Week of January 31, 2011
Debunking Myths About “Use It or Lose It” Regarding Water Right Abandonment
“Based on conversations with water users, stakeholder organizations, and government officials, there seems to be widespread misconceptions that water rights can easily be lost if not exercised frequently,” said Lane Letourneau, Water Appropriation program manager for DWR. “The truth is the Kansas Water Appropriation Act sets a high standard for finding a water right abandoned.”
In order to help spread this message, we have assembled a list of common myths about “use it or lose it,” the oft-quoted saying that is sometimes accurate but often misrepresented, and the corresponding realities of Kansas water law related to abandonment of water rights:
Myth: If a water right owner doesn’t use water for three years, the state will take away their water right.
Reality: DWR is required by law to notify water users when they have reported three consecutive years of nonuse. However, a water right is not considered abandoned unless there are five consecutive years of nonuse without due and sufficient cause.
Myth: A person who owns a water right has to pump water – whether they need the water or not – in order to avoid losing their water right.
Reality: Kansas law prohibits waste of water, including the application of more water than needed. If a water right owner doesn’t need water for five or more consecutive years, chances are they either don’t need a water right anymore or their nonuse is covered by a due and sufficient cause such as adequate moisture for irrigated crops from precipitation, enrollment in an approved conservation program, or located in an area closed to new appropriation of water.
Myth: The state takes lots of water rights away. It must be a big problem because I hear a lot of concerns about this.
Reality: Out of more than 30,000 active water rights, typically about 20 water rights are found to be abandoned each year. Often, these abandoned water rights were unused for decades and do not have operational diversion works (for example, a well, pump, and distribution system). These water rights really are abandoned.
Myth: The state has an incentive to terminate water rights in order to report water savings.
Reality: Terminating abandoned water rights doesn’t save water because nonuse of water (without due and sufficient cause) is the reason for abandonment. Instead, to address the problem of declining water supplies in the Ogallala aquifer, for example, the state and groundwater management districts have implemented limitations on new appropriations, well spacing requirements, and enforcement of water rights to make sure they do not exceed their allotment. More work is needed, but ratcheting up water right abandonments is not part of the plan.
Myth: If the state were serious about conserving water, they’d do away with “use it or lose it.”
Reality: Forfeiture of unused water rights is a central tenet of the prior appropriation doctrine on which Kansas water law is based. “All water within the state of Kansas is hereby dedicated to the use of the people of the state, subject to control and regulation of the state in the manner herein prescribed,” is the legislative dedication of use of water in the Kansas Water Appropriation Act. If unused water rights were kept on the books in perpetuity, it would prevent other people from acquiring water rights to put water to beneficial use. So there are good reasons to keep abandonments as part of our water law.
|The newest due and sufficient cause for nonuse is a 2010 amendment to the Kansas Water Appropriation Act that states, “a groundwater right, which has as its local supply an aquifer area that has been closed to new appropriations by rule, regulation or order of the chief engineer and where means of diversion are available to put water to a beneficial use within a reasonable time, shall be deemed to have due and sufficient cause for nonuse and shall not be deemed abandoned.” (K.S.A. 82a-718(d))|
Myth: “Use it or lose it” makes it difficult or impossible to conserve water.
Reality: There are many opportunities to conserve water without jeopardizing water rights. All water users are encouraged to conserve water through voluntary conservation practices. About a dozen due and sufficient causes for nonuse of water protect water rights from abandonment. DWR is actively working with stakeholder groups to establish a reformed Water Rights Conservation Program. The state is collaborating with the federal government to develop a crop insurance program for limited irrigation. The Central Kansas Water Banking Association combines water conservation with flexible leasing options. DWR is seeking changes in the multi-year flex account program to encourage water conservation with improved capabilities to weather variable climate conditions. These are but some of the ways the state promotes and facilitates water conservation while protecting water rights.
Do you have a water conservation question, concern, or idea? We’d like to hear it. Please use our online comment form.
DWR Finds No Well Interference at Impairment Investigation in Harvey County
On Jan. 28, DWR finalized its report for an impairment investigation in rural Harvey County. This is the first groundwater impairment investigation to be completed since the rules and regulations were amended in October 2010.
The owner and operator of an irrigation well in Harvey County, Water Right File No. 41,475, filed this impairment complaint on July 1, 2009. Citing a significant reduction to his historical pumping rate, the owner alleged his well was being impaired by pumping the neighboring junior irrigation well to the north, Water Right File No. 47,110. On July 13, 2009, DWR staff instrumented the owner’s well and neighboring irrigation well with water level sensors to monitor the depths to water over time. Monitoring occurred until after the irrigation season of 2010 was finished. When the neighboring irrigation well was turned on and off during the irrigation season, DWR staff did not observe any corresponding changes in water level at the complainant’s well. DWR staff also read water meters at these wells on four occasions and did not observe well-to-well interference on those occasions either.
