Federal Dilemma Discovered

Water rights in any state are usually complicated, but in Kansas they can be especially so.  Over the past 7 or 8 years Kansas has been working with the federal Natural Resources Conservation Service (NRCS) on implementing a pretty savvy EQIP offering.  For the most part, we have worked and played well together, and the EQIP program that has resulted has been useful and used.

Basically, EQIP is incenting producers to set aside irrigated ground for non-irrigated production in order to achieve a water quantity resource goal set by NRCS at the recommendation of the Kansas Technical Committee.  The EQIP contract requires the water right to be set aside and not used for the contract period plus one "maintenance" year.  Moreover, the water from that water right cannot be used on any other land.  All this sounded pretty reasonable as the effort was being wordsmithed, as all Kansans were thinking water rights.   

However, we have just now reached one of those "humps in the road" with a program interpretation that, if not re-interpreted by NRCS, is going to be problematic.  NRCS has told program enrollees that the well itself cannot supply water for any other use during the contract period.  They have apparently linked the well to the water right in a black and white fashion.  They have obviously been thinking "water" when we were thinking "water rights".

The problem is that in Kansas multiple water rights can be, and often are, associated with a single well.  Even when an irrigation water right is forfeited, dismissed, sold or otherwise eliminated, nothing precludes the use of that well for domestic purposes, or any other water right or term permit that is associated with the well.  Each of these would have a different priority date, water right file number and use type, so using them would insure that no water from the contracted irrigation water right would be used.

What the current NRCS interpretation is actually doing, is preventing Kansas citizens from accessing any of their other valid water rights that may be associated with the subject well - including domestic uses - and we think this would be in violation of Kansas water law. 

I don't think this was the NRCS intent, and I'm holding out that they will listen to our concerns and eventually agree with us because they understand Kansas Water Rights better as a result of our discussions.  It'll end up being just a minor misunderstanding. But, if they refuse, one will have to wonder if this is not another federal incursion into state's water rights - by design.  More information later.

2013 Legislature To Deal With Water - Again

The Kansas Legislature will be dealing with water again this coming session.  The good news is that none of their deliberations will be directly affecting water issues critical to our local groundwater management district - at least that we know about at this time.  The games will begin January 14 when this esteemed body convenes for its 2013 Session.

The Local Enhanced Management Area (LEMA) legislation passed last year as a bright and shiny new authority for locals within GMDs to address groundwater supply problems is going to be looked at for expansion over the rest of the state.  It seems we crafted something that has utility beyond the GMD boundaries.  Our concern was that the current LEMA statute resides in the Groundwater Management District Act, so opening up this act to provide for LEMAs outside GMDs seemed risky.  We are told that the state thinking is a completely separate bill located some other place than the GMD Act.  This is an acceptable arrangement.  Now the only worry is that the Legislature agrees and doesn't try to blend the two after getting the separate bill introduced.

Another issue will be amending the current Multi-year Flex Account (MYFA) law to make it more attractive for use - by allowing end-of-the-5-year-account balances to be carried forward into the next 5-year MYFA period.  My only concern is that the more ability there is to use the full MYFA account, the less water conservation that will be achieved.  I'm OK with some carry-over allowance, but not unreasonable quantities for too-lengthy of time-frames.

The last water issue to be considered is water for oil and gas operations.  There are two schools of thought on this issue:  1) allow these as exempted water uses and hope they collectively don't break the local supply bank; or 2) require them to be obtained from existing water uses (in closed or over-appropriated areas) on the market (by offset) - so as to insure the local supply problems are not exacerbated by these new uses.  The first is a state give-away while the second will be a little more expensive (money and time) for the industry.  Perhaps both can be done by allowing a limited number of exempted rights in carefully defined areas, then requiring all subsequent needs to be offset through the market.  Somehow I think the oil and gas industry will have a say in the approach settled on.

