kansas Ag Secretary Josh Svaty just announced what is being billed as a "groundbreaking" new initiative for voluntary water conservation in the state.  The press release goes on to say that this new initiative is a replacement for the Water Rights Conservation Program (WRCP) that had to be eliminated due to budget shortfalls. How does it stack up?

First, a look at WRCP.  This program allowed a water right owner to enroll the water right for 5-10 years, via a contract with the state engineer, for conservation purposes.  There was no cost for the right owner or any incentive provided by the state to enroll.  The state's application review was basically for two conditions - to ensure the water right was within an area closed to new appropriations, and that it was valid (non-forfeited due to nonuse).  The benefit to the right owner was that every year of enrollment constituted "due and sufficient cause for nonuse" - thus keeping the water right active during each year of the contract.  The benefit to the state was the set aside of the water right for conservation purposes.  This program cost the state less than $50,000 per year, and when eliminated on December 31, 2009, had 977 water rights enrolled which had 266,000 acrefeet of water appropriated.  Of course, not all of this water was being pumped each year, but most agreed that the real conservation of water was well worth the $50,000 it cost to run the progrm. 

The real salient issues of WRCP were:  the contractural arrangement provided absolute certainty for the water right owner that:  his or her conservation (nonuse) was an accepted cause for nonuse; and the water right would be whole and valid when the contract was over.  The owner could even remove the pump from the well and properly store it for protection.

Now, the new, groundbreaking proposal.  The state is proposing to amend the Kansas Water Appropriation Act (bill introduced in concept, no specific language yet) to create a new water use type - Conservation.  Through the existing "change of water rights" process a water right owner could apply to change his or her right from its current use type, to the new Conservation use type.  Once the use type has been changed, the non-use would be considered a beneficial use, thus keeping the right active.  There would be no reduction of the quantity, rate or place of use when changed into Conservation.  Another change of use type application would be filed whenever in the future the owner wanted to start using the water right again for its original purpose or any other purpose.

The beauty of this approach is its simplicity - all the elements are there once the Legislature creates the new beneficial use type.  I personally believe the cost of this approach actually increases for both the water right owner and the state, but it's not a hugely significant cost increase.  The salient issues of this approach are (and remember, the actual bill language is not yet available):  How can there be a guarantee that an application to change a Conservation use type back to some other use type in the future will be approvable?  Is it possible that the state engineer, who must consider the "public interest" in all change applications, might deny a change back to irrigation use in an overappropriated area based on his or her belief that it does not serve the public interest?   

With no assurance that any water right will be approved for a change back to its original use - either in whole or in part - it seems like too much of a risk for people to participate.  If this is true, their "groundbreaking" approach to voluntary conservation will be much ado about nothing.  Perhaps the bill will address this issue and also create a way that everyone's expectations can be guaranteed, but, it's a sticky wicket, that one - at least in Kansas!  I continue to hope for the best.

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