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The Disappearing Ogallala Aquifer, Part III

By Bob Hooper
Opinion | December 12, 2011


This article is a continuation and the third in a series of three. To read Part 1, click here, and Part II, click here.

BOGUE, Kan. - I had hoped the opinion we sought from Stovall would also deal with the problem of irrigation lobby dominance of water politics. I sought a one-person, one vote representational scheme but unfortunately the Kansas State Attorney General disagreed. "The definition of an eligible voter found in K.S.A. 82a-1021 does not violate the one man, one vote rule of the United States Constitution." Unfortunately, only a tiny fraction of the people living in the area directly affected by GMD policies, the thousands who have stake in the future and an opinion about what should be done and when, have any vote in GMD decisions. That ought to change.

As to takings, the AG essentially ducked the question: "Whether a reduction of a water right constitutes a compensable taking depends upon the purpose for which the reduction is made. Without consideration of the purpose for which the reduction is made, no balancing test can be applied to determine whether the taking is compensable."

In other words, a critical issue -- whether private disputes over water appropriation rights takes precedence over the Chief Engineer acting in the broader long term stewardship of the resource -- was not, and hasn't been, addressed, either by the Attorney General or by the courts. It must.

When and if it happens (and it is overdue), the irrigation lobby and allies will make the predictable "first in time, first in right" argument against state imposed, uncompensated (or what they see as inadequately compensated) taking. In other words, they will argue a non-starter: "It's our water, pay us."

First in time law is expressed in K.S.A 82a-707c. However, I am confident the court--after the appeal process had run its course--would ultimately interpret first in time as applying only to cases involving private parties. Regulatory action by the State of Kansas in the larger long term public interest, under the purview of the statutes and administrative regulations I've cited, is another ball game.

In 1994, the Public Law Research Institute in California was asked to "determine whether the entitlement rights of a water district rose to the level of property interests within the meaning of the Fifth Amendment."

The opinion was that "The District's contractual rights do not rise to the level of property within the meaning of the Fifth Amendment" because of "the inherent right of state and local governments to enact legislation protecting the health, safety, morals or general welfare of the people within their jurisdictions." Under existing Kansas law, in which the principle of a public resource is much clearer, I predict the same result.

So, am I saying the Chief Engineers over the past five decades have flunked the test of responsibility. YES! And the legislature has tolerated or ignored their failures.

A reliable source told me that Guy Gibson, Chief Engineer during some of the most intense appropriation (1972-1983 told him privately that water was being seriously over-appropriated--but predicted nothing would happen until somebody hollered. David Pope, his successor who held the position for 24 years, knew it as well.

David Barfield, the current Chief Engineer, appointed in 2007 has so far done little to brag about other than what his bio calls an "Ongoing dialogue with groundwater management districts and others regarding options to address past over-appropriation of some water resources." Like the others, he's passing the buck.

So here's where we are. One of a few honest people I met in my years of advocacy for responsible stewardship of the resource, Stephen Hurst in 1999 concluded the issue was "too politically volatile to deal with" and they, meaning the GMDs, the Kansas Water Office, the Kansas Water Authority, the Legislature -- and ultimately, the Chief Engineer of the Division of Water Resources] "chose not to."

As for most of the good people of Kansas. They'd rather not be bothered, it seems. Me, I just got worn out trying.


24 Comments

Bob, you are right on many of your premises. State law was established back in --, I can't quote the time --. That law declared that both surface and underground (aquifer) water belonged to the people (State). The water appropriation laws gave the State the responsibility and right to appropriate specific amounts and sources of water to individuals (and cities) for specific purposes. Those 'appropriated' rights are real property rights, just like title to your real estate property, which originally belonged to the U.S. government. If the U.S. government determines that it needs your property back, for what ever reason, it must compensate you for it. The Constitution gives the government the authority to take your property, if it is determined that is necessary to protect the rest of society. However, it cannot take control of your property, even temporarily, without compenstion.

As for voting rights and privileges, you have a rather weak argument. Politicians listen to Chamber of Commerce, Farm Bureau (more interested in insurance business than agricultural issues), financial institutions, and general popular opinion more than they do to farmers. The 40 acre minimum is an irrational figure for qualifying voting privilege in Managment Districts. But, when the legislature and Chief Engineer gave Managment District the right to levee taxes on acres the small acreage owners and dryland farmers raised one H of a fuss. The small acreages were exempted automatically and the dryland farm owners were given the privilege of foregoing voting privileges to exempt their property from taxes. The five thousand city residents of Colby and the Municpality are guaranteed water, regardless of District policies.

State law protects domestic users and cities, if interference from an irrigation well is determined. I will agree with you that irresponsible appropriated amounts of water far exceed safe yield to maintain the historic water table levels, prior to 1950. Irrigators were not organized nor were Management Districts in place. Don't blame the over appropriation solely on irrigators or the Management Districts. Economic Developement was the driving force to benefit retail businesses, commercial property owners and speculators. Forces outside of production agriculture did not want the developing irrigation practices hampered in any way.

Bob, you live east of the intensive irrigation area, but if you don't think the economic benefits of irrigation have made your property more valuble, I guess that's your call and privilege.


Ken, thanks for responding. I understand quite well that you feel "under attack" personally because of your involvement and personal gain from irrigation. Here are my observations on your comments.

KEN: "Those 'appropriated' rights are real property rights, just like title to your real estate property,"

>Not really. Your argument is the same one perpetrated by the irrigation lobby to which you have belonged and are still, in some sense, a part of. The stature I cite says specifically that an appropriation right "does not constitute ownership of such water." It is NOT like a deed to your house or your land, though I know you've been told and sold that. I understand why you wish it was true. However, "does not constitute ownership of such water" is a VERY clear statement.

KEN: " If the U.S. government determines that it needs your property back, for what ever reason, it must compensate you for it."

>Again, the "property" is not yours. Unlike mineral rights, you do not own the water under your land. Therefore, it does not fall under the 5th Amendment takings clause--even though you wish it did.

And, nothing in an appropriation permit/right assures the right holder that amount of water in perpetuity. True, the issue has not been tried in the courts; it should have been, and it should be now.

KEN: "As for voting rights and privileges, you have a rather weak argument"

>Disagreed. The little old lady with a vegetable garden and grandkids who'd like to live in the Ogallalaa region have every bit as much right to a vote in GMD policies as an irrigator who operates a dozen circles, or even a non-irrigator who owns 40 acres outside a municipality. (And I can see why that non-irrigator objects to paying taxes to support the GMD whose policies affect his own water levels)

Ag irrigators and the GMD's have had a narrow bias--essentially seeing a precious resource as being used most advantageously for agriculture, which would be less a problem if there were infinite supplies of clean water. But instead, a resource millions of years old, is being mined for the short term.

KEN: "Economic Developement [sic] was the driving force to benefit retail businesses, commercial property owners and speculators"

> It is certainly true that profit from irrigation agriculture has accrued to considerable measure to the general economy of the area. It is even more true that most irrigators and their families have done quite well themselves financially.

However, that is not the relevant point, even as the philosophy short-term exploitation has been pandemic in this nation and others. The point is that the resource was wildly over-appropriated early on and nothing too substantial has been done to change that--principally because, as Steven Hurst put it--the issue was "too politically volatile."

It is a case of exploitation for short term profit over long term stewardship.
It is surely true that some water will remain. However, at "the bottom of the bucket" so to speak, the water will be increasingly expensive to withdraw, and the quality likely much inferior.

KEN: "Forces outside of production agriculture did not want the developing irrigation practices hampered in any way."

