Categories
Policy

The 2022 Water Legacy Award Winners 

One of several highlights from last week’s Governor’s Water Conference was the annual bestowing of the Water Legacy Award(s). The award recognizes an individual who has, over the course of his/her career, made extraordinary contributions in water and resource management in Kansas. In a sense, it is a lifetime achievement award for individuals who deserve recognition for the lasting impact they have made toward ensuring a safe and secure water supply for Kansans, now and into the future.    

Normally only one award is given per year. This year three Water Legacy Awards were given due to the number of worthy applicants and as it had been three years since the last award was last made (as the 2020 and 2021 conferences were virtual). 

This year’s recipients included an agency attorney, a scientist, and a law professor.  I helped write one of the nominations, supported a second, and would have supported the third if asked, as I have known and worked with each of them over my own career and agree each is deserving.

Below are the full nomination statements, as read at the conference, when each award was given.  Pictured below are the awardees, from left to right: Donald Whittemore, Lee Rolfs, and John Peck.

Leland “Lee” Rolfs, Agency Attorney

Leland “Lee” Rolfs is a native Kansan, born in Topeka, where he attended elementary and junior high school. He graduated from Hays High School. Upon graduation from Ohio University, Lee began his professional career in Chicago before returning to Kansas to pursue a law degree at the University of Kansas School of Law.

Lee served as an attorney for the Water Resources Board and as Legal Counsel for the Chief Engineer of the Division of Water Resources (within KDA), holding the status of Special Assistant Attorney General, from 1978 through 2008.  Over his extensive career, Lee was involved in nearly every aspect of water policy formation and implementation.  

Lee worked extensively to draft numerous written Administrative Policies for Chief Engineers Guy Gibson and David Pope. Lee led the agency efforts to convert the Administrative Policies into formal regulations, bringing consistency to DWR’s implementation of more than twenty-five water laws, including the Kansas Water Appropriation Act, the Groundwater Management District Act, and Water Structures laws. Lee collaborated well with staff, the public, and Kansas’ diverse local units of government.

Similarly, Lee also supplied excellent staff support for DWR on legislative matters. For many years, he was deeply involved in legislative activities, including drafting legislation and preparing testimony for the Chief Engineer to present.

Lee supplied legal support for DWR’s administrative hearings on diverse, complex water issues, such as the enforcement of repairs to unsafe dams, water rights related issues, and the designation of Intensive Groundwater Use Control Areas (IGUCAs).  As decisions of the Chief Engineer were appealed to the courts, he and his legal staff were involved in District Court litigation and appeals to higher courts. 

He successfully defended several cases before the Kansas Supreme Court, including one that challenged the constitutionality of the 1978 amendments to the Kansas Water Appropriation Act, which mandated permits or existing water rights for virtually all non-domestic water uses in Kansas.

Lee provided legal counsel to the Chief Engineer and other Kansas Commissioners for Kansas’ four Interstate River Compacts.  In two of these Compacts, Kansas had to seek enforcement through litigation before the U.S. Supreme Court in cases that required decades of perseverance, with Lee being a major player on the Kansas Litigation Team.  For example, in Kansas v. Colorado, which was filed to enforce the terms of the Arkansas River Compact, he helped examine witnesses at trial before the Special Master, draft numerous briefs before the U.S. Supreme Court and prepare the team or oral arguments before the Court.

Similarly, in Kansas v. Nebraska and Colorado,  filed in the U.S. Supreme Court to enforce the terms of the Republican River Compact, Lee was a key member of the Kansas settlement team that achieved enforceable standards for Compact compliance.

In total, with Lee’s significant help, Kansas achieved Compact compliance by upstream states with both Compacts and received over $40 million in economic damages for past violations of these Compacts.

Since his retirement from state service, Lee has served as an Adjunct Professor of Law, teaching water law at Washburn University School of Law.  He has also consulted with the Kansas Water Office, the Missouri River Association of States and Tribes, and the Division of Water Resources, and represented clients in water-related litigation.  

Over the years, Lee often navigated many contentious, controversial, and even volatile circumstances.  But even in the most stressful of situations, Lee could be counted on to respond with calm, reason and good humor.    

It is difficult to adequately describe the impact and influence Lee has had on the management of water resources in Kansas; I challenge anyone to find a water law, regulation or appropriation standard that does not bear his fingerprints or influence.    

Donald Whittemore, Scientist  

Dr Donald Whittemore is a Senior Scientific Fellow, Emeritus, in the Kansas Geological Survey at the University of Kansas. He received a B.S. in Chemistry from the University of New Hampshire and his Ph.D. in Geochemistry from Pennsylvania State University. His research focuses on the hydrogeology and hydrogeochemistry of water resources in Kansas, especially the High Plains Aquifer, stream-aquifer systems, and saline waters.

More than any other individual in the last century, Don has significantly enhanced our knowledge of Kansas groundwater and surface water resources. Don’s work has been central to helping identify and control contamination, driving everything from remediation efforts to litigation. 

His detailed interpretations of water chemistry have significantly enhanced our understanding of the water quality of Kansas aquifers and surface waters, including uranium concentration in the Arkansas River and the High Plains Aquifer in western Kansas, the composition of brines across the state, potable water prospects for the Dakota aquifer, bromide problems in the Kansas River, and the multitude of similar issues he has worked on.   

Moreover, his detailed assessments of regional hydrogeology have proven extremely valuable in helping us better understand prospects for groundwater-fed irrigation in western and central Kansas. It is no exaggeration to say that his work on water chemistry and regional hydrogeology will be heavily relied on far into the future.

He has collaborated with others on relationships among water-level changes, groundwater use, and climate, and on uranium in the Arkansas River corridor in southwest Kansas.

