Lessons from Kansas: A More Sustainable Groundwater Management Approach

Lessons from Kansas: A More Sustainable Groundwater Management Approach

By Burke Griggs

 

Kansas’ Hydrological Problem and Basic Water Law

Over eighty percent of the water used in Kansas is for irrigation, and nearly ninety percent of that water is groundwater, drawn mostly from the Ogallala-High Plains Aquifer. Because most of the Ogallala in Kansas is effectively non-renewable, Kansas faces a serious problem of groundwater depletion. By contrast, much of California’s groundwater supplies, including those in the Central Valley, are more renewable and sustainable—if they can be effectively managed. Kansas’ experience with the Ogallala offers some useful lessons about how California might pursue effective groundwater management. I will summarize Kansas’ experience (and offer some lessons that the state has learned the hard way) based on my role as the chief water lawyer for Kansas for the past six years and as a fellow at the Water in the West program.

At first blush, Kansas water law appears to be well-suited to address the problem of groundwater depletion. The Kansas Water Appropriation Act (KWAA), Kan. Stat. Ann. 82a-701 et seq., the modern water law of Kansas, was first enacted in 1945. It places the regulation of water rights under the office of the Chief Engineer of the Division of Water Resources (DWR), who is statutorily endowed with the authority to regulate both surface and groundwater rights according to the doctrine of prior appropriation.

In terms of groundwater, the KWAA provides robust administrative tools.  All non-domestic water users must hold a water right issued by DWR, and all water rights are limited to an annual authorized quantity which cannot be increased. If the irrigator decides to plant more water-intensive crops, he must reduce his irrigated acreage accordingly. Furthermore, every Kansas water right owner, including those who pump groundwater, must report a variety of annual water use data to the Chief Engineer, including annual quantity pumped, pump rate, place of use, point of diversion, and type of use.  There are civil penalties for noncompliance with these requirements.  As a result, the state has collected fairly comprehensive data about groundwater pumping in the state, and made it publicly available. To get a sense of the extent of this data, visit the water section of the Kansas Geological Survey website. Data for individual water rights is also publicly available and searchable through the Water Information Management and Analysis System, which is jointly administered by DWR and the Survey.

Owners of groundwater rights may request the Chief Engineer to conduct an investigation if they believe junior users are impairing their rights.  If the Chief Engineer makes an impairment finding, he can order the junior rights to be administered. Unlike many of its neighbors, Kansas thus has both the administrative and the doctrinal tools to protect groundwater rights from impairment.

A parallel act, the Kansas Groundwater Management District Act (KGMDA), K.S.A. 82a-1020 et seq., was enacted in 1972. Under the KGMDA, five groundwater management districts (GMDs) were established during the 1970’s. Collectively, the GMDs cover almost all of the ground overlying the Ogallala. GMDs have the authority to tax, to purchase and sell real property (including water rights), and to draft regulations for water use within their respective districts. If approved by the Chief Engineer, these regulations become binding and enforceable by the Chief Engineer.  The GMDs themselves have no independent administrative or legal authority. However, because they encompass most of the irrigation in Kansas, the GMDs have become the state’s most powerful political group regarding water.

Despite the potential of the water laws in place, the depletion of the Ogallala had become all too apparent in Kansas by the late 1970’s. Local irrigation interests took the initiative to amend the KGMDA in 1978, providing for the establishment of Intensive Groundwater Use Control Areas, or “IGUCAs.” Based generally on similar legislation in Oregon, the IGUCA statutes are found at K.S.A. 82a-1036 to -1038. They enable the Chief Engineer (either on his own initiative, on the recommendation of a GMD, or by the submission of a petition of 5% of the water rights owners within a GMD) to conduct hearings to consider whether a particular area is suffering from excessive declines in surface flows or groundwater levels, from a decline in water quality, or from a situation where groundwater withdrawals exceed recharge (also called overdraft). If the Chief Engineer makes such a finding, he then conducts a second hearing to consider whether and how to impose appropriate “corrective control provisions” that will remedy the situation—most importantly, whether to impose reductions in pumping. After this second hearing, the Chief Engineer orders the establishment of an IGUCA for the area under consideration, and imposes the corrective control provisions. Since 1978, the Chief Engineer has established eight IGUCAs in Kansas—most of them to protect surface flows from impairment from excessive groundwater pumping.