>The "forces" are the allies and enablers of whom I speak. They too had (and many still have) a short-term philosophy, but I think that is changing (sadly, later than it should have). Long ago, I wrote about the loss of perennial stream flow, a consequence mostly attributable to groundwater mining (since many streams are hydrologically dependent for basic streamflow on seepage from the Ogallala).

A GMD board member asked, "So what good does all that water do just running down the river?"

I replied, "Maybe we should ask all those who live down along the river."

No, drunks are automatically, bad people--just addicted. Those who've profited second-hand from the addition and those who knew but didn't act are responsible as well. The mining of the Ogallala for short-term profit from the narrow economic perspective of agriculture is only one of several issues of short-term exploitation. And it is classic environmental irresponsibility.

Is growing corn to feed fat cattle to make more people fat the best and only way to use the Ogallala...now and for the future. I don't think so.


Bob, we are in complete agreement with the fact that Water Appropriation Rights have grossly exceeded sustainable amounts. Our differences are in the underlying motivation for the excess, where the bottom line responsibilty lies, and how to deal with the problem now.

What is a Water Appropriation Right? It is just that; The right to extract and use a given quantity of water for a specific purpose. No, it does not give ownership of the water supply available. But it does give absolute right to the use of that water. And when the provisions of that agreement are broken by either party the other party is entitled to redress or compensation. The fact that the state guaranteed more than they could supply does not negate the state's responsibility to either supply or compensate for their inability to live up to the contract. That may not sound fair, because it will cost you, but you would expect compensation from any business that does not furnish the promised goods agreed to in your contract with them.

Does a rental agreement for the use of a car mean you own the car? Does the contract for rental of an apartment give you ownership of that apartment? I could give many more examples, but surely you get the point. Those agreements are enforcable for both the rentor and the rentee. How's that for legal jargon? The rentee is responsible to honor that agreement as well as the rentor. Properly drawn agreements specifically list limits of use, length of the contract and guarantee of the right of the lessee to 'appropriate' the use of the property. If any of those specific articles are violated the agreement can be cancelled. But, if the rentee does not violate their promise to abide by the lease, that lease is a defendable property right.

Water appropriation rights list the specific use, place of use, and quantity of water. I will be very upfront and honest. The 'lessee' (state system) has not enforced those terms. You blame local managment districts for allowing over use, waste, failure to keep the water on permitted acres, etc. I can tell you that District 4 was very diligent in attempting to get the state to enforce those provisions. Yes, we were all active irrigators and as you say irrigators had the majority voting privileges. We were properly elected by popular vote by our peers. That does not validate your insinuation that irrigators were scaring the politicians and bureaucracy away from regulation. Of course there were and still are irrigators who will scream when someone wants to regulate their practices, but most all of us know that we are using an expendable resource and that we all need oversight in the enforcement of the contract that gave us the right to withdraw water from the public pool of water. We are all aware of the fact that we even need protection from one another. Most all of us are hesitant to accept oversight and absolute authority from people who don't know where the issue has been and what will happen when the rules are changed in the middle of the stream.

In our system of representative government, the people (all the people (irrigators or not) are responsible for making government responsible for what that government is supposed to do. The general public has not always accepted that responsibility. Sometimes that is because they don't care and sometimes it is because it benefits them personally for the government to overlook infractions of enforcement.

Even though active irrigators may have benefited more economically than the general public, those in the sector of our economy who benefit in real economic gains from the irrigation production and the profits from supplying inputs and services far outnumber the minority of agricultural producers that operate irrigation units. Just like everybody benefits from the petroleum industry, everybody does not profit directly from that industry. Everybody benefits from food production but everybody does not profit directly from that production. So don't curse the irrigators for making a profit. We produce a commodity that ultimately benefits the people all around the world.

As for corn being wasted on fat cattle, do you think the short grasses of Western Kansas could supply the meat to replace that portion of the worlds diet? Because we make choice beef available for your consumption does not make us responsible for your over indulgence. I could prepare a bowl of soybean mush that would provide all your protein requirements and you most likely would not overindulge. More likely you would not consume enough to adequately cover your protein requirments. Perhaps we should eliminate all the 'tasty' ingredients of your diet and simply put all the essential minerals, vitamins, calories in a pill. That would be ridiculous wouldn't it? However, scientists can put all those ingredients (some artificially produced) into a pill.


KEN writes: "What is a Water Appropriation Right? It is just that; The right to extract and use a given quantity of water for a specific purpose. No, it does not give ownership of the water supply available. But it does give absolute right to the use of that water."

> Once more: Wrong. "Absolute right" does not apply to the amount of water. Nothing in the appropriation right assures a given amount of water in perpetuity. NOTHING. In Kansas water, like air, is a public resource -- not a private one. An appropriation right is NOT a "contract" assuring a given quantity of water forever, especially when it flies in the face of the public interest. An avalanche of words will not change that.

Your position that, essentially, we "own this water so you gotta pay us" is a predictable one, and used all-too effectively to delay dealing with the issue.

The Chief Engineer, acting in the public interest, has the authority and responsibility to act first and foremost in the public interest--not yours. And the legislature, if it truly represents the public interest, should demand he do so. I understand why you would rather not hear that.

Because officials charged with representing the public interest, have been guilty of over-appropriating water, and present officials have delayed and passed the buck in dealing with what amounts to malfeasance, morally if not legally, that should not justify continued failure to correct the mistake.

You, Ken, and your family, have personally and substantially benefited for years from an over-appropriation of water, as have most others who have enjoyed appropriation permits. do. You should be very happy to have had the benefit, and as a Christian man of conscience not demand more. You are owed nothing beyond that by me, nor by the people of Kansas. In fact, I could make a logical argument that YOU owe ME.

In most instances of genuine, responsible stewardship, your water right would have been gradually reduced over time., and without taxpayer compensation. Doing so should have inspired you to make adjustments and to move slowly toward dryland farming However, the recalcitrance (and greed) of irrigation interests, allies, and enablers have kept that from happening. And that is a steadily worsening tragedy.

True, neither car rental nor apartment rental confers ownership. However, it is essentially an apples and oranges comparison anyway, since in those two instances you will pay regularly for all the miles you drive or the time you inhabit the apartment--as well as having some responsibility for damages through your lack of care, aka stewardship. If, in the use of the apartment or car, you are creating unsafe conditions, you are responsible.
Bottom line: the car or apartment you rent is not a "public resource."

(Maybe you will advocate regular payments to the state for the use of your appropriation? Say, a "severance tax"? That has been suggested by some, and I might be willing to consider that.)

You and your fellow irrigators may have been elected by your "peers" -- nobody argues that... BUT you and your peers constitute perhaps one percent of the people who live with in the boundaries of the GMD and have a stake in water policies, and you and your peers are an even smaller percent of the voters of Kansas. To sum it up, the GMD might be called oligarchic, but not close to democratic.

And, while you are certainly free to disagree that the irrigation lobby has not had way too much influence in Kansas water policy (for the sake of genuine stewardship over the long term) I and many, many others adamantly disagree. That has been very, very clear to any objective observer--as I have noted in my blog.

Have GMDs been better than NO oversight? A little bit. Have they solved the problem? Emphatically NO. Through their undemocratic representational system they have fought tooth and toe-nail for the extractive, profit-first, agriculture-focused mentality rather than long term stewardship.

You have correctly said the general public has too-often not accepted the responsibly to see that government acts in the public interest. On the other hand, that seems to be exactly what you're objecting to.

As to fat cattle and fat people. Sorry if that offended you. Americans are the fattest people on the planet, and many will tell you that Americans are probably the fattest humans in history, but aside from that... I think the human race would do just fine, even in the short term, if we used resources like the Ogallala sustainably. And in the longer term, depleting and polluting the Ogallala is a tragedy.

