Use of Freshwater for Oil & Gas in Kansas

Wow, I find of late that I actually misspoke in an earlier post on this issue.  Recall that on February 2, 2011 I said in my coverage of hydraulic fracking in Kansas:  "...the state is not allowed to approve any water right for fresh water when other, lesser quality waters are available to be used. Presumably this would find very small (if any) amounts of fresh water being used for fracking, or any other oil & gas purpose, in Kansas."

Turns out this is not exactly the case.  KSA 82a-711 actually says:  "...except that the chief engineer shall not approve any application submitted [for a water right] for the proposed use of freshwater in any case where other waters are available for such use and the use thereof is technologically and economically feasible."  And this same language shows up in KSA 82a-727 dealing with approvals by the chief engineer of temporary permits - most often used by the oil & gas industry for well drilling purposes.  So, seems the operable words are "technologically and economically feasible".

I then did a quick search of my temporary and term permits for their water sources.  (Yeah, I know, I should have done this back in February!)  From January 1, 2011 to September 21, 2011, within GMD 4, I found 32 oil & gas permits issued.  Thirty-one were for groundwater and one was for surface water.  All were for freshwater.  I didn't expect to see this.  I called the division of water resources to ask:  Had they issued a blanket ruling that Dakota Aquifer waters (and all other waters below the Ogallala Aquifer) were too difficult to use?; or, Were they not aware of the lesser quality water requirement?; or, What?  Moreover, the small number of permits issued thus far in 2011 in our area has me wondering what percentage of drilling activity is even bothering to secure the water rights required by law.  I'll look into this later (and likely blog about it as well).

Anyway, I don't think the industry can argue that Dakota, Cheyenne, Cedar Hills or other brackish waters below the Ogallala are technologically out of reach - as they drill through them routinely on every well completion.  This only leaves the possibility of these waters being economically challenging.  Comforting, isn't it?  The good news is all 32 permits were for drilling wells - a relatively small amount of water.  There were no water flood projects or the kind of operations that use huge quantities of water over many years.
 
Turns out the state was aware of the rule, and indicated that it was an aspect of their regulatory duties that needed, and was slated for, more attention and broader discussions in the near future.  And they promised my question and comments would be included in these discussions.  While use of freshwater in some oil and gas operations is probably justified, we just need to have the smarts to determine which operations are justified and which are not, and then the guts to enforce this law more closely.  My prediction is that the oil and gas industry in Kansas may want to start preparing to better justify their water use needs and start planning on the use of more brackish waters.

Exempt Wells - Exasperating Exceptions

OK, let's try our hand at exempt wells in the West.  Kansas has them, as does virtually every other western state.  Should we keep them or not?  First some background. 

In Kansas every water use requires a water right - except domestic.  And every water right is in a priority system - the first in time is the first in right - otherwise called a senior water right.  The question is:  Do new water rights that are exempt from the normal water right review process pose a hydrologic problem to existing, senior, water rights?

The early thinking was that domestic use was too small to regulate and should not be burdened with the formality of a formal water right filing system that is best reserved to the larger wells that had potential to impair or negatively affect earlier (senior) water rights.  Besides, having the ability to regulate domestic wells could provide the regulators a direct opportunity to control or prevent population growth by developing restrictive domestic water right rules.  Can't have that!

However, I don't think that anyone can argue that more and more exempt domestic wells can and will eventually overdevelop any water supply and cause water right problems.  You know...there comes a time when one last sequin ruins the dress.  This has been the issue at hand in many recent discussions, and is the precise issue behind a law suit filed in New Mexico by a senior water right owner named Horace Bounds, Jr. who is claiming that subsequent exempt well development in his area is now impairing his senior water right.  This case is now in the New Mexico Supreme Court.

It is here that I have to admit that Kansas actually has two exempt well issues.  Not only has the state specifically excluded domestic wells from the filing requirements of its water appropriation act, but certain small-use, non-domestic uses have also been exempted by both the state and the local GMDs.  It's a subtle distinction I admit, but whereas just about everyone seems to be OK with domestic uses being exempt, at least initially, why would Kansas compound the issue by exempting ANY non-domestic use?
   
I've heard the justification for the Kansas system posed this way:  Since every exempt water use has a water right and a priority date (even with the state's exemption) they are subject to waste of water and impairment issues just like every other water right in the state.  As such, the water rights administration process can adequately handle their impacts on existing wells, so why go through the tedious filing procedure for the tens (or hundreds) of thousands of these exempt wells?  In other words, just because they're exempt from the filing requirements doesn't mean they're exempt from impairing senior water users. 

