After a landmark year in 2023, when the House Committee on Water (HCOW) led the way in securing a significant expansion in water funding via HB 2302 and greater accountability for the state’s groundwater management districts (GMDs) in HB 2279, the Committee continues efforts to move forward our state’s management of its water resources.
In recent weeks, per last year’s HB 2279, the Committee received written reports from each of the state’s five GMDs, as well as oral testimony. Below is a listing of the dates of these hearings and links to their written reports, which includes a summary of their activities and financial information on each of the GMD’s assets, annual receipts, expenditures. and budget.
Here is a short summary of the bill’s intent, testimony, and where it seems to be going:
The bill was proposed by a member of the committee, Rep. Kenny Titus, who wanted to highlight concerns he is hearing regarding changes in water right’s points of diversion (PD).
The bill had no proponents; 3 of us were neutral, mostly to say the bill sought to address real problems, even though all of us had concerns with the specific language of the bill.
All other testimony was opposed to the bill, mostly citing that changes in PDs are necessary; the bill is too restrictive; and the problem is best dealt with in regulations.
In the committee’s discussion after the testimony, Rep. Titus said he appreciated the views expressed and that his purpose in putting forward the bill was to highlight the concerns with PD changes. His remarks suggested that the best path forward was for the Chief Engineer (CE) to address the concerns expressed with regulations. Chairman Minnix’s remarks suggested that the bill will go no further in committee and also advocated consideration of concerns by the CE.
New Bills Introduced on February 1
At the Feb. 1 hearing, four bill introductions were made for bills currently being drafted by the Revisors Office. Here is my understanding of the subject of these introduced bills:
Rep. Howerton introduced a bill related to the meaning of K.S.A. 82a-1028’s power given to GMD to advise and assist the Chief Engineer.
Rep Vaughn, introduced two bills:
RS 2824 on the role of GMDs related to Water Conservation Areas and,
RS 2823 which would allow GMD members of a particular area within a GMD to petition to be removed from the GMDs.
Mr. Stucky, on behalf of GMD 5, introduced a bill which would amend provisions of Kansas Water Banking Act.
Coming the week of February 5, 2024:
On Tuesday, there will be a hearing on two bills:
HB2633 — “Providing for additional sources of revenue for the [KDHE’s] water program management fund and requiring water supply system and wastewater treatment facility operator certification examination fees to not exceed the costs for such exams.”
HB2634 — “Providing an additional corrective control provision for the chief engineer to consider when issuing orders of designations for local enhanced managements areas and intensive groundwater use control areas.”
Here is a summary of the House’s consideration of two of the most significant water bills to be heard in the last 10 years: one that significantly expands state funding of water infrastructure and a second which requires the state’s groundwater management districts (GMDs) to act to address groundwater declines.
HB 2279, the GMD Bill
In my last news article a month ago, I reported on the House’s consideration of HB 2279 which would require Groundwater Management District (GMD) to provide annual reporting and to identify areas of concern and to work with their waterusers to develop “action plans” to address the groundwater declines in those areas of concern. The bill included a provision allowing the Chief Engineer to take action if he/she found the action plan inadequate.
At the committee’s Feb. 9 hearing, all testified in support of the bill, including Kansas Farm Bureau and the Kansas Livestock Association, except Southwest Kansas GMD No. 3 and Southwest Kansas Irrigators, both whom opposed the bill. Like mine, much of the supporting testimony provided suggestions for improving the bill, many echoed my suggestions.
The committee leadership put forward an amended version of the bill, which it passed overwhelmingly on February 17. Here is a link to the bill’s supplemental note with an expanded summary of the amended bill’s provisions, a summary of testimony and resulting amendments in committee.
The amended bill took my specific suggestion for defining “priority areas of concern”, as a minimum, to include areas with less than 50 years of remaining usable life. This will focus initial action where most needed, as significant areas within western Kansas GMDs still have significant remaining life. See the map below from my testimony (and its explanation in there). In short, the red areas have less than 25 years of water left, the darker orange has 25-50 years remaining. Those are the areas that need focus within southwest Kansas (as northwest and west central Kansas are in LEMAs). About 25% of Southwest Kansas GMD 3 has less than 50 years left (but there are large parts of GMD 3, esp. the southern tier counties that have more than 50 years left with some years over 100 years. But it is past time to act in the critical areas.
The amended bill did NOT include my suggestion for a clear definition of adequacy. Despite this, I continue to support the bill and believe it a real step forward in requiring GMDs that have not done so to seriously look at the Ogallala problem where action is most urgently needed and engage the waterusers in those areas on how to address the problem. As I have been telling reporters in recent weeks, the GMD Act has a mission and power, but no specific water management goals. This changes that.