Your angst and discomfort was entirely predictable, but the sector you defend and represent have has done little except produce the pious rhetoric I write of. And unfortunately, that has delayed real action for several decades now.

Best wishes, BH


I hope we are not boring the readers with our debate.

You are a worthy opponent and I enjoy the challenge.

You didn't adequatly address my challenge to your insinuation that politicians were afraid of the irrigators. It seems to me more probable that they are afraid of the backlash of the general public if they appear to adopt policies that will curtail the immediate economic benefit enjoyed by the region, if the irrigation segment of agriculture is diminished or eliminated.

I have a Perfected Appropriation Right for Water Use and I know what they are. They, in fact are absolute contracts that give me the right to the use of specified amounts of water for specific purposes. They are recordable in the Register of Deeds office just like real estate deeds, liens, easements or leases. And it takes a court order for the State or anyone to take that appropriated right from me, if I challenge. They have no ending time or limit of time, so long as I abide by the stipulations of the contract. They do specify that they can be taken away if I don't abide by the limits and restrictions spelled out in the document. They also specify that they can be decreased to protect the appropriations senior to my Right. That is what is 'too political to deal with' that the politicians are afraid of. In other words the only provision in the present law to deal with the over appropriation is to shut down nearly all irrigation to return to an absolute safe yield. That will kill the economy of Western Kansas, or at least severely impact it. So far, there has been very little real effort to find a suitable solution to the problem, I agree with you that that is unacceptable.

There is little evidence that irrigation has been the major culprit in the drying up of the live streams of water. They are alluvial and not a major source of recharge to the Ogallala aquifer. If you contend that lowering the Ogallala water level is drying up creeks then perhaps you can help my neighbor collect damages on the basis that my irrigation is reducing the moisture profile available to crops, on his land.

Conservation farming has had far more to do with reduced stream flow than irrigation. Irrigation, in fact, has increased humidity levels, which is a benefit to dryland crops.

I didn't take personal offense at your reference to fat cattle and fat people. I just think it lame to blame the cook if you overeat. I also think it lame to not accept the fact that irrigation has allowed Western Kansas to produce needed food to feed the world. I agree that we must take measures to extend the available resource of water that has made this possible.

Changes in most all contracts are allowed by mutual consent of parties to the contract. I certainly agree with the need to eliminate the 'use it or lose it' clause in the statutes. That has contributed to waste of water to protect the next years appropriation. It has been a poorly understood clause that shouldn't have been there to begin with. A much more effective and usefull clause would be to allow a running 5 year limit that allows the irrigator to conserve water use in wetter years and have it available for dry years. Most irrigators would be willing to give up some appropriated right to get that freedom. I think it would be very well accepted if the provision for temporarily giving up appropriation for a given contract length of time could be negotiated.

I don't know how to establish what a reasonable compensation to the right holder would be, but, for the good of the public, it is a reasonable means of extending the economic benefit of the resource. You don't accept that, because you don't accept that I have a negotiable right to that appropriation. However, it has been established that I can sell, what you say I don't own to an industrial user (power plant), manufacturer or processor, another irrigator, or a municipality. I could even sell it to a golf course or other recreation enterprise. The buyer then has to accept the appropriation, allowed by the State, for their intended use.

I haven't been actively involved in the public hearings and debates. We had a public hearing today, in Colby, to discuss the Governor's water proposals. I'm too damned old and tired to fight the battle. What ever the changes or decisions are, I will just accept them. That won't mean I think they are equitable or right. It just means it won't affect my economic well being enough, either way, to be worth my time and effort to be involved. I'm concerned about the future, but my future is pretty short. You younger folks had better get concerned and get involved.

I can sit here at my computor and debate or discuss the issues with Bob or you, at my convenience and in my comfort. I adjust my computer time, work schedule and nap time to be available in front of the TV to watch my favorite teams playing basketball. Once in awhile g'ma preempts my time, but ol' g'pa pretty much sets his own schedules and priorities.

I would hope that we have readers who should be interested in this issue and perhaps even have direct interest in how it affects your future and well being. Let us hear from you. Bob and I don't either one of us have all the answers. If the problem is to be resolved to the benefit of society, then society needs to get informed and involved.

I can sit here, chuckeling, and tell you if you want it solved correctly, then listen to me, not Bob. And, I'm sure Bob would say it's the other way around.


Upon reviewing our transcript of this debate, I find I should have said 'arbitrary' instead of 'irrational' in setting a 40 acre minimum to qualify an iindividual for the privilege of voting in a water management district. The writers of the statute had a rational reason for setting the minimum. Some people just don't agree wtih the rationale. That rationale could very well be challenged in court and the court could decide it was irrational.


(For any who might have withstood the avalance of words, and still reading. Ken speaks of his "perfected" appropriation right. In legalese, that merely means that he has actually put it to use by using the water for its designated purpose.)

Now, my irrigator friend.

Let's begin with the easy one. I'm aware of no study in Kansas. So, whether its the irrigation lobby/allies/enablers conniving to protect their own profiting from exploitation, or whether the politicians are reluctant to impact the western Kansas economy is, yes, a matter of opinion. My experiences, however, convince me that it is in fact the irrigation addicts, their allies, and enablers who are most to blame for a failing to deal responsibly with what you and virtually everyone in Kansas and the nation knows has been a grievous over-appropriation of a critical resource. And that nothing really effective to reverse that mistake/insanity/greed has been done. Now...

Ken, you are an irrigation addict, and since there are lots of "you" to provide comfort, you perhaps feel less guilty. You focus on the short term benefits (the feel good days) of the addiction, for yourself, your fellow irrigators, allies and enablers. You help supply lots of good steak to chubby Americans with heart disease. Your position is not surprising, it's predictable, and it's not uncommon in the American consumerist species.

You do not focus on the consequences of depriving future generations of the opportunity to use water much more kindly and sustainably for other uses than ag irrigation. Yes, there will be "some water left" if nothing is done. But the water left will assuredly be more polluted and expensive. Incidentally, making the water potable , where that is economically practical, is will be done at public expense, even though the public did not create the problem. It is a classic a "boom and bust" scenario. 'Fess up.

You have claimed that the exploitation of the aquifer is necessary to "feed the world." That's a pleasant and gracious term, but I argue again that if the Ogallala were tomorrow to be used sustainably, the world at large would suffer very little additional hunger, if at all, because of it.

In addition, from a natural resource perspective, growing irrigated corn to fatten cattle is quite inefficient as regards energy input, and nutritional output Call it a popular luxury if you like.

You have agreed that the resource was greatly over-appropriated. You say it is "unacceptable" that a solution has not been found,. No, the solution IS straightforward: you and other irrigators should pump and use less water. You believe irrigators like yourself, who have most often benefited handsomely for years--with water that you do not own--should be paid even more if you are required, in the public interest, to use less--not necessarily abruptly, but over a decade or two--no more.

I disagree. In Kansas. Water is a public trust, not a private commodity. You have permit to use a given amount of water which the Chief Engineer may reduce where "withdrawals significantly exceed recharge--since nothing in your appropriation permit assures you a given amount perpetually.

You have had to admit that "an appropriation right does not constitute ownership of such water" because the statute I've quoted uses those exact words. Then you take the opposite position by essentially saying you do. You fudge a bit by admitting that your appropriation right can be reduced, but you claim that would be a "taking" of YOUR property. That is, you believe your appropriation right means you now own the water.

A court challenge is long overdue.

That "logic" (the self-focus of addiction, really) more than anything else prevents meaningful stewardship--even as the over-appropriation and use of the Ogallala has made many exploiters of the resource quite wealthy.

Frankly, for my part as a taxpayer, I don't think I owe you a dime for a reduction of your water right in the public interest. I don't believe I am alone in my opinion.

