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Archive for Sunday, February 17, 2002

s groundwater challenged

February 17, 2002

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Under Kansas law, all water is owned by the public; individuals or companies merely acquire temporary rights to use it.

So retired librarian and longtime water activist Bob Hooper says he figures the public should have its say in what's going on in semi-arid western Kansas, where precious groundwater supplies have been in dramatic decline since the 1940s.

As is, he says, farm irrigators  the group that by far consumes the most water  hold sway over crucial water-use issues through control of the region's groundwater management district boards. And so long as irrigators call the shots on western Kansas water use, Hooper says, depletion of the underground aquifers that nourish the west's economy will continue.

"These people are addicts," says Hooper, a 64-year-old retired English teacher and chairman of the Solomon River Basin Advisory Committee. "We've got the drunks running the liquor store."

To change that, Hooper wants an attorney general's opinion on whether rules restricting membership in a groundwater management district to people who own at least 40 acres or who pump at least 326,000 gallons of water violate the constitutional principle of one man, one vote.

More votes, less pumping

"A person has the right to vote in the county sheriff's race or in the governor's race, but when it comes to the governance of water, that person doesn't get to vote unless they own a bunch of land or pump a bunch of water," Hooper said. "How is that not a violation of 'one man, one vote?'"

Opening the decision-making process to nonirrigators, he said, probably would lead to less pumping.

Last week, Sen. Stan Clark, R-Oakley, filed a formal request seeking an attorney general's opinion on several questions raised by Hooper and the Solomon River Basin Advisory Committee.

Other questions include whether the chief engineer within the Division of Water Resources can order a groundwater management district to restrict pumping, and whether the state has the authority to reduce previously issued water rights to reflect reductions in supply.

Mark Ohlemeier, spokesman for the Attorney General's Office, said an opinion would be issued in a few weeks.

"They're working on it right now," he said of agency attorneys.

If the attorney general's opinion is favorable to Hooper's view, he said he would then expect groundwater management districts to change the way they operate. If they don't, he'll encourage environmental groups to sue the districts.

"But I don't think that'll be necessary," Hooper said. "Just because I think they're addicted doesn't mean they're not good, honorable people  they are."

Following the law

So far, Hooper's queries aren't triggering many alarms within the state's water bureaucracy.

"I've had this argument with Bob a hundred times," said Wayne Bossert, manager at the Northwest Kansas Groundwater Management District No. 4 in Colby. The district includes all or parts of 10 counties.

"All I can say is we're following the law. If that's wrong, then change the law," Bossert said. "This issue has been raised before, and the Legislature came back and said, 'No, keep it this way.'"

Bossert and others say groundwater management districts' operations aren't subject to one-man, one-vote requirements because their authority is restricted solely to regulating water usage in a given geographic area.

If their scope weren't so narrow, he said, they might, in fact, be subject to one man, one vote.

But Hooper argues that a region's water-use policies affect irrigators and nonirrigators alike.

"If what (management districts) did had no impact on the resource, no impact on the environment and no impact on the economy, then I'd say 'Yeah, what they do is their own little bailiwick, and they ought to be able to regulate themselves,'" Hooper said. "But that's not what we're dealing with here, what they do affects everybody out here."

A big precedent

For almost 120 years, the state Board of Agriculture relied on the limited-scope argument now invoked by the groundwater management districts to defend the process by which its own members were elected from within organizations  Kansas Farm Bureau and Kansas Livestock Assn., mainly  comprised of farmers and ranchers.

But in 1993, U.S. District Court Judge John Lungstrum, who lives in Lawrence, ruled the arrangement was unconstitutional.

Today, the state Department of Agriculture, which replaced the unconstitutional board, is run by a Cabinet-level secretary appointed by the governor. The nine-member board is merely advisory.

"If the Board of Ag got dinged on this issue, I don't see why the (management districts) wouldn't," Hooper said.

At the Kansas Water Office, assistant director Clark Duffy said he, too, was familiar with Hooper's criticism of the districts.

"These issues have been dealt with before and we feel like we have a good system, but we have no objection to what he's doing," Duffy said. "He's going through the appropriate channels. There's nothing wrong with seeking an attorney general's opinion."

If Hooper is successful in loosening irrigators' grip on the management districts, Duffy said he doubted much would change, simply because few nonirrigators would have much interest in serving on the district governing boards.

"Being on a groundwater management district board is a high-demand, low-pay job. It's truly a public service," Duffy said. "It's not like the nonirrigators are knocking down the doors to serve. It's a very challenging job."

'No guarantee'

Hooper acknowledges that possible result.

"This comes with no guarantee," he said of his move to reform the groundwater management districts. "But what's in place now can't get any worse; this at least might make it better."

Jay Garetson, 31, runs the Providence Grain elevator 12 miles north of Sublette. He's also an irrigator.

He says Hooper gives irrigators short shrift.

"Out here, we take water issues very serious," he said. "Part of it's economic in that our livelihood is tied to the resource, but there's also a sense of stewardship that, for me, is almost biblical in nature."

Garetson, whose family moved to Haskell County in 1902, said Hooper's comparison of irrigators with addicts is hardly fair.

Irrigators, Garetson said, are constantly seeking ways to increase efficiency.

"We've cut our (water usage) in half and we've doubled up on production," Garetson said. "And everybody around us is doing the same thing. That's the only way you're going to make it because once you get to the point where you're down to pumping less than, say, 250 gallons a minute, you're not going to cover your costs of production. You're losing money."

No one, he said, is more concerned about conserving water than irrigators.

"The western Kansas economy is built on water utilization, and all of us have an interest being careful because when the Wal-Mart closes, that store manager will just get transferred to another Wal-Mart," he said. "But if I'm an irrigator and I lose my water, I'm left without a job, my dry-land assets are worth half of what they were  my family is going to suffer."

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