New Kansas Supreme Court Ruling

The Kansas Supreme Court just rendered a ruling on water right abandonments that settled at least one question many people had on this state procedure - who has the burden of proof in determining if due and sufficient cause for non-use has or has not been satisfied - the state or the water right owner?

Case No. 98,750 pitted an irrigation water right owner against the state's division of water resources who had issued an abandonment order on a water right that had been determined by the state to have had no due and sufficient cause for non-use for two periods of time, each exceeding five years, since the water right's issuance in 1970.  In Kansas, the law determines that for any 5-year period of non-use without due cause, a water right shall be determined abandoned and forfeitted.

The water right owner argued that the burden of proof as to whether or not due cause for non-use has occurred should be on the agency, and that the agency regulation in this regard improperly imposes this burden of proof on the water right owner.  They also argued that decisions not to irrigate were based on adequate rainfall, even though crops not normally irrigated were planted.

The Supreme Court ruling upheld the agency action and now more clearly places the burden of proof on the water right owner to demonstrate that due and sufficient cause(s) prevented them from using the water right or made their use of water unnecessary.

UN Resolution on Transboundary Aquifers

I have just read the UN's recently adopted resolution RE: Transboundary Aquifers - underlying two or more states or countries.  If we were to fully comply with this resolution for the Ogallala Aquifer, Kansas would be:  1) granted sovereignty over its portion of the aquifer; 2) obligated to use the aquifer in an equitable and reasonable and sustainable manner that maximizes the long-term benefits; and 3) required to develop a utilization plan factoring in population, social and economic needs, natural aquifer conditions, alternative supplies and the ecosystem -  any of which can be weighted - so long as special regard is given to vital human needs.

Kansas would also be required to:  1) prevent harm to other states in its use of the aquifer or to the discharge zones located in other states; 2) take all steps to eliminate such harm to other states if occuring - in consultation with the affected states(s); 3) cooperate on the basis of sovereign equality with other states to attain equitable aquifer utilization and protection - establishing joint mechanisms for cooperation; and 4)  exchange all relevant data and information - generating such data and information if not already known.

Kansas would be:  1) encouraged to enter into regional agreements with other state(s) for management purposes; 2) obligated to prevent and control pollution that may affect another state; 3) required to monitor our aquifer to accepatble standards (jointly with other states when possible);  and 4) required to develop a management plan - jointly where appropariate.

Whenever Kansas does any activity that may affect another state, it must assess that activity, notify the affected state(s) and when disagreement occurs, consult with or negotiate eqitable solutions.  This is especially vital in cases of emergencies - natural or human induced activities which will immently affect another state(s) - or when vital human needs are affected.  All states would be bound by international law to protect the aquifer in cases of armed conflict. (IMHO not even the Texans would resort to this!) :)

Whew.  It's not clear how in the US the encouraged cooperative agreements between states would be done.  This sounds more like an interstate compact to me, but I guess less formal MOA's between states would not be precluded.  I asked about such an informal agreement with our neighboring GMD in Colorado once early in my career and was told definitively that it would require an interstate compact - only possible with the consent of Congress.

Anyway, lots of good ideas in the resolution, but...  I wonder how closely the agreement between Utah and Nevada on the Snake Valley Aquifer follows this UN roadmap?  

Coming Soon - Author Guest Blog

P. Andrew Jones and Tom Cech have recently released a new book titled:  Colorado Water Law for Non-Lawyers.  It is a minimalized-technical rendering of a very involved subject.  If you don't believe water law in Colorado is highly legal and technical, you'd be wrong.  I think more water attorneys reside in Colorado than in any other state in the U.S.

For a soon-to-be-coming blog post I have arranged to have author Tom Cech as a guest blogger right here - discussing his book and with a little bit of luck, agreeing to take questions (via comments) and answer them.  Keep your eyes open for this special guest blog!

New Use for Water?

I ran across a description of the newest thing in fly control consisting of a 1 gallon zip lock bag filled partially with water.  Hung over the area you want fly-free, the pundits say that the lens-effect of the water makes flies so nervous they don't hang around.

I was skeptical so I tried it.  I ate 5 meals outside, cooking one of them on the grill just to attract the maximum number of flies possible.   Only 2 flies came into range of my plate, and once shooed, those two never returned.  It was positively pleasant, so I have to conclude that I think it works!  Did nothing for the mosquitoes, ladybugs and other critters, but flies are by far the worst meal-time pest at my house.

Lots more testing needs to be done, though.   It looks a little "tobacco-road-ish" perhaps, but a small price to pay for effective fly-control.  Just thought you'd like to know this little trick if you haven't seen it yet.  BTW, my super-skepical, fly-magnet, wife Linda also noticed an improvement - at least she said she did.  That's proof enough for me!