Well, these are the water issues that we feel fairly certain will be dealt with this year.  As usual, there could be others as well. Heck, I'd not be surprised if they take up Missouri River transfers to Denver while they're at it.  Of course, a terminus in Colby, Kansas seems MUCH more reasonable, affordable, politically do-able and a heck of a better idea!

Moving a GMD 4 Water Right

I want it way over there

There are a number of regulations involved in moving a water right in Kansas, and likewise in GMD 4.  Mostly they insure that the new location will not affect other water users; that the historical consumptive water use will not increase, and that the new diversion point is within the same source of supply as the original.  It is the idea of "local source of supply" that this post covers.

Things used to be pretty loose when it came to local source of supply in the early days (1945 - 1970's).  It was somewhere between a nominal 1320 feet (1/4 mile) and 2640 feet (1/2 mile) - depending on where the water right was located.  In the early 1980's GMD 4 felt that the local source of supply should be largely independent of distance, and more related to specific well performance.  When the dust settled on our new regulation it was a combination of the two methods.  By this I mean we have a nominal 1/2 mile maximum move distance that everyone gets access to.  However, if the well owner wants to move farther than this, the GMD can use a Theis analysis to estimate the cone of influence developed by his or her well over a pumping season that equals the time it takes to pump the authorized water right quantity at the current tested rate of diversion.  The radial distance from the well where its cone of influence is .5 feet or more drawn down is now considered it's local source of supply.  To make sure these calculations are as accurate as possible, we require a well log from within 300 feet of the original well location from which the aquifer parameters (transmissivity and storage coefficient) are determined, or, a time drawdown aquifer pump test to estimate these same parameters.

The state of Kansas has never been a fan of long water right moves, so on top of all this they insisted on a maximum move distance of 3960 feet (3/4 mile) - regardless of what the Theis analysis reveals.  And the new location must meet well spacing from all other wells, too.

All in all, this regulation has worked out well for us.  There have been a number of people use the regulation to move a well over the 1/2 mile limit, but there have also been cases where the longer move they wanted has not been supported.  Our GMD is the only area in the state at this time where a well can be moved farther than 1/2 mile - if supported by the area hydrology.  For the larger wells that influence wider areas, this new regulation seems more fair than a guesstimated distance.

Limited Supply Water Use Meetings Slated

ATTENTION KANSAS IRRIGATORS:  The Kansas Department of Agriculture Division of Water Resources (DWR) and K-State Research and Extension will be hosting four educational meetings for water right holders who have questions about water rights in drought and possible ways to manage next year’s water supply. If you have used any of the emergency water right tools this year, you should plan on attending one of these sessions.

The goal of these meetings will be to provide information to water right holders, who will likely be operating their irrigation systems next year with less water, about potential solutions available for them.  The information will cover all the newest gizmos developed in response to the 2011 drought - including emergency term permits and flex accounts.  In addition, Kansas State University (KSU) has some great tools for making decisions on how to optimize profit in in these conditions that they are going to share.  (click to see an earlier blog post on these tools)

In overview, a recent KDA press release says it this way:  "...the Kansas Department of Agriculture offered water right holders two alternatives to allow for additional pumping authority in 2011, the 2011 Drought Emergency Term Permit and Multi-Year Flex Account (MYFA) Permits.  The Emergency Term Permit allows water right holders to borrow from their 2012 water allocation in 2011.  The MYFA allows for water right allocations to be spread out across a 5-year period.  These options and how they work will be discussed in detail at the meetings. This discussion will include potential enhancements to MYFAs that the department is drafting for the consideration of the 2012 legislative session."

As a bonus, a brief overview of water right law in Kansas under the Kansas Water Appropriation Act will be covered, with emphasis on what needs to be understood as these limited water right irrigators get into next years pumping plans.  This segment basically lets you know why these tools were needed in the first place.

KSU Water Resources Engineer Norman Klocke and KSU Professor and Extension Agricultural Engineer Danny Rogers will also discuss topics affecting producers’ crop and irrigation decisions including expected yield from irrigation, year-to-year yield variability and risk, profitability potential of possible crop rotations for 2012 and potential yield outcomes for 2012.

