This set of articles is my extended, three-installment comment on Diane Wahto's earlier and elucidating remarks (Water Shortages, the High Plains Aquifer, and the Governor's Summit) about the hydrology and the overall scenario concerning a vital and disappearing resource: the Ogallala Aquifer. Much of what I will have to say comes from the days of my earlier, and more hopeful involvement at the lowest bureaucratic level of Kansas water governance -- the Basin Advisory Committee. Since one cannot reliably predict the future, logically speaking, we do not know where Governor Brownback's initiative will lead. In some sense, it will be like locking the barn door after too many of the horses have left. To put it bluntly, I see little in what the Governor has proposed so far that differs from the pious rhetoric of the past several decades by those who could have actually done something to bring genuine stewardship.
BOGUE, Kan. - The disappearing Ogallala Aquifer. Well, where to begin. For nearly 18 years, I served on the Solomon River Basin Advisory Committee (BAC), the last few years as chair.
In Kansas, and I suspect elsewhere, the Ogallala depletion problem is basically -- as un-politically correct as it may be to say it -- that 'the drunks are running the liquor store.'
By drunks, I mean those who are and have been addicted to the unsustainable mining of a precious and irreplaceable resource for monetary profit, abetted by allies and those a psychologist might call their enablers. My drunks-at- the-liquor-store metaphor has angered irrigators, their allies, and enablers, but it is more appropriate than any I can think of. Alcoholics are often decent people, but stubbornly exemplifying ultimately destructive behavior. Their allies are like the liquor companies who benefit from sales, and aren't much concerned about the long term consequences. Enablers are those who live around them, often love them as people, and are afraid to bring up the subject.
To rationalize the addiction, the irrigation and allied feedlot lobby touts "local control" by which they justify their addiction and long history of relative inaction--offering instead pious rhetoric. In western Kansas well over 95 percent of water use is via irrigation agriculture. GMDs, or "local-control" bureaucracy, are essentially run by irrigation interests, numerically a tiny percentage of the total population. Yet they have had near total control of a vital resource and little regard for the future. (To be a voting GMD member requires using at least an acre-foot of water annually or owning 40 contiguous acres outside a municipality. )
In the western, semi-arid third of Kansas, the area of greatest water use, BAC membership predominantly represents large agricultural water users. Not a little of the reason is that the general public is largely inactive on the issue, but GMDs have done all they can to see that they either control or have strong representation on BACs, whose important charge is to advise the Kansas Water Authority.
Those members of the Kansas Water Authority who represent the Ogallala area are mostly irrigators or allies. Legislators from the area have historically been frightened politically to deal forthrightly with the issue, or are themselves involved in irrigation. Legislators from the eastern parts of Kansas have sat on their hands. And the general public, as usual, has been too busy or too timid to get involved. The KWA has preferred not to require BAC representation to be more representational of the general public.
In 1986 questions arose about the problems of what I have called "the drunks running the liquor store by our Solomon River BAC, and the City of Hays. Steven Hurst, then Director of the Kansas Water Office, summarized the issue for the Kansas Water Authority in a paper entitled "Concerns with the Groundwater Management District Act."
The Water Authority sat on its hands. In 1999, Hurst reviewed the issue for the new KWO Director Al LeDoux, and concluded the issue was "too politically volatile to deal with and [they] chose not to." Too politically volatile??
Task forces under two governors did make an effort to face up to the problem on behalf of stewardship. In 1992, a Regents' Task Force called together by Democratic Governor Joan Finney said that Kansas natural resources belonged to all Kansans and future Kansans. It called for "a long term goal of sustainability," and declared that the state must eliminate "sending the fox to guard the hen-house." However, the legislature and the rest of the water governance bureaucracy obviously saw the issue as "too politically volatile to deal with."
In July 2000, as chair of the Solomon BAC, I delivered a pointed seven-page statement to the assembled Kansas Water Authority meeting in Salina, Kansas. Soon after that, Republican Governor Bill Graves appointed another task force. It echoed the recommendation of Joan Finney's administration, this time setting 2020 as a goal for sustainable use of the Ogallala.
Our Solomon River BAC, originally the most democratically representative BAC in Western Kansas, had consistently called for sustainable use since 1984, and did so again in 2000. But behind closed doors, the KWO and the KWA deleted our specific call for sustainable use by 2015 from recommendations presented to the legislature, Our committee revolted and refused to approve the plan. It made no difference, and Governor Graves' task force disappeared into the woodwork,as had Finney's. (So, apparently, have the written reports)
The current notion by our present (and I hope one-term) Governor that affirming "local control" is the answer is predictable, but irresponsible.
Now, let's blow away the smoke from a common claim by the irrigation/feedlot lobby -- which is implicitly that those who have an irrigation appropriation own the water. No, they don't.
An appropriation right is a right to USE water. Kansas Statute (KSA 82a-707a) expressly states that an appropriation right does not equal "ownership of such water." Plain language. Let's use a more ordinary illustration: A someone is given the right to drive an automobile but not ownership of the vehicle. That is, the title remains in other hands, and the title owner may reduce the miles permitted to be driving, or reclaim the automobile.
By the same token, an appropriation right holder is permitted to USE a specific amount of water annually for an indeterminate period, but does not own the water. Also, NOTHING in an appropriation right guarantees the right holder the quantity of water originally appropriated. Nothing.
Sadly, however, the irrigation lobby, including the euphemistically labeled GMD's have sold the fiction that appropriation right holders in essence "own" the water. They don't use the term "own," but they will argue that if the amount is reduced by the State of Kansas, taxpayers must pay them under the takings clause of the 5th Amendment of the U.S. Constitution.
(To be continued in Part II.)