Wednesday, July 28, 2010

New Conservation Use Type

Last Legislative session the idea of a new type of Kansas water use - “conservation” – was floated as an alternative to the elimination of the Water Rights Conservation Program (WRCP). It stalled in a Senate committee when the chair did not see enough consensus. Kansas Ag Secretary Svaty has since indicated his continued interest in the idea, and there are indications it may be considered for interim Legislative study.

The essence of the program is that anyone wanting to conserve their water right by not using it would change the right from its current use type (irrigation, M&I etc.) to the new “conservation” beneficial use type created by the Legislature. The change would be permanent until an application is filed again to change it to another use type. As left last year, any water right in the state would be eligible and there would be no time limit a water right could exist as a conservation use water right.

While seemingly simple, this idea has some challenges. Some wanted only areas closed to new appropriations to have this option – believing that participation in non-closed areas could prevent new water right applications from being approved - thus underutilizing the state's water resources. Others felt the future change process from conservation could subject the water right to new (as-of-yet-developed) criteria - in other words, less assurance of what the water right will become when changed to some other use type in the future. Still others objected to the permanent nature of the change and felt there should be a time limit set. 

The Ag department had last session addressed the first of these issues with the promise of a regulation that would basically allow its division of water resources to let term permits for new uses that did not exceed the extent of water existing as conservation rights - and only for as long as the conservation rights existed.  This construct basically crafted a state brokerage in this regard.  While a creative fix, and close to being workable, it was offered very late in the process and never got enough time to gel. 
It is my opinion that the largest issue is that of the fundamental change in the water right when initially changed to a conservation use type. I can't help but think there will be hoops to jump through in changing it back to some other use type, and those hoops will benefit the state more so than the water right holder.  If we discuss this issue again in Kansas, my focus will be on this issue - not so much to be an opponent, but to insure that the process is clearly stated so that the water right owner understands what will have to be done, and what he or she will end up having, when the time comes.

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