Ogallala Aquifer Advisory Committee Meeting 3

The third meeting of the OAAC was held today in Colby, KS.  First up was continuation of discussion on the water right abandonment issue. There were two statutory amendment versions discussed last meeting - a simple change and a more involved change allowing the GMDs to individually address abandonment issues.  Still controversial, there was a lot of discussion, but in the end, the simpler version (described here) was adopted - with several votes cast in opposition to the adoption motion.

The developing LEMA statute was discussed next.  While a current draft of the proposed language had been provided to the committee, still more recent changes were also covered.  In the end, the committee suggested 4 additional changes:  1)  the language currently in the proposed regulation describing the minimum standards that any proposal must meet to begin the process should be moved to the statute; 2) the required newspaper legal notice of the LEMA hearings should specify the use of a local County newspaper wherein the LEMA will be designated; 3) the option of the chief engineer to reject the proposal after hearings should include a requirement that the reasons for the rejection be specified and sent to the GMD with the notice of rejection; and 4) more specifics regarding the dual hearing process envisioned should be incorporated in the statutes.  These were acceptable suggestions that did not change the concept of the proposal and were to be added to the final draft to be acted on at the next meeting.

The committee next turned to the multi-year flex account (MFA) issues.  DWR explained the current MFA and presented several ideas being considered for improvements.  The agency was leaning toward the use of net irrigation data to determine the quantity of water to allow in the MFA.  DWR asked the committee to support upcoming legislation improving this program when it is developed.  The committee indicated that the MFA could be a good tool for producers and they looked forward to considering the final draft of this legislation.

Next was discussion on water banking.  The current water banking act and the operations of the only bank organized under them was covered.  The committee agreed that some form of water banking would be another good tool for producers and supported the broadening of the water banking opportunities in western Kansas.  The Kansas Water Office was asked to put more detail in a proposal.

These were the only decision items taken up by the committee.  The next meeting was set for October 13, 2011 in Garden City, KS to begin at 9:00 AM.  The location will be announced later.

These meetings are really hard to summarize because so much discussion is held - ranging over many different concepts and ideas.  To cover all the discussion would take considerable space, and since 90% of these ideas  don't receive any action, it's hard to justify the space - no matter how interesting all this discussion is.  So, rather than relying on my limited (lame?) summaries, perhaps you should start attending the meetings yourself.  They are open. And another way to track them if you're interested is to read the official minutes and see most of the handout materials, etc., which are all posted on the KWO Website.

Governor's Water Summit - Post Activity

As already reported, Kansas Governor Brownback's water summit was held July 21, 2011 in Colby.  It was attended by 400 or so folks from across Kansas and even a smattering of people from our neighboring states.  There were no shortage of ideas provided by those involved.  As I said before, the complete list of ideas is supposed to be published on the Kansas Water Office website, but it's not been posted as of this writing, so I'll point you again to the preliminary capture of ideas which are here.  Suffice it to say that I have one issue with this capture which has been brought to the attention of the KWO.  I'll be interested in seeing if it is addressed in the final posting. (More about this below)

Anyway, all the ideas will be handed off to a 21-member select committee that was just recently appointed by the chairperson of the Kansas Water Authority.  This committee is made up entirely of western Kansas stakeholders and contains no water professionals (water agency types - either federal, state or local).  They will meet for the first time August 9 in Dodge City and will open with two issues:  What should be done with the Kansas abandonment statutes to foster better conservation?; and Should the intensive groundwater use control area laws be amended to foster more local use?

While I still have mixed feelings on the abandonment statutes (previous post here), it is the IGUCA laws that I am excited about.  I think there can be small changes made to the existing laws that will get the local folks far more interested in using this approach for new enhanced management approaches.  This alone was well worth the effort to me.  But it remains to be seen what other issues will follow these two as this process plays out.  My issue with the process (mentioned earlier in this post) has to deal with the state's broadening of the comments made during the summit.  While individuals did suggest law changes or retention for the abandonment, IGUCA, personal property rights and water use flexibility portions of the statutes, I heard no one suggest that every law and regulation needs a serious review and reconsideration - which is what became characterized by the KWO and is currently posted on the web page as public comment number 2.  Maybe someone said it in one of the breakout sessions, but I didn't hear it.

Of course, if this comment prevails, every aspect of the Kansas water appropriation act now becomes open for change - including the very most fundamental aspect of the entire system - the prior appropriation system.  This could get real serious in a hurry.  Anyway, all in all I think some positive things will have a chance to come out of this effort in a fairly short period of time.  Let's cross our fingers.

UPDATE - (August 5, 2011):  The full slate of public comments are now posted on the Kansas Water Office website.  There are 3 links under the heading:  Stakeholder Input from Summit Small Group Sessions. 

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...

Egypt has Other Problems Looming...

It's hard not to be proud of the Egyptian people for their perserverence toward freedom. But as is too often the case, other also fundamental issues are yet to be faced.

And one big one will be a new apportionment of the Nile River. It all began when a 1929 treaty regarding the River was brokered by the country’s former colonial power, Britain. It granted Egypt a veto over any water project that may alter the flow of the Nile – by any country. A 1959 pact between Egypt and Sudan later claimed 90 percent of the Nile’s flow for themselves – while the remaining eight countries in the basin were not invited or involved. They are now, and they’re wanting their fair share of the Nile River. (click on map to enlarge)

Last year Congo and Burundi spearheaded the drafting of a Comprehensive Framework Agreement (CFA) addressing the most contentious issues of the Nile River – equitably allocating the sustainable annual river yield; fairly considering and approving new water and energy projects on the river by all countries; and the elimination of Egypt’s claimed veto authority. The accord has already been signed by Ethiopia, Rwanda, Tanzania, Uganda and Kenya, and is about to be signed by Congo and Burundi. Only upstream Eritrea has not been involved in the CFA to date.