The amended bill was considered by the full House on February 23, and passed on a vote of 116-6. It is now in Senate, waiting to be heard by the Senate Agriculture and Natural Resources Committee. While no hearing is yet scheduled; hopefully this will occur next week, as all bills need to be out of their respective committee by March 24.
HB 2302, the Water Funding bill
I have not weighed in on this bill as it is not in my area of expertise and it had plenty of conferees supporting the bill. In many ways, this bill is more significant to the State’s future than the GMD bill above. If passed, it would increase dedicated state fundings to water projects from the current $8 million/year to approximately $50 million/year.
Once again, the amended bill passed out of committee with overwhelming support as well as the full House (the vote was 119-3). This is quite significant, as a similar effort to expand water funding through a dedicated part of the state sales tax was attempted in 2017 and got nowhere.
Here is my brief summary of the supplemental note’s summary:
The note’s “Brief”: “HB 2302, as amended, would establish funding for the State Water Plan and water infrastructure projects, create the Water Technical Assistance Fund and the Water Projects Grant Fund, authorize the Kansas Water Office (KWO) to provide grants and adopt rules and regulations to establish criteria for grants, and authorize distribution to the State Water Plan Fund (SWPF) of a portion of the revenue from the state sales and compensating use tax (sales tax revenue).”
The expanded money for water projects would not come from a tax increase or increased fees but from dedicating 1.231% of the state’s existing sales tax to water projects outlined in the bill (again, boosting dedicated state funding for water projects from approximately $8 million/year to approximately $50 million/year).
This expanded funding would go toward:
Existing State Water Plan Fund priorities
$5 million/year to a Water Technical Assistance Fund
$15 million/year to a Water Projects Grant Fund
$15 million/year to pay off debt for Milford and Perry Lake reservoirs
To improve salaries of state workers implementing water programs (current salaries are not competitive, resulting in staff shortages, delays in programs, etc).
There are specifics in the bill on where these monies will go, but if passed, there would be significant new money for infrastructure projects for municipalities, with priority to small municipalities.
This expanded funding would sunset after 5 years, unless the legislature takes action to extend it.
The bill is awaiting consideration by the Senate Agriculture / Natural Resources Committee. Hopefully next week.
Before going on to the main subject of this newsletter, one brief aside:
This past week, on Feb. 2, the Chief Engineer held the second hearing required to approve and implement GMD 1’s proposed Four County Local Enhanced Management Area (LEMA). No one spoke against the LEMA. In the coming weeks, based on the hearing, the Chief Engineer will issue first an Order of Decision with respect to whether the LEMA should be established per GMD 1’s LEMA Plan.
HB 2279, Requiring GMDs to develop plans to address Ogallala declines
This Thursday, on Feb 9, the House Committee on Water (HCOW) will be hearing testimony on HB 2279. Its short title is “Requiring groundwater management districts to submit annual written reports to the legislature and to provide water conservation and stabilization action plans to the chief engineer.”
The provisions are very similar to requirements of Sections 13 and 14 of last year’s so-called Mega-water bill, HB 2686 (2022). If you are interested, I created a rough comparison of this current version with last year’s, on my web site at: https://kwrconsulting.com/legislation/, under “Bills” and the discussion on HB 2279.
As the short name implies, the bill has two components: annual reporting of GMDs to the Legislature and, more significantly, requirements that GMDs:
By July 1, 2024, the GMDs identify areas of concerns and,
Working with their waterusers, and by July 1, 2026 develop and submit to the Chief Engineer “action plans” to address the groundwater declines in the areas of concern, and
If a GMD fails to develop an adequate plan, the Chief Engineer is authorized to take action.
In my presentation to the HCOW on Jan. 12, I supported the provision of last year’s bill on GMD reporting and especially these requirements to identifying areas of concern, plans to address, and for the chief engineer to have the ability and duty to deal with their failure to do so.
So I plan to offer testimony in support of the bill.
However, in reviewing the details of the proposed bill, I find it is overly broad and unfocused. While all of western Kansas Ogallala is in decline (outside some fringe areas of low use), action is not uniformly needed. On Friday and Saturday, I reviewed the bill in detail and provided the Committee leadership with my suggestions for improving the bill, aimed to focus action where it is most urgently needed, to improve its clarity, and to insure it results in meaningful action.
