DWR Currents

October 6, 2010


Supreme Court Invites U.S. to Weigh-In on Republican River Lawsuit
In its “Order List" of October 4, 2010, – issued the first day the court reconvened after its summer recess – the U.S. Supreme Court was characteristically thrifty with words.  With a single sentence the court recognized Kansas’ May 3, 2010, petition for action to address Nebraska’s 2005-2006 violations and to secure future compliance:

 “126, ORIG.    KANSAS V. NEBRASKA AND COLORADO
The Acting Solicitor General is invited to file a brief in this case expressing the views of the United States.”

This is consistent with the court’s action in previous lawsuits, and it was the expected next step in this one.

According to the solicitor general’s website:

“The task of the Office of the Solicitor General is to supervise and conduct government litigation in the United States Supreme Court. Virtually all such litigation is channeled through the Office of the Solicitor General and is actively conducted by the Office. The United States is involved in approximately two-thirds of all the cases the U.S. Supreme Court decides on the merits each year.”

The court did not establish a deadline for the acting solicitor general to file a brief.  Based on other lawsuits, it may take several months.

Right: The U.S. Supreme Court Building.  Photo courtesy of Supreme Court of the United States.

It is unknown whether the recent appointment of former solicitor general Elena Kagen to the Supreme Court, and the subsequent appointment of Neal Katyal as acting solicitor general, will have any effect on the time frame for the U.S. to file a brief in this case.  Katyal previously served as principal deputy solicitor general, which could mean timely action in this matter.


Impairment Regulations Adopted
Last week Chief Engineer David Barfield signed the certificate to adopt the amended regulation K.A.R 5-4-1, “Distribution of water between users when a prior right is being impaired,” and new regulation K.A.R 5-4-1a, “Distribution of water between users when a prior right is being impaired due to regional lowering of the water table.”

The new impairment regulations will be published in the October 14 Kansas Register and will become effective October 29, 2010.

“Impairment” refers to a condition caused when water diversion under a junior (newer) water right/permit reduces the quantity or quality of water available to a senior (older) water right/permit to an extent that the senior water right/permit cannot be satisfied.

The regulations specify procedures for filing, investigating and resolving impairment complaints.  The regulation amendments and the new regulation focus on impairment procedures in groundwater systems.

The amendments and the new section accomplish the following changes:

• Add requirements for complainants to demonstrate that their well and pump system are adequate
• Provide a formal process for groundwater management districts to provide input and to help with impairment investigations within their boundaries
• More specifically detail the steps involved in impairment claims and investigations, especially in groundwater systems
• Establish procedures for instances when the impairment is found to result from regional lowering of the water table

We have been working on the amendments and new section for more than a year:

• The process began after an impairment case in Stevens County resulted in administering a junior water right beginning in 2008.
• This led to public and legislative scrutiny of statutory authority and regulatory processes.  KDA convened an advisory committee made up of stakeholder group representatives to discuss issues and review drafts of updated impairment regulations.
• In April 2010, the chief engineer conducted a public hearing on the proposed regulations.  The Kansas Legislature’s Joint Committee on Administrative Regulations also held a hearing on the proposed rules.
• Following the hearings, it took several months to consider legislative and public comments and to make revisions based on those comments.
• The final version of the regulations was resubmitted for review and approval by the Kansas Department of Administration and the Attorney General’s Office.

This is the first time the impairment regulations have been amended since they were adopted in 1978.


More High-Profile Water Permits Issued
Shortly after signing the largest water appropriation permit in Kansas history last month for a hydropower facility on the Kansas River in Lawrence, Chief Engineer David Barfield signed several more high-profile water appropriation permits last week:

• A new permit to Water District No. 1 of Johnson County (WaterOne) for an additional 100,000 acre-feet per year of authorized quantity for their new collector well in the Missouri River alluvium, based on higher than expected yield.  This permitted quantity is subject to the district’s existing overall quantity limitation, but it increases their operational flexibility between wellfields and surface water supplies.
• Eight new permits and a related order specifying operational limits and accounting for the City of Wichita’s Phase II Aquifer Storage and Recovery project.  These permits are in addition to the 24 re-drilled wells approved last fall.
• A new permit for Kaw Valley Drainage District authorizes high-rate dewatering of levee seepage similar to a permit issued to Fairfax Drainage District last fall.

Reaction of one western Kansas group to DWR’s announcement of the “largest water appropriation permit” was prompt and tongue-in-cheek: How about sending some water our way?

The number of high-profile water appropriation permits issued in a short time frame does not mean the chief engineer has become less protective of the state’s resources or found a way to overcome the climate and geographic realities of our state.

“Water remains a limited resource in much of Kansas,” said Barfield.  “These water power, public water supply and dewatering projects have been in development for some time – years in most cases – and it is purely coincidental that they reached fruition around the same time.  All of these projects occur in areas that remain open to new water appropriation, and these permits are for flow-through use, for diverting flood flows, or are limited to existing caps.”


Dam Being Removed in Gray County
DWR recently received a permit application to breach an existing class “c” high-hazard dam located on privately owned land in Gray County.  The hazard class does not reflect the condition of the dam, but rather the consequences if it should fail.

“While the reservoir is dry most of the time, it still is able to impound water when runoff occurs.  If it failed during or after a flooding event, we are confident it would put a significant amount of water over U.S. Highway 50,” said Matt Scherer, Water Structures program manager.

Right: Upstream face of the subject dam.  DWR file photo.

Originally issued a construction permit on August 14, 1968, the dam apparently was constructed for flood control and cattle watering.

DWR inspections in 1990, 1993, 1999 and 2006, and by a private engineering firm in 2004, noted the dry reservoir and several maintenance issues subsequently addressed by the landowner.  Inspection reports also documented findings that the dam required upgrades to meet current design criteria for its size and hazard class.

“Due to some other issues the owner has had to deal with and the requirements to upgrade the dam, he decided not to continue maintaining it,” said Leonard Bristow, a water structures engineer based at DWR’s Stockton field office.

The landowner has hired an engineering firm to submit a breach plan for DWR’s approval and to oversee the dam’s removal.  The plan includes information regarding the breach cross section, view, profile, spoil use, reseeding disturbed areas, and controlled release of stored water (if any).
 
Since the structure is normally dry, a primary focus in the dam breach is to ensure it is wide enough to not cause an unreasonable increase in the 1 percent chance (100-year) flood event.  Using U.S. Geological Survey regression equations, the 1 percent chance flood event is estimated to have a peak discharge of 1,490 cubic feet per second at this location.

Because of planned U.S. Highway 50 improvements in the dam vicinity, it is anticipated the landowner may have fill soil from the dam to offer for the road construction project.


Upcoming Events

• October 12: GMD 2 Board Meeting (Halstead)
• October 12: GMD 5 Board Meeting (Stafford)
• October 13: GMD 3 Board Meeting (Garden City)
• October 19: GMD 1 Board Meeting (Scott City)
• October 25: Public Hearing on Proposed Regulations (Topeka)
• October 26: Water and the Future of Kansas Conference (Topeka)

For more information about these and other upcoming events, please check our online events listings.