By DUANE SCHRAG
Salina Journal
When the Smoky Hill River was stopped in its channel on July 26, 1948, the farmers and residents below the gradually filling Kanopolis Lake had grand plans for the water.
There would be water for everything -- irrigation, recreation, municipal use. Come drought or flood, the dam would be an ally.
Especially during floods. There had been two in just the past 10 years. In the fall of 1941, while the dam was under construction (the war would soon suspend work on the dam for four years), massive rains dumped upwards of a foot of water within 24 hours. Flow past Lindsborg was estimated at 24,400 cubic feet per second, or 11 million gallons per minute. Much of the east side of Salina was under several feet of water.
So when the summer of 1951 arrived, bringing what some believe were the biggest central Kansas rain events of the century, the area was ready. At 10:30 a.m. July 14, the lake level was within a quarter inch of the spillway. Sandbags piled on top of the spillway proved unnecessary.
The lake was help during drought, too. It was space for up to 162,500 acre-feet of water for irrigation; that's more water than flowed past Ellsworth in 2003 through 2006.
And it was expected to ensure Salina received enough water. The Kanopolis Lake Regulation manual describes the findings of a 1957 study that assessed how water in the multipurpose pool would be used (today the multipurpose pool is the portion of the lake below 1,463 feet, but at that time, the top was 1,462 feet).
"A regulated outflow varying from 10 cfs in January and February to 90 cfs in July, August and September was to be maintained with high pool levels," it said. Should the lake level fall below 1,450 feet, summer releases would be scaled back to 40 cfs.
"The above described outflow was considered sufficient to provide recommended minimum flows for sanitary requirements at Salina, and municipal and industrial requirements for Salina and downstream," it explained.
Releases questioned
That was then.
Today, the automatic summer releases of 50 cfs are being called into question. State officials argue that 50 cfs is often too much water. More importantly, the state has signalled that it intends to get serious about distinctions between natural river flow and water released from storage.
Not all water is equal.
Water released from reservoirs is said to come either from storage, or is so-called bypass flow. Bypass flow is an amount equal to the inflow. If the amount being released is less than inflow, all the water being released is bypass flow. If the release exceeds inflow, it is a combination of bypass and storage.
What the Kansas Water Office has done is buy half the storage space in the multipurpose pool to harbor water it plans to sell. The rest of the space will hold water that the Corps of Engineers will release to maintain water quality. And the Water Office is promising the Corps of Engineers that those releases, if they come from storage, will not be used by people such as the city of Salina or irrigators.
Paying for protection
So here's what the future looks like: Kanopolis Lake will provide drought protection only to those who pay for it. Under current pricing, it could bring in $1,200 a day for the Water Office.
Flood protection is still free.
How is it that water that was free -- indeed, the state doesn't charge anyone to pump water out of the ground -- now comes with a price tag?
"That's a good question, and I don't believe I've ever heard the answer," said Martha Tasker, utilities director for the city of Salina.
It didn't happen overnight. And it hasn't entirely happened yet. It turns out the Kansas Water Office doesn't have the legal authority -- a protection agreement -- to prevent users from taking water released from Kanopolis' storage.
"It was only through some additional research in 2006 that we realized we did not," said Margaret Fast, manager of the Water Office's public water supply section.
But state officials say that's the direction they are moving, and they are proposing changes to state law that will give them authority to sell more water than ever.
John Peck, a law professor at the University of Kansas and widely recognized expert on Kansas water law, noted in an article for the Kansas Law Review that storage raises some complicated issues. Like many western states, Kansas has built its water law around seniority: the right to use water is granted on a first-come, first-served basis. When there isn't enough water to go around, those granted rights earlier (so-called senior rights) get priority over those who obtained their water rights later (more junior rights).
"The future use aspect of the storage water in a reservoir presents a problem," Peck wrote in the article, which was published in 1984.