Specifically, I plan to recommend the bill be modified in the following ways:
The bill should exempt areas already in LEMAs from the first round of action plan development.
Instead of “areas of concern,” the bill should require the identification of “priority areas of concern” where the need for planning and action is most clear and urgent.
With all the data already available, the GMDs can and should have their priority areas of concern identified by the end of this year, and should submit such to the Legislature and state agencies for review by January 1, 2024.
Action plans be submitted over two years, with half being submitted by July 1, 2025, and the remaining by July 1, 2026, to get started and spread the workload.
A clear standard for action plan adequacy should be added.
With respect to the question of “priority areas of concern,” I plan to submit the latest KGS Estimated Useable Life map below and suggest that all areas with less than 50 years of remaining useable life be in a GMD’s “priority areas of concern” as a minimum. This will focus action where most needed.
This year’s bill does not provide a clear statement of what constitutes an adequate plan. I think this is essential. So here is what I plan to suggest. On the KGS’ Remaining Usable Life Map above, I have added KGS’s draft county “Q-stable values” I obtained from KGS last year. The Q-Stable values represent the percentage reduction in pumping required to get to stable water levels for the next couple of decades. As an example, the largest value on the map is Grey County at 53.4. This means the KGS estimates it would take a 53.4% reduction in pumping in Grey County to get Grey County to stable water levels. To halve the rate of decline in Grey County would take a reduction of half of this, or 27%.
In last year’s HB 2686, for failure of a GMD to develop an adequate plan, it authorized the Chief Engineer to “develop a plan to, at a minimum, reduce by 50% the 2000-2019 rate of groundwater declines as determined by the chief engineer…” Again, to obtain a 50% reduction in the rate of decline, the required percentage reductions in pumping would be half of the values in map. To take a less extreme values, in neighboring Haskell County, the 40.6 would mean a 20% reduction in pumping would be needed to half its rate of decline.
In my view, the 50% reduction in rate of decline standard is very serious step, especially for the first set of an action plan. I believe an explicate standard is needed for this process to be taken seriously by a GMD that has been resistant to taking action. I am suggesting the committee adopt a value between 25% and 40% as the required reduction in rate of decline for an action plan to be considered adequate in these areas of less than 50 years of remaining useable life.
Let me know if you have any thoughts, suggestions, or questions.
Catching up on news from the last quarter of 2022, this issue highlights the renewal of both Local Enhanced Management Areas (LEMAs) of Northwest Kansas Groundwater Management District (GMD) No. 4 and the action of the Kansas Water Authority (KWA) in December to adopt a new policy recommendation on the Ogallala.
The Sheridan 6 and the GMD4 Local Enhanced Management Areas (LEMAs) both renewed for 2023-2027
2022 was a big year for LEMAs. In addition to Western Kansas GMD 1 proposing its new Four County LEMA, Northwest Kansas GMD No. 4 (GMD4) had renewal hearings for both its existing LEMAs.
The renewal hearings for GMD4’s two LEMAs were held on July 26 and 27, 2022. Both LEMAs were proposed to continue on largely the same terms as they current exist for an additional five years. The orders, testimony, and related materials for these proceedings can be accessed via the first link above.
On October 14, 2022, the Chief Engineer issued his order of Decision and Designation for the Sheridan 6 LEMA, approving GMD4’s Management Plan for the LEMA, keeping it in place for another five years, from January 1, 2023, through December 31, 2027. The Sheridan 6 LEMA covers about 100 square miles of Sheridan County and a small part of adjoining Thomas County. In short, irrigation lands will again be allocated 55 inches per irrigated acre for the coming 5 years. For more: See DWR’s link above and/or GMD4’s web page for the Sheridan LEMA at http://gmd4.org/SD6.html.
Similarly, on November 22, 2022, the Chief Engineer issued an Order of Decision and Designation approving the GMD4’s Management Plan for the GMD4 (District-wide) LEMA, keeping it in place for another five years, from January 1, 2023, through December 31, 2027. The GMD4 LEMA covers the entire GMD4 except for areas of stable water levels, generally on the fringe of the district. Allocations vary according to the rate of groundwater declines in the township, with more restrictive allocations in areas of greater decline. For more see DWR’s link above and/or GMD4’s web page on the GMD4 LEMA at http://gmd4.org/LEMA.html.
