Water Rights Conservation Program - Kansas

Kansas had a water rights conservation program (WRCP) that ended December 31, 2009 due to budget cutbacks.  It was a jointly conceived and developed program that allowed valid water right holders to set their water right (use) aside for a number of years and not become subject to abandonment for non-use.  And the best part, it was a free program for the water right owners.

When the budget crisis hit in 2008, the state agencies began jettisoning all non-core programs (not required by statute) and the WRCP was one of these.  It was developed and operated out of the goodness of the state agency's heart.  This program's demise was lamented by many because it was fairly well used - with almost 1,000 water rights enrolled - some of those having been idle for as many as 15-20 years.

With a lot of work and convincing, we were able to get the 2011 Legislature to statutorily embody this program, and require a $300.00 filing fee to cover all the state's administrative program costs.   I'm happy to announce that the program starts back up again July 1, 2011, and I've already had my first applicant asking to file - even though the application forms aren't even available yet.

There were a few other changes as well, like limiting the enrollment time to 2, 10-year enrollments with a maximum of 2 years between each enrollment.  All in all, the new program is better for all concerned and should run smoothly - completely fee funded.  I'll try and keep tabs on enrollment and cover this program again later.  It's a good thing when water rights in overappropriated areas can be set aside for conservation rather than be used for fear of being abandoned and forfeited.

Conservation, Use It Or Lose It, and Abandonment

Darn it!  Kansas had a pretty good conservation program going with the Water Rights Conservation Program (WRCP) until it was eliminated on December 31, 2009 for lack of funding.  This program allowed water rights in good standing to contract with the state to conserve water (not pump it).  The contract was from 5 to 10 years in length, was only available where no new water rights were approvable, and did not have any enrollment fee.  Being under contract with Kansas, the years of non-use counted as "due and sufficient cause" and could not be used for abandonment purposes.  This approach clearly extended the potential abandonment window for non-use well beyond the statutorily set 5 years, but it had an actual time limit after which the water right would again be subject to abandonment for non-use.  For those unfamiliar with the concept of abandonment, it prevents persons from holding onto unused water rights at the exclusion of others who want to use the state's water, tends to make sure the state's water gets beneficially used and prevents the long-term speculation of water rights.  

In trying to replace WRCP with some other conservation program funded some other way, several approaches were started through the Legislative and Rule making process by independent entities.  What came out of all these efforts was a new statute that makes it a matter of law that non-use by any water right in areas closed to new development (as long as the well is maintained) is "due and sufficient cause" for non-use and the water right cannot be abandoned.  On the surface this sounds innocuous enough - and certainly in the favor of water right owners who don't want to pump the right, but want to retain it.  Remember, a water right in Kansas is a real property right (in perpetuity) to the use of the state's water so long as the conditions of the water right are adhered to.

However, we've just created a situation, in closed areas, where no water right will ever get abandoned except by voluntary action by the owner - as long as the well is maintained.  Not so much a problem today, but eventually these non-used rights will be involved in any management solutions applied to the area.  If water right reductions are ever made, those who have been using the water all along will have to cut deeper in order to equitably share the pain with those who haven't been using the water at all, and may never do so again.  I suspect there will be active discussions at that time.  Of course, maybe water markets were invented for this exact reason.  It's all a matter of perspective.

New, Conservation Water Use Type for Kansas?

Kansas Ag Secretary Josh Svaty just announced what is being billed as a "groundbreaking" new initiative for voluntary water conservation in the state.  The press release goes on to say that this new initiative is a replacement for the Water Rights Conservation Program (WRCP) that had to be eliminated due to budget shortfalls. How does it stack up?

First, a look at WRCP.  This program allowed a water right owner to enroll the water right for 5-10 years, via a contract with the state engineer, for conservation purposes.  There was no cost for the right owner or any incentive provided by the state to enroll.  The state's application review was basically for two conditions - to ensure the water right was within an area closed to new appropriations, and that it was valid (non-forfeited due to nonuse).  The benefit to the right owner was that every year of enrollment constituted "due and sufficient cause for nonuse" - thus keeping the water right active during each year of the contract.  The benefit to the state was the set aside of the water right for conservation purposes.  This program cost the state less than $50,000 per year, and when eliminated on December 31, 2009, had 977 water rights enrolled which had 266,000 acrefeet of water appropriated.  Of course, not all of this water was being pumped each year, but most agreed that the real conservation of water was well worth the $50,000 it cost to run the progrm. 

The real salient issues of WRCP were:  the contractural arrangement provided absolute certainty for the water right owner that:  his or her conservation (nonuse) was an accepted cause for nonuse; and the water right would be whole and valid when the contract was over.  The owner could even remove the pump from the well and properly store it for protection.

Now, the new, groundbreaking proposal.  The state is proposing to amend the Kansas Water Appropriation Act (bill introduced in concept, no specific language yet) to create a new water use type - Conservation.  Through the existing "change of water rights" process a water right owner could apply to change his or her right from its current use type, to the new Conservation use type.  Once the use type has been changed, the non-use would be considered a beneficial use, thus keeping the right active.  There would be no reduction of the quantity, rate or place of use when changed into Conservation.  Another change of use type application would be filed whenever in the future the owner wanted to start using the water right again for its original purpose or any other purpose.

The beauty of this approach is its simplicity - all the elements are there once the Legislature creates the new beneficial use type.  I personally believe the cost of this approach actually increases for both the water right owner and the state, but it's not a hugely significant cost increase.  The salient issues of this approach are (and remember, the actual bill language is not yet available):  How can there be a guarantee that an application to change a Conservation use type back to some other use type in the future will be approvable?  Is it possible that the state engineer, who must consider the "public interest" in all change applications, might deny a change back to irrigation use in an overappropriated area based on his or her belief that it does not serve the public interest?   

With no assurance that any water right will be approved for a change back to its original use - either in whole or in part - it seems like too much of a risk for people to participate.  If this is true, their "groundbreaking" approach to voluntary conservation will be much ado about nothing.  Perhaps the bill will address this issue and also create a way that everyone's expectations can be guaranteed, but, it's a sticky wicket, that one - at least in Kansas!  I continue to hope for the best.