Right: A diagram from the impairment report shows a lack of correlation between pumping at a neighboring well and water level changes at the complainant’s well. (Click to enlarge image)
In December 2010, DWR staff completed an initial report of the investigation documenting a lack of discernable well-to-well interference. The agency provided notice of the initial report to the complainant, to Equus Beds Groundwater Management District No. 2 (since the owner’s water right is located within the boundaries of the district), and to the owner of the neighboring irrigation well. Staff posted the report on DWR’s impairment investigations website in accordance with the amended regulation, providing a formal opportunity for comments to be submitted to the chief engineer through the close of business on January 28, 2011. Since no comments were received, the initial report has become the final report.
This is the first impairment investigation to be concluded under K.A.R. 5-4-1 as amended on October 29, 2010. As a result, DWR provided a more formalized opportunity for the complainant, other potentially affected parties, and the groundwater management district to submit comments (although none did). However, this impairment investigation was nearly completed when the rules and regulations were amended, so this complaint was not subject to new requirements for the complainant to demonstrate adequacy of their well and pump equipment.
Legislative Update: More Water Resources Bills Introduced or Proposed
Below is a summary of 2011 water resources legislation introduced or proposed to date:
|Bill No.||Summary Title or proposed purpose||Latest Action|
|HB 2096||Providing for a coordinated water data repository system; granting preservation easements; drinking water costs in water plan storage rates||Jan. 27: Referred separately to Committee on Agriculture and Natural Resources and Committee on Vision 2020
|HB 2109||Creating the Kansas Dam Rehabilitation Program||Jan. 27: Referred to Committee on Agriculture and Natural Resources|
|HB 2116||Establishing state property tax levy for state water infrastructure maintenance, construction, renovation and acquisition||Jan. 28: Referred to Committee on Taxation|
|SB 3||Establishing the Kansas Natural Resources Subcabinet||Jan. 11: Referred to Committee on Ways and Means
|Pending||Amending the multi-year flex accounts program to update base period for water use and allow current-year enrollments||Jan. 25: Approval to submit bill for introduction by House Committee on Agriculture and Natural Resources
|Pending||Establishing a reformed water rights conservation program with fees||Feb. 3: Approval to submit bill for introduction by Senate Committee on Natural Resources
|Pending||Amending the Water Banking Act to expressly authorize renewal of existing water bank charters||Feb. 3: Introduced by Senate Committee on Natural Resources at the rail|
|Pending||Amending the water litigation to use moneys recovered from litigation to replenish the water litigation fund by the cost of litigation plus five percent||Feb. 3: Introduced by Senate Committee on Agriculture at the rail|
More information about the first two pending bills:
- Multi-Year Flex Accounts: The flex account program was enacted through K.S.A. 82a-736 in 2001 and amended in 2005. It provides an opportunity for water users with established water rights to obtain 5-year term permits that allow for exceeding the annual authorized quantity of a water right as long as the 5-year term permit limitation is met. For example, an irrigator could benefit from a flex account to lawfully apply more water to crops in dry years and make up for it with reduced use in wet years. The five-year allocation is based on actual use as opposed to authorized use, and includes a 10 percent reduction for water conservation. There has been little enrollment over the program since its inception, and no enrollment the past couple years.
Proposed amendments include:
- Updating the base period for water use on which the five-year allotment is based from 1992 through 2002 (currently) to 2000 through 2009 (proposed)
- Allowing same-year sign-ups (currently the deadline is Oct. 10 of the preceding year)
- Other details would be set forth in rules and regulations
- Water Rights Conservation Program: The water rights conservation program was established through K.A.R. 5-7-4 in 1994 and amended in 2000 and 2009. The program involves contracts between water right owners and chief engineer of the Kansas Department of Agriculture’s Division of Water Resources in which the owner agrees to forego water use for a set period between 5 and 10 years in return for the contract constituting due and sufficient cause for nonuse of a water right even if diversion works are not maintained. The 2009 amendments discontinued new WRCP contracts as a result of budget cuts. Over 900 water rights remain enrolled in WRCP for the duration of their contracts. Groundwater management districts and some other stakeholders have expressed a desire for the state to resume the program with fees to cover the program costs.
Proposed provisions include:
- Specific authorizing language
- Establishing a fee
- Other details would be set forth in rules and regulations
More details about bills, committees, and other information is available on the Kansas Legislature’s website.
- Feb. 8: GMD 2 Board Meeting (Halstead)
- Feb. 9: Floodplain Training: Substantial Damage Estimation (Valley Center)
- Feb 10: GMD 3 Board Meeting (Garden City)
- Feb. 15: GMD 1 Board Meeting (Scott City)
- Feb. 15-16: Kansas Dam Safety Conference (Topeka)
- Feb. 16: GMD 4 Annual Meeting (Goodland)
- Feb. 17: GMD 5 Board Meeting (Garden City)
For more information about these and other upcoming events, please check our events listings at www.ksda.gov/dwr/events.