Don retired from the KGS in 2017, but is still working on a number of projects as an emeritus scientist.  He is a truly irreplaceable resource, and not just in terms of water quality and regional hydrogeology, but in terms of a range of water issues in the state, such as water use by invasive vegetation in the riparian zones of central Kansas or the chemistry of recycling/reuse of saline water from oil production, which relates directly to the issue of induced seismicity. Odds are high that if there’s a water issue facing the state, Don has seen it, studied it, and can accurately comment on it. The state is incredibly fortunate that he chose to devote his career to Kansas water issues.

Don’s work stands the test of time in part because he is so careful and methodical.  As one of his colleagues from the KGS put it: “His results and conclusions are consistently reliable.  You can take them to the bank. I have never heard anyone question even a single sentence of Don’s work.”  Don cares deeply about getting things right. His persistent attention to detail has paid great dividends to our state and will continue to do so well into the future.

Dr. Whittemore is the first scientist to receive the Kansas Water Legacy Award. 

John Peck, Law Professor  

Professor John Peck is a native Kansan, graduating from Kansas State University in 1968 with a degree in civil engineering. After working three years for the U.S. Public Health Service and the EPA in Washington, D.C., he earned his law degree from the University of Kansas School of Law.

He practiced law with Everett, Seaton, Peck here in Manhattan, from 1974 to 1978, at which time he joined the law faculty at the University of Kansas School of Law.  He taught contracts, land transactions, and family law, but was the only professor specializing in water law.  His expertise was sought after in the private sector; he has been special counsel to the Foulston Siefkin law firm in Wichita and Overland Park. He has advised countless clients on real-world issues relating to obtaining, changing, defending, and enforcing their water rights

John is recognized as the pre-eminent authority on Kansas water law, being widely considered “the expert in Kansas water law since the 1970s”.   Anyone researching virtually any aspect of Kansas water law has no doubt benefitted from the numerous law review articles and scholarly papers authored by Professor Peck.  All of his articles, if taken together, would provide a comprehensive treatment of all aspects of Kansas water law.  His expertise has taken John across the globe to consult and make presentations on an international level.  

In addition to his monumental contributions to water law jurisprudence, John was, above all, a highly regarded teacher.  His welcoming nature, good humor and easy manner made him a favorite among law students.  You always felt a bit more relaxed in his classroom because he never buttoned his shirt sleeves; those sleeves were always rolled up over his forearms like you were about to sit together after a hard day’s work and have a chat.  Many of us who were fortunate enough to have him as a water law teacher grew to know him as a mentor, as well.  Professor Peck treated his former students with respect and dignity and often provided opportunities to join him in authoring articles, thereby helping to boost the junior lawyer’s career.   

Not surprisingly, John earned many awards for teaching.  He was named a Connell Teaching Professor of Law in 1999, and he received both the Dean Frederick J. Moreau Award and the Immel Award for Teaching Excellence in 1998. In 2004, the university awarded him a W.T. Kemper Fellowship for Teaching Excellence. In 2018, he was awarded the Clyde O. Martz Teaching Award by the trustees of the Rocky Mountain Mineral Law Foundation.  

John was also an active member of a number of professional associations, sharing his time and talents with other lawyers across the country.  For many years, John provided the water law chapter for the Kansas Bar Association’s annual update of the law, helping to keep water law practitioners up to speed on the latest developments.

After 41 years of teaching at KU Law, he retired in 2019.  

Throughout all aspects of his career, John demonstrated unfailing integrity, humility and compassion. His work has fundamentally shaped today’s interpretation of Kansas water law and regulation, and he has nearly single-handedly trained and influenced a generation of water law practitioners, a number of whom are in this room. 

Categories
Conservation Policy

Governor’s Water Conference, Updated State Water Plan, more

In this issue, we will catch up on a number of news stories of the last two months, including:

  • The 2022 Governor’s Water Conference; 
  • The release of the latest 5-year State Water Plan update;
  • An article which lauds Hays for its leadership in water conservation; and 
  • The USGS releases an updated and more comprehensive version of the water cycle.

Governor’s Water Conference, November 16-17, Manhattan

Governor’s Water Conference

For the first time since 2019, the Governor’s water conference will be in person; back in Manhattan after two years in Wichita. For more, see the Kansas Water Office’s website at:  https://kwo.ks.gov/news-events/governor’s-water-conference.  This is the 11th Annual Governor’s Conference on the Future of Water in Kansas. As always, the conference is designed to highlight the latest policy and research developments of water issues in Kansas. It starts off with a plenary session including national speakers, but most of the conference is organized around a series of breakout sessions around a host of water themes including such things as: water conservation, water management, technology and crop varieties, reservoirs; municipal and industrial water; watersheds; High Plains and other aquifers; irrigation and water conservation; droughts, floods, and climate change; water transfers; water reuse; water and energy; water and health.  If you are interested in water, there should be something of interest here.

From my perspective, best of all, the conference includes a great opportunity to network with the who’s who of the water world in Kansas. 

KWRC is a conference sponsor and will have a booth. Please drop by to see us.

State Water Plan update 

The Kansas Water Authority (KWA) and Kansas Water Office (KWO) are charged with continuously maintaining and updating the Kansas Water Plan, with major updates to the plan typically occurring on a five-year cycle. To develop the Plan, KWA/KWO gathers input from a variety of local, state, and federal agencies, as well as grassroots input from its Regional Advisory Committees. The resulting Kansas Water Plan is a tool used by the State of Kansas to address current water resources issues and to plan for future needs. 

During August, the KWA approved the 2022 version for release to the public. The new Plan can be found at:  https://kwo.ks.gov/water-plan/water-plan. While the document is 261 pages long, I found it easy to scan to quickly access its major themes and the content of greatest interest to me.  If interested in water issues, I suggest you download it and peruse it.

