Thursday, March 24, 2011

Kansas Water Transfer Act

A water transfer in Kansas means the transportation of 2,000 AF or more per year for use at a point 35 miles or more away.  The act is administered by a Water Transfer Panel made up of the chief engineer, the secreatry of the Kansas Department of Health and Environment and the Director of the Kansas Water Office - 3 state agency heads.  The chief engineer is the chair of the panel. 

Basic tenets are: 

1) No transfer can be approved that would reduce the amount of water required for present or any reasonably foreseeable future needs by users in the source area.  (Of course, there are exceptions, like if the panel thinks the benefits to the state for approving the transfer will outweigh the benefits to the state for not approving it; or, the panel says an emergency exists which affects the public health, safety or welfare; or, the governor declares an emergency affecting the public health, safety or welfare.)  

2)  No water transfer can happen: (1) If such transfer would impair water rights; and (2) if the transfer is for use by a public water supply, unless the panel determines that a conservation plan has been implemented by the applicant that meets state guidelines, has been in effect for a year or more, and implements a rate structure which encourages efficient water use.

3)  No transfer shall happen without an application and a public hearing.

4)  No transfer shall be exempt from complying with:  a) a GMD Management Program (so long as the program does not prohibit transfers out of the district; applies equally to users inside and outside a GMD; and does not discriminate against users outside a GMD); and b) the water appropriation act or the water plan storage act.

There are 9 elements the panel must consider when deciding if the benefits to the state for approving the transfer outweigh a no-transfer decision:  1) All current beneficial use(s) being made of the transferred water; 2) any reasonable future use of the water; 3) the economic, environmental, public health and welfare and other impacts of acting on the transfer; (4) alternative water sources available to the applicant; (5) the applicant's actions to preserve the quality and remediate any water contamination now available; 6) design, construction and operation of any works used to carry the water; 7) effectiveness of conservation plans implemented by the applicant; 8) conservation plans implemented by any persons protesting or potentially affected by the transfer; and 9) any applicable program, standard, policy or rule and regulation of a groundwater management district.

As you can see, there is considerable latitude given to the state panel in approving or disapproving water transfers.  And virtually everything is couched in terms of "what's best for the STATE".  Even the local GMD management plans must go along with transfers - at least they can't preclude them.  With few people, little political representation, relatively little money, an active water marketing system, and very little direct involvement in the process, can you see how skeptical the rural folks with water might be?
A common feeling is:  Why should we work at cutting water use back any amount when it's so easy for the state to transfer part or all of what we had been using out of our area for someone else's use?"  In these cases, it seems an active water market and a definitive transfer process become impediments to responsible management decisions.  I don't know if this is right or not, but it appears real.
In the process of developing the SD-6 HPA regulatory water use reductions, the first big concern/issue was proving that the water saved would stay local and be available to them or their descendants later.  Otherwise they would never have continued discussions.  There are likely few folks who will purposely scrabble and do with less water when the system can allow (or result) in their savings going somewhere else.  Not knowingly, anyway.  I wonder if this is an issue in other areas considering mandated water use reductions or active water marketing devices designed to re-allocate (reduce) water use?

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