The Kansas impairment process will pull any exempt water user into the priority system if and when there is ever a supply problem.  The issue for me now becomes:  If I'm going to put down new roots or build my new house, farm headquarters, business or whatever, I'm pretty sure I want to know more about my water supply than "I hope my unrecorded priority date and quantity can survive an impairment action".  This is taken care of in Kansas as well, because while domestic water uses are currently exempted from filing, they are allowed to file and come into the priority system if they choose to.  A much better choice for many.

Now, do you still think exempt wells are a problem?

If you do, how should they be addressed?

Should the state grandfather in all existing exempt wells and then require, as of a date certain, every future water use to meet the state's development criteria?  New uses would always have access to the market to purchase or lease small portions of existing water rights if no new appropriations can be approved.  When that time comes, would there be willing sellers?  At what price?

Should all currently exempt wells be located and retroactively brought into the current water rights system - knowing that in many locations the most junior of these may not survive an administrative action?  Keep in mind the sheer number of these kinds of wells.  Do you give abandoned wells priority too?
Should we let the courts decide - like is about to happen in New Mexico? Will that decision, whatever it is, spill over eventually to other western states?

While we still have the exempt well issue even here in GMD 4, I'm glad to report that we have addressed one aspect of this dilemma - that of exempt, non-domestic wells.  I have blogged about this earlier here:  small-use exemptions.  We no longer have any non-domestic, exempt water rights. 

Anyone that has solved this problem in mid-stream, I'd like to hear how you went about it.

Robert Glennon Coming to Colby

Dr. Robert Glennon is the Morris K. Udall Professor of Law and Public Policy in the Rogers College of Law at the University of Arizona.  He also is a published author including Water Follies: Groundwater Pumping and the Fate of America's Fresh Waters in 2002 and Unquenchable: America's Water Crisis and What To Do About It (2009).

By invitation of the Max Pickerill Lecture Series, Dr. Glennon will be visiting the Colby Community College campus (Frahm Theater) on October 27, beginning at 7:00 P.M. to present on water issues of interest.  The public is invited to this free lecture.  That means you are invited if you can make it to Colby by that time.  I hope some of you can attend.

I am almost finished reading Unquenchable so maybe I'll have a question or two for him.  I also plan on getting my copy of his book autographed.  Maybe I should ask for the authograph BEFORE I ask the questions...

Kansas Irrigation Water Use by System

I've said from the outset that I didn't think subsurface drip irrigation systems were going to save that much water - consumptive water use anyway.  I gave the industry folks the benefit of the doubt who were arguing that at least the users would pump less water.  This I said was likely, but held firm that these systems would not significantly reduce CU in our hydrologic setting.

I now read the Kansas Water Office's latest irrigation statistics report (Kansas Irrigation Water Use 2008) and notice Table 8 - Irrigation water use by system by location.  By the way, Kansas does have an excellent annual water use reporting system that is driven by a high percentage of metered water use.  The 2008 metered wells comprised 89% of all the irrigation wells in the state.  Anyway, looking at GMD areas, the reported subsurface drip system water use in 2008 was:

GMD 1:  1.09 Acft/Ac;
GMD 2:  .55 Acft/Ac; 
GMD 3:  1.41 Acft/Ac; 
GMD 4:  1.10 Acft/Ac;
GMD 5:  .86 Acft/Ac.

These reported SDI water use quantities were higher than both the flood and pivot system values for most of the 5 GMDs in Kansas.  Only in GMD 2 were the SDI values lower than the flood and pivot system numbers, and in GMD 5 lower than only the pivot irrigated acres.  This means these reported numbers were higher for some 85% of the total 12,923 SDI acres reported irrigated in the state in 2008.  I didn't expect to see this, but it seems to clearly confirm my prediction that consumptive use has not been reduced by conversion to SDI systems. 

However, it is a small sample (12,923 acres of the total 3.03 million irrigated acres) and only a single year, so I'm not going to get too excited.  Besides, when brought up before, the SDI proponents are always quick to say that it takes a little time to learn how to use the system properly, and many users over-apply in the first year or two.  Maybe, but by the time the next Irrigation Report comes out, this possible cause of higher reported water use should no longer be available.

And my new prediction is:  Even if the next report numbers show lower SDI use in Acft/Ac than the flood and pivot acres, we'll still argue about the real benchmark - what has the consumptive water use done as a result of these conversions?

Trouble for the Taj - Water Woes to Blame

Taj Mahal, Agra, India

I added an entry in my "movies including wells" listing a while back on a Smithsonian Channel documentary on the famed Taj Mahal, in Agra, India.  It's well-related factoid is that basically the entire foundation of the tomb-part of the structure was built on a grid of groundwater wells dug and filled with material for adequate support.

