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Archive for Friday, December 27, 2013

Appeals court limits power of Kansas ‘water czar’

December 27, 2013

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— The state's top water regulator does not have power to reduce a landowner's water rights once a permit has been issued, the Kansas Court of Appeals ruled last week in a decision that could limit the state's ability to conserve water resources in the dwindling Ogallala Aquifer.

However, the court said, the chief engineer of the Division of Water Resources — sometimes known as the state “water czar” because of his near-unilateral authority to approve or deny water permits — may require farm irrigators to install expensive metering equipment on their wells to ensure compliance with the terms of a permit.

“It will be interesting to see if further lawsuits occur because the chief engineer has for years restricted junior water rights during periods of low stream flow when senior rights were impacted adversely,” Rep. Tom Sloan, R-Lawrence, said of the ruling.

And while the ruling involved a permit to draw water out of the Ogallala, not a stream, Sloan said “the concept of what type of control the chief engineer has to protect senior water rights holders from junior production is now seemingly at risk.”

The case involved one of the largest family-owned farming corporations in the state, Clawson Land Partnership. Together with a closely affiliated group, Clawson Farm Partnership, the group operates in several counties in western Kansas and the panhandle areas of Oklahoma and Texas.

Since 1995, the two entities have received more than $11.5 million in federal farm subsidies, according to data compiled by the Environmental Working Group.

In 2009, the Division of Water Resources granted Clawson permits for 10 irrigation wells in Meade County in southwest Kansas, an area hit hard by drought in recent years, and an area that has seen some of the steepest declines in groundwater levels.

In issuing the permits, Chief Engineer David Barfield imposed what Clawson called “draconian” monitoring requirements, and asserted that he would retain jurisdiction over the permit, with authority to reduce the amount of water Clawson would be allowed to pump, if necessary, in order to protect senior water right holders and the public interest.

But the appeals court said the chief engineer has no statutory authority to do that.

Writing for a three-judge panel, Judge Anthony Powell said the chief engineer has “broad statutory authority” to require a monitoring plan. But he said once a permit is issued and finalized, the chief engineer may not go back later and reduce the amount of water appropriated, unless the permit holder abandons the water right by not using it.

“The chief engineer cannot retain jurisdiction on a water right appropriation by merely declaring it,” Powell wrote. “Language in the water appropriation permit granting the chief engineer continuing jurisdiction has no force and effect.”

The appeals court remanded the case back to Meade County District Court for further proceedings consistent with the opinion.

Comments

Gary Pomeroy 12 months ago

Interesting story, but why did it take a week to get the story reported?? The opinion was released December 20.

Fred Mertz 12 months ago

Good ruling. Government shouldn't be able to make stuff up

William Weissbeck 12 months ago

I know you'd like to believe that government makes stuff up, but that government is YOU. Western water rights are going to be the battle for this century. Look at Colorado. Their contention is that if the rain falls on its soil, it's theirs to dam and keep. We've already seen what happens to western NB and KS when they hold back the water. Now they want to hold back even more of the Colorado to dry up Arizona and California. Do you think it's fair for yahoos to move to a state for recreation and then demand the water to enjoy it?

Fred Mertz 12 months ago

Well William, apparently the judge thought the agency overstepped their statutory authority too. The government must be bound by the law. It can't make up new rules, impose restrictions and subjectively decide to do in a case or situation

Do you really want government agencies making up rules as they go along? There is a process to follow and we should all be grateful the agency got their hand slapped for not following it.

The chief engineer shouldn't have issued the permit if there isn't enough water to support it.

Peter Macfarlane 12 months ago

William, you are correct: water wars will be notable all through this century as our resources continue to dwindle and as the changing climate impacts recharge to ground-water resources and stream flows. The US Geological Survey and the Kansas Geological Survey have been documenting reductions in the available water resources since 1950s when irrigation became the norm in western Kansas and adjoining states. Unfortunately, in the 1960s and into the 1970s the Chief Engineer of the Division of Water Resources granted permits with little review because at the time, development and use of water resources for agriculture. By the mid-1970s it was becoming to obvious that High Plains (Ogallala) aquifer was being mined to depletion. By the end of the decade measures were taken by local quasi-governmental agencies and state agencies to conserve the remaining water resources in this aquifer system and to put management on a more scientific basis. This trend has continued as irrigators and other users continue to mine the aquifer. With depletion, litigation between irrigators and states will be more common than they have been in the past.

Brock, yes you are also correct, at least in an ideal world. The Chief Engineer continues to issue permits but only after the local quasi-governmental agency has approved it in most cases. However, many decisions for granting permits are based on planned depletion, which relies on estimates of available supply and the annual amount of replenishment. The available supply is easy to quantify. The difficulty is agreeing on what the rate of replenishment is. There is even some disagreement among hydrologists. As a result, the Chief engineer relies on what is referred to as the administrative rate of replenishment, which may or may not be anywhere close to what the local or regional rate of replenishment is. Funding for studies that would help the agencies better understand how the rate of replenishment varies across western Kansas would require large sums of money that nobody is willing to pay. So, the Chief Engineer has little choice in the tools he can use to help conserve supplies. Everybody agrees that withdrawals are several orders of magnitude more than replenishment. Unfortunately, if he cannot put a realistic number on the rate of replenishment he has to fall back on what could turn out to be fantasy.

Government is like everything else these days: you get what you pay for and usually less!

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