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!

MYFA Impacts in Kansas?

There is a debate ongoing in Kansas over the most likely outcome the new, multi-year flex account (MYFA) option is going to have on water use patterns.  Will it conserve water; be neutral; or increase water use? 

 

The new MYFA authority allows a water right owner to convert their current annual water right to a 5-year total, and to use the 5-year total in any manner.  The 5-year total is the greater of two calculations (both based on past reported water use) and does not necessarily equal the maximum annual amount times 5, although it can.

The two calculations are:   1)  Average reported 2000-2009 water use (X) 5; or 2) 50% net irrigation requirement (NIR) for the county (X) maximum 2000-2009 acres reported irrigated (X) 1.1 (X) 5.  Both calculations are limited to legally used water and capped at 5 times the authorized annual quantity.   Generally water rights with a low AF to acre ratio having used close to their maximum annual quantities each year and those that have been stretching their irrigation water right over higher than normal acres calculate out the best and end up with a 5-year total allocation that approaches or equals 5 times the authorized annual amount.  For these rights, the MYFA is an attractive option.  For other rights the 5-year total calculates out to less than their annually authorized amount times 5.  It should be noted here that the system was designed to provide users more flexibility in their annual use decisions, based on weather, etc., while being historically “use-neutral” – not reducing or increasing past water use patterns.

In any event, for those who take the MYFA option, the question is will they end up using less, the same, or more water than if they had continued on with their annually limited water right?

  

One camp says having a 5-year total water right will cause users to be frugal in the early years to make sure they don’t come up short in the last years – in other words, that some water conservation is likely to occur.  Another camp says the system will more likely insure that all the 5-year totals will get used in every 5-year period, thus conserving no water at all, and since some of the calculations are actually a bit higher than past historical use (those using the second calculation), this will actually increase water use a bit.  The third camp says they don’t know, but let’s try it and find out.

I guess one could also ask:  Will the added water use flexibility increase the economic returns from the water that is used?  If so, does it really matter if a bit more water is used or conservation occurs?  These MYFAs also raise other questions as well, like, how might they affect federal drought crop insurance program where these producers now have the legal right to use as much water as is needed to stave off drought – at least in the early years of the 5-year allocation?  Will $9.00 corn (or higher) influence corn acreage planting during any MYFA period?

Any guesses/predictions/thoughts on the debate?   BTW, I personally am in the camp that predicts full allocation use (no conservation).  I think these producers are generally astute enough water managers and business people that full resource use will more likely occur than not.  But I have to say I’m not going to bet my annual salary on it.