Ogallala Aquifer Advisory Committee Meeting 3

The third meeting of the OAAC was held today in Colby, KS.  First up was continuation of discussion on the water right abandonment issue. There were two statutory amendment versions discussed last meeting - a simple change and a more involved change allowing the GMDs to individually address abandonment issues.  Still controversial, there was a lot of discussion, but in the end, the simpler version (described here) was adopted - with several votes cast in opposition to the adoption motion.

The developing LEMA statute was discussed next.  While a current draft of the proposed language had been provided to the committee, still more recent changes were also covered.  In the end, the committee suggested 4 additional changes:  1)  the language currently in the proposed regulation describing the minimum standards that any proposal must meet to begin the process should be moved to the statute; 2) the required newspaper legal notice of the LEMA hearings should specify the use of a local County newspaper wherein the LEMA will be designated; 3) the option of the chief engineer to reject the proposal after hearings should include a requirement that the reasons for the rejection be specified and sent to the GMD with the notice of rejection; and 4) more specifics regarding the dual hearing process envisioned should be incorporated in the statutes.  These were acceptable suggestions that did not change the concept of the proposal and were to be added to the final draft to be acted on at the next meeting.

The committee next turned to the multi-year flex account (MFA) issues.  DWR explained the current MFA and presented several ideas being considered for improvements.  The agency was leaning toward the use of net irrigation data to determine the quantity of water to allow in the MFA.  DWR asked the committee to support upcoming legislation improving this program when it is developed.  The committee indicated that the MFA could be a good tool for producers and they looked forward to considering the final draft of this legislation.

Next was discussion on water banking.  The current water banking act and the operations of the only bank organized under them was covered.  The committee agreed that some form of water banking would be another good tool for producers and supported the broadening of the water banking opportunities in western Kansas.  The Kansas Water Office was asked to put more detail in a proposal.

These were the only decision items taken up by the committee.  The next meeting was set for October 13, 2011 in Garden City, KS to begin at 9:00 AM.  The location will be announced later.

These meetings are really hard to summarize because so much discussion is held - ranging over many different concepts and ideas.  To cover all the discussion would take considerable space, and since 90% of these ideas  don't receive any action, it's hard to justify the space - no matter how interesting all this discussion is.  So, rather than relying on my limited (lame?) summaries, perhaps you should start attending the meetings yourself.  They are open. And another way to track them if you're interested is to read the official minutes and see most of the handout materials, etc., which are all posted on the KWO Website.

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.