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.

How You Reduce Water Use Matters

Guess I have to hit this issue again because no action seems to be on anyone's planning calendar as of yet. 

The issue is the design of the Federal EQIP and AWEP programs which are supposed to be, in part, helping producers and states conserve water use.  They are doing OK - at least the way we're using them in Kansas, but they could be even better.

No one doubts the positive relationship between water application and crop production. Every Ag school in the nation produces crop production curves showing the normal yield associated with each additional inch of water made available to the crop - either by irrigation or by nature.  And all the curves look more or less the same - a steeper curve for the first 60-70% of the crop ET, then a flattening curve until it actually starts dropping when too much water is applied.  A grain crop production curve from Elsie, NE is provided above - click to enlarge.  Every crop in every climate has such a production curve.

If this is the case, it makes perfect sense that any decision to reduce water use in ag should reduce the least efficient water use from several users rather than the full water use from any user(s).  In other words, reducing 20% of water from 5 users will be the same amount of water reduction as reducing 1 water user fully (as long as they're all using the same amount) - but the former approach will yield more production at the end of the year than the latter.  This is because every inch of the reduced water in the first approach was being applied at the top of the production curve - when the crop's yield response is at its lowest.  There are actually other reasons such an approach is better economically, but not enough space to go into these now.  

Right now, EQIP and AWEP are only available to conserve water through the set aside of full water rights.  This, of course, is not as efficient a reduction of water use than if we could have more people involved in the reductions as suggested in the first approach.  I'll continue to work on NRCS to promote this relatively minor tweak in their programs.  I'd appreciate any help I can get because thus far they don't seem to be all that interested in this idea.

Again, we can conserve the same amount of water either way, but with more producers saving smaller amounts of water, our production levels are not reduced as much, and this is quite a bit better for the local economy.

A Log of Our AWEP Experience

Over the next year I'll try to capture my experiences with the AWEP award we received earlier this month from NRCS.  For those who do not know, AWEP stands for Agricultural Water Enhancement Program.  It is a fairly new initiative within NRCS that was created in the 2008 Farm Bill.  It is actually part of the Environmental Quality Incentives Program (EQIP), which we'll discuss in a bit.  AWEP is a voluntary conservation initiative that provides financial and technical assistance to ag producers to implement ag water enhancement activities on land for the purposes of conserving surface and groundwater and improving water quality.

On July 2 it was announced that our proposal (from a partnership between GMD4, 4 county conservation districts, a county Farm Bureau group, and the Kansas Water Office) was awarded, and that in FY 2010 $2.666 million was being made available toward our plan - a 3-year, $9 million effort to permanently convert irrigated acres in our six high priority areas (HPAs) to non-irrigation uses - thus saving 100% of the groundwater irrigation use on these acres.

It must be noted here that we proposed to permanently convert acres with program payments between $1350 and $2250 per acre - depending on how much historic water had been used on them.  The acres with the most water used, would receive the highest payments.  Our proposed payment levels were based on just over 100 actual bid offerings from producers under a competitively bid water rights retirement program offered by Kansas last year. When awarded, we assumed that the entire program was approved.  This turned out NOT to be the case.

Remember that AWEP is implemented under the EQIP program - an on-going effort already with it's own rules.  Turns out that EQIP can only pay on the producer's lost income for adopting the conservation practice (converting irrigated acres to dry land production) and for only 5 years.  It was unlikely that any irrigator was going to give up irrigation forever for just 5, annual, lost income payments. Under these constraints, we requested that the award be changed to a 6-year irrigation set-aside for the same 5, annual, lost income payments.  NRCS approved. 

The temporary suspension of irrigation in our HPAs would help, but we were disappointed that permanent conversions would not be possible.  The fact is we were close to being disgusted that NRCS was good with paying $1100 an acre to not irrigate for 6 years, but not OK with paying $200 to $800 more an acre to conserve the water forever - all because of an EQIP rule.  To add insult to injury, NRCS also imposed an unbelievably short timeframe on this first year - setting an August 13, 2010 deadline for all producer applications. Recall, the program just got announced yesterday.

However, after more thought, we were wrong think that permanent conversions were out of reach and that AWEP was useless to us.  We now are embracing the AWEP award as a significant first step to this very goal - it'll just take another program or two to make it happen, and we have 5 years to craft whatever it is that we need.  And actually, since permanent conversions are off the table, the August 13 deadline is also not near as daunting.

In my next entry, I'll cover the details of our AWEP program and outline how we're expecting to work it with other programs to make these conservation efforts permanent.  As always, questions can be directed to me.