September 14, 2009 Update:  According to "The Straight Dope":

"Apparently the water bags do drive houseflies away. Not mosquitoes, not no-see-ums, not spiders, not roaches, not yellowjacket wasps, just houseflies. Evidently, houseflies, being highly edible and defenseless, are nervous types, and don't like to sit still when they see something moving nearby, because it could be a predator. The water bag acts a bit like a lens--try it some time--in which the movements of people in the area are reflected. Even if the fly is too far from the action to see it directly, it can see a shifting of light and dark in the water bag, which it interprets as nearby movement, and it will fly away from the bag. The reason it doesn't work on any other insects is that the other insects listed don't have eyesight worth a plugged nickel."

Kansas Geological Survey

The Kansas Geological Survey is a wealth of data and information about water in Kansas.  Of particular note is the Geohydrogeology Section found under the first link on their webpage called simply "Water".

Need information about bedrock depths, or saturated thickness, or water levels?  These pages have it.  Need information about the Ogallala?  The KGS has an entire atlas dedicated to the High Plains Aquifer - with maps, graphs and links galore.  I find myself referring questions I get to these pages many times.  This site is also my starting point for most research I do regarding groundwater.

KGS also interfaces with the Division of Water Resources Water Rights Information System (WRIS) and offers the Water Information Management and Analysis System (WIMAS).  This daily updated data base contains all the public information on every water right in Kansas. 

Most of the KGS offerings are utilitarian as well - providing searching, sorting, mapping, statistical and analytical capabilities.  These pages are well worth the time to get familiar with if you need Kansas water or water rights data.

Part 2: Vested Water Rights

What is a “Vested Water Right”? On June 28, 1945 the Kansas Water Appropriation Act became effective. It made the state of Kansas an “Appropriation” state rather than a “Riparian” state as far as basic water doctrine goes. After enactment, all water rights in Kansas (groundwater or surface water) were considered in a priority system by date of application. The first new (post June 28, 1945) water right applied for got appropriation right # 1.


It was all the existing (pre June 28, 1945) water uses needing to be considered by the new appropriation system that became the “Vested Water Rights”. In essence, all vested water rights in Kansas represent uses that were ongoing (or specifically under development) on June 28, 1945. All vested water rights are “senior” to (pre-date) all appropriation rights, but they all have the same priority date among themselves. In other words, there is no seniority system for vested water rights in Kansas.

The legislature closed the filing process for claiming vested water rights on July 1, 1980. Now, only domestic water rights remain un-quantified (not accounted for).

The last Vested Water Right tidbit is: KSA 82a-703 says: Nothing contained in this act shall impair the vested water right of any person except for nonuse. Vested rights seem pretty secure.

Something "Good" to Say

Lest we be accused of continually harping, I'm going to "accentuate the positive" now - Kansas' cooperative ethic toward dealing with issues, problems and solutions. 

Our state by design has an abundance of local governments, boards, authorities, commissions, etc.  There are in fact just over 3,880 such units in the state involved in every aspect of activity from planning to management to government.  Just in water resources there are groundwater management districts, rural water districts, public wholesale water supply districts, water assurance districts, watershed districts and several others.  It's safe to say that Kansas has always been quick to support local involvement.  Some say to a fault.

But in water, the many working local entities seem to get along pretty well with the state agencies.  Within the last several years we (GMD 4) has been able to borrow state personnel on two occassions.  Brownie Wilson with the Kansas Geological Survey was loaned to us for 2 days to install, organize and teach us ArcView GIS - a really important application for our local GMD.  Last month, the division of water resources loaned us Andy Lyon, a modeler on staff, for another 2-day stint to install and teach us how to use the Modflow model we have been developing together along with the Kansas Water office and the federal Bureau of Reclamation.  DWR has also been really good about assisting us with regulation writing for our local programs.  Can't tell you how good it is that these agencies provide this level of support.

The Kansas Water Office director Tracy Streeter attended one of our Alliance planning sessions and took it upon himself to locate some engineering study funding to assist.  Several on his staff, particularly Susan Stover, have also been very cooperative and supportive.  We don't always see eye-to-eye, but locals and state government rarely do.

Looking back over the last decade or so, I really think the cooperative activities in Kansas have actually outnumbered the contentious ones by a considerable margin.  This is a good thing because working in water is hard enough without having serious philosophical and policy differences to wrangle over too.

Water Politics - Kansas Style

Kansas will never compete with the hardball nature of water politics ala California or Nevada, but we have our moments.  Take for example the issue of authority over special management areas - dubbed IGUCAs (Intensive Groundwater Use Control Areas).  In 1978 the state Legislature amended the groundwater management act to provide new management tools over and above the traditional "administration by priority" when supplies got low.  The actual language says (edited for space):

K.S.A. 82a-1036:  Whenever a GMD recommends the same or whenever a petition signed by not less than three hundred (300) or 5%...of the eligible voters of a GMD, whichever is less, is submitted to the chief engineer, he or she shall initiate...proceedings for the designation of a specifically defined area within such district as an IGUCA. The chief engineer upon his or her own investigation may initiate such proceedings whenever he or she has reason to believe that any...of the following conditions exist in a groundwater use area which is located outside the boundaries of an existing GMD: 

The Legislative debate began with the intent of providing these new management authorities only in the GMDs because the GMDs were asking for them.  Hence the section begins by "Whenever a GMD recommends.."   At the 11th hour, the Legislature amended the bill draft further by adding the last, italicized  sentence - Oh, by the way, outside a GMD the chief engineer can use these tools too, because they are really good tools.  Thus the Legislative intent was:  The chief engineer can initiate an IGUCA within a GMD only upon a recommendation by the GMD, and he or she is free to do so outside a GMD based upon his or her own  study.  The law was read and interpreted by everyone in this manner for the next 24 years. 

