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The Ogallala Situation in 2000: Pretty Much the Same Today

By Bob Hooper
Opinion | February 10, 2012

ogallala-acuifer.gif

Ladies and gentlemen, I am enclosing a statement I made nearly 12 years ago to the assembled Kansas Water Authority and Kansas Water Office as chairperson of the Solomon River Basin Advisory Committee. I believe it was enough of an embarrassment at the time to cause then Governor Bill Graves to assemble a task force to try to deal with the issue. That, of course, failed -- as have other efforts. Governor Brownback's approach is standard fare, and will amount to the same "pious rhetoric," as I have learned to call it, with meager results. The current approach is more "local" control, which I have perhaps impolitely termed "the drunks running the liquor store." In effect, a tiny minority has been in control, even though they do live "locally." It is past time for a more honest effort. That will amount to establishing IGUCAs, reducing water appropriation rights over a realistic time frame without compensation for a "taking" since (1) nothing in a water appropriation right guarantees the initial amount of water permitted forever, (2) the statutes clearly say an appropriation right does not constitute ownership of water, and (3) the broad philosophy of Kansas water law is one of a public trust. It is long past time the "takings" argument has been challenged, even if that requires going to the courts.

If you agree, I encourage you to send the link to this KansasFreePress.com article to your state senators and representatives -- and to any others you think would be interested. (The original full statement follows as presented in the year 2000)


STATEMENT TO THE KANSAS WATER AUTHORITY
Salina, KS
July 11-13, 2000
by Bob Hooper,
Chair - Solomon River Basin Advisory Committee

We of the Solomon Basin Advisory Committee know who we are; and we recognize the limitations of our official role. We are charged with giving you of the Kansas Water Authority and the Kansas Water Office the best advice we can, in the best long-term interests of the inhabitants of our basin and the resource itself -- for today and for those who we hope will live here the remainder of this new millennium and those centuries to follow. We wish the public to understand clearly what our committee has advocated. While we have not yet had time to meet and consider together the "final draft" of the Solomon Subsection of the 2002 Kansas Water Plan, I believe the Committee will continue to have serious objections about key elements.

Briefly, I believe:

We will hold to our recommendation that a specific timetable of 2015 be established to achieve sustainable use of water in our basin, concentrating first on those areas of significant depletion within the High Plains Aquifer.

We will question the the KWO's estimate of reductions in reported usage needed in our basin to reach sustainable use. p.124

We will point to the indication by the KWO that recent years may show rates of decline may be returning to past conditions. p. 124

We will argue that a expressed 2010 goal of stabilizing decline rates to sustain the usable life of the aquifer to 50 to 75 years is no real improvement over earlier projections, and demonstrates further temporizing and delay. p. 125

We will note a seeming contradiction -- in that under WATER RIGHT MANAGEMENT sub-basin the goal is to "reduce water decline rates within the Ogallala Aquifer." [ which is acceptable only if the goal is expressed as a significant and quantifiable reduction.] p. 127

We will suggest that the KWO stated goal of achieving sustainable yield by 2010 but outside the High Plains Aquifer region avoids the real problem which is precisely inside the High Plains Aquifer region. p. 125

We will question the wisdom and source of the words "typically considered reasonable" when "reasonable" is used to justify the continued mining of an irreplaceable and vital resource. p. 127.

You are charged with accepting or rejecting our considered advice. History will hold both you and us accountable.

When we look at the Kansas Geological Survey's maps of the Atlas of the High Plains Aquifer in the western third of Kansas, our eyes are drawn to the prominent blotches of townships colored bright red to indicate that a 90 percent reduction in appropriated water is necessary to bring those areas into line with safe yield. Southwest Kansas and central west Kansas seem awash, not in water, but in a sea of blood. Northwest Kansas, the neighborhood of our Solomon Basin Advisory Committee, is significantly better, the statistical tint less crimson -- which is not to say it is good.

We cannot but remark the sad irony that some in Kansas government and commerce proclaim an economic miracle in the very areas where the most tragic environmental mistake continues day by day, year by year. By what stretch can they or anyone celebrate Southwest Kansas as a wise or responsible model for economic development?. And while the scenario there is most dramatic, the philosophy of planned depletion elsewhere in the western third of Kansas is the same. Where is the wisdom in all that?

An irreplaceable resource millions of years old is being mined in a relatively short-time, (even in human terms), because of arbitrary value judgments and the force of political and economic inertia. Yes, we allow that in some areas and to some degree, progress has been made. But not enough, and not fast enough.

