BOGUE, Kan. - Fellow Kansas Free Press contributor and an Ogallala irrigator and I have had an interesting exchange over whether reducing appropriated water "rights" would constitute a "taking" as per the U.S. Constitution 4th Amendment.
As I believe I have reported, then KS Attorney General Carla Stovall was asked about that as one part of a question carried on my behalf by then KS Sen. Stan Clark. In essence, Stovall declined to answer plainly, but said it would depend on the circumstances. In the Cheyenne Bottoms case, both junior and senior water rights were reduced by the DWR without awarding a taking to senior right holders. To summarize, it was a voluntary settlement that avoided the courts. That could--but almost assuredly won't--happen on the scale necessary to end the mining of the Ogallala. What then, can be done?
In March of 2003, John C. Peck, highly respected law professor at KU School of Law, presented a paper in Kyoto, Japan, to the 3rd World Water Forum entitled: Property Rights in Groundwater--Some Lessons from the Kansas Experience.
The paper was done in consultation with representatives of the Division of Water Resources and the Dept. of Agriculture. Peck concludes the issue is difficult and courts have not yet settled it in this state but I think, would tell us that it must be settled if stewardship is to prevail. Here are some passages I find especially relevant in his remarks.
Water rights are real property rights, but they differ from real estate in a number of significant ways. Takings cases involving property other than water rights have helped describe when property owners can claim a taking for government intrusion by way of strict regulations that diminish the use of property. The taking has to be extensive, either a physical invasion of property or one amounting to a loss of all economically viable use of land. An early water law case held that a state's cutting back on water rights amounted to a taking, but the trend has been in the other direction since the l980s with the application of the Public Trust Doctrine, the enforcement of requirements that water use be reasonable and without waste, and the establishment of legislatively-designed cut-backs over time on water rights to achieve sustainability.
Peck suggests, and I agree:
With water rights... the government could attempt to preserve at least part of the water for future generations, not by actually condemning the water right, but by cutting back on the use of them and not taking title, which, if properly done would not be a taking."
As to the irrigators voluntarily achieving sustainable use, Peck says:
I do not have much faith in a voluntary resolution of the over-pumping problem based on altruistic views of intergenerational equity and sharing. For "voluntary" agreements to arise in Kansas, both a stick and a carrot may be required..
The "takings" claim has stalled action. In the main, I believe John Peck agrees with my premise as offered to the Kansas Water Authority and Kansas Water Office 12 years ago, and promptly swept under the political rug. Peck writes
A long term model would consist of an overall goal in Western Kansas of safe yield for some date in the future, say 25 or 40 years, to be reached incrementally.
No, the issue has not been firmly decided by the courts, but that must happen and the sooner the better. A necessary first step would be for the Division of Water Resources, rejecting the fallacy of responsible "local control" and acting in the Public Trust philosophy, to establish Intensive Groundwater Use Areas (IGUCAs) and impose a reduction of pumpage over time--and with no awards for a "taking" -- the cost of which would unfairly accrue to taxpayers If the Chief Engineer at the Division of Water Resources does not have the courage to do that, then the legislature must compel it.
Predictably, that absolutely necessary action by the state would bring challenges in the courts My belief and hope would be that ultimately the court would have the wisdom to place the general welfare over private greed and historic political malfeasance in over-appropriating the resource and thereafter failing to deal meaningfully with the problem..
In short, it is well past time for accepting pious rhetoric as real action, past time for the "takings" mentality exemplified the irrigation lobby and its allies in depleting a vital public resource for private gain, It is past time for real measures to end the short-sighted and irresponsible mining of the Ogallala. The drunks have been running the liquor store for too many decades Tell your legislators.