Local Enhanced Management Areas (LEMAs) are a tool that allow for local management of water resources. Usually a set period of time—i.e. 5 years—is specified over which reductions in water use must occur.
Local water users can come together to form a LEMA. They must chart out a detailed plan of how reductions can be completed. The plan is oftentimes based on expert analysis and data that demonstrate how to reduce declines in water levels.
Once a plan is formulated, a series of public hearings occur. The Chief Engineer of the Division of Water Resources will generally oversee those hearings. The public is given a full opportunity to support or oppose the LEMA and proper process must be followed.
Once a plan is approved, the members of the LEMA must abide by its terms. The Chief Engineer can enforce the LEMA terms and impose penalties for noncompliance.
LEMAs are becoming an increasingly popular tool to ensure water management in Western Kansas. The formation of LEMAs has not been met without opposition, however. At least one LEMA is now the subject of a court case due to objections lodged against the process utilized to form the LEMA and based on the terms of the LEMA itself.
Yesterday Tom and I had the opportunity to attend the annually-held Governor’s Conference on the Future of Water in Kansas. Over 600 people attended from various viewpoints including attorneys, politicians, engineers, researchers, and representative of numerous governmental agencies. Governor Brownback delivered a speech outlining his vision for managing water in the state. He emphasized the importance of conservation. Governor Brownback indicated that he believes that it is even possible to make the Ogallala Aquifer a sustainable resource.
Another notable speaker was Michael Teague, the Oklahoma Secretary of Energy and Environment. He talked about the importance of collaboration between agencies and between states. Mr. Teague based his viewpoint off of extensive experience dealing with natural disasters, including a significant drought in Oklahoma.
Lieutenant Governor Jeff Colyer also spoke at the event. He echoed similar sentiment of Governor Brownback. A professor from Israel even provided an overview of how his country has dealt with issues involving the scarcity of water. In the afternoon, various additional speakers presented on topics such as the Farm Bill, sustainable agricultural initiatives, dealing with non-point sources of pollution, and emergency preparedness for drought.
The conference was an opportunity for networking and collaboration on essential issues impacting water as a resource. We had the opportunity to reconnect with many old acquaintances as well as establish new connections. Overall, it was a wonderful conference.
A term that is commonly used in water law is prior appropriation. Prior appropriation embodies the concept of “first in time, first in right.” That means the first individual to divert water to a beneficial use from a particular source of supply had priority over those that later staked claims to the same water source. In this example, the first user would have rights that are senior to the later and more junior users.
The system of priority is quite significant in the event of water shortages. If a governmental agency must reduce allocation from a particular source of supply, then the senior water right holders will be the last to be precluded from pumping water.
The prior appropriation doctrine was developed in the western United States during the gold rush in 1848. The miners faced the dilemma of needing to pipe water substantial distances from streams, along with the problem of allocating water shortages. Thus, the concept of prior appropriation emerged to prevent disputes among miners. The very concept was actually born out of the idea of laying stakes to gold mines.
Soon the prior appropriation doctrine evolved. It was first recognized in the 1855 Court case of Irwin v. Phillips. Farmers discovered the benefits of appropriation law and it expanded into a recognized system to deal with water shortages throughout arid western regions.
Eventually, the concept of abandonment was added as a way to extinguish water rights that were not being utilized. This freed water up for other, new users. Thus, the touchstone of prior appropriation is being able to divert water to a beneficial use. There are many types of beneficial uses including, but not limited to, domestic, recreational, industrial, municipal, and irrigation.
Although Kansas has a statutory system of allocating water, many elements of prior appropriation are embedded in Kansas law. Indeed, the Kansas legislature passed the Water Appropriation Act in 1945. As droughts and aquifer depletion continue to impact many parts of Kansas, prior appropriation concepts will continue to evolve under Kansas law.