Governor's Water Summit - Colby, KS

Kansas Governor Brownback spent most of the day today in Colby listening to 350 or so Kansas water users discuss and offer ideas about the state's most prolific aquifer - the Ogallala.  The questions were:  What do you think the future of the Ogallala is?  What roles should individuals play?  and How can Governor Brownback's administration help achieve whatever goals are desired?

After three framing talks - on the current hydrologic status of the Ogallala (by Kansas Geological Survey); an economic perspective (by Kansas State University); and aspects of a common-pool resource (by Kansas State University) - a roundtable of 14 invited persons representing a wide variety of water users across the state introduced themselves and briefly gave their suggestions on Ogallala concerns from their perspectives.

The next session was breakout discussion groups of about 25 persons each who were asked to answer the original summit questions.  Moderators captured the ideas and comments without attribution, which were then individually voted upon - the highest counted ideas going forward.

From my discussions with many participants throughout the day, I'd say several ideas were universal enough that I'd guess they will be likely survivors.  These were (in no particular order):  1)  Local participation and involvement was critical; 2) one approach/regulation/solution does not fit all - wide variability of situations will require a wide variety of approaches; 3) the state's current policy of "use it or lose it" should be eliminated as a disincentive to water conservation; 4) ways must be found to grow the ag economy while simultaneously reducing water use; 5) federal farm programs and other federal efforts need tweaking to accommodate Kansas' specific economic needs; 6) a more user-friendly intensive groundwater use control area (IGUCA) process would be beneficial to fostering more use of this potentially valuable tool; 7)  value-added ag activity is beneficial; 8) water quality is equally important to water quantity; and 9) more flexibility in use of water (specifically in irrigated ag and municipal use) can help conserve water.

In any event, all the discussion points and final ideas will be posted on the Kansas Water Office website.  It is important to know that these ideas are just the beginning of these discussions.  They, and any new ones provided will be considered by the newly appointed Ogallala Aquifer Advisory Committee (OAAC) under the Kansas Water Authority.  This committee and it's work will also be posted on the KWO webpage.  All in all, I was pleased with the effort and am thinking at this time that some positive things are likely to come out of the effort.

Closing comments:  I'm still not convinced that the "use it or lose it" is as big a disincentive to water conservation as this very large group seemed to express, but there will be time to address it.  This issue is simply broader than characterized in this 1/2 day session and is worthy of additional discussion.  I was also surprised at the number of non-Kansas folks in attendance - a smattering of folks from Nebraska, Colorado, Oklahoma and Texas that I personally know and saw - and there most likely were more.  I felt that the roundtable participants used far too much time in their self-introductions - time that could have been used in the breakout sessions that were rushed - at least ours was.  Other than that I was pleased with the event and very appreciative of the Governor's time in beginning these important discussions.  There will be more later...

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...