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The Disappearing Ogallala Aquifer, Part II

By Bob Hooper
Analysis | December 12, 2011
Kansas Groundwater Management Districts once argued that they, not the Chief Engineer, had primary authority to regulate water withdrawals in their respective districts. Some may believe that today. The following should clarify the matter.

BOGUE, Kan. - It is true that an appropriation permit may be sold, but the Chief Engineer at the Division of Water Resources (often called the Czar) is not legally obligated to approve the original amount appropriated.

I assume Kansas Administrative Regulation 5-3-9 approved in 1994 (which has the full force and effect of law) is still in force. In pertinent part it says that "unless otherwise provided by regulation, it shall be considered in the public interest that only the safe yield of any source or water supply ... shall be appropriated.

Authorization of the regulation can also be found in KSA 82a-706a -- which dates to 1957! In other words, as I have written before in a statement to the gathered Kansas Water Authority in July of 2000, the Chief Engineer has had the responsibility to enforce safe-yield in the public interest but has never really lived up to his responsibility by declaring intensive groundwater use areas (IGUCA) and reducing water use.

To be specific:

"These statutes allow the Chief Engineer to implement additional corrective control provisions in areas where it is determined, through a public hearing process, that groundwater levels are declining excessively, the rate of groundwater withdrawal exceeds the rate of groundwater recharge." (K.S.A. 82a-1036, K.S.A. 82a-1037 and K.S.A. 82a-1038.) Most passed in 1978.

Please note that it's the Chief Engineer, DWR, who has that responsibility. GMD's will tell you otherwise and have long argued it is they, not the Chief Engineer, who determines IGUCA in their District. They are wrong.

In 1998, Attorney General Carla Stovall (Opinion 98-24) had this to say on the matter:

"...the Legislature intended that K.S.A. 82a-701 et seq. control the appropriation of water and that the Chief Engineer enforce the act statewide. To limit the Chief Engineer's ability to adopt, amend, and promulgate regulations applicable to all groundwater management districts would effectively deprive him of the necessary powers to carry out the mandate of the Legislature and would thwart the purposes of the act. The act imposes no such limitations, and the Chief Engineer maintains the rule-making authority for the entire state as specifically granted by the Legislature. Cray v. Kennedy, 230 Kan. 663, 675 (1982).

"It is therefore our opinion that regulations recommended by a GMD which conflict or are inconsistent with those statewide regulations promulgated by the Chief Engineer are superceded to the extent they are in conflict or inconsistent."

In 2002, in a response to then Sen. Stan Clark, acting at my request, the Attorney General summed it up once more:

"An interpretation of K.S.A. 82a-1036 [concerning IGUCAs] that limits the Chief Engineer's ability, on his own initiative, to establish an intensive groundwater use control area inside the boundaries of a groundwater management district does not comport with the clear intent of the legislative scheme authorizing the Chief Engineer to regulate water."

(to be continued in Part III. To read Part 1, click here.)


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This page contains just one story published on December 12, 2011. The one written previous to this is titled "The Disappearing Ogallala Aquifer, Part I" and the story published right after this one is "The Disappearing Ogallala Aquifer, Part III"

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