Start with its 10-page executive summary, which is also an overview of the rest of the document. It includes:

  • A review of the 5 “Guiding Principles of the Kansas Water Plan” around which the Plan is written, which includes: 
    • Conserve and Extend the High Plains Aquifer,  
    • Secure, Protect and Restore our Kansas Reservoirs,
    • Improve the State’s Water Quality,
    • Reduce our Vulnerability to Extreme Events. and 
    • Increase Awareness of Kansas Water Resources.
  • An overview the Regional Planning Areas used by KWA/KWO in developing getting local input. 
  • Discussion of Water funding, including the State’s Water Plan fund.
  • A high-level section on the state’s management of water.

After review of the executive summary, you can spend time in the section(s) of greatest interest, be they guiding principles or geographic areas of particular interest. 

Hays lauded for its leadership in water conservation

An extensive article by High Plains Public Radio (https://www.hppr.org/hppr-news/2022-10-10/this-city-in-kansas-really-conserves-its-water-but-that-still-might-not-be-enough-to-survive investigates and highlights water conservation efforts of Hays, Kansas. While there are many communities across the semi-arid High Plains impacted by poor water supply, Hays was — and is — the only city in Kansas with more than 15,000 residents but no sustainable source of water, being too far west for reliable rainfall and reservoirs and too far east to tap into the Ogallala aquifer. As a result, Hays has the most extensive program of water conservation in the state and has invested significantly in a decades-long quest for a sustainable water source today.  

One quote: “Thanks to decades of conservation efforts, Hays has become the California of Kansas — a place where thinking about your water use is a way of life. For now, it’s an outlier. But as climate change brings drier, hotter weather to Kansas, more cities may have to follow a similar path.

Read the article for much more.

“Not Your Childhood Water Cycle”, USGS releases an updated and more comprehensive version 

USGS Water Cycle Diagram

The U.S. Geological Survey (USGS) water cycle diagram is used by hundreds of thousands of students in the United States and worldwide. The agency recently released a new diagram for the first time in more than 20 years, this time with humans as show-runners. Although people have long siphoned water from groundwater and diverted rivers into farm fields and industrial plants, the new diagram is the first time humans have been included in what was presented until now as a “natural” cycle. The change reflects the latest 20 years of research uncovering humanity’s central role in the cycle and how to communicate it visually. “We need to change how we think about these things to be able to live and use water sustainably for our future,” said Cee Nell, a data visualization specialist at the USGS VizLab, which designed the diagram. In addition to natural processes like ocean evaporation, precipitation over land, and runoff, the new diagram features grazing, urban runoff, domestic and industrial water use, and other human activities. Each label in the chart comes from data tracking the significant paths and pools of water worldwide. Read more at: https://eos.org/articles/not-your-childhood-water-cycle

Thanks to the Kansas Rural Water Association for allowing reprint of this article (https://www.krwa.net/enews).

Categories
Legislature

2022 Special Committee on Water, August 29-30, 2022

Introduction: 

After the 2022 legislative session’s mega-water bill went nowhere, the chair of the House Committee on Water, retiring Rep. Ron Highland, requested a 2 two-day interim committee on water issues to continue discussions. Below are a few highlights from these hearings, held on August 29-30 in Topeka, called the “Special Committee on Water”, composed of both Senators and House members and links to documents and presentations. 

The short summary: 

As the Special Committee had new members from the Senate and House, the two days were principally a primer for new members, comprised of key briefings from the state water agencies dealing with water issues. The “committee discussions” held after these briefings on the second day were very short and disappointing as they did little to move forward the Legislature’s discussion of these critical water issues.

The details:  

The rest of this article is mostly an index and links to the presentations made to the committee, with a few concluding comments on the Legislature’s 2021-22 work. For anyone wanting a primer on the major water agencies dealing with water in Kansas, the responsibilities, and current happenings, this is a good place to start. There are links to the YouTube videos of the sessions as well as the presentations.  I have indicated the time stamp on the YouTube video when each presentation starts.

For those interested in the Ogallala aquifer, DWR’s presentation and the two KGS presentations are worth a listen. 

Here is a link to the agenda for the two days of meetings, which includes links to the videos of the sessions: http://www.kslegislature.org/li/b2021_22/committees/ctte_spc_2022_water_1/documents/agenda/weeklyinterim/20220829.pdf
Links to the individual presentations are available at: http://www.kslegislature.org/li/b2021_22/committees/ctte_spc_2022_water_1/documents/. I have included the specific links to most of them below. 

Day 1 on August 292020 included a few introductory matters and then a series of select state agency updates, providing an overview of state laws and programs to address water issues.   

Introductory matters:

Agency updates (note: I have indicated the time on the video where the presentation starts):

Then two presentations by the Kansas Geological Survey, focusing on the Ogallala aquifer: 

The day concluded with a brief state agency funding overview: http://www.kslegislature.org/li/b2021_22/committees/ctte_spc_2022_water_1/documents/testimony/20220829_16.pdf

Day 2 on August 30 started with a presentation by Prof. Burke Griggs, which stressed his opinions on the shortcomings of Kansas state water laws and their administration and his recommendations for rectifying these.  http://www.kslegislature.org/li/b2021_22/committees/ctte_spc_2022_water_1/documents/testimony/20220830_03.pdf

This was followed by a presentation by Rep. Joe Newland, entitled “Overview of Financial Plan” which talked about funding recommendations of the 2016 Blue Ribbon Task Force, which focused on a dedication of a 1/10 of one cent of the state’s sales tax to water funding.  See: https://www.kwo.ks.gov/water-plan/blue-ribbon-funding-task-force.

Committee (non-) Discussions

Finally, the Committee’s agenda include a time for Committee discussions, an hour and a half in the morning and two hours in the afternoon. However, it seemed discussions were not encouraged. There was approx. 30 minutes of discussions on funding centered on challenges of securing funding via a portion of the State’s sales tax and the possibility of a small fee on sales of bottled water.