So perhaps you can clear this up:

On one hand, you are comfortable with admitting the resource has been unwisely (I would say criminally) over-appropriated. You say, "if the problem is to be resolved to the benefit of society, then society needs to get informed and involved."

On the other hand, you do not object to the fact that only a tiny percentage of people living in a GMD area (or in the State of Kansas) are allowed a vote in creating GMD policies and procedures in bringing stewardship to a resource critical to more than growing corn to feed fat cattle, critical not just to a boom and bust economy, but to the long term viability of the entire region.

Rather than allowing all individuals, regardless of how much land they own or how much water they use or pump, to cast a vote or win positions on the board, or help determine the director and staff--you kindly suggest they just offer their "opinion" which carries no legal weight.

From my perspective and putting it bluntly, Ken, you are determinedly not part of the solution, you exemplify the problem. You can take comfort in knowing you have lots of company among other addicts, allies, and enablers.

----------------------

A note on perennial stream flow. You do not seem to understand the difference between stream volume and perennial flow. Of the total volume a given stream in this area might carry for a typical year, an estimated 85 pct. comes from precipitation events, including run-off. You are correct in believing that portion is diminished by terraces and other conservation measures. About 15 percent comes from seepage in several interactive areas where the Ogallala is higher than the alluvial channels. It is that 15 percent which makes a river perennial. You may ask those at Kansas Geological Survey (I suggest Brownie Wilson). You should be interested in comparing graphs of several years indicating where those once-perennial streams have now been designated "intermittent."


If you folks are bored with Bob and my debate on water use in Kansas, get busy and write about your own interests or concerns.


Bob says:
“Rather than allowing all individuals, regardless of how much land they own or how much water they use or pump, to cast a vote or win positions on the board, or help determine the director and staff--you kindly suggest they just offer their "opinion" which carries no legal weight.”

Oh? I guess you are saying your ‘opinion’ in the voting booth carries no legal weight. But, it certainly does! If your chosen candidate has the most votes, your vote has legal weight. If enough people are not happy with the legislature’s handling of an issue, they vote them out. The Administrative Branch and the Legislative Branch of our State government are responsible for passing and enforcing laws concerning irrigation use of Kansas’ water. If you don’t agree with those laws, you can challenge them in court. If you don’t win in court, you can kick out of office those you disagree with and elect new people to carry out your wishes. There well may be more of you people who don’t like the ‘water laws’ of Kansas than there are irrigators. But, there aren’t enough of you to force legislative action to change those laws to suit you. There are at least two main reasons you don’t carry the popular vote. Number 1. Not enough people consider it a priority. Number 2. There are a great many, non irrigators, who consider the immediate economic benefit of the ‘irrigation economy’ too valuable to risk demanding strict enforcement of the existing laws.

In answer to your declaration that I don’t know what KS laws are regarding ownership of water, and what appropriation rights are, please check out the following references. Yes, there are differences of opinion on whether this should be the law, but this is the law, until legislature changes it. And if those changes occur after the fact, you can bet court challenges will be made to protect property rights. I most likely won’t be one of the challengers. It will not make a big enough difference in my welfare to motivate my active involvement.

Some of these laws have been challenged in court, but they withstood the challenge. I’m sure more challenges will be made and changes will come. And, in turn, those changes will be challenged. That’s the nature of our governing system.

Ref.
KANSAS WATER APPROPRIATION ACT K.S.A. 82a-701 through 82a-737 and 82a-740 and K.S.A. 42-303 and 42-313 Revised October, 2011

It is a real property right
K.S.A. 82a-701. (g) "Water right" means any vested right or appropriation right under which a person may lawfully divert and use water. It is a real property right appurtenant to and severable from the land on or in connection with which the water is used and such water right passes as an appurtenance with a conveyance of the land by deed, lease, mortgage, will, or other disposal, or by inheritance. (History: L. 1945, ch. 390, § 1; L. 1957, ch. 539, § 1; L. 1977, ch. 356, § 3; L. 2004, ch. 101, § 141; July 1; L.2009, ch. 65, § 1; July 1.)

the first in time is the first in right. (Only 1 of the ‘rights’ I’m operating with will survive if this should happen to be enforced. And, I’m not sure how long it would survive.) If this is enforced across the board, I would accept it. I have no choice. It was clearly stated, when the ‘rights’ were perfected, that they could be taken away under this statute.
K.S.A. 82a-707. (c) As between persons with appropriation rights, the first in time is the first in right. The priority of the appropriation right to use water for any beneficial purpose except domestic purposes shall date from the time of the filing of the application therefor in the office of the chief engineer. The priority of the appropriation right to use water for domestic purposes shall date from the time of the filing of the application therefor in the office of the chief engineer or from the time the user makes actual use of water for domestic purposes, whichever is earlier.

subject to the control and regulation of the state in the manner herein prescribed
K.S.A. 82a-702. Dedication of use of water. All water within the state of Kansas is hereby
dedicated to the use of the people of the state, subject to the control and regulation of the state in
the manner herein prescribed. (History: L. 1945, ch. 395, § 2; June 28.)

These selections are a small portion of the entire act. I’ve only shown these to verify that Water Rights are in fact property rights. There are sections that authorize quantity, rate of diversion, place of use, etc.

Bob, I can assure you I know the difference between ‘perennial stream flow’ and ‘run off’. I’m not a geologist and don’t claim to be an expert in how the different strata of our water in Western Kansas inter relate. There hasn’t been any ‘perennial stream flow’ between where I live and the Smoky Hill River (about 40 miles south) since before this area was settled by white men. We have a small creek 4 miles north of me that has not run year around since before I came into this world. And, I was here long before the Ogallala aquifer was tapped for irrigation water. I understand that it ran year around before white men planted trees along its banks. In the summer months, those trees suck up enough water to dry the flow up. In extremely dry years (’10 &’ll, the ‘30s, and again in the mid ‘50s it only trickled a few months in late winter and early spring. Irrigation was not a factor in those years.


Thank you, Bob and Ken--a great discussion of an essential topic. Irrigators, unfortunately are not the only water addicts depleting the Ogallala aquifer, unfortunately. I am an irrigator; I am also a member of the Scott City city council--a group currently discussing the installation of a multi-million dollar purification system for our municipal water system. I am allowed by law as an irrigator to pump up to 640 acre feet of water per year (assuming I can afford the pumping charges, which I currently am able to do) on my 450 acres of irrigated farmland--approximately 17 acre inches per year. The Scott City Rec. Comission last year applied 23 acre inches of water on the baseball and soccer complex lawns--we have city residents applying 60 and 70 acre inches of water on their lawns--as long as they are able to afford to do so, there are no state regulations limiting their use, or any use or overuse of water. Irrigation certainly is the greatest "user" of water--not only in wester Kansas, but throughout the western United States. This usage is absolutely unsustainable--as is a worldwide population of 7 billion souls! We--the residents of Kansas,the U.S., and the world--do not have the political will to seek real solutions to this (one of many) huge problem, but are all seeking someone to blame for the inevitable catastrophy that running out of water (or oil, or clean air) presents us. There are no cheap solutions--there are no easy fixes! Reducing my water right and bankrupting me will add a few weeks (perhaps) to the time that western Kansas can support viable communities, but it will also result in far fewer and much larger farming entities, further reducing the population in Kansas, and Kansas' use of the Ogallala, leaving more water for Texas to use--where state law allows a landowner to actually own ALL the water he is able to pump. There are solutions--just not solutions available to a society that worships greed and fears his neighbor may be getting a better deal from the government than he is--but blames the neighbor--not the government--his government--the government he has chosen and supports.


What a pleasure to read intelligent disagreement, not from an ideological base, but from actual fact-based experience. The conservation of water is a problem we all must deal with in a responsible manner. Thanks for all the insight into this issue.


