As the 2012 drought smothers the Great Plains, Kansas water laws — written to steady the economy, ecology, and use — are actually working.
By Brett Walton
Circle of Blue
With nearly nine of every 10 hectares wrung so dry that rivers stopped flowing, Kansas is the epicenter of the country’s worst period of drought since the 1950s.
One measure of the state’s moisture emergency is that the Kansas Department of Agriculture cut off water withdrawals for 530 permit holders in 16 river basins, primarily in the eastern half of the state.
Meanwhile, in the prairies of western Kansas, where irrigated circles dot the rectangular fields, farmers are embracing a risky strategy of adjusting their annual water rights to salvage what is left of their crops. They are converting annual water rights into a five-year allotment, which allows them to use more water now. The trade-off is that they must reduce their water use in subsequent seasons during the next five years and pray that it rains.
The state’s authority to cut water supplies on one side of Kansas and enable strategic water supply decisions on the other is an illustration of something uncommon in American environmental policy, business practice, and perhaps culture — a system of restricting access to natural resources that has attained enough historic and legal credibility to actually work effectively in a time of crisis.
What is happening with water management in Kansas, as farmers, regulators, and water suppliers contend with a ruinous drought, is a notable model for allocating resources to avoid conflict — a trick that will be ever more valuable for regions where climate change will reduce supplies of fresh water.
The water rights system that enables this swap grew out of mining customs that were introduced during the California Gold Rush in the 1850s. Since then, the system has been legally recognized by the federal government and adopted in much of the Western United States as the primary tool for allocating water. In other words, rights holders accept the risk of being shut off during a time of shortage in exchange for the system’s clear rules for determining who is allowed to use scarce water supplies.
Kansas is a key agricultural state — it is among the top 10 states to produce corn, soybeans, hay, summer potatoes, and cattle; it ranks second in the nation for wheat production; it is number one for sorghum grain — in a nation that is a major food exporter. Thus, because the state also draws water from a shrinking aquifer that is shared with seven other dry states, water management in Kansas has both national and global implications.
Lawmakers in Topeka have set up a flexible and resilient system, but they are reaching the limits of what they can do in the face of months, or years, of cloudless summer days. The current drought is a reminder of both the promise and the limitations of policy, as well as the bonds between water, food, and agricultural economies.
The water rights system in Kansas comes from nearly seven decades of laws passed by the state legislature and signed by the governor, starting with the Water Appropriation Act of 1945, which created a water rights framework that has been modified to fit new circumstances. The minimum stream-flow law was passed in 1985, while the multi-year allocation was one of six water management reforms signed this year by Republican Governor Sam Brownback, a former U.S. Senator.
–Bill Golden, water policy specialist
Kansas State University
The new laws are part of the state’s legacy of proactive water management, which began in the 1970s, said Bill Golden, a natural resources economist and water policy specialist at Kansas State University.
“The laws provide flexibility,” Golden told Circle of Blue. “And they make conservation a beneficial use of water. Producers are not penalized for not using water.”
Another of the six water bills that Brownback signed eliminates the requirement to use a water right or risk losing it. In the past, this principle of “beneficial use” (also known as “use it or lose it”) was used to discourage speculators from snapping up water rights and sitting on them.
Now, however, more states are recognizing that leaving water in the rivers is a useful act.
Surface Water On Hold
The 530 permit holders in Kansas who are now facing restrictions represent a cross-section of water uses. Towns, industries, and recreation have all been affected; however, more than half of the restricted permits are held by irrigators.
The state’s Department of Agriculture will enforce the ban on diversions until water levels in the streams and rivers stay above minimum standards for two consecutive weeks. Some bans have been in place since early June.The state opted for the flow standards in order to preserve aquatic life and recreation on the rivers and to protect the rights of senior holders who draw from wells that are replenished by stream flows.
A spokeswoman for the Kansas Water Office told Circle of Blue that curtailment does not happen every year. The last two years, however, have been dry, and more permit holders than usual have had their rights cut off.
Bob Wietharn is one of those affected. He farms 809 hectares (2,000 acres) of corn and soybeans in north-central Kansas and draws water from the Republican River. The curtailment came late enough in the growing season, at the end of July, that his crops were not badly harmed.
“If it had happened in June, it would have been a disaster,” he told Circle of Blue, noting that the water rights system in Kansas works well. “It is the fairest way to do it. There’s only so much water to go around. The older permits ought to be protected.”
Whereas eastern Kansas has streams but little groundwater, the other half of the state relies on aquifers. For a time, groundwater was a natural insurance policy: if the rains failed or the rivers ran dry, plenty of water is located under foot. Not so anymore in Kansas, where groundwater and surface water are managed jointly.
