Cool, Cool Summer

I have lived in Colby for some 33 years now - not as long as many of the "old timers" - but long enough to have experienced some pretty strange weather. As I write this post it's snowing here. Yep, it's October 8, a full 9 days ahead of the long term, average, first frost date for the area.

I guess the real novelty of this summer's weather pattern is not this early snow as much as it's the abnormally cool summer we've had. I believe that there have been only four days this summer reaching triple digits. One day in mid September had a daytime high of only 58 degrees - very unusual. And rain well above average as I noted in an earlier post.

I'm guessing El Nino is the culprit, or at least partly responsible. With Kansas weather you never really know. Even in strong El Nino years Kansas always seems to be just between regions that the NWS characterizes as "moderate chance for cooler temps" or "slight chance for less rainfall", etc. We almost always get "an equal chance of cooler or warmer temps". Drives me crazy.

Oh well, I guess there's no need to complain. I admit that I enjoyed the cooler, wetter summer this year very much. Its the next 7 months of snow that I'll not be happy about.

Some Essential Elements of Water Conservation

Where funds are limited to do a set amount of work, it seems that priority setting should be an elemental and valuable undertaking.  In the case of water conservation, examples of priority setting perhaps may be:  1) anywhere a federal, state or local regulation or policy or court order exists to conserve water, lessen use, slow depletion, or however else a mandated or policy goal may be worded, that area should be prioritized over all other areas where no such goal, order or policy roadmap exists; 2) any area that is completely closed to new appropriation or development of water should be prioritized over all other areas that have no such restriction on new water development;  3) any area that is proposing a permanent reduction of water use should be prioritized over any area contemplating temporary reductions (unless there is a resultant price reduction for the temporary reductions which yield a proportional or less cost); and 4) those efforts reducing real, actual water use should be prioritized over efforts reducing unused (paper) water rights or phantom water use.

Summing up, conservation program funds should go first to anyone proposing, as a court ordered mandate or a state or local order or policy decision, to permanently reduce real, actual water use in areas formally closed to new water development.  This is where the most conservation will occur.  It's mostly a matter of common sense.  If you're really interested in water conservation, what good does it do to reduce water use where anyone can subsequently develop new uses?  Why reduce phantom water use or water rights - whether you pay for the reduction or not? 

These points should be considered carefully as we all look to next year's offering of the Agricultural Water Enhancement Program (AWEP) by NRCS.  AWEP is part of the 2008 Farm Bill authorized to assist ag producers in implementing agricultural water activities on agricultural land for the purposes of conserving surface and groundwater.  One of its stated goals is to help producers meet state and local regulations or the interstate compact compliance mandates of the courts relative to water conservation.  A careful look at last year's program, which doled out $57 million dollars for such conservation efforts, doesn't seem to fit much of my common sense priorities.  I'm hoping the 2010 program will do better.

Monarchs On The Move

Just two weeks ago the monarch butterflies were in my part of Kansas on their migration southward - presumably to Mexico.  There were hundreds of them in my backyard each day for about a week enjoying the cool mornings, the many Fall flowers and our watering holes - a pond and two bird baths.  We haven't seen them for the past three or four years, not really knowing if their migration paths had just taken them farther east or west of Colby, or if we were too busy with other things and simply didn't notice.  But we certainly enjoyed them this year.  The photo at right (and many others just as wonderful) were taken by Karrie Pennington who, with her husband Dean (from Mississippi), just happened to be spending the night with us on their way West and North.  The only thing any of this has to do with water is that Dean and I both manage groundwater management districts.  And I'd be remiss if I didn't mention that Karrie works for NRCS.  Maybe some day the bald eagles or the whooping cranes will stop over, too.  Go ahead and click on the photo - I kept it full size for your more complete enjoyment.

Ag Water Conservation?

Been reading a lot about water conservation lately where some claim the solution is as simple as controlling price – raise the price and conservation will occur. This seems logical for some situations – most notably for domestic and industrial uses which are supplied by a common water system under a common water right that is controlled by someone else who is responsible for both the delivery system and the new conservation ethic. Easy as pie and quite frankly you meet two goals at once. Not only do you encourage less water use, but you also gain the capital to maintain and eventually replace the delivery system for the common good (as long as you don’t price yourself out of the market).

But my concern is conservation in an irrigated ag setting - a compilation of thousands of individual delivery systems controlled by the thousands of water right owners using the water for individual profit motives and answerable to no one as long as they don’t exceed their water right. The most obvious way to control the price of ag water would be a mandated government severance tax on water (either via traditional means or being couched in terms of a pump tax, water right maintenance fee or whatever). But since the government doesn’t have any system to maintain, the only reason to impose such a severance tax on ag would be to use less water as a means to conserve. This will also reduce production and economic returns.

If “conservation” is defined as either maintaining current production with less inputs, or, increasing production with the same inputs (both increases in efficiency) then the severance tax is wrong because it will do neither. Yes, I know what you’re thinking – just increase the efficiency of the ag water use and conservation (less water use) happens automatically - without a severance tax or any other stimulus. Our experience has been that it costs so much money to increase ag water use efficiency that the producers are obligated to increase production to pay for it, and the exact opposite of water conservation occurs in nearly all cases – they consumptively use more water. I have discussed this issue before here.

Anyway, I’m asking all the water-mavens out there to offer ideas on “conserving” irrigation ag water – using market stimuli or otherwise – that does not also unreasonably impact the local economy. Email me here if you would rather not respond blog-publicly.

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!