The 4 scheduled meetings are:

November 15, 2011:  Larned, KS; 9 a.m. to 12 noon; Pawnee County Fairgrounds; J.A. Haas Building; 400 E. 18th St.

November 15, 2011:  Pratt, KS 2 to 5 p.m.; Pratt Area 4H Center; 81 Lake Road.


November 16, 2011:  Garden City, KS; 9 a.m. to 12 p.m.; Southwest Area Extension Office, 4500 E. Mary St.

November 16, 2011:  Hugoton, KS; 2 to 5 p.m.; Stevens County Memorial Hall, 200 E. 6th St.

All of the meetings are open to the public and there is no cost to attend and no need to RSVP.  These meetings have been concentrated in the drought area where the large majority of 2011 pumping was affected.  For additional information, contact the Kansas Department of Agriculture Division of Water Resources field offices in Stafford at 620-234-5311, Stockton at 785-425-6787 or Garden City at 620-276-2901.

Much Misunderstood Kansas Water Rights Concept

"Use it or lose it" is what most folks call it.  It's the original prior appropriation doctrine concept that basically says if you don't use your water right for some length of time, it becomes subject to abandonment because there is likely someone else waiting in line that can use it.  It also prevents folks from getting water rights and sitting on them - speculatively or otherwise.  The concept does tend to create economy as it leans toward making folks use their water rights.

Of course few concepts in western water law are absolute or totally black and white, and the abandonment statutes in Kansas water law are no different.  As we debate water conservation in Kansas, one state university professor has picked up this oft misunderstood mantra and said:

Unfortunately, Kansas water laws only reinforce these incentives against conservation. They require irrigators to use their water rights or lose them.

From my position, this is far too simple of a statement when Kansas water laws are considerably more sophisticated in this regard.  First, there are 11 reasons for non-use that constitute "due and sufficient cause" - any of these reasons will maintain an unused water right.  Second, a water right need only be used once in every 5 years to maintain it. Third, there are several chances to work with the division of water resources on a specific water right "conservation plan" that will maintain the right while not being used.  Fourth the Legislature has provided (in closed areas) two conservation tools:  1) the Water Rights Conservation Program (WRCP) that provides for non-use (conservation) for just over 20 years; and 2) making non-use a due and sufficent cause for non-use in closed areas so long as the well is maintained.  The truth is there are ample ways to conserve water in Kansas - all water use types including irrigation - while not eliminating the very important underlying concept of truly abandoned water rights.  However, none of these, except for the maintenance of wells in closed areas, allow for a perpetual, non-use status.

The "use it or lose it" concept will be discussed during the Governor's upcoming Water Summit (see July 6 post).  I hope Kansas recognizes the importance of the underlying reasons for the state's abandonment statutes and retains some version of it.  Whenever the water rights in any area must be adjusted due to lack of supply, do we really want to divvy up a reduced water supply among water rights that have actually been abandoned but are still sitting on the books?  This may be a bigger problem later than dealing with these rights today.  Just thinking out loud...

Reporting Water Use in Kansas

Water right reporting in Kansas has been attended to quite a bit by all state and local groups.  Of course, the division of water resources administers the effort, but many others help - including the local GMD's, the Kansas Water Office and the Kansas Geological Survey.  The annual reporting system is really good, but it's not perfect.

One of the issues is reporting your maximum amount and rate regardless of what you pumped.  Unfortunately there have been too many advantages in the past for doing this.  First, the water right's certification process is based on the maximum water use reported in the period of record, and it uses these reports to establish the final certificate amount.  It's not hard to see what an advantage high reported water use would provide in this process.  However, any such advantage ceases to exist after the water right has been certified.  Unfortunately, most water users hear the high pumpage certification mantra and then forget all the rest.  Requiring meters and the reporting of start and ending meter readings puts a halt to this practice.

