Archive for Thursday, April 8, 1999

CRITICS SAY WATER CZAR PLAN FISHY

April 8, 1999

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— Kansas Agriculture Secretary Allie Devine's move to rein in the water czar smells fishy, critics say.

Only days after her father's application for irrigation water rights was formally denied by the chief engineer of the Division of Water Resources, Kansas Agriculture Secretary Allie Devine was preparing legislation to trim the chief engineer's powers.

Devine says the timing of the legislative proposals was coincidence; that the Jan. 21 denial of her father's request did not figure in her controversial effort to redefine the engineer's decades-old role in Kansas water use.

But critics of the proposed legislation introduced in late January and early February, remnants of which are now before a House-Senate conference committee, were suspicious from the beginning that it stemmed from a hidden, even personal, agenda. They say if what happened indeed is coincidence it is one with a strong fishy smell.

"Whether the recent move to allow Devine or her proxy to second-guess the chief engineer's decisions on water appropriations smells like a kettle of fish depends on whether you have a working nose," said Bob Hooper of Bogue, a long-time member of the Solomon River Basin Advisory Committee. "If you got a nose, the odor of sardines is unmistakable. Gee whiz. Now isn't that a coincidence? Not to me. Nor in the minds of those I know in state water governance. They think the ag secretary's move smells, too. But they understandably hesitate to risk their careers (by speaking publicly) because motive is difficult to prove."

Devine's father, Frank Devine, farms in Meade County. Last fall he applied for rights to 653 acre-feet of water per year for irrigation purposes. The request was for water in an area where the groundwater for the most part is already claimed.

Under Kansas law since at least 1945, application for water rights is made to the chief engineer, a civil service technocrat tasked with regulating water use statewide, according to policies and guidelines based on hydrological and other scientific principles.

Battle brewing

The chief engineer is sometimes referred to as the Kansas water czar. And according to the organizational chart, the chief engineer works for and answers to the secretary of agriculture. But the reality, in law and tradition, is that for decades the chief engineer has had decision power independent from the secretary or any other elected official.

On Jan. 21, the day of the official rejection notice, Allie Devine said, her father was out of state. Her brother notified her that her father's application had been denied by the chief engineer, her ostensible subordinate. The denial letter stated that water in the area her father wished to irrigate already was fully allocated to neighboring farmers.

Devine's husband, Greg Wright of the Topeka law firm Sloan Listrom, filed application for a 60-day extension of the application consideration time to allow Frank Devine time to develop additional information that might reverse the denial. The extension period lapsed Monday. As of Monday, the Devine family had not filed additional information.

Within three weeks of the official denial, Devine and other agriculture department officials were lobbying heavily for passage of three bills dealing with the chief engineer. Two, nearly identical, would have made the chief engineer a political appointee, subject to firing by the secretary. They were ultimately superseded, however, by the third, which would have made decisions of the chief engineer subject to review and approval of the secretary.

That bill, Senate Bill 287, was introduced Feb. 10 and within two weeks had been approved by the full Senate.

Prompt and unexpected Senate passage of the measure sparked outcry from the state's water professionals. They argued that shifting powers of the chief engineer to a politically appointed secretary would open the door for favoritism in water-use decision making. By the time the bill reached the House Environment Committee, stout resistance from across the state had mounted.

A common question raised in the testimony of the bill's various opponents was this: Why was the administration of Gov. Bill Graves in such a rush to change a time-honored pillar of Kansas water governance without more careful study and review by the state's water professionals?

For example:

"I'm certainly mystified as to what the real purpose (of the proposed legislation) is," Roger Boyd, a Baker University biology professor and a member of the Kansas Water Authority, told the Journal-World shortly after the bills were introduced.

In testimony before the House committee, Hooper raised questions about potential conflicts of interest among senators and others pushing the bill, but the committee chair cut him off before he could finish his remarks.

Honest intents?

Devine and the Graves administration continue to insist that the bill, significantly watered down and now in conference committee, was meant to bring greater accountability to the Division of Water Resources and the chief engineer. The chief engineer, they argue, is the only civil servant in state government with power to makes rules and regulations independent of a politically appointed Cabinet secretary.

"It's just an effort to shine a little light over at the Division of Water Resources," said administration spokesman Mike Matson.

Matson said the governor was unaware of Frank Devine's denied application, but said Graves is "100 percent" behind Allie Devine.

Allie Devine said her father's denied application and her own strong push for the new legislation were unrelated.

"First of all," she said, "on this particular file number I have no financial interest in my father's property at all. Secondly, he is a private citizen who has every right to develop water rights like every other citizen. He made application on this particular property without my knowledge. The point when I became involved at all was when he was out of town and my brother who operates in my father's absence forwarded the letter saying they had denied. They only gave us 15 days to respond. My only involvement was to find out what are the options and how quickly must we respond to get the 15 days and my father was out of town. At that point, it was suggested because father was out of town, that we ask for extension of time and that's what we did."

Resistance to SB 287 resulted in the drafting of a new substitute bill. Now lawmakers are talking about an interim committee study of the chief engineer's role.

Rep. Laura McClure, D-Osborne, is a member of the House Environment Committee. She was among those early on asking why the ag secretary was pushing so hard and fast for bills changing the chief engineer's role. She said it is unfortunate Allie Devine didn't disclose to lawmakers the circumstances of her father's denial.

At the Statehouse, she said, "perception is sometimes stronger than fact, so most of us try to be upfront. If I have a vested interest I let it be known. I'm sure there are people on the committee and in the House and Senate that would like to have known. You can argue either way: Yes, she had the obligation to tell that and no, she didn't. But as intense as the discussion became, full disclosure. Now the information is out there and it doesn't look good."

-- Mike Shields' phone message number is 832-7144. His e-mail address is mshields@ljworld.com.

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