In 2002 the attorney general was asked if the chief engineer could initiate an IGUCA within a GMD if the district did not, or would not, request one?  The AG, to everyone's surprise, opined that the chief engineer could indeed do so.  Based on this opinion the chief engineer is now promulgating new regulations to implement this newly conferred authority***.  A few Legislators understand that the AG does not make or change policy or law in the State, but so far this body has not been unable to clarify their 1978 intent - leaving many to ponder their motives.

(*** Clarification - September 11, 2009:   The chief engineer began promulgating 3 separate regulations on IGUCAs following the AG's opinion and other public discussions.  One of these prescribed a procedure for DWR's initiation of an IGUCA within a GMD when not requested by a GMD.  All 3 regulations were heard in public hearing, but the single regulation concerning IGUCAs initiated by the chief engineer inside a GMD when not requested is being withheld and will not be promulgated at this time.)       

The extremes of weather in Kansas

If Aguanomics can post a picture of a pretty lake in droughty California, I can post a picture of a desert in rain-filled NW Kansas!  This radical rainfall difference being experienced between parts of California and SE Texas and NW Kansas is indicative of the extreme variability of precipitation in the Western US.  But if the truth be known, it is actually more the norm - at least for NW Kansas. 

In 2002 Thomas County received an average of just 12.69 inches of annual rainfall.  One of the stations had a low of 9.72 inches for the entire year.  This year, we are to date at a County average of 27.49 inches - with 4 months yet to go.  In case you don't know, the long-term average is 18 inches for Colby - which is rarely ever received.  Feast or famine is our rainfall lot it seems.  All we can do is enjoy it while it lasts, because the drier times are somewhere out there.

All the extra rain does have it's disadvantages.  I just took my schnauzer to the vet for a swollen hind foot today.  Seems the cheatgrass is particularly bad this year with all the moisture, and she had some of it worked into her foot and it managed to get infected.  $63.00 this darned rain cost me.  I actually have no cheatgrass in my yard, but without having to water much at all this summer, I have been taking the dog for walks with all my spare time!   Actually, I'm loving every minute of it!

My Morning Blogging

I follow 10 blogs almost daily. Nine are water blogs and 1 is my nephew.

Today I comment on this almost daily ritual - in alphabetical order: 1) Aguanomics: This morning David Zetland (economist blogging on water issues) focuses on the recent $77 million water purchase by the Mojave Water Agency from an ag user. Zetland Blog link He contends the market will allocate water more efficiently than government or politics. This is a good blog - he's close to right most of the time, but even when not he's likewise entertaining. 2) Circle of Blue - WaterNews: Dr. Peter Gleick (Pacific Institute) was discussing the spin groups put on water stats by using a denominator that makes their numbers look the best. Good read. 3) Groundwater Blog: From the Nebraska-based Groundwater Foundation. They did not post today. 4)jfleck at inkstain: by John Fleck from Albuquerque, NM - a science writer and weather guy. He writes this morning:

Here’s a nice way of thinking about aridity: If all the water that flows in each river during an average year were spread evenly over the area drained by the river, the depths would be: Delaware 20.9 in.; Columbia 13.1 in.; Mississippi 6.7 in.; Colorado 1.15 in. Source: Water and Choice in the Colorado Basin, National Research Council, 1968.

5) living in actively moving waters: a blog by Chris Corbin, a water markets guru from Missoula, MT. Did not post today. 6) Long, Awkward Prose: my nephew's blog - not water related. 7) The Water Law: is by Alex Basilevsky - a water lawyer from Philadelphia. He doesn't post real often, but when he does, very thought-provoking. I particularly liked his August 3 piece on the "Harmon Doctrine". 8) Waterblogged: written by Jared Simpson, this blog tends to be a bit more on the sarcastic side of commentary - entertaining, tho. 9) Watering the Desert: is a Tuscon, Arizona blog by Chris Brooks - hydrologist, geologist and attorney. He's taken on a few extra jobs of late so blogs less often. He has a desert SW perspective that warrants attention (besides, he's my blog's only follower to date). And finally, 10) WaterWired: a very busy blog by Michael Campana from Oregon. Very well "tuned in" with water issues globally. Today's post was a book review of "The Heart of Dryness", by James Workman.

I find cruising these blogs a really interesting way to get my day started. I'm sure I'll find more...