Some small steps toward regulation have begun. Reported use (even though the figures in our area come largely from unmetered wells) is substantially less than appropriated acre feet. More stringent requirements have been placed on drilling new wells, and blatant over-pumping where it can be documented has finally been targeted by the Division of Water Resources, if not yet addressed. To date, however, the biggest positive factors like low pressure drops to deliver water under the crop canopy and irrigation timing to avoid evaporative loss have been driven primarily by economic payback. Millions of dollars have been spent over severeal decades on hydrologic data gathering and economic studies. More expenditures are proposed -- yet the essential fact remains: the aquifer remains greatly over-appropriated and is still being depleted by policies and practices still in force.

Some "experts" have been adept in adding up and publicizing the short-term costs and dislocations of adopting an environmental policy of sustainability within a timespan sufficient to preserve real options for future generations. We only wish those same experts had been as thorough and assiduous in calculating or publicizing how much more costly the loss of the resurce will be for future generations -- who will have no options to use our once over-flowing gift in a kinder way.

I have made no mention thus far of the continuing, probably permanent, loss of surface manifestations of groundwater: the little springs, seeps, creeks -- those less dramatic places where wildlife gather and flowers bloom-- or loss of stream baseflow. Kansas Geological Survey research in Public Information Circular 9 says that "because of declines in groundwater-levels, streamflows in western and central Kansas have been decreasing, especially since the l970's," and an accompanying chart shows clearly the loss of stretches of once-perennial streams. Unfortunately, the minimum desirable streamflow law passed in l982, says nothing about protecting such now intermittent streams or more subtle outflows of groundwater to the surface, effectively ignoring or discounting the damage that has been done. There is a sad tendency to for some to dismiss the importance of these wetland areas because of their subtlety and modest scale, and yet both esthetically and ecologically they are critical in semi-arid Western Kansas.

Surely, we do not inhabit this planet only for today, nor all believe that making money is the most honorable achievement of our species. Yet, today many in government and in the public have adopted an attitude that such problems cannot be solved except by economic incentives; that is, people must be paid to do the right thing or the right thing cannot be accomplished. That seems to me an unfortunate and erroneous, even perilous attitude.

Without question, economic incentives work -- sometimes very well, But often not. There remain those things money cannot buy, and problems that dollars cannot solve. Some solutions require sacrifice. Some take courage -- which seems to be a rarer commodity. And there are always the questions of culpability -- and proportionality of culpability.

We believe the issue before us -- the addiction to groundwater mining -- will take a combination of approaches: economic incentives, political courage, and material sacrifice. Over-appropriating the resource has been an error in judgment, to say nothing of greed and power, and those things frequently demand a price. It is rare a chronic and serious problem is solved painlessly. In the righting of large wrongs, those directly responsible often suffer, but also those around them. Sometimes those who will suffer most have not yet been born. If reaching the goal of sustainability requires us to face "ugly" choices in the present -- as a GMD mangager recently characterized it -- what word then describes the choices which we leave the future?

"Hideous," perhaps.

Make no mistake. The State of Kansas, represented by those in regulatory agencies and boards, bears great responsibility for the over-appropriation of water in this state. In 1994, the Division of Water Resources adopted Kansas Administrative Regulation 5-3-9, which in pertinent part says that "unless otherwise provided by regulation, it shall be considered to be in the public interest that only the safe yield of any source of water supply, including hydraulically connected sources of water supply, shall be appropriated." The authorization for this new administrative regulation, which has the force of law, is K.S.A. 82a-706a -- which first became law in 1957! In other words, since l957 the Chief Engineer has had the authority to enforce safe-yield in the public interest, but had not fully accepted that responsibility until nearly forty years later, thus apparently "locking the barn door after nearly all the horses had departed."

Those who have encouraged and supported those unwise decisions of agencies and boards are equally culpable, whether it be those in the legislature or those advocating for special interests. Likewise guilty are those like myself in the general public who then and now have been so materially comfortable as to ignore our duties as citizens in failing to demand genuine stewardship of our natural resources, and letting ourselves be satisfied with rhetoric and procrastination. .

The federal government, like the state, also bears a measure of guilt in failing to understand and honor the environmental dimension in crop subsidies and investment credits, for example -- championing economic development, and awarding subsidy dollars for water-intensive cropping where water is being mined, or for granting tax breaks for groundwater depletion.

Now, to step away from our addiction means that -

(1) The State of Kansas elected representatives and bureaucracy must admit primary responsibility for creating the problem and allowing it to persist, and courageously to begin to exercise regulatory powers to remove incentives and to reduce pumpage over a specific timetable.

(2) The government of the United States must likewise accept blame, and instigate changes in federal farm and tax policies which have previously allowed or encouraged groundwater mining.

(3) Taxpayers at both federal and state levels must pay for some portion of an accelerated transition away from a policy and practice of depletion, to a policy of sustainability.

