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.