Equally as problematic are the various incentive programs for setting aside or voluntarily forfeiting water rights - they almost always base the payment on historical reported water use.  The more water you have been using, the more acrefeet of water you are eligible to retire, the better the water right looks to those wanting it retired, and the higher your payment is.  Again, most water users just retain the idea that high reported water use is good, and forget that the numbers being used are always in the past.  Of course, meters and reporting metered values solves this problem as well - at least for the time the meter record is available.  For the guy that has always reported excessively, he still wins.

However, the notion that high reporting is good still lingers regardless of the attempts to dispell it.  Just glad we metered all wells in GMD 4 and don't have to worry a whole lot about this issue any more.  Of course, the state has found a few creative types who have not pumped their full annual quantity and are inflating their ending meter readings to give them a cushion next year if they should need it - a very innocent form of private water banking in the eyes of the water users doing it no doubt.

The sad thing about all of this is how the water modeling being done is being affected.  Bottom line is that inaccurate water use reports screw up much more than most think.

Drought and Kansas Water Rights - Part 2

Well, the decision has been made to offer drought relief to certain Kansas water right owners. Kansas Drought Policy - DWR  There are two options:  1) the Multi-year flex account (MFA - covered in part 1 of this issue (here)); or 2) a two-year term permit that basically lets the water right holder borrow against his or her next years water right for any over pumpage this year.

First of all, only water rights in agricultural drought disaster declaration areas are eligible.  These Counties are as of today are (in darkest rust color on map):

Barber, Barton, Butler, Clark, Comanche, Cowley, Edwards, Ellis, Finney, Ford, Gove, Graham, Grant, Gray, Greeley, Hamilton, Harper, Harvey, Haskell, Hodgeman, Kearny, Kingman, Lane, Lincoln, Logan, Meade, Morton, Ness, Norton, Phillips, Reno, Rice, Russell, Sedgwick, Scott, Seward, Sheridan, Sherman, Stafford, Stanton, Stevens, Sumner, Thomas, Trego, Wallace and Wichita Counties.

Moreover, this is a one-time offer.  Users will agree to reduce next years authorized quantity by the same amount this year's use is exceeded.  Applicants must file on or before December 31, 2011.  And water rights in established Intensive Groundwater Use Control Areas or that have any enforcement sanction against them for 2011 are not eligible.  If interested, use the link above to see all the program details and to access any filing forms needed for either option.

We have producers in all stages of drought damages.  If you have not been able to keep up with the water needs of the crop and its already burnt up or beyond responding to water, the term permit option is not in your best interest. The longer term MFA may be, but take a careful look at it before you jump in.  If the additional irrigation water will save your current crop, then by all means you should consider one of these offerings.  Filing fees will be based on the total, 2-year term permit, but these are not excessive.

If you do use either program, make sure you understand the new terms and limits of your water right and carefully plan on staying within these limits.  There'll likely be more on this topic later.

Drought and Kansas Water Rights

In Kansas, a granted water right is a specific quantity of water per calendar year, for a specific use, at a maximum rate of diversion, to be used in or on a specific area.  You get the picture - it's a very specific right.  Not only that, but the applicant gets 5 years, and when requested, up to 10 years to perfect that maximum quantity.  The end result is a water right that should be sufficient in quantity to cover your highest water use needs.  This would include the driest years in an irrigation situation. 

Well, there's dry, and then there's DRY!  A group of Southwest Kansas irrigators are mounting a push to have the state suspend irrigation water right limits this year due to the exceptional drought conditions.  While this is actually a no-brainer for the economy, you can imagine what it's going to do to the aquifer reserves and the area's groundwater decline rate.  Clearly the dry-year reserve built into most existing water rights is getting pressured more this year than in the past 25 years.  So, the burning question is:  Should Kansas water right limits be suspended this year in SW Kansas?  Or, I guess we should actually be asking:  Should they be suspended in any year of drought that exceeds the driest year the water right was perfected under?

