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It's Not Your Water, Mr. Irrigator

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.

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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)

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The previous archive is Farm: December 2011. The next archive is Farm: September 2012.

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This is an archive page containing all of the stories posted to Kansas Free Press in one particular topic in a particular month. These stories were published in the Farm: February 2012 section.

The previous archive is Farm: December 2011. The next archive is Farm: September 2012.

The most current posts can always be found on our Front Page.

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