(Ken, I doubt anyone needs your permission--or mine--to read, or not tread whatever they wish, although it was courteous of you . Smile).

Sorry, Ken, you're rationalizing. The "local control" the GMD's claim is chop-logic. The fact that the irrigators live locally and are "local control" is far different from real local control where EVERYBODY who lives within the district has an equal vote. School boards, as just one example, represent real, democratic local control. Their policies and decisions affect everybody living in the school district, and anybody in the district can run for office and vote.

Using your analogy, we all should give up the right to vote for or against local school board members--and advise state legislators who, hopefully will argue before the assembled legislature. (You are correct, of course, that way too many in the public are neither informed or active, nor try. However, given the inability of the public at large to have a direct vote and hold office in GMDs, the ability of the public--like myself--is quite limited.

If most people really do like the short term benefits of the Ogallala addiction to the extent they have little concern about the future, maybe nothing at all would change if they could vote and hold office in GMDs. But you seem to be afraid it might.

KEN. "There are a great many, non irrigators, who consider the immediate economic benefit of the ‘irrigation economy’ too valuable to risk demanding strict enforcement of the existing laws."

>You are tacitly admitting that there are existing law which if strictly enforced would accomplish something. Thank you.

It's not so complicated, Ken. The bedrock Kansas water law says "an appropriation right does not constitute OWNERSHIP." What is it you don't understand?

Will challenges be made when (and if) the Chief Engineer gets off his duff, establishes IGUCAs, and reduces appropriation rights, and actually begins to make a difference? Sure, because there are others like you (and allies and enablers) like the KLA, KFB, Gorn Growers Assn., ADM, etc.) who believe, whether you use the term of not, that you own not a right to USE property, but in fact own the property. No, you don't.

Does your permit assure you a given amount forever? No. Can you sell the permit? Yes. Does the Chief Engineer have final say about the appropriation amount, the site and category of use. I believe so

Should IGUCAs be established and water rights reduced significantly (you could always win enough water for domestic use) and should the State affirm that water is not private property, hence the 5th Amendment takings argument does not apply. (See the California case). At the local District Court level, irrigation addicts might well win. However, the case would be appealed and eventually reach the Kansas Supreme Court . There I believe the court would rule that the law is correct: you own a permit, not water, that the State has the right and responsibility to put the public interest first.

.

While the issue has, unfortunately, not come before the courts (and certainly should), I believe the first in time first in right will apply to private parties. Another way of looking at it would be to admit that the public interest is more important that private ones--if the issue comes to that. (Yes, Ken, I've read the laws)
.
KEN cites: "K.S.A. 82a-702. Dedication of use of water. All water within the state of Kansas is hereby dedicated to the use of the people of the state, subject to the control and regulation of the state."

True enough, but the Chief Engineer has the authority under Kansas Administrative Regulations and Statutes to declare IGUCAs and reduce withdrawals where-ever pumping significantly exceeds recharge. You would have a better argument that within the IGUCA, first in time first in right would apply. Even then, my bet would be that the public interest would prevail over any private one. I believe it still is true that appropriation rights in use before 1949 are grandfathered in.

You are honest that water was seriously over-appropriated, and can accept that "something" should be one about it. In essence, here are your arguments.

(1) You believe the economic benefits for the short term using over-appropriated water are more important that the future of the area using water more sustainably for NON-agricultural purposes.

(2) You believe that irrigators like yourself and those who own at least 40 acres outside a municipality have the right to control water policies and related administrative offices which, ultimately, affect every citizen present and future who live or will live in the area.

(3) You believe that, de facto, you do own the right to the amount you were originally granted to use, and if the State in the public interest, reduces the amount you were originally granted...then they are "taking YOUR property" and owe you some as yet unspecified amount of money. (Even thought you've been making money using the water for some time, and have paid a relative pittance for the permit.)

(4) You believe that the problem is so hard, that nothing really can be done except rationalize the ongoing disaster and continue what I call the same "pious rhetoric" pouring forth for 40 years.

Sadly, my guess is that nothing WILL be
----------------------
STREAMFLOW: Let's grant you may understand that perennial flow is different that seasonal precipitation events. That's a start. I'm not surprised you're not a hydrologist, but you could speak to a few who DO understand how the different strata pertinent to the Tertiary Ogallala and the Quaternary Alluvial system interact. I have suggest someone at the Kansas Geological Survey. Yes, there are surely stretches of streams that have never, at least in our own time, been perennial. That is not at issue. The issue is (A) whether miles of streams once perennial are now intermittent, and (B) whether declining seepage from the overlying Ogallala because of over-appropriation is a significant factor.

While trees and other vegetation do use water, trees also conserve water big time by shading. Opportunistic smaller plants, hydrophytes, which spread more rapidly when stream flow is diminished may be a bigger factor. The argument however that, "Aw, its just the trees sucking the river dry" has been around a while. (It's a little like the self-serving argument that global warming is "Aw. just the solar cycles).

If you're at all interested, I'll try to locate Joseph Tomelleri/'s Master's Thesis on how trees affect stream flow. Tomelleri graduated from FHSU in 1984, has expertise in botany and biological sciences.



Bo, I certainly agree that other than irrigators over-use/mis-use water. Municipalities, schools, and "great lawn" fanatics whose goal is to make things "look nice" --when they/we live in a semi-arid region are poor stewards of the resource.

I use more water than many here in my town, but that is for my sizeable vegetable garden. And that is mulched to conserve water.

That being said, the amount of water used in irrigation agriculture is way, way more. Your 640 a/f multiplied by the 326,000 gal. (as I remember an acre ft. to be) amounts to 640 x 326, 000 or 20,864,000 gallons for your operation alone.

I have no knowledge of your specific situation, for example, how reducing you (and your neighbors) appropriation by 1 or 2 pct. per year over, say, ten years would affect the situation. My hope might be that you would be encouraged to explore options for economy and/or alterative crops, for one thing. At some point, a return to dryland farming seems inevitable--the question is what do we sacrifice by waiting until options for using water more sustainably for other economic purposes are very, very limited..

At some point, if the rape of the Ogallala continues, those schools, cities, and lawn fanatics will be forced to change their ways--either because the water is no longer there, or because it will be more expensive than they are willing to pay. Not to mention that there's a real possibility that the quality of remaining water may well be "problematical"

The over-appropriation of the Ogallala principally for agriculture and for the relatively short term does bring obvious short-term benefits. The question is what is the ultimate cost of the short term benefits?

As I recall (maybe incorrectly) your area is one where Ogallala "thickness" is less than in SW and NW Kansas. Also, as I recall, at the Scott City Lake to the north of town, there was a wonderful spring on the east end. Is that spring still producing water in its historical volume? BH


Bill--The remaining water is already "problematical" according to the KDHE (they have already declared some of our municiple water supply to be "non-potable" due to nitrate and arsenic levels undetectable 50 years ago, but considered dangerous now)--hence the multi-million dollar purification system they are essentially forcing on us. Your recollection of the "thickness" is mostly correct--with a small area of exception, and our state lake and park in the northern part of the county is still a beautiful oasis--the springs still flow, but at a greatly reduced rate. A great many acres once irrigated in Scott County are no longer irrigated due to the cost of pumping "marginal" wells, and I actually lease 300 acres of farmland that my landlord placed in a state program where he was paid by the state to disallow pumping for a ten year period, while retaining his "water rights". If the cost of energy continues to rise, a point will be reached where it is no longer economically feasable to pump the Ogallala in Scott County for agricultural purposes. That reduction process has been taking place for the last 30 yeears here, and will continue throughout the Ogallala served area into the future. I have maintained for the last 40 years that we will run out of money before we run out of water, and I still believe that will be true--and at that time, the resulting loss in production and the loss of the livestock industry which will follow, will reduce the population to where there will still be adequate water (for human consumption--perhaps not for lawns and gardens and incredibly wasteful sewage handling). Your question about the ultimate cost of the "short term" benefits is vitally important, but the scale of the problem with the Ogallala aquifer--for our planet--is miniscule compared to the scale of the problem with fossil fuels and overpopulation--we just notice and care about our local problems more. The government of the greatest nation in the history of mankind has become unable to consider and plan for the future, and its citizens are more concerned with fighting over womens rights, gay rights, religion, and how to tax fairly than with how to survive into the 22nd century--and it will take all of us--liberal and conservative--working together--to survive--if not, then not.


