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Archive for Monday, July 22, 2002

Advocate: AG failed to define specifics on curbing irrigation

July 22, 2002

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Water watchers were hoping a recent attorney general's opinion would end arguments about how far the state can go in clamping down on pumping water from the Ogallala Aquifer.

Instead, it's opened a new round of debate.

"It's a waffley opinion," said Bob Hooper, an outspoken critic of the state's efforts to salvage the aquifer, the fresh-water ocean beneath much of western Kansas that's the source of water for irrigation in that arid part of the state.

According to the three-page opinion, the state is free to reduce an irrigator's water rights without compensation if the reduction involves protecting "the public health, safety, welfare or morals."

But it doesn't define public health, safety, welfare or morals. Instead, that's left up to "case by case adjudication."

Hooper, former chairman of the Solomon River Basin Advisory Committee, sought the opinion to address whether preserving the state's groundwater supplies meets the definition of protecting the public health and safety.

"This is an issue that's not yet hit the fan," Hooper said. "But it's coming."

So far, the state's water bureaucracy has used its authority sparingly, avoiding having a judge get into the specifics of when a water-right holder has to be paid.

That may soon change. Hooper said he was courting out-of-state environmental groups in hopes of finding one that would sue the state for not doing enough to protect groundwater supplies.

A new area?

"We're using up groundwater faster than it can recharge," Hooper said. "If doing something to reverse that trend  like cutting back on some of these guys' water-right appropriations  isn't protecting the public's health and safety, then I don't know what is."

Wayne Bossert, director of the Northwest Kansas Groundwater Management District No. 4 in Colby, said he doubted Hooper would find many takers for his campaign.

"He has every right in the world to ask the questions he's asking  and they're good, interesting questions," Bossert said. "But he's getting into an arena that's not been gotten into before, and that's because everybody knows that in an emergency, the state can come in and cut back on appropriations. It's happened many times."

Bossert said he was confident a court would not go along with the state using its police powers to "achieve a broad goal" like groundwater conservation.

"It has to be an immediate, dire emergency," he said.

Hooper disagrees, pointing to state laws allowing the Department of Agriculture to curb irrigation in areas where withdrawals exceed recharge.

"The law says that's the standard that has to be met to declare an IGUCA (Intensive Groundwater Use Control Area), and it says IGUCA is to be declared only when there's an emergency," Hooper said. "So that tells me that when these guys' pumping exceeds recharge, it's an emergency."

Bossert, in turn, accused Hooper of reading too much into the law.

"Ultimately, the men and women in the black robes are going to be the ones to decide this," he said, "because as soon as the state tries to cut back on appropriations in a situation that's not an emergency, there'll be a lawsuit. I guarantee it."

State's interpretation

At the Kansas Water Office, assistant director Clark Duffy said Hooper was probably more right than wrong.

"Our interpretation of the attorney general's opinion is that proper management of the water supply is in the state's best interest and clearly within the state's statutory authority," Duffy said. "It's not a 'taking' that requires compensation."

But the water office, he said, won't propose shutting down irrigation wells anytime soon.

"We don't think that's necessary," he said, noting the Kansas Water Authority last week overhauled its stand on how best to manage the Ogallala Aquifer.

"We're going to almost a triage style of management," he said, "because in some parts of the state there's enough water  they can irrigate another 200 years. But in other parts, they may be down to 25 years or less.

"So what we hope to do is go in and say, 'OK, what can we do to extend the life of the aquifer?'" he said. "In some cases, that'll mean a reduction in appropriations, which we think the AG's opinion says we can do. In others, we won't need to do that.

"But there will be some where the discussion will focus on making the move to a non-irrigated economy."

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