Unfortunately, the Chief Engineer has imposed no IGUCAs over the Ogallala in Kansas, nor has any GMD recommended that he do so. More broadly, the Chief Engineer has almost entirely avoided administering water rights according to priority over the non-renewable Ogallala, and Kansas water rights owners have almost entirely avoided requesting the usual tools in a water-short situation: priority administration, impairment investigations, and water rights adjudications.  Depletion of the Ogallala continues to be a problem.

Obstacles to Deploying Kansas Water Law

Given that Kansas water law has the tools necessary to reduce groundwater depletions, why haven’t the Chief Engineer or Kansas water rights owners used them more? The answer to this question has to do with geology, the politics of water law and policy, and the political culture of Kansas groundwater irrigators. To answer this question, I have broken it down into three smaller parts.

First, if Kansas has such great water law, why have the depletions of groundwater continued? The answer to this question lies in simple math and geology. There are more water rights granted than there is groundwater to supply those rights with their full, certified annual authorized quantity—typical over-appropriation, the almost ever-present companion to a prior appropriation legal regime. Furthermore, the Ogallala is effectively unreplenishable, with typical recharge ranging from one to three percent. Over-appropriation is only becoming worse, especially as corn and soybean hybrids, together with improved irrigation technology, allow full irrigation in areas previously considered non-irrigable. As a result, even if every Kansas water right owner is acting within their legal rights (and nearly all water rights owners do comply with the limitations of their permits), these depletions will continue to get worse.

Second, why doesn’t the Chief Engineer take the initiative (by administration, adjudication, or by an IGUCA) to reduce groundwater pumping to save the Ogallala? Again, the answer to this question is that because Kansas water rights owners are largely complying with the law, and because irrigators have decided (both individually and collectively) not to request the Chief Engineer to step in and order reductions, the Chief Engineer is loath to take action on his own. Doing so would run at least two large risks. First there is the legal risk: while it is an unsettled question in Kansas, a court could rule that ordered reductions in the amount of water a water right can pump might constitute an uncompensated taking under the 5^th and 14^th amendments of the U.S. Constitution (along with parallel and stronger provisions under the Kansas Constitution). If a court so found, then it could order the State to compensate irrigators for the reductions. Second, there is the political risk: while the Chief Engineer has the statutory duty to protect water rights when their owners request it, he does not have the duty to save the Ogallala.[1] Strong political interests, especially the large irrigators who dominate the membership and policy of the GMDs, have made clear that they would retaliate politically if the Chief Engineer made such a move.

Finally, and perhaps most importantly, why haven’t Kansas groundwater irrigators themselves used the tools at their disposal to protect their valuable property rights in water and in irrigated land? The short answer is this: those tools (administration by priority, IGUCA, adjudication) strike them as too powerful and unpredictable.

An impairment investigation can lead to administration and potential pumping reductions by junior groundwater rights; but few irrigators have filed impairment complaints because priority administration in a groundwater context can have far-reaching effects. In a “neighborhood” of groundwater rights, protecting one right can mean administering as many as a dozen nearby rights, where the Chief Engineer finds that their cones of depression intrude upon the senior right. This creates an all-or-nothing situation that makes irrigators hesitant to file an impairment complaint. Also, groundwater irrigators in Kansas tend to disfavor the logic of prior appropriation, and usually prefer that a reduction in groundwater pumping be leveled against all rights equally, rather than according to priority.

Irrigators have not requested an IGUCA over the Ogallala for several reasons. As a rule, they tend to mistrust the authority of the Chief Engineer, whom they perceive not as a protector of property rights but as a regulator, akin to an administrator from the EPA. That perception aside, irrigators have understandable concerns about the IGUCA process.  In particular, they fear that the public hearing process, which allows anyone to provide testimony, might place facts and opinion into the record that argue for corrective control provisions far in excess of what they might deem to be acceptable reductions in water use. An order that emerges from the IGUCA process may very well be too severe for the very irrigators who requested pumping reductions in the first place. 