Brief reflections on the Legislative discussions of 2021-22 and current needs

While there seems to be significant consensus among those knowledgeable in water matters that there is a need for change, esp. expanded funding and improvements in state agency structure and/or coordination, there is no consensus on the specifics.  As is noted at the beginning of the article, the committee discussions were disappointing, in that there was no movement toward any consensus on these issues. It seems without strong leadership, consensus on these specifics will be impossible to reach. 

As someone who has worked almost all my career in state government in water, I have never really thought the system was broken. Each agency has its mission, staffing, and programs to carry its duties. I have not observed much conflict and there have always been coordinating mechanism to help agencies work together.

However, Rep. Highland strongly advocated for a single voice for water in the legislature, believing it to be a key in securing additional focus, coordination, and ultimately, more funding needed to address water issues. Over the course of the last legislative session, listening to all the agency reports to address water, I have become convinced that a single voice is needed. 

In addition, it is time to replace the 2016 Blue Ribbon Task Force’s recommendation on funding with an updated look at today’s and tomorrow’s needs and opportunities. 

Categories
GMD Groundwater

GMD 1’s Proposed Four County LEMA 

Introduction 

Western Kansas Groundwater Management District No. 1 (GMD 1) covers parts of five counties in western Kansas (Lane, Scott, Wichita, Greeley and Wallace Counties) over the Ogallala Aquifer. The GMD has experienced very significant reductions in saturated thickness, resulting about one-half of the irrigation wells no longer being used.

Yet, the Ogallala Aquifer continues to be a very important source of water for both irrigation and the significant economic activity associated with animal agriculture (feed yards, dairies, and such) attracted by the region’s feed availability, favorable climate, and remoteness. 

While there have been significant changes to irrigation over the decades to improve irrigation efficiencies, the declines in the aquifer continue.  

Local Enhanced Management Area (LEMAs) 

Groundwater declines in Kansas’ Ogallala Aquifer have been a concern for many decades, prompting the Kansas Legislature to pass its Groundwater Management District (GMD) Act in 1972 and amendments to both the Kansas Water Appropriation Act and GMD Act in 1978 to require all wateruse in Kansas, except domestic use, to be permitted by the Chief Engineer of the Division of Water Resources and to allow for a process to create special areas called Intensive Groundwater Use Control Areas (IGUCAs) to reduce use in over-developed areas.  Through action of the GMDs and Chief Engineer, all of western Kansas has been closed to new water appropriations. 

While eight IGUCAs have been created, none are in the Ogallala Aquifer.  One concern preventing GMDs from requesting the Chief Engineer to initiate IGUCA proceedings in their areas of concern is that the decision on reductions in use is left to the Chief Engineer based on the hearing record.

In 2012, the Kansas Legislature amended the GMD Act to allow for a process to create another type of special area to reduce use in over-developed areas called Local Enhanced Management Area (LEMAs).  Under its process, a GMD develops a specific proposal for reducing groundwater declines in all or parts of their District and the Chief Engineer conducts hearings to determine if their Plan should be adopted. If adopted, it becomes an order of the Chief Engineer. LEMAs typically include elements of flexibility in the use of allocations to reduce the impact of water use reductions, such as multi-year and group allocations. For more information, see DWR’s website at: https://www.agriculture.ks.gov/lema.

Three LEMAs have been implemented to date:  the Sheridan 6 LEMA and GMD4 LEMA of Northwest Kansas, and the Wichita County LEMA within GMD 1.  Again, see the website noted above for details on these LEMAs. 

GMD 1’s Four County LEMA development  

GMD 1 made an initial attempt to develop a District-wide LEMA during 2013-14 after the Sheridan 6 LEMA noted above was created. However, after significant work with its constituents, the GMD 1 Board determined their LEMA Plan did not have sufficient support to move forward.  

The GMD 1 Board again discussed a District-wide LEMA in 2018-19. In 2019, the Board deciding to move forward first with a LEMA in Wichita County as the county’s need was the most urgent and had the most support, and to gain experience with the LEMA process. The Wichita County LEMA plan was submitted to the Chief Engineer early in 2020 and approved after the two required hearings, effective for the years 2021-25. 

The Board’s work of developing the proposed Four County LEMA Plan began during November 2020.  The LEMA work has been discussed at most of the Board’s monthly meetings since that time, as well as multiple special meetings. Further, the Board has worked with its constituents through a detailed survey of wateruser preferences, the sharing of details of its LEMA development at its 2021 and 2022 annual meetings, and at county meetings during May 2022.

After careful study, the Board decided to pursue a LEMA reduction goal that would balance meeting today’s needs without causing significant economic effects, while taking a serious step to extend the water resources of the District. The Board reviewed current estimates of the Kansas Geological Survey (KGS) of the required reductions to stabilize groundwater levels, averaging 29% for the District. Ultimately the Board decided to set the LEMA’s overall reduction goal to 10% from the 2011-2020 average wateruse.

The Four County LEMA Plan, if adopted, would require irrigation waterusers within the LEMA to reduce pumping to extend the life of the Ogallala Aquifer.  Required reductions would vary from 0 to 25%, with larger reductions for larger wateruse and lesser reductions for smaller wateruse, again with an overall reduction of 10%. The LEMA Plan also includes significant flexibilities to allow waterusers to make best use of their allocations as well as a robust appeal process to consider past voluntary conservation in the wateruse records used as a basis for allocation.  The LEMA plan, if adopted, would be in effect for years 2023 to 2027.

The path to implementation of the GMD 1’s Four County LEMA

On July 1, 2022, the GMD 1 Board submitted its Four County LEMA plan for the remainder of GMD 1 to the Chief Engineer for consideration. 

On August 4, 2022, the Chief Engineer, pursuant to statutory requirements, found the Proposed LEMA Plan “acceptable for consideration.”  

