Why ambitious effort to overhaul Kan. water management fell short

By ALLISON KITE
Kansas Reflector

The dire state of water in western Kansas is not in dispute. The aquifer Kansans out west rely on to irrigate crops and provide drinking water dropped by a foot in 2021. 

“If you look at charts as to where it was … when they started irrigating and now, it’s alarming,” said the House Water Committee chairman, Rep. Ron Highland, R-Wamego. 

The Ogallala Aquifer has just 10 years left in one county in the extreme western part of the state, where groundwater supplies towns and irrigates crops in an otherwise arid countryside. 

How to handle the drying out of the huge swaths of Kansas’ farmland is a point of serious contention. Tension between the rights of farmers and the reality that water is running out stalled a massive effort this session to get a handle on the state’s most precious resource. 

After a year of study and legislators’ visit to Garden City, where the Arkansas River bed sits dry, it appeared that the Kansas House Water Committee was ready to raise water issues to a cabinet-level position, grant more independence to the state’s chief engineer and demand more oversight of local agencies charged for decades with stopping depletion of the aquifers.

But a bill meant to do all that died without ever seeing a debate on the House floor. Committee members voted to essentially gut the bill with an amendment backed by agricultural groups. 

“My fear is that, ultimately, they have so much power that they don’t have to come to the table if they don’t want to, and that’s going to be to the demise of our rural communities in western Kansas,” said Rep. Lindsay Vaughn, D-Overland Park, the committee’s ranking Democrat.

Highland won’t seek reelection and will leave office in January without seeing his efforts culminate in any legislation passed. But to him, not all is lost. 

House members and senators will keep studying declining water in western Kansas and quality issues in the east before they introduce legislation for the next session, with far more time for stakeholders to take a look before hearings and negotiations begin. Meanwhile, state auditors will take a look at groundwater management districts in southern and western Kansas that have been charged since the 1970s with overseeing water conservation with mixed success. 

“We want to know how much conservation they’ve actually done…and we want to know where the money goes,” Highland said. 

Rights and responsibilities

For more than 75 years, the right to use water in Kansas has been governed by a simple idea: “first in time, first in right.”

Farmers who irrigate crops hold water rights, which are considered property rights. Those who have held them longer have seniority over newer water right holders, and they’re entitled to a certain number of acre-feet of water.

Farmers and ranchers — and, as a result, the Kansas Livestock Association — take that right seriously.

“First and foremost, we want to protect those property rights, and while we do understand and are concerned about declining levels of the Ogallala Aquifer, I think, from our perspective, we’re always concerned when government tries to interfere with those property rights,” said Aaron Popelka, vice president of legal and government affairs with the Kansas Livestock Association.

Getting them to use less, Highland said, is an uphill climb. 

During meetings in Garden City, “several of the farmers that irrigate said, ‘I’m going to pump it dry, and then move away,’” Highland said. “But … the other side of the coin is those that want to keep something for the grandchildren and great grandchildren.”

But in parts of the state, Kansas has over appropriated water rights. Water users have the right to use more water than exists, setting up a conflict between farmers’ legal property rights of today and the reality of tomorrow.

It was against this backdrop that Highland introduced a 293-page bill restructuring state agencies that deal with water and creating a cabinet secretary dedicated to the issue. 

The bill would have given autonomy to the state’s chief engineer, tasked with administering Kansas’ water rights laws. Right now, the engineer reports to the state’s secretary of agriculture, which Highland argues puts the engineer at risk of being overruled by a political appointee. It would have raised fees that, in some cases, haven’t changed in 40 years to fund water projects. 

The most controversial element of the original bill would have given more power to residents residing within groundwater management districts who do not hold water rights. Right now, to serve on the board of a groundwater management district, someone must own at least 40 contiguous acres or a right to withdraw water on their property.

But the challenges to Highland’s efforts to do something about water in western Kansas were swift and severe. 

The bill was unveiled weeks into the session, and critics said they weren’t given enough time to study it. Some objected entirely to the idea of altering groundwater management districts or said conservation efforts should be led from the local level. 

“Some of the best solutions out there have been done by the local farmers and ranchers themselves,” Popelka said. “And while I think some folks would like to see more, there’s a certain level where you got to kind of let those things develop organically.”

The group supported a poison pill amendment gutting the bill of the bulk of its provisions. 

Though the bill passed the committee, there was no floor debate. The prospect of a major reform to Kansas water management died for the year. 

Behind the scenes, Highland said there was some negotiation.

Agriculture groups, he said, gave some ground on creating a secretary position and other provisions. But as time ran short in the legislative session, there still wasn’t a consensus. 

Kent Askren, public policy director for the Kansas Farm Bureau, said the group’s contract lobbyist was involved in some discussions after the committee vote but there was no agreement. 

“It probably was just too little too late,” he said. 

Some victories were won this year. The state’s budget fully funds its portion of the state water plan for the first time in well over a decade. That was one area where Highland and agricultural groups alike could find common ground.

Agriculture groups all said there was more that the state could provide to fund water projects on the Ogallala. Changing the way Kansas oversees and gets involved in water is another story. 

Askren was open to the possibility that Kansas water law could be better administered. 

“We can have those conversations,” he said, “but to make or consider wholesale changes to the structure of our water law — I don’t see us being very excited about having that conversation.”

Allison Kite is a data reporter for The Missouri Independent and Kansas Reflector, with a focus on the environment and agriculture.