Irrigators have yet to request an adjudication of water rights over the Ogallala. Like most groundwater irrigators across the West, there is the strong (and well-justified) fear that an adjudication, by correcting the ever-widening span between paper water rights and wet water, would product significant, even draconian, reductions in authorized pumping.

In sum, Kansas irrigators are not using the law to protect their groundwater rights and their water supply, because Kansas water law and the political culture of groundwater irrigation do not mesh together very well in this situation.

Crossing the Obstacle of Unpredictability: the LEMA statute, K.S.A. 82a-1041

How, then, do you remedy a situation where irrigators are leery of deploying the existing legal tools to protect their water rights and extend the practical life of the Ogallala Aquifer? Ultimately, both the irrigators and the Chief Engineer came to realize that they needed to build a bridge between two indispensable needs. First, there is a need for local water users themselves to generate their own plans for reducing groundwater depletions. The landscape of groundwater management across the Great Plains is littered with centrally-imposed water conservation plans that local groundwater irrigators have rejected for being excessive in their reductions and politically unpalatable for their lack of sensitivity to the concept of “local control.” Second, there is the need for the water reduction plans to be meaningful (in terms of the amount of their reductions) and legally enforceable.

During 2010 and 2011, there emerged a critical mass of groundwater irrigators who were willing to commit to a significant reduction in their water usage, but were unwilling to trust the IGUCA process due to its unpredictability. In response, I helped to draft a new piece of legislation, enacted in 2012 as K.S.A. 82a-1041, which provides for the establishment of Local Enhanced Management Areas, or LEMAs.

Procedurally, the LEMA statute follows the main steps of the IGUCA statutes, but with some important differences that make the process much more palatable to irrigators. Under the statute, either a GMD or 5% of irrigators within a GMD can submit a local enhanced management plan to the Chief Engineer for his review. Such a plan may include proposed reductions in water use, methods to improve the temporal flexibility of water use, and means by which to transfer water between water rights holders. At this early review stage, the Chief Engineer evaluates the plan, and communicates with its sponsor to recommend changes, to express his reservations, and to provide other feedback.

After this informal review period, if the Chief Engineer decides that the local enhanced management plan is sound, he (or she) initiates proceedings for the establishment of a LEMA. These proceedings consist of at least two hearings. At the first hearing, the Chief Engineer appoints a hearing officer to consider whether the area in question is suffering from excessive declines in surface flows or groundwater levels, from a decline in water quality, or from a situation where groundwater withdrawals exceed recharge. If the hearing officer makes such a finding, then the Chief Engineer issues an “Order of Decision” establishing a LEMA, and sets a second public hearing.

At this second public hearing, there is an important difference from the IGUCA process: under the LEMA statute, the scope of the second hearing is limited to the plan put up by the sponsor. The Chief Engineer is statutorily prohibited from considering alternative plans, so that the plan in question may not be amended, limiting uncertainty and potential changes offered by outside parties or the state. The only question before the Chief Engineer at this point is whether or not to accept the proposed plan.  After the second hearing, if the Chief Engineer decides that the local enhanced management plan passes muster, then he issues an Order of Designation, setting forth the local enhanced management plan in detail. As an Order of the Chief Engineer, enforcement of the plan falls to DWR, and not to the GMD or the sponsor. This takes the onus of enforcement off of the local groundwater interests. And as an order, it is subject to both administrative and judicial review under Kansas administrative law.  

In short, the LEMA concept combines local control over the plan with the same central enforcement and administration as IGUCAs. 