To make things more interesting, Kansas just amended its Multi-year Flex Account program to allow instantaneous enrollment.  The MFA program was originally set to allow any water right owner to convert a water right to a 5-year water right that more or less equals 90% of the 5-year total, then pump the new total in any year or years.  But all applications were up front, and the new converted water right began the following year.  The new program lets you convert immediately - meaning that the current year becomes your first year.  It was done specifically for cases like this.

While I sympathize with the dry SW (and we're dry, too), the MFA will allow them to legally overuse their rights this year, but will require that they make up that extra water use (plus 10%) in one or more of the following 4 years.  This arrangement will keep the crop production going while keeping groundwater withdrawals from getting any worse.  I'm certain there will be those who disagree with this opinion, but I'll not be influencing this state decision one way or the other.

Of course, if the extreme drought lasts another 4 years we'll be having this same discussion again at that time, and I'm likely to have a different outlook.  I'll try to remember to blog on this issue again after any decision is made.

Small Use Applications in GMD 4

Up until 2006 new groundwater rights for small, non-domestic uses in closed or over-appropriated areas were exempt in all of Kansas.  The amounts varied, in some places applications for 25 AF or less were exempt, and in other places the limit may have been 15 AF, but you could always count on a small use application getting approved under the combination of state and/or local rules.

GMD 4 was the first entity in Kansas to eliminate this practice.  Today, the only way to get a new, small use groundwater right of 15 AF or less in GMD 4 is by having the water you are applying for (plus the consumptive use conversion quantity) dismissed by some other water right owner within 2 miles of your proposed well.  No other location in the state has such a regulation requiring such an offset.  The board's thinking in requesting this new regulation was that "closed" meant "closed".  The regulation is KAR 5-24-10 and only applies to GMD 4.

In addition, the new water right is actually a new water right.  It becomes a brand new priority and must be certified again through actual use rather than retaining the original priority of the water use. When looked at in its entirety, this new regulation is a fairly significant change.  

Kansas Water Right Overpump Policy

Every water right in Kansas is limited to a maximum amount of water per year - depending on what the intended use is and how much was certified through actual use during the right's perfection period.  There are other limitations, too, but my point here is only so much water is authorized to be pumped in any calendar year.  So, what happens if the water right is overpumped?

Well, as it turns out there is a progression of penalties for overpumping, which are:

1st offense:  The state regulatory agency - Division of Water Resources (DWR) - will send out a notice of noncompliance, stating that your authorized quantity was exceeded. This notice is permanently placed in the action trail of the water right.

2nd offense:  DWR can issue a fine up to $500 and reduce your water right the following year by the same amount you overpumped. 

3rd offense:  DWR can issue a fine up to $500 a day for each day you overpumped, and reduce the right the following year by twice the amount overpumped. 

4th offense:  Could result in a one year suspension of the water right, which means you will not be able to use that authorization at all the following year.

5th offense: The water right could be revoked.

A couple of points need to be made here.  First, while it appears that this is a 3-5 year process before the real regulation hits, it isn't necessarily so.  The procedure is designed so that each "next offense" can occur the next week in the same year if the overpumping continues.  So, if you're notified that you've overpumped, you need to stop pumping right then.  Secondly, every well is metered, and the operation of the flow meter is very important - so maintain it well.  Thirdly, this procedure applies whether you overpump by 1 AF or 100 AF.  Monitor your water use closely if you're approaching your annual appropriation limit.  Questions?

Changing Use of Water - Irrigation to Oil & Gas

A recent issue on-going in the West is that of irrigators selling their water to oil companies instead of irrigating with it - at least for a year or two. The articles are coming out of Wyoming of late and cite pretty salubrious dollar returns by doing so.  In one case a Wyoming groundwater user figured he could get paid $41,000.00 for the 11.5 acrefeet of water it would take to drill one Niobrara gas well - if he could get $.42 per barrel for the water.  The article cites 500,000 gallons of water needed for the regular drilling, and 4.5 million gallons needed for the radial drilling and fracking.  This is nothing new in Kansas as we've had oil and gas activity in the state for a very long time.  Of course, our activity has been the more conventional drilling (no radial wells yet in our neck of Kansas) which uses less than 500,000 gallons per well. 

