A New Approach to Control Areas In Kansas

We're attempting to get some legislation passed in the upcoming 2012 session regarding control areas.  The current statutes allow intensive groundwater use control areas (IGUCAs) to be formed by state process.  Either a groundwater district can request one of the chief engineer or the chief engineer can initiate one on his or her own.  In either case, once the IGUCA is initiated, there is no telling where it'll end up.  Every or any solution can be put on the table during the public hearing process.  First, the list of corrective control provisions (solutions) allow for adjustments to water rights therein.  Second, the solution itself can be a few mild water right adjustments all the way to severe adjustments that result in aquifer restoration to any historical level.  No doubt about it, under these conditions it's a risky proposition for everyone - except perhaps the chief engineer who makes all the decisions and may or may not have his or her own ideas of what should happen.

Our proposal addresses this single issue.  We're asking that the law be changed such that, within a GMD, if the locally requested control area is proactive, the GMD be authorized to submit a locally developed enhanced management plan along with the control area request. The chief engineer must first rule on the local plan - does it meet minimum standards of a defined, realistic area, include solutions that will address the issues at hand, etc.  If it does, he or she initiates the control area.  The locally developed plan, then, is the sole focus of the public hearing process, and in the end, the chief engineer must either accept the plan (unaltered); reject it totally; return it to the GMD for amendments to bring it into legal compliance; or return it to the GMD with suggestions for improvements (coming only from the public hearing process) that the GMD can accept (then be added to the final order) or reject (stopping the process and withdrawing the original request).  That's about it.

While this approach doesn't guarantee the locals will get what they want, it does guarantee they won't get what they don't want.  It also provides a strong incentive to act locally in the first place - proactively - because this approach is not available if a control area is court ordered, or comes from the state as the result of an impairment complaint or other such action.  It also retains the existing IGUCA process, which can and may be needed if this approach fails for any reason.  It retains a significant level of decision-making in the hands of the chief engineer, and retains full public access to the process.

Couple this process with a suite of other water management incentives being considered for special management areas only, and we design a much more favorable climate for local action than we've ever had before.  If this doesn't work, I'm pretty resigned that a top-down, state approach is the only approach left.

By the way, this new-fangled control area has been dubbed a LEMA - Local Enhanced Management Area - and is looking like it'll get its own statute within the Groundwater Management District Act.  Right now the statutory language is being written collaboratively by the chief engineer, a revisor of statutes within the legislature, and our GMD.  Conceptually, it has been supported by many water groups in the state, but as everyone knows who's been to this rodeo, the devil is always in the final wordsmithing details.

In closing, this approach in no way speaks specifically to what local plans might be put forth for consideration - it merely provides the vehicle.  I'd be interested in any comments you might have - especially if there are deep pitfalls looming.

Ogallala Aquifer Advisory Committee Meeting 2

I attended the OAAC second meeting on August 23 in Scott City, Kansas.  Another good turnout of committee members and state and local agency folks.  Also had at least two members of the press in attendance as well - representing the Hays Daily News and Kansas Public Radio.  The major focus of this meeting was slated to be 2012 Farm Bill discussions - How does the current Farm Bill affect water use and how can the next Farm Bill promote water conservation?  But first, status reports on the two action issues out of the first meeting were requested:  the water right abandonment situation, and a proposed new, local IGUCA.

KDA reported on two draft versions of the abandonment statute amendments.  One version was simple and proposed to strike the language of the current bill that required water right owners to maintain their wells in order that their non use would be considered "due and sufficient cause".  The second version also included language that would allow the local GMDs to effect abandonments if they chose to.  Recall that the discussion last meeting was to consider allowing the GMDs to develop regulations that would direct the chief engineer's abandonment efforts locally. No decision was made.

KDA also reported on a draft statute and regulation that would support the local IGUCA discussed and approved on August 9.  The effort was a new statute authorizing a new process for a Local Enhanced Management Area (LEMA).  Both DWR and GMD4 indicated that discussions have identified 6-8 changes that were being further contemplated.  Moreover, the Revisor's Office has not yet completed their draft work, but it should be available soon.

The committee decided to hold up the next meeting until the IGUCA statute draft language was completed.  They indicated they wanted to consider the actual draft language rather than simply support the concept.  More later.   

Governor's Water Summit - Post Activity

As already reported, Kansas Governor Brownback's water summit was held July 21, 2011 in Colby.  It was attended by 400 or so folks from across Kansas and even a smattering of people from our neighboring states.  There were no shortage of ideas provided by those involved.  As I said before, the complete list of ideas is supposed to be published on the Kansas Water Office website, but it's not been posted as of this writing, so I'll point you again to the preliminary capture of ideas which are here.  Suffice it to say that I have one issue with this capture which has been brought to the attention of the KWO.  I'll be interested in seeing if it is addressed in the final posting. (More about this below)

Anyway, all the ideas will be handed off to a 21-member select committee that was just recently appointed by the chairperson of the Kansas Water Authority.  This committee is made up entirely of western Kansas stakeholders and contains no water professionals (water agency types - either federal, state or local).  They will meet for the first time August 9 in Dodge City and will open with two issues:  What should be done with the Kansas abandonment statutes to foster better conservation?; and Should the intensive groundwater use control area laws be amended to foster more local use?

While I still have mixed feelings on the abandonment statutes (previous post here), it is the IGUCA laws that I am excited about.  I think there can be small changes made to the existing laws that will get the local folks far more interested in using this approach for new enhanced management approaches.  This alone was well worth the effort to me.  But it remains to be seen what other issues will follow these two as this process plays out.  My issue with the process (mentioned earlier in this post) has to deal with the state's broadening of the comments made during the summit.  While individuals did suggest law changes or retention for the abandonment, IGUCA, personal property rights and water use flexibility portions of the statutes, I heard no one suggest that every law and regulation needs a serious review and reconsideration - which is what became characterized by the KWO and is currently posted on the web page as public comment number 2.  Maybe someone said it in one of the breakout sessions, but I didn't hear it.

Of course, if this comment prevails, every aspect of the Kansas water appropriation act now becomes open for change - including the very most fundamental aspect of the entire system - the prior appropriation system.  This could get real serious in a hurry.  Anyway, all in all I think some positive things will have a chance to come out of this effort in a fairly short period of time.  Let's cross our fingers.

UPDATE - (August 5, 2011):  The full slate of public comments are now posted on the Kansas Water Office website.  There are 3 links under the heading:  Stakeholder Input from Summit Small Group Sessions. 

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.)