To be implemented by order of the Chief Engineer, two public hearings are required. Over the next couple of weeks, the Chief Engineer will work with GMD1 to determine the date and location of the first hearing, to be held early fall.

For more information 

The District’s website at https://www.gmd1.org/lema/ includes a copy of the proposed LEMA plan and other pertinent information, including a frequently asked questions (FAQ) document that addresses common questions about the LEMA Plan. 

Effected waterusers can contact the District office at 620-872-5563 to obtain an allocation report for their particular water rights.

Categories
Policy

Kansas Water Authority to hold Water Policy Discussion, August 10, Salina

KWA Water Policy Discussion 

At its last meeting, the Chair of the Kansas Water Authority (KWA), Dawn Buehler, announced the KWA would host a water policy discussion on August 10 in Salina to gather information from a variety of water stakeholders on their views on water policy needs for the future of Kansas and their constituencies.  Susan Metzger, Associate Director for Agriculture and Extension at KSU, will moderate. 

A draft agenda for the meeting is available at: https://kwo.ks.gov/admin-pages/events-landing-page/2022/08/10/default-calendar/kansas-water-authority-meeting. It includes: 

  • 10:00 am Welcome, Meeting Purpose, and Introductions – Kansas Water Authority Chair Dawn Buehler
  • 10:15 am Meeting Guidelines and Self Introductions 
  • 10:45 am Overview of Kansas Water Plan Priorities
  • 11:00 am Funding Kansas Water Plan Priorities
  • 12:15 pm Lunch
  • 1:00 pm Organization and Structure to Address Kansas Water Plan Priorities
  • 2:00 pm Open Discussion 
  • 2:45 pm Wrap Up

The facilitated discussion format of the day should lend itself to having opportunities to provide input throughout the day for those in attendance.

The meeting is open for anyone to attend. It will be held in-person only at: The College Conference Center Room, Kansas State University- Salina, Aerospace and Technology Campus, 2310 Centennial Road, Salina, KS.

While RSVPs are not required, it would be helpful for planning. RSVP to Matt.Unruh@kwo.ks.gov.

Regular KWA meeting, August 17, 2022, Manhattan

In addition to the Water Policy discussion noted above, the KWA will have its next regular meeting on August 17, 2022, starting at 9:00am, in Manhattan, Kansas. This in-person only meeting will be held in the Conference Room at the Kansas Department of Agriculture, located at 1320 Research Park Drive, Manhattan, KS 66502. Meeting details and materials will be posted as they become available at the following link: https://kwo.ks.gov/admin-pages/events-landing-page/2022/08/17/default-calendar/kansas-water-authority-meeting

To subscribe to this Newsletter: https://landing.mailerlite.com/webforms/landing/l4q8w8 (a link is also on the KWRC home page at: https://kwrconsulting.com/).

Categories
GMD Groundwater Legislature Water Legislation

Legislative Next Steps on Water: an Interim Committee and an Audit of the GMDs

As I wrote about regularly this past legislative session, the House Committee on Water had a busy two years. In the end, drafting the so-called “mega-water bill”, which, pun intended, got watered down and ended up going nowhere this past session. 

But the issues considered by the Committee are important and the work will continue. Between now and the 2023 legislative session two things are planned: an interim committee and an audit of the state’s Groundwater Management Districts. Below is what we know about each as of this writing. 

Legislative Interim Committee on Water, August 29-30, Topeka 

As requested by the Chair of the House Committee on Water, the Legislative Coordinating Council, which makes decisions on such matters, approved two days for an interim committee on water issues.  Specifically the approved topics are: “Issues Related to Kansas Aquifers, Dam Storage Capacity, and Funding.”  

The committee will be made up of both Senate and House members and includes: 

Senate:  Sen. Dan Kerschen, Chairperson; Sen. Carolyn McGinn; Sen. Ron Ryckman; Sen. Alicia Straub; Sen. Mary Ware.                
House: Rep. Ron Highland, Vice-chairperson; Rep. Cyndi Howerton; Rep. Jim Minnix; Rep. Joe Newland, Rep. Lindsay Vaughn; Rep. Rui Xu.

The meetings are planned to be in Room 112-N of the Capitol.

Those are all the specifics currently available. Below are two links where more information should be posted as the time gets closer:

The Kansas Legislative Research Departments web page on the interim committee: http://www.kslegresearch.org/KLRD-web/Committees/Committees-Spc-2022-Water.html

The special committee’s web page: http://www.kslegislature.org/li/b2021_22/committees/ctte_spc_2022_water_1/.

Evaluating Groundwater Management Districts’ Efforts to Conserve Water

Again, as requested by House Committee on Water Chairman Highland and Rep. Lindsay Vaughn, the Kansas Legislative Division of Post Audit has been approved to conduct an audit of the state’s Groundwater Management Districts (GMDs) efforts to conserve water.

The Audit study proposal is available at: https://www.kslpa.org/wp-content/uploads/2022/04/Evaluating-Groundwater-Management-Districts-Efforts-to-Conserve-Water-Audit-Proposal.pdf.

The State has five GMDs over the Ogallala-High Plains Aquifer, shown in the map below.  According to the GMD Act’s Legislative declaration, their purposes include: “the proper management of the groundwater resources of the state; for the conservation of groundwater resources; for the prevention of economic deterioration; for associated endeavors within the state of Kansas through the stabilization of agriculture; and to secure for Kansas the benefit of its fertile soils and favorable location with respect to national and world markets.” 

Map of Groundwater Management Districts in Kansas

According to the Audit’s study proposal, the audit has three objectives:

  • Objective 1: What programs do Groundwater Management Districts (GMDs) administer and are those programs appropriate? 
  • Objective 2: Have GMDs identified areas of concern within their districts and do their programs effectively address those concerns?
  • Objective 3: How much did GMDs spend in the most recent year and what percentage was for directly addressing their districts’ identified areas of concern?