(It's Bob, not "Bill"but I do have a brother of that name.)

Thank you for your substantive comments.

For 40 years now I have heard the story that utility costs will take care of the problem of over-pumping. Sorry, that hasn't happened. One thing that has happened is that the irrigation/feedlot industry seek and get favorable rates from the KCC.

A good part of the "apparent reduction" in pumping is because depleted wells simply don't produce as much, it has little to do with conservation methods.. As a youth I worked for a while (in the very early 60's) in the Garden City area for a well-known water-well drilling firm. Many wells in that area then commonly produced 2000 gal. min. or more. Today that area leads the nation in Ogallala groundwater decline. Much of your area, with shallower deposits of aquifer, will at the current rate, suffer first.

The scenario you offer, that eventually the depleted aquifer "will reduce the population to where there will still be adequate water (for human consumption--perhaps not for lawns and gardens and incredibly wasteful sewage handling) " hits at the real problem That scenario is NOT a necessary one, nor inevitable--if stewardship prevailed.

(As a bit of a detour. Wes Jackson at the Land Institute in Salina KS has long argued against what he calls "monoculture of non-perennial crops" and has advocated and done research for "perennial polyculture." Monoculture, as I'm sure you know, means growing a single-plant variety (corn, for example) in very large fields. And, growing one variety in large fields provides great opportunity for insects and pests who "like" that crop. As a consequence, the need for pesticides (and fertilizer) increases. There's much more to say about this, but basically Jackson wants to mimic the model of nature which tends toward perennial plants, and improve those plants genetically to produce food.)

No one, at least not me, justifies fancy lawns, etc. (which often involves over-fertilizing and over-use of chemicals which is another problem.) One way to deal with that is to impose escalating water rates as usage rises, which at least some cities have done, and more should do.

In my small town, we have a growing nitrate problem, now consistently over the 10 ppm limit. Since nitrate is often a "non-point source" issue, no specific person or persons can be held accountable. Given the well locations, the probable cause is agricultural use, but who's to say. Still, it will cost either the city to acquire a treatment plant, or individual homes and businesses to install expensive reverse osmosis units. Nitrates are not the worst of pollutants.

Yes, owing to contamination and and accessibility, what's left of the Ogallala will get increasingly difficult for municipals. And given your scenario of pumping until it gets too expensive, one thing you will accomplish is to limit not only population, but opportunities for more sustainable use of water for purposes other than irrigation. Again, wholesale irrigation promotes a boom and bust philosophy.

You are probably correct that fossil fuel depletion is a problem of greater "scale." However, if push comes to shove, as they say, we could more easily live without fossil fuels than without good water. In fact, IF the human race wakes up to the fact of global warming, and begins seriously to develop alternative, non-polluting energy sources, fossil fuel consumption would be DRAMATICALLY reduced. Unfortunately, there's no good substitute for water, And, and according to many sources lack of potable water is a critical issue--not just in the Ogallala region, but globally. In any event, the aquifer depletion issue is one under the purview of state law. And in Kansas (unlike big hat Texas) the water is not "owned" by appropriation right holders. The failure to act for all these decades is because it has been "too politically volatile to deal with" not because it hasn't been important.

I have lots of sympathy for addictions, particularly those who were enticed into them as many were in the over-appropriation era. In all addictions, including this one, there is often great discomfort, even pain,in ending it--and all sorts of rationalizations and delays. And those who suffer are more than just the addicts.

Rationalization and delay usually makes things even more costly.

NOTE: Perhaps Ken Poland will pick up on the "greatly reduced" flow from the spring at Scott City Lake--a result of an over-appropriated aquifer. In many of the Ogallala/alluvial seepage areas, the contribution from TO to QA is much less dramatic, but nonetheless has been important in maintaining perennial stream flow--and there the contribution has steadily declined as the aquifer is mined.


Ken:

I don't understand those who have been claiming that a water right in Kansas is NOT a property right. KSA 82a-701 defines it precisely so. I quote from the statutes:

(g) "Water right" means any vested right or appropriation right under which a person may lawfully divert and use water. It is a real property right appurtenant to and severable from the land on or in connection with which the water is used and such water right passes as an appurtenance with a conveyance of the land by deed, lease, mortgage, will, or other disposal, or by inheritance.

The word "real" in this context means "realty" - not something that's "not fake". And the real lawyers will tell you that real property is like your house, car or tractor. As I understand Kansas water law, a water right owner (yes, the law often refers to the "owner of a water right") does not own the water itself (which has been correctly characterized as a state resource dedicated to the use of the people of the state) but they do in fact "own", as a piece of real property, the right to use what the state has appropriated for their use - as long as they use that water within the terms of the water right. Most people feel the government needs to be very careful how they regulate our lands, houses AND water rights, and just because you may feel there is a better use for the property your neighbor owns, doesn't mean you get to take it and use it differently.

Although some of the arguments in this thread are predicated heavily on the premise that water right owners do not own anything, and therefore can be easily regulated, unfortunately I don't think this happens to be the case in Kansas. Should the 1945 law have defined a water right differently? Maybe so, but it didn't. Can it be changed today? Sure, if the legislature makes this change.

Too often snippets are quoted from the Kansas Water Appropriation Act and when cited out of context, seem to say something else. The quote of KSA 82a-707 that "..Such appropriation shall not constitute ownership of such water.." is one such snippet. Again, when read in context and with an understanding of the definitions, it is not a singular, stand alone statement that says you don't have a property right to the state's water - as it has been portrayed elsewhere in this thread.

Interesting debate, none-the-less.


Thank you, your names too danged long to address, but thank you for your input.

I don't own the water in the aquifer, but I own the right to withdraw a given amount of water at a given rate of withdrawal and to use that water for specific purposes and in specific places.

I used to farm rented land that had wells capable of producting in excess of 3,000 GPM. We had appropriated right to use that water on the designated acres. No one new how to value that appropriation when it was issued. However, today that land will bring far more than land with no appropriated rights or land that only has well capacity of 2 or 300 GPM. The difference is the appropriated water right. Fair or not, that makes that a valuable property right and the law says it is appurtenant to the land and such water right passes as an appurtenance with a conveyance of the land by deed, lease, mortgage, will, or other disposal, or by inheritance. That right now has some real value, far more than was percieved when it was first issued. If the 'right of eminent domain' allows the taking of your house and lot in town, should you just give it up with no compensation, or let it go for what you paid for it?

It would appear that Bob and I have irreconcilable differences on the subject of Water Appropriation Rights. I’m not sure what part of the bill he doesn’t understand, especially the exact copy of this portion.
“ "Water right" means any vested right or appropriation right under which a person may lawfully divert and use water. It is a real property right appurtenant to and severable from the land on or in connection with which the water is used and such water right passes as an appurtenance with a conveyance of the land by deed, lease, mortgage, will, or other disposal, or by inheritance.”