Kansas Water Authority passes new policy recommendation related to the Ogallala Aquifer
On Wednesday, December 14, 2022, the Kansas Water Authority, at its regular meeting in Colby, passed a new policy recommendation to the Governor and Legislature related to the management of the Ogallala Aquifer. Specifically, it advises the following related to depletions in the Ogallala Aquifer:
1. The policy of planned depletion of the Ogallala Aquifer is no longer in the best interest of the State of Kansas.
2. A formal collaborative process is needed to establish data-driven goals, metrics, and actions to halt the decline of the Ogallala Aquifer while promoting flexible and innovative management within a timeframe that achieves agricultural productivity, thriving economies, and vibrant communities – now and for future generations of Kansans.
3. The collaborative process should engage state agencies, regional advisory committees, local stakeholders, groundwater management districts, and the Kansas Water Authority.
This issue overviews the past week’s hearings of House Committee on Water (HCOW), what is coming this week, and announces a new KWRC page for Kansas water news stories in the media. Thursday’s (1/12) HCOW hearing featured former Kansas Chief Engineer David Barfield providing an overview of the responsibilities of the state’s Division of Water Resources and the state’s actions to address declines in the Ogallala Aquifer.
House Committee on Water: last week’s hearing and the week ahead
The HCOW met on Tuesday, 1/10/2023, for introductions and discussion of committee rules.
At the Chairman’s invitation, I addressed the committee for its Thursday hearing (1/12/2023). My topics included overviews of the responsibilities of the Division of Water Resources and its Chief Engineer, the Kansas Water Appropriation Act, the State’s Groundwater Management District Act, the status of the Ogallala Aquifer, actions to reduce groundwater declines (LEMAs, WCAs), and overviewing last session’s Mega-Water Bill (HB 2686).
9:50-21:45 – Duties of DWR and its Chief Engineer; brief interstate overview; Kansas Water Appropriation Act (KWAA, 1945); subsequent water development, Kansas use of water, resulting reductions in streamflow and groundwater depletion; amendments of the KWAA and other related acts.
21:45-34:05 – Groundwater management: the 1972 GMD Act and 1978 amendments to the KWAA and GMD Act; IGUCAs; GMD accomplishments (prior to 2012).
34:05-1:06:30 – Groundwater management, 2012 to current: LEMAs and WCAs.
35:20-44:10 – Northwest KS GMD 4: the LEMA initiator; Sheridan 6 LEMA and its performance; GMD 4 LEMA.
44:10-50:15 – non-regulatory options to address declines; WCAs.
50:15-58:20 – Western KS GMD 1; the Wichita County WCA; the Wichita County and Four County LEMAs.
58:20-1:06:30 – Southwest KS GMD 3; Questions on enforcement; MYFAs.
1:06:30-1:14:40 – HB 2686 of 2022 with an overview and particulars on DWR and it Chief Engineer and groundwater management provisions.
1:14:40 – Committee questions
House Committee on Water’s Agenda for the week of 1/17/2023
1/17/2023 – Kansas Water Office briefing
1/19/2022- Briefings by KDA-Division of Water Resources and the Kansas Geological Survey.
KWRC Kansas Water News page
As a result of the acceleration of Kansas water news, we have started a new page to archive key news stories at: https://kwrconsulting.com/blog/kansas-water-news/. It includes 11 stories from 2022 and already has two articles from 2023, the first on action by Western Kansas GMD 1 to reduce wateruse, and a second on the anticipated confrontation ahead as the Legislature considers action to address Ogallala Aquifer declines.
Note: with increasing media attention to water issues, including this past week’s AP story, “Warning About Aquifer’s Decline Sets up Big Fight in Kansas”, we have created a new page for significant media coverage on Kansas water issues: https://kwrconsulting.com/blog/media-on-kansas-water-issue/
Where we have been:
During the 2021-22 legislative session, the leadership of Kansas House of Representatives agreed to create a special committee to look at the critical state water issues, called the House Committee on Water (HCOW) under the leadership of Representative Ron Highland of Wamego.
Over the course of two years, the HCOW held 50 hearings to gather information about the work of the numerous state and local water agencies involved in the world of water and the state’s water challenges. The following web link includes an index of each hearing: date, subject, and links to presentations and documents provided at the hearings (as well as key events in the legislative process and media responses). https://kwrconsulting.com/legislation/hcow2022/.
On February 14, 2022, the Committee leadership produced the so-called Mega-water bill, due to its size and scope, which included numerous proposals to address the challenges they heard. In short, the bill included:
creation of a consolidating water agency to bring additional focus and coordination,
significant increases in funding for water projects via new fees,
modifying election procedures for groundwater management districts (to broaden representation),
mandating action in areas of groundwater declines,
authorizing the chief engineer to issue certain orders without review by the secretary,
establishing a civil penalty for obstructions in streams violations and establishing the water structures emergency fund.