For each objective, the proposal has tentative methodologies listed, including such things as:

  • reviewing background information on the legislative purposes of GMDs, especially with respect to water conservation; 
  • collecting information from each GMD on their management programs, activities, budget, etc;
  • interviewing GMD staff on the same; 
  • comparing the GMD’s work and priorities with their legislative purposes;  
  • determining whether GMDs are identifying “areas of concern” within their district with respect to declining quantity and quality of groundwater and their programs to address these concerns;
  • and working with GMDs to determine how they are funded; how they make spending decisions and what portions of their funding they are using to address identified areas of concern. 

The Audit is slated to start late August and take approximately 4 months to complete, with a report to the 2023 Legislature. 

More on GMDs:

Upcoming KWRC News articles:

  • Kansas Water Authority Water Policy Discussion, Aug. 10, Salina
  • GMD 1’s Four County LEMA (submitted to the Chief Engineer on July 1; more at: https://www.gmd1.org/)
  • Hays-Russell Change Applications and Water Transfer Process

To subscribe to this Newsletter: https://landing.mailerlite.com/webforms/landing/l4q8w8 (a link is also on the KWRC home page at: https://kwrconsulting.com/).

Categories
LEMA

Northwest Kansas LEMA renewal hearings, July 26-27

Creation of the LEMA tool, 2012

The state’s Groundwater Management District (GMD) Act was amended in 2012 to allow for the creation of Local Enhanced Management Areas (LEMAs).  Much of the impetus for the amendments was from a group of waterusers in Sheridan County of northwest Kansas who wanted to reduce use in their area by 20% to reduce groundwater declines and extend the life of their aquifer but did not trust the process in place at the time to accomplish this: Intensive Groundwater Use Control Areas (IGUCAs). The reason was simple: under the IGUCA process, the Chief Engineer makes the decision of what to do to address the groundwater decline problem, not the locals. In response, the manager of GMD 4 outlined an alternative process that works with Kansas broader water law, but allows the GMD to develop a wateruse reduction plan for the Chief Engineer to consider via two hearings. With the support of state agencies and others (I as Chief Engineer at the time helped to draft the bill and testified in its support), the LEMA provisions were passed.   

The state’s first LEMA created, 2013 

With the legislation passed, Northwest Kansas GMD No. 4 immediately went to work with its Sheridan County stakeholders to develop a LEMA proposal to implement a 20% reduction in use for the 100 square mile area and its 200 water rights. After the required two public hearings, the Sheridan-6 LEMA was created for the 5-years of 2013-2017.  In those five years, they reduced significantly more than their 20%; reducing use approximately 35% instead. In 2017, a new set of hearings was held, which extended the LEMA for the years 2018-2022.

Geographic overview of the current LEMAs

The map below provides a bit of context for this first LEMA and the subsequent LEMAs (and one more that is in process). The brown areas show lands covered by the state’s 5 Groundwater Management Districts (Western Kansas No. 1; Equus Beds No. 2, Southwest Kansas No. 3, Northwest Kansas No. 4, and Big Bend No. 5) that overlie Kansas major Ogallala-High Plains Aquifer of western and south-central Kansas.  The Sheridan (or SD-6) LEMA is the orange-shaded area within northwest Kansas. The yellow-shaded area is the Northwest Kansas GMD 4’s “District-wide” LEMA discussed next. The green-shaded area is the Wichita County LEMA of Western Kansas GMD 1. Not shown but in progress is GMD 1’s Four County LEMA which is proposed to cover the portions of Lane, Scott, Greeley and Wallace counties within GMD 1. 

The state’s second LEMA, Northwest Kansas’ District-wide LEMA, 2017

The success of this first, localized LEMA, led Northwest Kansas GMD 4, in 2017, to develop a proposal for a District-wide LEMA. This second LEMA has important differences from the Sheridan LEMA, principally its much more significant geographic scope and the resulting diversity in the rate of water levels declines that are being experienced. Below is a map from the Kansas Geological Survey’s (KGS) High Plains Atlas showing this diversity of water level declines in the Ogallala-High Plains aquifer over the last 20 years (with blue areas increasing and the light green areas experiencing small declines). For reference, the Sheridan LEMA is shown with a red border, the GMD 4’s “District-wide” LEMA is the gray-shaded area of northwest Kansas.

To address this diversity in water level declines, GMD 4 proposed allocations for this LEMA which are more restrictive in areas of higher declines (the yellow areas) and less restrictive in areas of lower declines. 

While its water use reduction goals are not as restrictive of the Sheridan LEMA, this LEMA puts in place an important framework for on-going actions by the GMD, again with more focused action in the areas of the most significant declines. After two hearings required by the LEMA process in 2017,  GMD 4’s LEMA plan was amended to remove areas of no or very limited decline, but was otherwise adopted as proposed for the years 2018-2022.  This LEMA was opposed by some of the local waterusers both at the second LEMA hearing as well as in the Gove County District Court, but was ultimately upheld.  

GMD 4 LEMA renewal hearings, July 26 & 27 

Both the Sheridan LEMA and the GMD 4 LEMA (the new name for their “District-wide” LEMA as it does not cover the areas of low and no decline) expire at the end of 2022, and must be renewed for the coming 5-years, 2023-27.  Based on the work of the GMD’s advisory committees and the action by its Board, both LEMAs are proposed to continue on essentially the same terms as the previous five years (with a few tweaks to improve their administration). 

The Sheridan 6 LEMA hearing will be Tuesday, July 26, 2022, 2:00 p.m. at the Sheridan County Courthouse, 926 9th Street in Hoxie.

The GMD 4 LEMA hearing will be Wednesday, July 27, 2022, 10:00 a.m. at the City Limits Convention Center, 2227 S. Range Avenue in Colby.