There is now much angst within India over the structural problems of the iconic Taj Mahal since the adjacent Yamuna River is far over-used, polluted, and drying up along with local groundwater levels dropping far too quickly - reported at 5 feet per year in the immediate vicinity.  It is the dropping groundwater levels that are drying out the 358+-year old mahogany piles used inside the lattice of wells to support the structure.  In the drying out process these posts become brittle and start to disintegrate.  Recent reports claim cracks have appeared in the tomb over the past year and that the 4 minarets are showing signs of excessive tilting - a structural collapse looming, according to some, in as few as 5 years.  A group has been set up to deal with the preservation, but claim a lack of funding is why nothing has been done since 2003.

They must have known something was afoot all along, because according to the Smithsonian Channel, one of the foundation wells was left open purposely for an observation well.  A 350-some year old record of on-site water levels should be a pretty good data set I'd think.  Groundwater declines always seem to be a problem - first it's land subsidence, drying up of wells and water supplies, loss of wetlands, river baseflows and deep rooted flora.  Now it's dessication of monument foundations. 

Here's hoping the government can solve this problem.  The Taj Majal is indeed in the top 3 list of the most architecturally beautiful buildings in the world - ever. 

FY 2012 WTAP Signup Open Now

Konza Prairie

The Kansas Water Transition and Assistance Program (WTAP) has just opened another year by announcing the FY 2012 signup period of October 1 - November 15, 2011.  This program is for persons in specified areas of the state (including the six, GMD 4 high priority areas) who are looking into retiring their water rights for a payment.

This program is based on past usage, so one's historical reported water use is important in determining the eligible acres that can receive payments under the program.  The historical reported water use is the reported AF of water diverted under the water right during the years 2005-2010 (inclusive) - eliminating the high and low year and averaging the remaining 4 years.  These are the AF that will have a retirement bid placed on them - not exceeding $2000.00 per AF.  The applicants are ranked by bid price and acccepted as long as the funding holds out.  This year, the program has about $820,000.00 available.

WTAP can be used even with an EQIP or AWEP contract from NRCS.  In fact, either of these two federal programs should allow a person to reduce his or her bid for WTAP and thus compete better for the limited WTAP funds.  If you are in a GMD 4 HPA, or Prairie Dog Creek, or Rattlesnake Creek and are interested in this program, contact the Division of Conservation in Topeka, or your appropriate GMD office to work up the numbers - you may want to take a look at them in order to finally decide.  There is actually much more to this program, but all the details can't be covered in this short post.

BTW, WTAP is a pilot program and if not retained by the 2012 Legislature, it will sunset after this final year.  The best way to keep it active is to use it.  Questions?  Let me know.

Biodegradable Polymers

Some mid-western irrigators have been touting the benefits of starch-based polymers that are added to the soil to help conserve water.  The particular application I was reading was about potato crops growing in sandy, hilltop areas which used to be less productive and require about 15% more water than other areas of the fields.   The polymers are not only water retention materials, but are biodegradable and break down in about a years time.

According to one grower the users "..want to change the irrigation schedule to reduce the environment for disease. Now they can irrigate on the dry side and still keep the plant healthy."  In fact, one product's initial testing indicated that 25% deficit irrigation with the polymer will provide the same yield as full irrigation without it.  This could save quite a bit of water - what with the ability to deficit irrigate every acre by no less than 25%.

I wonder if the polymers are capturing erstwhile recharge waters and resulting in a higher percentage of the pumped and naturally provided water available to the crop rather than returning it to the groundwater system?  Reports of it "increasing yields" and "helping to keep plants healthy" seems to imply the plants are getting more water than before.  If this is true, I wonder how many users are subsequently using their extra water on newly irrigated acres?  I wonder if they can alternatively plant higher planting rates for increased production on the same acres?  Or how many are switching to a more water intensive crop to grow?  For those who don't do any of the above, I wonder if they can or will be able to market their saved water to some other grower on other acres, or, for some other consumptive use altogether?  Of course, if any of these things happen to any degree there is no real water conservation (water use reduction) occurring at all.  In fact, more water gets used.  It's clearly a more efficient use of water, but not any real reduction in consumptive water use.

But on the positive side, I gotta believe some fertilizer and ag chemical is being prevented from leaching into the groundwater by reducing or eliminating the deep percolation.  And you'd have to also believe there would be an energy savings too - so long as the saved water isn't being pumped and used elsewhere.  And it'd have to be good for the economy regardless of whether these users grow the same production with less water and inputs, or, increase production with the same water and inputs.  All in all, though, it's hard to imagine increased yields and production and healthier crops without more water being available to the plants - one way or another.  Any detailed water use studies out there on these polymers?