In 2012-2013, I represented the Chief Engineer in hearings to establish the first LEMA, in Sheridan and Sherman counties in Northwest Kansas. Designed mostly by the leadership of Northwest Kansas GMD4 and local irrigators who depended upon the Kansas Geological Survey for technical guidance, it was put up for hearing in late 2012, and was established by order in April 2013. The plan imposes a 20% reduction in irrigation pumping over a five year period, and applies to all groundwater rights, regardless of priority. It allows for flexibility across that five year period: while irrigators are limited to pumping a total of 55” of water per irrigated acre over that period, they may allocate whatever portion of that amount each year as they see fit. It imposes fewer reductions on higher-value uses such as recreational and municipal rights than it does on irrigation. Finally, it imposes stronger penalties for violation of the plan than would otherwise apply under Kansas law—the local architects of the plan insisted upon these.

To the relief of the irrigators who developed the plan, the Sheridan-6 LEMA was not subjected to a legal challenge. I attribute this lack of challenge to the hard work done by the irrigators in GMD4 to build consensus around the plan.

Through both the IGUCA process and the LEMA process, these achievements in reducing groundwater pumping raise an obvious question: haven’t they imposed serious economic losses on the affected irrigators? The surprising answer is no. A 2011 study by two Kansas State University economists found that the reductions in groundwater pumping mandated by the Walnut Creek IGUCA produced little or no economic losses after the first several years. Once groundwater pumpers adjusted their cropping to the lower levels, their net returns were virtually the same, if not higher in some cases, than before the IGUCA was imposed. A similar study related to the Sheridan-6 LEMA in 2011-12 found that a 20% reduction in pumping would have no economic effect on the bottom line of groundwater pumpers; and leading irrigators believe that the reductions will actually improve the economic outlook for their farms, by reducing input costs and extending available water supplies.  

Conclusion

It is probably too early to evaluate the success of the LEMA concept. However, early signs are promising. The Sheridan-6 LEMA reduced water use over about 100 square miles of land (about 64,000 acres) by 20% over five years, and the irrigators continue to envision those reductions as becoming permanent. Other GMDs, especially GMD1 in west-central Kansas, are in discussions with the Chief Engineer to establish a LEMA as well, and perhaps one that covers a larger area. The LEMA statute and the Sheridan-6 LEMA have attracted the attention of the water-interested public across the West.

However, the LEMA process is a voluntary one. While it provides a useful bridge between the strengths of Kansas water law and those who are most affected by groundwater depletion, it cannot, by design, enable the state to step in to reduce groundwater pumping to preserve the state’s groundwater supplies. The Kansas Chief Engineer has the power to protect individual water rights and to reduce groundwater pumping, but he does not have a clear affirmative duty to protect the state’s water supplies from depletion.

As California considers possible legislation (Senate and Assembly) to improve its groundwater management (and then begins to implement any new law), it can learn some key lessons from Kansas.  One lesson is that law that provides for sustainable management on paper does not always work in practice.  It needs to be tailored to the politics of the region and to the community of its groundwater users.  The legislative proposals currently under consideration in California would in fact leave primary responsibility and control in the hands of local entities. 

Perhaps most encouragingly, the Kansas experience shows that such communities can come together and reduce overpumping without harmful economic effects.  In Kansas, however, the communities of irrigators are fairly small ones, and they are economically homogenous communities as well, raising grain crops such as corn, soybeans, sorghum, and wheat. By contrast, many groundwater basins in California are used by a much more diverse range of pumpers, raising more valuable crops such as nuts, grapes, and other fruit.  Finally, it is worth asking whether the LEMA concept is applicable to California. Despite the considerable differences between Kansas and California both economically and legally (most especially the historical lack of state regulation of groundwater pumping in California), I think the answer is yes. The LEMA concept addresses a common cultural concern that both California and Kansas irrigators have—the need for a predictable and locally-designed outcome.  

Burke Griggs was a Consulting Professor at the Bill Lane Center for the American West for the 2013-14 academic year.  He is currently an Assistant Attorney General for the State of Kansas and a nonresident fellow with Water in the West.  He has represented Kansas before the U.S. Supreme Court in interstate water disputes, most recently the dispute with Nebraska involving the Republican River Compact.  He has played a central role in drafting groundwater legislation in Kansas.