Nearly all of Egypt’s water supplies come from the Nile, so the accord has serious implications for the country and its future water projects. They have opposed the CFA process and have threatened to withdraw from the Nile Basin Initiative (a World Bank funded program to resolve disputes over the river’s water) if the seven upstream states sign the accord.

The Nile River’s average discharge is about 300 million cubic meters per day - with Ethiopia being the source of about 85 percent of this water. The CFA countries argue that Egypt must share, and, must allow the other countries to develop water projects fairly. Solutions offered within the CFA involve relocation of the Aswan Dam, more efficiency of Egypt’s current water use and elimination of a large irrigation project for Egypt’s Tushka Desert – all saving enough water to provide the rest of the basin countries access to water they need without reducing what Egypt and Sudan are currently using.  I wish the Egyptian people also the strength and foresight to tackle their water problems as well.

2005 GMD4 Testimony on Farm Bill

Five years ago our district suggested U.S. Farm Bill changes that would actually reduce consumptive water use in specified areas at no additional cost to the federal government.  We looked at our proposal as a win-win-win situation - if implemented where, and how, we proposed it.  Following is an excerpt of that testimony:

"In discussions with irrigated producers in NW Kansas the current structure of the farm bill comes up almost every time as a significant factor in their choice of irrigated crops - very predominately corn - a high consumptive water use crop.


Since passage of the current farm bill (2002) Kansas has developed new objectives for the High Plains Aquifer which require reductions in consumptive water use. Additionally, the US Supreme Court has approved a negotiated settlement for the Republican River Compact also involving significant reductions in consumptive water use within the basin. Both are new environmental goals set relative to historical water use which are real and need to be achieved.


We would encourage the new farm program (2008) to offer producers in specially recognized or identified areas (required to achieve lower water use goals) an economically viable alternativeto produce lower consumptive water use crops on the same acres, or, to reduce their irrigated acres.


To be eligible as a recognized or identified area, the region must have as a minimum: 1) a publicly established policy, or, a court order to reduce consumptive water use; 2) regulations in place which prevent significant new water development (non-domestic); and 3) a credible process of water use reportmg.


Possible approaches, in concept, might be:

1) Restructure the farm payments in the specially recognized areas to better encourage lower consumptive water use crops.


2) In specially recognized areas provide, at the discretion of the producer, a "Conservation Option" instead of the standard program, which would encourage lower consumptive water use crops or the transition of irrigated acres.


3) Increase the loan rate per bushel for the appropriate crops if there is a reduction in irrigated acres.


We also believe any changes made must be accomplished in a way that is as "revenue neutral" to the current program as possible.


In closing, there are clearly many ways a new farm bill can be crafted to encourage lower consumptive water use in areas that must achieve new environmental goals involving less consumptive water use.  We pledge to work with USDA and others in the further development of these concepts."

Of course nothing changed, but fundamentally I still don't see why this model won't work.  Ag production is a highly economic endeavor, and unless we focus on the economics that are largely directing our water use patterns, nothing is likely to change those patterns except in very special cases - like areas being placed under a court decree or government directive.  When approached this way, these areas are seriously disadvantaged (economically) without some assistance. The Farm Bill, without any additional cost, could provide that assistance if it wanted to.  Who knows, if there were some economic supports, perhaps others would consider a local decision to reduce consumptive water use more willingly - and perhaps before the courts got involved in water management.  If there are other viewpoints out there, I'd be intrerested in hearing them.

AWEP - Conservation Log - Day 27

I am amazed yet again at the veritable speed at which this program is coming together.  We have finalized the majority of decision-points related to implementing our conservation proposal of transitioning irrigated acres out of irrigation, and are now seriously servicing the questions of potential applicants.  And there is a lot of interest and a lot of questions.  There is also a program eligibility change which I corrected in my July 19 Blog article (previous entry below).

We are confident that we can retire 2,000 irrigated acres within our 6 high priority areas in our first program year.  Keep in mind, these acres will be non-irrigated for 6 years only.  We are also hoping to leverage the state's Water Transition Assistance Program (WTAP) with this effort to permanently retire perhaps 800 of these acres in year 1. 

With 2 more years of AWEP funding available (pending Congressional funding and local participation) we'll eventually retire from 6,000 to 7,000 acres for the 6 years.  This activity should catch the attention and interest of the Kansas Legislature to fund WTAP sufficiently over the same 3-year period so we can continue making permanent conversions by leveraging the two programs.  If it doesn't, I can only conclude that our Legislature is actually disinterested in reducing groundwater use - regardless of what they pontificate otherwise.  Yes, I'm throwing the gauntlet down and challenging the Kansas Legislature to step up.  (Yeah, I'll bet they're really worried now.)

No seriously, I think we've put together a pretty responsible program to convert irrigated acres in our most critical areas - exactly what our state water plans says needs to be done - with the heavy lifting being done by the NRCS' AWEP program.  To not support this effort with state funds will be "penny wise and pound foolish" as Ben Franklin would say. We'll see.  

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.