NW Kansas Groundwater Management District
All told, the state has quite a bounty that it is trying to manage. Western Kansas sits atop the Ogallala Aquifer, which is part of the High Plains system, one of the world’s great stores of groundwater. The aquifer is also fabulously productive, yielding water at 10 to 100 times the rate of wells in the rest of the state.
Irrigated agriculture in western Kansas — and by extension, much of the region’s economy — owes its existence to the Ogallala. But the aquifer is also rapidly shrinking, because it is slow to recharge in the dry High Plains and because demand for the water is high, mostly for large-scale agriculture.
In some areas, the water table has fallen by 60 percent since the 1950s, and the remaining water may not last more than two decades. Other areas have a longer life expectancy, with the water supply forecasted to last up to 200 years.
Regardless of the timetable, the state is doing what it can to see that farmers have water now — when all of the state’s 105 counties have been declared federal agricultural disaster areas — and as far into the future as the resource can be stretched. “Managed depletion” is the term water officials use to describe this planned decline.
“It is essential that we help protect, extend, and conserve the life of the Ogallala Aquifer for future generations of Kansans, while also supporting today’s western Kansas economy,” Brownback said in May, after signing the final piece of the water policy package.
Groundwater Pumping Now
Because rivers right now are essentially dry in western Kansas, farmers are pumping a full allocation of groundwater, taxing an already-stressed system.
“If this drought persists, it’s going to get seriously ugly in a hurry,” said Wayne Bossert, talking about the effect on both agriculture and groundwater.
Bossert would know. Since 1977 he has led the Northwest Kansas Groundwater Management District, and this summer, he told Circle of Blue, is drier than any in his memory. A monitoring well in his district has dropped to its lowest level since it was installed four years ago, he said. A complete picture of the Ogallala Aquifer’s decline will not be available until the annual report is released in January 2013, but Bossert predicts that it will be “an eye-opener.”
Groundwater measurements from the Texas Panhandle in the aftermath of last year’s drought foreshadow what might be in store for Kansas. Average water levels in a portion of the Ogallala Aquifer registered the third-steepest decline in 61 years of record-keeping, according to the High Plains Underground Water Conservation District.
The problem with agriculture is that when farmers plant their crop in the spring, they do not know exactly how much water will be available in the summer. Just this May, federal Department of Agriculture analysts were forecasting a record corn crop. Now, they are forecasting the worst yields since 1995.
“In the perfect world, the irrigator knows before every year’s crop decision how much he or she can pump. They are expected to crop accordingly. Most irrigators crop assuming they will get so much help from Mother Nature,” Bossert wrote in an email to Circle of Blue. “When they don’t get it, they have these difficult decisions. Virtually no one makes cropping decisions assuming they’ll get no help from Mother Nature — hence our predicament in 2012.”
Solutions: Nothing In The Bank
Kansas lawmakers have tried to help producers through the rough patch. Thanks to new laws, farmers can convert a single-year water right into a five-year account and vary their use according to the whims of weather and markets.
That allows farmers to take advantage of rising crop prices.
“The authority to pump water to finish out this year’s crop can increase the yield at a time when the market really demands the product,” said Mark Rude, executive director of the Southwest Kansas Groundwater Management District.
–Mark Rude, executive director
SW Kansas Groundwater Management District
The multi-year accounts, however, are still quite new — the ink had barely dried on the legislation before farmers had begun to sign up — and no one is certain whether the accounts will conserve water, maintain the status quo, or increase use. (The deadline for enrollment for this season is October 1.)
One concern is the very force behind the new instrument: drought itself. If the two-year dry spell persists, farmers could wind up exhausting their five-year allocations early, leaving nothing in the bank for the back end.
“It’s a new tool,” Rude told Circle of Blue. “We’ll see in the next few years if it accomplishes its goals. If a guy can use a little more water one year, then rotate a crop that uses less water the next year, then that’s helpful.”
Still, it is too soon to render judgment.
People living in Kansas are accustomed to murmurs about the future of the Ogallala, but because of recent drought, the rate of decline has undoubtedly picked up.
“This is an issue that has been with us in Kansas for the last 30 to 40 years,” said Rex Buchanan, the interim director of the Kansas Geological Survey, during a phone interview with Circle of Blue. “Now, it has become all that more pressing.”
Brett writes about agriculture, energy, infrastructure, and the politics and economics of water in the United States. He also writes the Federal Water Tap, Circle of Blue’s weekly digest of U.S. government water news. He is the winner of two Society of Environmental Journalists reporting awards, one of the top honors in American environmental journalism: first place for explanatory reporting for a series on septic system pollution in the United States(2016) and third place for beat reporting in a small market (2014). He received the Sierra Club’s Distinguished Service Award in 2018. Brett lives in Seattle, where he hikes the mountains and bakes pies. Contact Brett Walton