The point I'd like to make is that Kansas water rights are for a specific purpose - for example irrigation - so there almost always needs to be some work done on the water rights before anyone can legally start selling it for any non-irrigation use.  This is done by an application to the state to change the use made of water - from whatever it is currently - to industrial use (supplying water for oil and gas drilling operations).  This process insures that the consumptive differences in these uses are accounted for in the converted quantity of water under the right, and, makes sure that the existing water right doesn't get fully used for both purposes.  These points weren't covered in the Wyoming articles, so I don't know if they exist there or not.  I should think they do.

Moreover, in Kansas the drilling companies can easily enough get their own water right (a temporary permit) for the relatively small amounts of water they need, so having to rely on existing wells and water rights is not required, but remains an option. In NW Kansas, several irrigation water right owners have converted a portion of their irrigation rights to industrial use and are prepared to market and sell oil and gas drilling water legally. If they decide later this is not what they want to do, the now industrial portion of their former water right can be changed back to irrigation use or any other use for that matter - with another change application.

So, You Want A New Water Right..

New water rights are pretty hard to get in GMD 4, but not impossible.  It largely depends on where you are wanting one.  New water rights are generally allowed if the long-term safe yield of an area has not yet been exceeded.  We consider that recharge value to be 1/2 inch, and the area of concern to be a 2-mile radius circle (8,042 acres) surrounding the proposed well location.  The half inch recharge over 8,042 acres translates into 335 acre feet of water allowable.

So, if there is less than 335 acre feet of appropriated water rights in the 8,042 acre area surrounding your proposed well location, it can be appropriated to you (up to the 335 acre feet limit) - provided, you're not in one of the permanently closed areas, or, an intensives groundwater use control area. The GMD regulations also do not apply to domestic wells, term and temporary permits or non-Ogallala wells.  

If you're lucky enough to be in a very lightly developed area and water is available for appropriation, you must also meet a variable well spacing requirement a minimum of 1400 feet for appropriations less than 175 acre feet, or 2,000 feet for larger appropriations.  As you may suspect, there are not many areas in the district where these conditions can be met, and in those areas where they can be, there's not a bounty of groundwater to be had, or the land is not generally suited for irrigation.

Most don't realize how restrictive this new-development regulation is, but with a typical quarter section pivot system needing about 200 acrefeet of water per year, it approaches the severity of 2-mile well spacing from any other high capacity well.

These regulations have been in effect since the mid-1980s, so not much new water has been appropriated since then. In reality, we have experienced a net reduction in total water appropriated since then - but not by hugely significant numbers.  And with the current water use reduction programs on-going, we'll be reducing our withdrawals even more over the next 3 years.  Again, we're not halving our water use, but it's clearly peaked and is headed the other way now.

It pains me to read the headlines that the rate of groundwater mining is increasing worldwide, and while it may be doing so on a global scale, I'm happy to report that this is NOT the case in our part of the world.

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.

Free Water Rights Session Scheduled

We often get calls from folks asking about web data and/or information on water, water rights, water levels, etc. We thought perhaps a series of group sessions about on-line data sources might be helpful. Our first session will be:

March 31, 2010; 1:00 PM; in the district offices, 1175 S. Range, Colby, on the Navigation and Use of WIMAS.

WIMAS is the on-line Water Information Management and Analysis System maintained by DWR but housed on the Kansas Geological Survey computers. It contains all the public information relative to all Kansas water rights. In this session you’ll learn how to find the site and use it.  There is a lot of information on Kansas water rights here, including reported water use, ownership, authorized rates and quantities and more.  The mapping and graphing of the information is also useful.

All we ask is that you register so we can get a bigger room if necessary. Call 785-462-3915 or email rwade@gmd4.org if you plan to attend. Later sessions (if the response supports them) will be on water level data; well completion records; and the High Plains Atlas; and perhaps other water-related sites if suggestions are offered from the participants. If there is no interest in WIMAS the later sessions will be cancelled.