That is an exact copy taken from the Water Rights Act, passed by the legislature that was elected by popular vote of every eligible voter in Kansas. The bill goes on to describe all the particulars as to what the quantity, use, etc. of that ‘real property’ is. ‘——a real property right appurtenant to ——’ It is either real or it isn’t and in court cases it has been adjudged as being real. Whether Bob thinks the ‘selling price’ was high enough, the State issued a certificate of ownership to ‘a real property right’. If the State wants that property back, for what ever reason, then the present owner of that property is entitled to compensation. That compensation might be the protection of the resource. Most irrigators are willing to negotiate away a part of their ‘real property’ to do that. The issue is how to determine, for the good of everyone in the area, what that property is worth and how to equitably correct an obvious error in judgment, when that property was awarded to the present owners.

Obviously, the quickest and most sure way of correcting the problem would be to revoke all appropriation rights back to ‘safe yield’. The law allows that. First, however, you have to determine safe yield. What would be considered short term, long term, and absolute necessity? Should ‘vested right’ holders be exempted? If so what is the equitable reason those rights are any more sacred than appropriation rights issued under present laws?

Does anyone think politics and lobbyists won’t have a hay day with that? That’s kind of like the surest way to stop deficit spending of the National Government would be to pass legislation that won’t allow spending more than comes in. Anyone want to guess what our environment and society would look like if that were to suddenly happen and it was enforced? What would be exempted and what wouldn’t? His efforts might be better aimed at the legislature than judging all irrigators as selfish thieves of his water. The tirades aimed at irrigators is just that, a tirade that the general public does not buy into. There are certainly members of the public who agree that irrigation should never have been allowed. Some land owners, who aren’t irrigators, say they should be able to poke holes and pump water on their property whenever, wherever, and for whatever they want to.There are members of the public who think the entire mid-west should be turned back to nature. We have a critic of most of our ‘liberal’ posts that calls us ‘fly over’ country, perhaps indicating we’re really not very important to the overall scheme of things. He is entitled to his opinion, along with, perhaps even the majority of U.S. voters, but do we want them to decide how we use our Kansas space and environment?

It is ridiculous to suggest that we irrigators should just willingly give up our property, without having any say in how it comes about, and especially if it is forced by a decree from an individual appointed, not elected. Did Bob have a vote to choose that individual, or does Bob have a direct input that insures that individual or agency acts according to Bob’s wishes? We should just ‘donate’ that property back, because Bob and a few others don’t think we are entitled to it?

As Bo, in his guest comment, has pointed out, “irrigators have been cutting back on water usage”, sometimes for reasons beyond their control (depleted source) and often because of economics. A lot of people have cut back on traveling, not, primarily, because of their concern for the environment (fossil fuel pollution) but because of economics.

I doubt that Bob would be happy with a government agency telling him to park his car to save the environment. Bob is admittedly and justifiably concerned about our environment, but I don’t think he wants someone to tell him he can no longer use his car, to protect the environment. He bought his car and as long as he keeps that car up to safety specs required for licensing and can afford the gasoline to propel it, he is entitled to use it. He most likely approves of everyone’s tax dollars helping build roads for his use. And every voter doesn’t have veto powers on any given section of road. When U.S. Hiway 24 goes thru or past a town, you usually have restrictions on speed and sometimes stop signs. I may not like those restrictions on my use and someone else might not think it slows people down as much as they think it should. But, we don’t get to vote on that issue, even though we pay taxes to build the road and have licensed vehicles to drive on the road.

We vote for people to fill elective positions. Those elected persons set rules and regulations and appoint or hire people to administer and enforce those rules and regulations. We don’t get to vote on every detail or issue and we don’t have individual veto powers. We can give our opinions to those representatives and we can form or join organizations or groups to collectively influence or we can hire lobbyists to represent us. We can sue for redress if we think we have been harmed or not equitably treated. You can participate in hearings sponsored by the State, Irrigation Management Districts, or other groups and organizations. But you don’t have guaranteed right to vote or render changes on all issues.

That’s the way our system has worked for over 200 years.


Bob--(sorry for getting the name wrong above, but two out of three on names is really, really a good average for me!) As far as I can see, the only weakness in your argument is the fact that the State of Kansas has sued (and won) both Colorado and Nebraska over water rights from the Arkansas and Republican rivers, claiming essentially the same rights that Ken points out water right owners in Kansas claim from the Ogallala aquifer. Surely you are right, and Kansas is wrong (all of the snow that falls in Colorado that ends up watering crops in Kansas, Nebraska, Colorado, New Mexico, Utah, Nevada, Arizona, and California should belong to Colorado first--shouldn't it?) but that is not the law. The over-appropriation of Colorado's snowfall makes the over-appropriation of the Ogallala aquifer appear as a drop in a bucket. Without glacial flow from Colorado into the Platte and Arkansas rivers (among others), the depletion of the Ogallala would be much more rapid, so we (legally) force our neighbors to restrict their useage of water to increase our usage of water--not because it is fair or reasonable or beneficial over the long term, but because it is the law. If reasonable people could pass reasonable laws, a great number of injustices could be addressed. Unfortunately we live in the good ol' USA where that is currently impossible. So, in my humble opinion, I declare Ken the winner in this debate, and declare the people of the USA the losers!


Thanks Bo, but I'm not sure either of us are winners in a situation that cannot be resolved in a way to return to all persons affected by the water crisis the full compensation they desire or even deserve. Bob wants my rights completely revoked and even suggests in order to make things right, i should pay him for damages I have caused. I'm sure, after 20 years of his efforts, he relizes that isn't going to happen.

Bob, I think you should start advocating a property tax on Water Appropriation Rights. I suggested this some 20 years ago in a meeting in Garden City. You should have heard the uproar. The meeting was to discuss water rights, depletion, how to correct some inequities in the issuance of amounts of water allocated, how to reflect irrigation values in personal property tax assessments. There were county commissioners, irrigators, county tax appraisers, representative from the state, and probably many who didn't have any direct experience in the issue.

Some of the irrigators vociferously objected. But, the objections were loudest from county commisioners, tax appraisers, and state officials. At the present time in view of the possibilty of forced reduction in water rights and usage, without compensation, I think some of those irrigators might be looking back and wondering if they shouldn't have put their property right in the system of taxation. That would certainly bolster our claim of it being a 'real property right'.

Bob, appologised to me if I was offended by some of his comments. The greatest offense is not only to me but also a great number of irrigatiors, accusing us of being addicted to a way of life and indicating we were selfish thieves of public property. I have no idea how many active irrigators were appointed participants to that gathering. I do know that I was one of them and I was advocating a way of getting a reduction in water rights and a reduction in water use. And a more equitable distribution of tax liabilities. All the irrigators were not vocal in opposition to my proposal, but we lost. We didn't lose because the irrigators were in the majority. Even if the majority of the irrigators had favored my proposal, it would have been shelved.

Once again, radicals on both sides of an issue are preventing progress toward solving environmental, economic, and social issues. In my participation in coffee shop discussions and visiting with Water Management officials, it is apparent that the majority of irrigators are willing to relinguish a portion of their rights, if that can be done in an equitable way to protect the big users, small users, oldest in time permits, and the newest permits. And there are those active in the discussions that radically oppose any reductions and others who radically say all permits should be revoked.

Will common sense and reason prevail? Democracy and civilization can get messy, at times.


I just finished reading the front page top story in our local paper. It covered the Governor's proposals for solving our water crisis in the Ogallala Qquifer.

It was interesting to note that the proposals were started at an Economic Summit in July. Does that validate my opinion that the major players in the game are interested in economics more that environmental water issues? At the end of the reporter's account this statement was made: "Eastern Kansas is very interest in western Kansas water policy. They know that water flows east." You don't suppose they might know that money flows east also? Economics is definitly a part of the equation, not just for the irrigators but also for the general economy of everyone. Maybe we shouldn't just kill the goose that lays the golden eggs. Neither should we allow the goose to kill herself, prematurely.


