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.