Wednesday, May 5, 2010

Conservation, Use It Or Lose It, and Abandonment

Darn it!  Kansas had a pretty good conservation program going with the Water Rights Conservation Program (WRCP) until it was eliminated on December 31, 2009 for lack of funding.  This program allowed water rights in good standing to contract with the state to conserve water (not pump it).  The contract was from 5 to 10 years in length, was only available where no new water rights were approvable, and did not have any enrollment fee.  Being under contract with Kansas, the years of non-use counted as "due and sufficient cause" and could not be used for abandonment purposes.  This approach clearly extended the potential abandonment window for non-use well beyond the statutorily set 5 years, but it had an actual time limit after which the water right would again be subject to abandonment for non-use.  For those unfamiliar with the concept of abandonment, it prevents persons from holding onto unused water rights at the exclusion of others who want to use the state's water, tends to make sure the state's water gets beneficially used and prevents the long-term speculation of water rights.  

In trying to replace WRCP with some other conservation program funded some other way, several approaches were started through the Legislative and Rule making process by independent entities.  What came out of all these efforts was a new statute that makes it a matter of law that non-use by any water right in areas closed to new development (as long as the well is maintained) is "due and sufficient cause" for non-use and the water right cannot be abandoned.  On the surface this sounds innocuous enough - and certainly in the favor of water right owners who don't want to pump the right, but want to retain it.  Remember, a water right in Kansas is a real property right (in perpetuity) to the use of the state's water so long as the conditions of the water right are adhered to.

However, we've just created a situation, in closed areas, where no water right will ever get abandoned except by voluntary action by the owner - as long as the well is maintained.  Not so much a problem today, but eventually these non-used rights will be involved in any management solutions applied to the area.  If water right reductions are ever made, those who have been using the water all along will have to cut deeper in order to equitably share the pain with those who haven't been using the water at all, and may never do so again.  I suspect there will be active discussions at that time.  Of course, maybe water markets were invented for this exact reason.  It's all a matter of perspective.

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