(4) Those who have used and benefitted substantially from pumping over-appropriated wells, some for over a generation, must expect at best only a partial financial bailout, and accept some level of sacrifice.

Can all that be done? We think it can and must.

In the early 1990's, John Opie, from the New Jersey Institute of Technology criss-crossed the land of the Ogallala gathering opinion and data, and stopped in Colby. There in 1990, Opie reports, a progressive Groundwater Management District board and staff had set a zero-depletion goal to be reached in as little as ten years -- that of course would be this very year. Opie quoted a district official as saying, "the declining levels meant zero-depletion anyway, so why not opt to reach the same goal earlier while maintaining an acceptable quantity of water for future management options." To do just that, the official had said, was a "logical extension of its stated mission." The goal was soon abandoned, more than likely not because it was technologically unfeasible, but because the short term costs were judged by influential vested interests as economically, and thus politically, unpalatable.

It is important to note that the goal the Solomon Basin Advisory Committee has just recommended provides for what now would be a quarter of a century to actually accomplish in fact what GMD 4 accepted as their mission. In 1993 Opie, whose book Ogallala: Water for a Dry Land is considered a classic, wrote "...irrigation on the plains is still in a self-destruct mode, and the Ogallala is still a non-renewable resource." We believe we are in solid company with John Opie and others like him in our own assessment of the situation, and we believe we are advising you properly -- no matter how unpleasant and painful some will find it.

In March of 2000, J.A. Schloss, B.B. Wilson, and R.W. Buddemeier of KGS compiled data to suggest that reductions of a third to a half at the township level would bring extraction to the approximate magnitude of recharge. In June those estimates were re-examined, and some areas were found to be in worse shape that originally thought. However, our own Solomon Basin, where depletion has been less severe, is a still an excellent candidate for reaching a balance of withdrawing no more water than is recharged naturally within the time-frame we recommend. We have lost comparatively less, and consequently have more to protect.

We think it is not unreasonable to believe average annual reductions of perhaps three to four percent of the original reported use over the fifteen years we've recommended would achieve a state of safe-yield -- if not "sustainable yield" as strictly defined. However, it should be understood that continued depletion even at a lessening rate would result in the continued loss of additional hydrologically connected wetlands. That is a cost we who live in the Solomon Basin reluctantly may have to bear. Congress, too, may be ready to ask federal taxpayers as well to accept a share of cost.

In June of this year 2000, Senator Bingaman and Representative Udall of New Mexico have introduced companion bills into the Senate and House, which so far as I know, are the first congressional recognition that federal funds are needed to help solve the problem. Senator Bingaman's bill, the first introduced and now in the Senate Agriculture Committee (where our own Senator Pat Roberts is an important member) proposes a $70 million expenditure for each of twenty years to address groundwater depletion in the High Plains Aquifer. In my own opinion, there are some fundamental changes to be made, with the hope that the funding will be made available on a proportional matching formula based on areas of decline, and acre-feet reductions in water appropriations needed -- and can be targeted specifically toward reducing pumping. It is only reasonable to believe such funds should be made available to states who have established a time table to achieve safe-yield or sustainable use, and will make a proportionate commitment of funds from a larger share of state water plan moneys.

These proposed state and federal funds are not, of course, manna from Heaven. They represent a share of the considerable fiscal pain ordinary taxpayers must accept for complicity in the problem -- but it is neither fair nor just that they bear the pain alone.

Those who will see their pumpage reduced over a transition period are entitled to some economic support but cannot in fairness expect a "fair-market" buyout of the quantity of water which Kansas Statute says they do not own, but have indeed been allowed to use in excess over the years -- in what was once mistakenly judged to be in the interest of the people of Kansas -- and now has proved not so. In addition, Kansas and other states with areas of groundwater depletion must press for changes in federal farm and tax policies, as I have noted.

There is one more element to speak of here, which requires absolutely no money to solve. That is the issue of equitable representation in the governance of water.

In 1986, Stephen Hurst, then Director of the Kansas Water Office, summarized the representational issues for Kansas Water Authority in a paper entitled "Concerns Associated with the Groundwater Management District Act." At that time, the League of Municipalities, the City of Hays, and the Solomon Basin Advisory Committee were among those who had raised the question. In August of l999, Mr. Hurst reviewed the events of 1986 for Mr. LeDoux, present KWO Director. In retrospect, Mr. Hurst said he felt that the representational issues concerning the GMD structure "were too politically volatile to deal with and chose not to do so." The issue was passed to legislative committees who made no recommendations for change. In 1999 again no substantive changes were recommended. Perhaps they truly felt none were needed; but perhaps again the issue was just "too volatile" to deal with.