I tend to get very nervous when people begin to talk of "common sense" proposals and laws--after all, "common sense" is what shows us that the earth must be flat, and that the sun goes up and over and then down and under. That said, "common sense" is usually preferable to "just plain stupid." Human beings are unfortunately cunning enough to utilize the vast resouces of our planet without having the knowledge or wisdom to use them properly--with an eye to the future--unintelligent design?


I'll keep this short for now, but may have more to say later.

We've got to the crux of the matter. Nothing significant has happened to deal with the mining of the Ogallala because the irrigation lobby (allies and enablers) have worked very hard to sell the idea that an appropriation right in fact constitutes ownership of water, even though the law expressly says they don't. If that were true (it isn't) the the problem of over-appropriation would be essentially unsolvable at any reasonable cost to taxpayers.

The irrigation lobby (allies and enablers) believe that a property right is a "deed" to property. If that were true, then appropriation right owners would "own" the water. They don't. The law clearly says precisely that. It is disengenous indeed to call that a "snippet."

NOTHING in an appropriation right guarrantees a perpetual right to use a given quanity of water. NOTHING! NOTHING! NOTHING! (I repeat for emphasis.)

Both statue and adminsitrative regulations (the latter having the full force and effect of law) declare the right and responsibility of the Chief Engineer to over-see the use of water in the public interest, one dimension of which is to establish IGUCAs in areas where withdrawals significantly exceed recharge. (GMD's have argued that their authority exceed the Chief Engineer where the IGUCA would be located within a GMD. Kansas Attorney General has held on two successive occasions that NOT to be the case.)

Predicably irrigation addicts are up in arms at the very thought something meaninful actually can be done, and they won't be paid for creating the problem, even though they have profited hansomely over the years with water that they don't own but have been allowed to use.

I have found it ironic that Kansas irrigators (allies and enablers) whined about over-use of water, while at the same time excusing their own over-use.

One thing that needs (urgently) to be done is to reject the idea of "local control" as selfishly defined by irrigation addicts (their allies and enablers) and allow EVERYBODY who lives within a GMD to have an equal vote and an equal opportunity to win election to the GMD board, hire or fire bureaucrats, and determine policy. THAT is long, long overdue.

Equally important is to get the Chief Engineer off his keister and actually DO something other than "opening a conversation" with GMDs. To make that more likely, I would recomment removing the Division of Water Resources from the Department of Agriculture, and placing it under the purview of Kansas Department of Health and Environment -- or making the Chief Engineer a popularly elected position.

It doesn't border on ridiculous, it IS ridiculous that for over 50 years so little has been done.

A recent story in the Hays Daily News summarizing the work of Governor Brownback's ballyhooed commision to bring progress was sadly predictable. The opening sentences of the news story read:

"The push to conserve water in the vast Ogallala Aquifer returned to the same stage where started five months ago. But don't expect any of the four measures to be presented to the Kansas Legislature in January o save much water."

The fundamental reason? The drunks are still running the liquor store." They are not bad people, just addicted. We have witnessed their avalance of denial in their reaction to my blog. Ending an addiction takes honest confrontation.

In his opening comment, Ken Poland says I am "right in many of [my] premises." Thus far, there is only one he seems to grant: the Ogallala Aquifer has been wildly over-appropriated. For there, it's a stall game.

I've heard pious rhetoric for too many years.


Sorry, for a couple of typos because of a hasty post. I think none of them significantly interferes with readers' understanding.BH


Bob, who is stalling? You have taken one clause of the Appropriation Act and used it to invalidate every other clause in the Act. I have never disputed the ownership of water. I have not claimed ownership of un appropriated water. Your interpretation of the Act is so narrow, that no other part of the Act has any use or meaning.

You have avoided explaining: K.S.A. 82a-701. (g) "Water right" means any vested right or appropriation right under which a person may lawfully divert and use water. It is a real property right appurtenant to and severable from the land on or in connection with which the water is used and such water right passes as an appurtenance with a conveyance of the land by deed, lease, mortgage, will, or other disposal, or by inheritance. (History: L. 1945, ch. 390, § 1; L. 1957, ch. 539, § 1; L. 1977, ch. 356, § 3; L. 2004, ch. 101, § 141; July 1; L.2009, ch. 65, § 1; July 1.)

Other portions of the Act explain what that real property is. Have you ever read a Water Appropriation Cetificate? That certificate states just exactly what your real property is, It is a specific quantity of water pumped from a specific location at a specific GPM rate of withdrawal to be used on a specific legal description of land. After the fact wisdom might indicate that it should have stated the number of years it was good for. But, It didn't. So long as I don't violate any of the provisions of that Right, the State has no right to take it from me. If I can get that quantity out of the ground and use it as permitted, it is mine. If I can't get that much water, then my recourse is to demand the State revoke junior rights to give me access to my appropriated amount. (first in time first in right) That is a specific part of the Act. The State has pretty much indicated that they will not take that action until someone sues to force the State to take action.

Irrigators have indicated they would be willing to negotiate cooperatavly to reduce their rights if it is done across the board and equitably. They are not demanding compensation if that happens. But very few of us are willing to let the State 'take away our property right by force,without compensation, if we have not violated the provisions of our Right.

You, Bob, and your supporters have been beating your drums for some 20 years or more. I've beaten mine for a week or two on this blogg and will stop beating with this post.


1) The governor does NOT have a real plan for "solving our water crisis in the Ogallala Aquifer. The main reason there's been no significant progress is that the irrigation addicts, allies, and enablers have steadily and all too effectively promoted the lie (there's no other good word for it) that, ipso facto, they own the water. They will not use the word "own" because they cannot get by with that any more. (In Texas they would have a case).

2) An appropriation right does not confer ownership of water. (And 82a-707a does not negate the rest of the statutes and administrative regulations, nor is it a "snippet." It is the heart of a public trust philosophy that has been honored only in the breech when it comes to the Ogallala.

3) The "real property right" a right holder does have is a conditional right to use water in an amount not guaranteed in perpetuity. [Mr. Poland wishes it were otherwise, He says "After the fact wisdom might indicate that it should have stated the number of years it was good for. But, it didn't."]

Hence, appropriation quantities are now and have been regulatable in the public interest. Assuring a specific number of years is NOT in the public interest. It is the status of the aquifer that is to be over-seen.

The property irrigators own is a piece of paper, a conditional permit, not a deed to physical property--as much as addicts wish it were.

4) The State of Kansas has authority to declare where water is used in excess of safe yield, declare intensive groundwater management areas and reduce amounts appropriated. Where private parties are concerned, that is by law a 1st in time, 1st in right affair. The general public interest is not the same as a private party.

5) The 5th Amendment says "...nor shall private property be taken for public use, without just compensation. Since irrigators have no deed to water itself, only a permit to use it, they do not own "private property. They can, of course, sell the permit. However, the State has the authority to reduce the amount appropriated, and approve or not approve the new use and location. The reason that has not happened (and may never happen to any meaningful extent if present water governance continues) is because (to return to the painful metaphor) the drunks are running the liquor store representationally. Addicts are not necessarily bad people, but invariably good at rationalizing and denial.

6) Short-term economic benefits from agricultural irrigation in semi-arid western Kansas amount to a boom and bust philosophy which, if continued, will further depopulate the region because remaining water will be (a) increasingly polluted by nitrates, herbicides, and pesticide and expensive to purify, (b) more costly to pump, and (c) severely limit more sustainable use for an alternative-based economy.

Given decades of over-appropriation, pious rhetoric should have run its course.


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