BY ANDY MARSO

Kansas is making slow progress toward fulfilling Gov. Sam Brownback’s vision of a 50-year plan to preserve the state’s water supply.

But in the meantime, disputes over water among western Kansas residents are growing. Legislators now are talking about the need to not just conserve water but also reform the judicial process for deciding water rights.

Rep. Don Hineman is a Republican from Dighton whose western Kansas district sits atop the key Ogallala aquifer.

He told a special agriculture committee Thursday that the state needs to prepare for additional water rights cases because ongoing conservation efforts probably won’t be enough to prevent more wells from running dry.

“We know that the Ogallala is being depleted,” Hineman said.

“The state is taking steps to mitigate that and extend the life of the Ogallala to the extent we can, but we know that for at least the foreseeable future the resource will continue to decline. As it does, there will inevitably be increasing disputes among water rights holders.”

A trickle of disputes

Some of those disputes are in progress. Kansans who think someone with lesser water rights has impaired their water supply have two options: They can seek an administrative remedy through the state’s Division of Water Resources or they can file suit in district court. Lane Letourneau, director of the Division of Water Resources, told the 2015 Special Committee on Agriculture and Natural Resources that his office is handling “two or three” disputes right now.

In addition, he said, one water impairment claim was filed in district court earlier this year and a second remains in litigation. The case still in litigation, Garetson Brothers LLC v. American Warrior Inc., spurred Hineman to introduce House Bill 2245.

It would provide more guidelines about which water disputes can go to court and what the court should consider in those cases.

Mark Rude, executive director of Southwest Kansas Groundwater Management District No. 3, said the Garetson Brothers case also raised concerns for him. The court used a broad definition of “impairment,” he said, that differed from what the state’s water office generally uses.

Rude said Kansas water law generally is sound, but if the courts and the water office don’t interpret it the same way, it’s not effective. “We have a house of cards,”

Rude said. Sen. Marci Francisco, a Democrat from Lawrence who is on the special agriculture committee, said some language in HB 2245 concerned her.

It seemed to give regional groundwater management districts some authority over the state’s chief engineer, she said. Francisco also said she would like the committee to hear from Burke Griggs, the water resource division’s legal counsel, before making recommendations on the bill.

She praised a presentation Griggs gave at the annual Kansas Water Conference in August, when he suggested Kansas might want to establish a special water court to redistribute the limited water rights, similar to a bankruptcy court divvying up assets among creditors.

Sen. Garrett Love, a Republican from Montezuma and member of the committee, said any changes to water law are likely to be controversial. But he said there’s support for creating a “good, solid framework” for dispute resolution. Right now the water office and courts have the resources to absorb the handful of disputes coming their way, Love said, but if the number increases as expected that could change. “

At that point it would be a lot more difficult in terms of the costs to the court system going up, and to the water office as well,” Love said. “That would be a future thing.”

The governor’s plan

Susan Metzger, assistant secretary of the Kansas Department of Agriculture and former policy chief of the water office, briefed the committee on progress toward the governor’s 50-year plan. Metzger said a sub-Cabinet group of water experts has been meeting monthly since May to discuss how to coordinate the governor’s plan, which includes several local and regional goals. –

However, a blue ribbon task force focused on how to fund the vision has yet to form, and that delay has frustrated some lawmakers. “That one’s been a little slower to come together, but we are making progress,” Metzger said.

She said task force members should be announced before the governor’s water conference Nov. 18 in Manhattan, and they will start meeting during the legislative session that begins in January.

Local agreements popular

Metzger said legislation passed last session is helping make the governor’s vision a reality. One of the most effective changes, she said, was an expansion of a program that allows small local groups to enter into voluntary agreements. A 2012 bill allowed groundwater management districts to enter their members into such agreements, called local enhanced management areas, or LEMAs.

The Agriculture Department had high hopes for the program, but so far only one district has signed up. A bill approved last session expanded the program to allow informal groups of neighbors to petition the Agriculture Department for the right to form their own conservation area.

Metzger said that has proved more popular. The department is in “real serious discussions” with about 10 to 15 petitioners, she said, ranging in size from a single family with five water rights to a group of western Kansas landowners whose conservation agreement would cover half a county.

“We’re really excited about this possibility,” she said. Metzger said the department also is still working on a plan to increase fines for landowners who overpump their water rights. Stakeholders have been calling for that change for years.  “We heard consistently that our current penalty matrix was not harsh enough to deter overpumping,” Metzger said. “

We’re seeking feedback on what the should be the penalty matrix that would actually deter the behavior.” She provided no timeline for presenting a draft of new overpumping regulations.

The Agriculture Department also would like to increase the fine for failing to submit an annual water use report. The fine is currently $250, and Metzger said a small number of Kansans routinely fail to file their reports.

Andy Marso  is a reporter for Heartland Health Monitor, a news collaboration focusing on health issues and their impact in Missouri and Kansas.