If my memory and notes serve me correctly, much earlier than 1986, a graduate student of KU Law Professor John Peck was among the first to question the fairness of "the fox guarding the hen house," alluding to what he saw as a bias toward irrigation interests in setting important water policy.

In 1992, a Regents' Task Force convened by the Governor (Kansas: creating tomorrow through quality of life), said that (a) natural resources belong to all Kansans and future generations of Kansans. (b) there must be a long-term goal of sustainablility, (c) the state must move from a reactive stance to a proactive stance in the stewardship of the environment, and (d) [the state must eliminate] "sending the fox to guard the henhouse" .. by biased boards and regulating agencies. All recomendations which merit careful public attention.

So, finally we ask: what is it that the Solomon Basin Advisory Committee has advocated that is not in harmony with the goals of protecting the resource -- not just for the benefit of a segment of the economy for the next 50 or 100 years -- but for this generation of Kansans and those who will follow in the centuries to come. Are we not asking for sustainability? Are we not being proactive in advocating stewardship?

While it will be difficult and painful to achieve, we believe sustainable use in our basin is achievable. We believe our basin can be a positive example for others to follow. We think a combination of approaches is advisable. We think together and determined we can do something significant. And we think it's past time to set an actual date and get serious.
END

[As a etymological footnote, the word "steward" derives from the Anglo-Saxon words "stig worder"-- which meant literally, the warder or herder of the "stig" or pigsty. The responsibility of the steward, then, from antiquity has required if not altogether courage, then certainly a willingness to face an often unwilling and determined opposition, and in less than pleasant circumstances.]


3 Comments

Mr. Hooper, you still have not explained just what the authors of the Water Appropriation Act meant when they said that a ‘Water Right’ was a real property right. I don’t think you can find anything in the English language or Latin (preferred by legal writers) that says some real property rights are real and some are not. No where in the appropriation act does it say, if there is conflict in the act, which clause will stand and which one won’t.

You own property that borders a public street or hi-way. You have a document that describes that property and indicates that it will be defended by the authority of the state or federal government. There is a legal right of way, set aside, for public use. If, the authorities determine that not enough property was reserved to accommodate the public, you will be required to give up some of your property. If they only want a foot or two, you may choose to just donate it or give it back, without compensation. But if they determine they will need your full front yard, will you expect compensation? If you have owned and used that front yard for 20 or 30 years will that mean you are not entitled to compensation? If the government survey certified the boundaries of your property and after you developed that property, they determine they certified wrongly, should you be compensated for the expense of your development or the loss of its use? Should it make any difference whether you had profited from the development or not?

You contend that your real estate property right and my water appropriation right are not equal. Pardon the pun, but your contention just doesn’t ‘hold water’. There is a hole in your thinking.

We have a problem with the over appropriation of the water, but I will not support your solution to that problem. Neither will it be in the best interest of the public to suddenly cut off the appropriation of 98% of the irrigation use of water. I don't want to insult you, but that sounds almost like a Republican solution to the problem. Whups! I didn't say that, did I?


"Mr." Poland. First, may I say that your response was predictable, since you are one of the self-justifying addicts of groundwater mining, and although you have declared yourself just a "hobby farmer" you are unwilling to stop mining the aquifer--unless you are well paid for water you would like us to believe you "own" (whether or not you are honest enough to use the word.) Otherwise, you're a nice guy (so far as I know, our having never met, personally.

Yes, Ken, a water appropriation right is a "real property right" -- It is NOT however a "deed" to real property, but a PERMIT to USE real property. Otherwise, the statues would not put it so clearly: "an appropriation right does not constitute ownership of such water." I know you would like that phrase to just go away. It won't.

Further, NOTHING in an appropriation right, a permit to use water, assures the original amount granted for use forever.

I have a legal DEED to my property, not just a permit to use it in some limited amount. One might argue (correctly) that my use of my property does have to pass health and safety regulations as well as local ordinances concerning appearance. All that is in the broader public interest.

But once more: a permit to use property is not a deed to property. True, you may sell the permit, but the amount of water appropriated and the new site of use must be approved by the State of Kansas, Division of Water Resources, (which unfortunately is under the Board of Agriculture rather than the Dept. of Health and Environment where it logically belongs.)

The bottom line here is that irrigation addicts and their allies, a decided minority of the citizenry, principally by way of "Groundwater Mining Districts" have had way too much influence over water use policies in western Kansas. In short, the failure to achieve an environmentally sane use of water lies precisely at the feet of "the drunks running the liquor store."

A painful truth.


Since I'm no expert on this issue, I'm not going to get involved in the debate on property rights. However, I must say every time I turn on the tap in the kitchen or bathroom, I have to ask myself how long people will have water flowing freely at their disposal.


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