Links for more information: 

Upcoming KWRC News articles: 

  • GMD 1’s Four County LEMA (submitted to the Chief Engineer on July 1; more at: https://www.gmd1.org/)
  • Kansas Water Authority Water Policy Discussion, Aug. 10, Salina
  • Hays-Russell Change Applications and Water Transfer Process
  • Kansas Legislature: next steps on water 
Categories
Ogallala Water Legislation

Legislative Efforts on Water Issues Stall; Ogallala Groundwater Declines Continue

Legislative update 

Substitute for the “Mega Water” languishes

As we wrote about during early March, the House Committee on Water produced the so-called “Mega Water bill” proposing to combine the state water agencies into a Department of Water and Environment, increase funding for water projects, reform GMD voting for its Board members, and more. While municipal water utilities and environmental groups lauded the committee’s effort to elevate water as a concern in Kansas. 

Based on the input from the two days of hearings, the Chair proposed a revised version of the bill which dealt with many of the objections heard. However, a committee member proposed a gutted version of the bill which would increase funding for water projects and some reporting by GMD’s on their fiscal matters and activities. This substitute version of the bill was passed favorably out of committee to the full House. For more see: https://www.cjonline.com/story/business/agricultural/2022/03/01/kansas-farm-bureau-agriculture-groups-legislators-square-off-over-water-policy-overhaul-new-agency/9332068002/.  

Since that time, the Substitute Bill for HB 2686 had remained “below the line,” meaning the full House has not considered the bill. At this point, it is unlikely to move forward.

Two Senate bills on GMDs considered 

Meanwhile, two news bills, SB 548 and SB 549, were introduced in the Senate by municipal interests frustrated with the lack of representation on GMD boards and what they see as an unnecessary and burdensome layer of local government.  SB 548 would restrict GMDs’ ability to regulate non-irrigation use; SB 549 would allow non-irrigation water right holders to withdraw from GMDs and their regulation.

The Senate held a hearing on the bills on March 14. Not surprisingly, numerous municipal interests supported the bills, asking the committee to move forward one of the two approaches to address their concerns; the state’s GMDs opposed both bills.  At the conclusion of the hearing, the Chair suggested it was too late in the session to move forward either bill, but believed the subject would be considered by next year’s Legislature.

What next? A Post-audit review of GMDs? An interim committee?

While it appears that both the Mega Water bill and its Substitute Bill are not moving forward, it is likely that a sub-set of the issues raised by the Committee’s work will be further considered after this Legislative session. The Committee’s leadership appears poised to request two actions to further the GMD issues in particular:

  1. Request an interim committee to continue the work of the committee, and  
  2. Request Legislative Research conduct a review of the GMDs, with a focus on whether and how they are carrying out their legislative purpose to conserve the state’s declining groundwater resources to prevent future economic deterioration of the regions dependent on these resources.

Both of these requests must be approved by their respective committees, which prioritize such requests. 

Groundwater levels continue to decline

Each winter, the Kansas Geological Survey and Kansas Division of Water Resources collect water level information in their network of observation wells in the Ogallala-High Plains aquifer. A preliminary report on this year’s findings can be viewed at: https://news.ku.edu/2022/03/23/groundwater-levels-fall-across-western-and-central-kansas. A map of annual water level declines is below. 

As a result of dry conditions in 2021, esp. during the growing season, water level declines were higher than in recent years, averaging 1.0 feet of decline over the entire monitoring network with the greatest declines being in southwest Kansas, which averaged 2.17 feet. This is the largest annual decline since 2013 (following the 2011-12 severe drought years). West-central Kansas and northwest Kansas saw lesser declines in 2021, of approximately. 0.5 feet.  

Categories
Legislature Policy Water Rights

House Committee on Water Passes Substitute Bill Seeking More Water Funding but Rejecting Reorganization 

This morning the House Committee on Water “worked” HB 2628, the Mega Water Bill.

First, the chairman proposed a comprehensive set of amendments, which would have: 

  • removed KDHE’s Division of Environment from the agency consolidation, leaving a Department of Water with its Secretary of Water; 
  • gutted the GMD provisions of the bill (membership, voting for Board members, action by the Chief Engineer if GMDs fail to develop conservation plans), but leaving its reporting requirements on finances and plans to implement water conservation; 
  • removed the water right fee for all water rights paying a GMD assessment and basing the fee on water use rather than authorized quantity; 
  • struck the increase in water protection fees; 
  • raised water funding by approx. $45 million/year via dedicating 1/65 of the current revenues from the state’s current 6.5 cents sales tax; 
  • clarifying provisions related to the water and environment maintenance board which would oversee the new funding; and 
  • amending the dam safety provisions.  

After some clarifying questions, Rep. Newland offered a substitute bill which included only the following:

  • expanded funding for water projects via dedicating 1/10 of one cent of the state’s current sales tax to water funding (approx. $49 million/year), in this case placing the funding in the State’s Water Plan Fund, using the existing processes to determine how the funding should be appropriated; and 
  • including the GMD reporting provisions on finances and planned conservation actions.

The committee amended this Substitute Bill to add a one-time reporting requirement on GMDs from the balloon on p. 24 of the Chairman’s proposed amendments.  Those provisions are as follows:

Not later than January 15, 2023, the board of each district shall submit to the senate standing committee on agriculture and natural resources, the house of representatives standing committee on agriculture, and the house of representatives standing committee on water a report that includes the following:

(1) An itemized list of each resolution, program established or other action by the board that resulted in measurable conservation of water over the last five years and the total cost of implementation of each item listed;

(2) an itemized list of each resolution, program established or other action by the board that the board believes may have encouraged conservation but did not result in any measurable conservation of water or any other quantifiable data over the last five years and the total costs of implementation of each item listed;

(3) the goals and priorities set by the board for any period over the next 20 years and any actions taken by the board to achieve such goals and priorities; and

(4) a list of the areas within each district that meet the criteria set forth in K.S.A. 82a-1036(a) through (e), and amendments thereto, and any specific actions taken to address the conditions in each area.