The GMD 4 board often gives testimony on water issues in the state - particularly on agency regulations and Legislative bills that deal with groundwater.  During the March board meeting a suite of such regulations was considered by the board and their testimony was approved for presentation early next month.  Of the suite of DWR regs to be heard, this post will deal only with the two proposed regs dealing with what is essentially a brand new process dealing with complaints received by DWR that deal with water right impairments.

The board is concerned over one section that  the proposed language allows the chief engineer to require hydrologic testing and the installation of observation wells as part of any impairment complaint investigation, and there is no indication of who is to pay for this testing and extra installations - if required.  Since there is also proposed to be a much more active role for the GMD's (if the complaint is within a GMD) the board feared that we may be standing some or all of these costs.  We are recommending that the language be clarified to say that DWR is to pay all these costs as a matter of their investigation process.

In all other respects but one, these two proposed regulations (one deals with direct, well-to-well impairment cases while the other deals with regional water level decline situations where everyone is being impaired, but no one is directly the cause) are very well crafted and are board supported based on the specific and reasonable processes outlined and the thoughtful role provided for the GMD's in those processes.

The one lingering issue is that of the chief engineer's authority to claim impairment on behalf of senior water right owners.  These regulations are written on the basis that he or she has this authority.  Since this is an issue that the board feels should be clarified by the Legislature, they have not included it in their testimony. 

Just Thinking Out Loud...

Just thinking out of the box here, but I've been interested in the Nestle bottled water flap happening across the country of late.  Seems that Nestle has been seeking water sources for its bottled water at various places in the US, and have been vehemently opposed just about everywhere - Newport, WI; Mecosta County, MI; McCloud, CA; Shapleigh, MA; and Salida, CO to name just the most recent skirmishes.  While I'm not remembering all the water quantities Nestle has been bargaining for in all the locations mentioned, in Salida, CO that figure is from 200 to 300 acre feet (AF) a year - according to the newspaper account I read.

Here in our part of the world (NW Kansas) 300 AF is the proverbial drop in the bucket.  Not only that, but if done right, such an endeavor could actually improve the groundwater situation in the area - provided Nestle was willing to buy, say, 500 AF of existing consumptive water use and convert it to the 300 AF of use they need.  The exchange would actually reduce the local draw on the aquifer to the mutual benefit of all.  Think of the positive PR this kind of transaction would produce.  Moreover, with the water rights as they exist now, Nestle would be dealing with individual water right owners - not local governments which, in the cases mentioned above, have apparently been too subject to politics and pressure.

Most of the other arguments made by the opposition don't seem to apply here either.  Our consumptive water now is largely being exported in the grains we grow by irrigation anyway.  There are no rivers, lakes or wetlands which can be affected by the water use that have not already been affected by the current water use and would be expected to actually improve with the net reduction of water use proposed.  The environmental impacts of the plant itself can and should be dealt with appropriately for our local comfort.  One of the solutions to our current water problems is to reduce consumptive water use while increasing the economic return on the lower usage.  This arrangement seems worth exploring, at least.

On the other hand, the efficacy of bottled water itself is a tough one.  The full resource footprint of the plastic bottles does not go away, and the morality of supporting a company that continues to "sell" people on the benefits of bottled water over regular tap water is, well, embarrassing. 

I don't know what's right, but there would seem to be some distinct advantages to Nestle to look here.  No, this is not an invitation - I'm just thinking out loud.  I'd welcome any reactions to these thoughts - or setting me straight if need be.

Kansas Geological Survey

The Kansas Geological Survey is a wealth of data and information about water in Kansas.  Of particular note is the Geohydrogeology Section found under the first link on their webpage called simply "Water".

Need information about bedrock depths, or saturated thickness, or water levels?  These pages have it.  Need information about the Ogallala?  The KGS has an entire atlas dedicated to the High Plains Aquifer - with maps, graphs and links galore.  I find myself referring questions I get to these pages many times.  This site is also my starting point for most research I do regarding groundwater.

