KLA seeks balance in water rights regulation

A windmill pumps water from a well to the stock tank on a Midwestern ranch.

As cattle and dairy producers in Kansas wrestle with declining aquifer and groundwater tables, the Kansas Livestock Association is searching for a regulatory compromise to help keep their livestock watered.

Aaron Popelka, vice president of legal and government affairs for the Kansas Livestock Association, noted they set a policy priority at their Dec. 6, 2019 meeting in Wichita focusing on stock water facility permits. The policy supports a permit that would allow individual water rights to exceed the annual authorized quantities, as long as the facility’s total authorized quantity was not exceeded and did not impair a senior water right from the same local source of supply.

In Kansas, it is illegal for an individual to use water without holding a vested right or applying for and receiving a permit to appropriate water from the Division of Water Resources. While water used solely for domestic purposes — which includes households, watering livestock on pasture, or up to two acres of lawn or garden — is an exception, Popelka noted domestic rights are still subject to prior appropriation. For pastures, dairies and feedlots, the exempted limits are set at 1,000.

“This policy is directed at feedyards or dairies over 1,000 head, as nothing exists to address current shortage issues,” Popelka said. “Feedyards usually have a number of water rights scattered around the area covered by the yard. The reason we want this is because wells are scattered at different levels or elevations, yet the water goes into one central system.

“Physics sometimes means a feedlot or dairy will use one well more than others and one well will over-pump its quantity and not the others. This is causing some issues, as we’ve recently increased our over-pumping penalties.”

What the association hopes to accomplish through regulation is establish a short-term permit to do an aggregated water right, said the vice president.

“That way when physics of the land means more water comes out of one well than another, yet the aggregate total of the wells isn’t exceeded, our producers don’t get penalized,” he said.

Popelka noted this type of permit would help with the differences in wells, their mechanics and machinery.

“It’s physically possible to go through and make other wells work harder than others,” he said, “but it gets really expensive to do that. This is a common-sense thing to do.”

Water for livestock is considered a beneficial use under Nebraska’s correlative water rights law, which governs groundwater. Surface water is governed under a first-in-time, first-in-right rule. “Nebraska has reasonable rights with correlative rights and no limits on water amounts under those as we do,” Popelka noted of the major difference between the two states.

Because Nebraska’s water rights have significant differences from those in Kansas, “Nebraska has no problems with water monitoring for stock wells and feedlots,” said Ashley Kohls, Nebraska Cattlemen’s director of government affairs. “While the Natural Resources Districts do monitor irrigation wells in certain areas of the state, to date we have had no quantity restrictions on livestock operations. If any producers do have issues with water controls for their livestock, I encourage them to contact me at the Nebraska Cattlemen’s office.”

Two factors enter into that difference between the states. First, Nebraska’s groundwater supply has remained plentiful throughout most of the state, primarily because of the establishment of a system of Natural Resource Districts in 1972. That legislation gave local control to district boards to monitor water quality and quantity issues within segments of the state’s river basins.

Then in 1985, the Nebraska Legislature passed LB 1106, which required NRDs to develop groundwater management plans for both water quality and quantity.

In 2004, the Nebraska Unicameral enacted LB 962, which required the Department of Natural Resources to conduct an annual assessment of the water balance in each watershed or sub-watershed in the state. The Department was instructed to classify each watershed as being under, fully, or over-appropriated based upon a set of criteria. In areas designated as fully appropriated, new high-capacity wells and new surface water rights were banned.

Nearly half the state has been designated as fully appropriated or over-appropriated.

There is one other option available to Kansas stockmen in water conservation areas, Popelka said, but it can be expensive.

“The only way to achieve conservation is to change out from a continuous flow water tank to a thermostatic control tank that only runs when it gets to a certain temperature or use heated tanks,” Popelka explained. “It is a problem to meet the conservation component for livestock, but not so difficult for irrigators.”

“The main goal is to implement the permit system through regulation with the Kansas Department of Agriculture,” Popelka said. “If we can get it done through regulation, we would like to have something done this year. If legislation is required, it won’t be ready until next year.”

Barb Bierman Batie can be reached at editorial@midwestmessenger.com

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