An additional amendment seeking to remove the Secretary of Agriculture’s ability to review orders of the Chief Engineer failed.  

While many expressed dissatisfactions at the failure to include the re-organization provisions of the original HB 2628 in the Substitute Bill, after discussion, the committee approved the amended substitute bill on a 9 to 6 vote, and then passed it favorably out of committee

Its fate is now in the hands of the House leadership, which will determine when and if it will be considered by the full House of Representatives.

Categories
Legislature Policy Water Legislation

Mega Water Bill markup coming March 1

As reported February 11, the 283 page “Mega Water” bill, HB 2686, is out. See the following article for my summary of its provisions at: https://kwrconsulting.com/water-legislation/overview-of-hb-2686-the-mega-water-bill/. For a longer read, see the Revisor’s 7 page summary of the bill at http://www.kslegislature.org/li/b2021_22/committees/ctte_h_water_1/misc_documents/download_testimony/ctte_h_water_1_20220214_01_testimony.html.

In this article, I will seek to briefly summarize its two days of hearings and two days of committee discussions, and talk about the next step of the bill’s consideration next week.

Overview of the bill as written


In summary, as written, the bill would:
1) Create a new Kansas Department of Water and Environment (KDWE), combining the Kansas Dept. of Agriculture’s Division of Water Resources (DWR) and Division of Conservation (DOC); the Division of Environment from KDHE; and the Kansas Water Office. All of the duties, authorities, officers and employees of each would remain pretty much unchanged, just in this new Department.
2) Increase funding for water projects via two sources: first, an increase the current water protection fees paid by municipal, industrial, and stockwater uses, increasing them from the current $0.03/1000 gallons to $0.05/1000 gallons, and second, by imposing a new annual water right fee of up to $250 on all water right holders not paying the water protection fee.
3) Make significant changes to Groundwater Management Districts (GMDs) including allowing any eligible voter to be a Board member; changing Board member elections to primary and general elections; requiring GMDs to make annual reports to the Legislature on their finances and actions; requiring GMDs to identify areas of concern by 1/1/2024; to conduct outreach to those areas and to develop plans to address the concerns by 1/1/2026; and where GMDs fail to develop such plans, the bill authorizes DWR’s Chief Engineer to initiate IGUCA hearings with the goal to reduce the rate of aquifer decline by 50%.
4) Misc. changes with respect to dam safety and stream obstructions including more enforcement authority. The House Committee on Water’s Chairman, Rep. Ron Highland stated his purpose in all of this: to increase the visibility of water issues critical to state’s future; to increase funding; and to improve coordination and accountability of various parts of government in water.

Hearings on HB 2628

After two days of briefing of the committee on the bill by the Revisor and Chairman, the Committee held two days of hearings, the first for proponents and the second by opponents.

In short, proponents were mostly municipal and environmental interest who agreed with the Chairman’s principle reasoning above. Proponents included: City of Wichita; Alynn Lockner; Burke Griggs of Washburn Law School; Water District No 1 of Johnson County; Friends of the Kaw; Kansas Farmer Union; the Climate + Energy Project; City of Hutchinson; the Regional Economic Area Partnership (REAP) of South Central Kansas; Kay Heley; Kansas Municipal Utilities; Lucas Bessire; Rep. Blex; Nature Conservancy; Sarah Hill-Nelson of the Bowersock Mill & Power Co; William Bradley; and the Kansas Sierra Club.

In short, opponents were principally GMDs and agricultural interests who opposed one or more of the bill’s provisions opposing the GMD electoral provisions, more fees, and removing DWR and DOC out of the Dept. of Agriculture. Opponents included GMD 5, the Kansas Livestock Association; the Kansas Agricultural Alliance; B. Beckman; Kansas Corn; GMD 4; the Kansas Association of Conservation Districts; the Kansas Water Congress; the Kansas Farm Bureau; Water PACK; Southwest Kansas Irrigators; GMD 3; R. Hayzlett; S. Beckman; GMD 2; and T. Jaeger.

There were also three neutral testifiers who offered support with specific, generally narrow recommendation. These included the Kansa Biological Survey; the Kansas Society of Professional Engineers; and City of Garden City.

All testimony is on the Committee’s page or on my page at https://kwrconsulting.com/blog/hcow2022/, which includes links to the videos of the committee’s hearings as well, near the bottom of the first table.

See also the Kansas Reflector article at: https://kansasreflector.com/2022/02/20/we-cant-wait-15-years-legislative-committee-works-to-overhaul-kansas-water-policy/.

Committee discussions

On Friday, 2/11 and Monday, 2/14, the Committee had two days of committee discussions.

After discussion on the GMD provisions, there seems a consensus to remove most of the GMD provisions, except to require reporting on finances and what they have done, are doing, and plan to do on water conservation efforts. In addition, the committee plans to ask for an interim committee to consider the GMD matters more fully and to ask for a post-audit of the GMDs: their Boards composition, voting for Board members, and what GMDs are doing to fulfill their statutory purpose.

It is unclear what will happen with the proposed fees. There was discussion on various amendments on agency restructuring but it is also not clear what the committee will do with these provisions.

The Committee to “work” the bill starting March 1

As the bill is “blessed”, it is not subject to the regular legislative deadlines, e.g. last week’s “turn around” deadline where a bill must be through the chamber of origin. So, the Chair decided to work the bill this coming week, starting on Tuesday, March 1.

From the committee discussion, a number of amendments will be considered, one in turn, and then the final bill we be acted upon, to determine if it will pass out of the committee favorably for the full House to consider.

Stay tuned. I will plan to do my next article after the Committee’s action. I will also do updates on my Twitter account: @kwrconsulting and on my Facebook page @kwrconsultingllc.