KGS also interfaces with the Division of Water Resources Water Rights Information System (WRIS) and offers the Water Information Management and Analysis System (WIMAS).  This daily updated data base contains all the public information on every water right in Kansas. 

Most of the KGS offerings are utilitarian as well - providing searching, sorting, mapping, statistical and analytical capabilities.  These pages are well worth the time to get familiar with if you need Kansas water or water rights data.

Water Rights Conservation Program

Somewhere around the late-1970's as the water supplies became fully developed, Kansas consciously began the transition of its water law interpretation from "development" oriented, to a "water management" orientation. The laws weren't actually changing much, but their interpretations were - and I think rightfully so.

One of the knottier issues in this change was the "use it or lose it" mindset. Under development mode, those not using the water needed to give way to others who wanted to use it so that maximum economic benefit could be achieved right up to the moment of fully appropriating all the water supplies. By the process of forfeiting non-used water rights for maximum economic gain, non-used water rights were disadvantaged - some say penalized.

However, in the new, management phase of water, non-use needed to be rewarded rather than disadvantged - especially in areas that were over-appropriated and no one else could be given the water to use if it was forfeited. The common perception was that owners were using the water simply to keep their water rights intact. If this were true, where is the conservation ethic in this system? This is where the Kansas Water Rights Conservation Program (WRCP) came into existence.

WRCP allowed water rights in over-appropriated areas to be set aside for 5 to 10 years for conservation, and to re-enroll for another 5 to 10 years afterwards. Each of these years was then considered "due and sufficient cause" for non-use (enrolled in a government program for conservation) so the water right could not be forfeited for non-use. This allowed water right owners the choice of not using their water while retaining ownership - but only in over-appropriated areas. Today, there are 977 water rights in this program statewide, not using 260,000 acrefeet of appropriated water.

Due to budget cuts, the state is poised to end WRCP, which by the way is not a statutorily mandated effort, but was crafted in this new, management-oriented interpretation period by regulation. I don't know how many of the people enrolled will start using their water again as they come out of their current contracts, but I suspect most will rather than face abandoning and forfeiting these property rights. This decision simply appears to me to be "penny wise and pound foolish" as the colonials would say, and certain to make water management a bit harder as we move on from here.

I think the state may also be concerned about keeping all the WRCP water rights "on the books" for the next few decades as this will pose other water management problems for a later time. But these later problems I think will be less-knotty then than the problems related to eliminating WRCP are going to be now.

Part 1: Public Interest

In considering the approval or denial of a new water right application, K.S.A. 82a-711 says if a proposed use neither impairs an existing right nor prejudicially and unreasonably affects the public interest, the chief engineer shall approve it so long as it is made in good faith, in proper form and proposes a beneficial use. The only exception is an application for fresh water where other waters are economically and technologically feasible.

The act goes on to say that in determining if the public interest will be affected, the chief engineer shall consider established minimum desirable stream flows, safe yield and recharge rates, the priority of all existing claims to use water, the amount of each existing claim to use water, and all other matters pertaining to such question.

The act finally says that impairment shall include the unreasonable raising or lowering of the static water level, the unreasonable increase or decrease of stream flow, or the unreasonable deterioration of water quality beyond a reasonable economic limit.

An interesting issue regarding impairment is that K.S.A. 82a-711 defines it in terms of the unreasonable raising or lowering of the static water table. While it almost sounds like impairment cannot actually occur during the pumping season (non static conditions) this is not likely the case, as K.S.A. 82a-706b says that no person can prevent any waters of the state from moving to a person having a prior right to the use of the water. This more clearly covers all supply problems – in the pumping season and otherwise.

In reality the local GMD 4 regulation prohibiting new appropriations, adopted by the chief engineer for our district alone, is actually defining the local public interest in regard to new water rights for GMD 4. It is also not hard to see how important public interest is in Kansas water law, and how flexible it can be when “all other matters pertaining to such question” are lawfully defined as part of the public interest.