Let's say an upstream user decides to impound water for future use, depriving a downstream user with a junior water right.
"A junior downstream appropriator with an instant need would question the propriety of allowing the storage user to divert the water only to hold it for future use, when the junior is unable to take water for more immediate needs," he wrote.
In Kansas, the legislature created what it calls a reservation right, a right that can be granted only to the Kansas Water Office. Originally, this reservation right applied only to water the state planned to sell, and was limited to what is called the reservoir yield -- the amount of water that would be taken continuously out of the lake during a severe drought without running the lake dry.
When the Kansas Water Office bought nearly half the multipurpose pool space in Kanopolis Lake in 2002, it had in hand an analysis that put the yield at 12.9 million gallons a day. If the state had buyers for all that water, at the current price of $0.18 per thousand gallons, that could generate $2,300 a day.
Yield prediction reduced
However, the yield analysis proved to be overly optimistic. A second analysis now has the yield at 6.5 million gallons a day -- worth about $1,200 a day.
But while the amount of water under that reservation right has shrunk by a half, it turns out the state's total reservation right hasn't. State law gives it two ways to obtain reservation rights; the first is based on the yield. The second is the amount of water available for water quality. In Kanopolis, that's all the water in the multipurpose pool that isn't reserved under the yield provision.
That effectively gives the Kansas Water Office control over all the water in the multipurpose pool -- water deemed to be the lake's "yield" is available only to those who buy it and is not released from the reservoir without special arrangements; the rest of the water is stored for water quality purposes (as opposed to water supply purposes) and when it is released into the Smoky Hill River cannot be taken by those with a right to pump from the river.
Whether that prohibition also applies to those who pump from the river's alluvial aquifer remains to be seen. The Kansas Geologic Survey is expected to complete a study this summer that models the interaction between the river, the alluvium and groundwater. By definition, there's always interaction between water in the river channel and that in the alluvial aquifer.
"It is definitely not the desire of this agency to move ahead with a protection agreement until we have a better understanding of what happens to releases," Fast said.
State officials say this really isn't so complicated: the right to surface water from any river applies only to so-called natural flow. For people below a dam, the natural flow has been taken to mean the amount of water flowing in. So if the flow past Ellsworth, the last stream gauge above the lake, is 25 cfs, then people with water rights below the dam are entitled to use 25 cfs of the water that is being released, regardless of how much the total actually is.
Release vs. inflow
How often does the release exceed inflow?
During 2006, very often: from April through September that year, water was being released faster than it flowed in on 135 of the 183 days. More than two and a half times as much water was released during that period as flowed past Ellsworth.
On the other hand, there wasn't a single summer day (April through September) during the 12 years from 1993 through 2004 when the lake was below normal and releases exceeded inflow.
State officials say these uncertainties offer a reason to enter a contract to buy water. Tasker points out they raise a question about whether that's wise.
She notes that historically, there has been enough water in the river. When the river ran dry in July 2006, it was unprecedented. The only reason the city would consider buying water would be as insurance during a drought. But the contract with the state doesn't guarantee water; it only guarantees the right to buy water if it's available.
And you always pay something.
"You have to pay for half your allotment, whether you use it or not," Tasker says.
Ironically, even though Kanopolis Lake is capable of providing 53 trillion gallons of water for irrigation, under current law, irrigators are not among the users allowed to buy water the state has for sale. That's reserved for municipal and industrial users.
The Kansas Water Office is suggesting the law be changed to allow irrigators to join water assurance districts. Tom Toll, who farms near Lindsborg and irrigates from the Smoky Hill River, would welcome that.
"I guess it would be hard to find anyone who would not think that's a good thing," Toll said. Whether farmers jump at that will get down to the price point.
"There's a ton of interest," Toll said. "It all comes down to money. But until they change the assurance districts, we're not even a player."
n Reporter Duane Schrag can be reached at 822-1422 or by e-mail at dschrag@salina.com.
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