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.