Rather than debate the Chairman’s revised bill, a legislator proposed a substitute bill which gutted key components of the bill. While it passed out of committee, it was never heard by the full House of Representatives as it no longer had leadership’s support. So, in short, ultimatelythe mega-water bill went nowhere. See the media’s response at our new media page.
But the issues remain. Retiring Rep. Highland asked for an 2022 interim committee, seeking to continue the momentum of the HCOW’s work as well as an audit of the states’ Groundwater Management Districts (GMDs), which is to be made public during mid-Feb. 2023
The interim’s “Special Committee on Water”, composed by both Senate and House members was a disappointment. The two days including some valuable briefings from the state water agencies dealing with water issues, but the “committee discussions” that followed were very short and disappointing as they did little to move forward the Legislature’s discussion of these critical water issues. For those interested in the Ogallala aquifer, DWR’s presentation AND the two KGS presentations are worth a listen. For links to these presentations and more: https://kwrconsulting.com/legislation/special-committee-on-water-2022/.
Where do we go from here?
The concerns listed above remain unresolved. Several legislators lobbied the new Speaker of House to continue the House Committee on Water. Ultimately, he agreed and appointed a new leadership: Representative Jim Minnix of Scott City as chair and Representative Cyndi Howerton of Wichita as vice-chair. Democratic Rep. Lindsey Vaughn will continue as ranking minority member.
Once again, we have built a web page to chronicle the HCOW’s work, and any significant water legislation from other House committees or the Senate. See https://kwrconsulting.com/legislation/.
Of the 17 committee members, 11 are new. So, the first few weeks will likely include a number of briefings to get new members up-to-speed on water issues generally and last session’s work.
This coming week’s agenda includes:
Tuesday, January 10, Committee introductions, and discussion of the committee’s purpose, rules, procedures, and such.
Thursday, January 12, David Barfield, Retired Kansas Chief Engineer. Rep. Minnix contacted me at the end of 2022, requesting I provide the committee with a briefing on the duties of the Chief Engineer, and my experiences as Chief Engineer, particularly as it relates to the Ogallala Aquifer and the new tools developed to address groundwater declines during my tenure (LEMAs, WCAs, MYFAs). I will also briefly overview last session’s HB 2686, with a focus on its provisions related to groundwater management.
As reported previously (see https://kwrconsulting.com/gmd-groundwater/gmd-1s-proposed-four-county-lema-%ef%bf%bc/), the 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 in about one-half of the irrigation wells no longer being used. Despite reductions in use, the aquifer continues to decline. To extend the life of the Ogallala Aquifer within GMD 1, the GMD 1 Board first developed the Wichita County Local Enhanced Management Area (LEMA), implemented starting in 2021, and on July 1, 2022, requested the Chief Engineer initiate proceedings for its proposed “Four County” LEMA to cover the rest of the district.
See the article cited above for a description of the LEMA tool generally, as well as specifics for GMD’s proposed Four County LEMA. In short, the article covered the following:
The GMD Act was amended in 2012 to allow GMDs to develop a specific proposal for reducing groundwater declines in all or parts of their District as Local Enhanced Management Areas(LEMAs) andto have that proposal considered for adoption by DWR’s Chief Engineer via two public hearings. 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.
After careful consideration, including significant public input, GMD 1 developed its Four County LEMA to cover the rest of the District. Required reductions, designed to extend the life of the Ogallala Aquifer within the District, would vary from 0 to 25%, with larger reductions for larger wateruse and lesser reductions for smaller wateruse. 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.
Initial public hearing to consider the GMD 1’s Four County LEMA Plan
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.”
As a result, the Chief Engineer further ordered that a second hearing to consider the designation of the Four County LEMA would be held.
Second Hearing on Feb 2 considers whether the LEMA Plan should be adopted
Notice of the second hearing was sent to all water right holders within the proposed LEMA and other effected parties, a copy of which is available at the link above.
The hearing will be held at 10:00 a.m. central time on February 2, 2022 at the Western Kansas Child Advocacy Center, 212 E. 5th Street, Scott City, Kansas.
The hearing will determine whether the proposed LEMA should be designated and if the corrective controls proposed in the LEMA Management Plan shall be accepted, rejected, or if modifications to the plan should be proposed.
For more information
In addition to DWR’s web site noted, additional information can be found on GMD 1’s web site at https://www.gmd1.org/lema/, which 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.
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.
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
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
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.
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.
Therest 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.
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.