By AMY BICKEL
Special to The Hays Daily News
The Kansas Department of Agriculture's Lane Letourneau noted the department looks past honest mistakes. However, for most of those receiving fines, the acts are blatant.
But one issue that Letourneau and his department has dealt with is the fact that that acts of overpumping stay with the water right - not the landowner. Thus, if an irrigator overpumps then sells the land to someone else, the mark stays with the water right and transfers to the new owner.
That happened to Haskell County's Garetson family. The farm family, which is current testing Kansas water law in an effort to preserve the area's declining underground resource, is on the list of second-time overpumpers for 2013.
The James Garetson Trust received a second offense charge and was issued a $1,000 fine. They also were ordered to cut back their use from that well in 2014 by two times the amount overpumped, or about 23 acre feet, according to state documents.
Too many irrigation wells issued in the 1950s and 1960s have spiraled the decline of the Ogallala. But, with water law, one rule is the cornerstone - first in time, first in right. The longtime law gives senior water rights priority over junior rights. Thus, if a senior right is impaired, the owner of the junior right could be ordered to reduce irrigation from his well or be shut off completely.
The law was originally written with surface water right holders in mind. Thus, such a law hasn't been tested often among groundwater users, especially in the Ogallala Aquifer of western Kansas.
With that in mind, brothers Jay and Jarvis Garetson and their family filed an impairment claim on the family's oldest water right and one of the oldest in the county - hoping to prove that action is needed to save the Ogallala in an effort to preserve the area's declining aquifer.
With their current water battle being played out in district court, Jay Garetson called the overpumping offense, "very embarrassing for us as a family and very humbling."
About seven years ago the operator of the land overpumped the well's authorized quantity and was issued a civil penalty.
In 2013, Jay Garetson's grandmother purchased the land, which had been long held by her brother, Jay Garetson said. The Garetson family took over the farming of the land. Garetson said the land purchased has two wells and the family mistakenly flip-flopped the quantities for the wells - pumping less water than authorized from the other well on the property.
According to state documents, the well in question, however, with a water allotment of 317 acre feet, was over pumped by about 12 acre feet.
While the Garetson family has never been issued any overpumping penalties in the past, said Letourneau, the previous owner's civil penalty several years earlier followed the water right.
"When there is a violation, rules have to be enforced," Jay Garetson said, adding "Overpumping is overpumping. All we can say is we are sorry, and it won't happen again."
The Garetson family also was initially cited for falsifying its water use report, although state officials noted the act wasn't intentional. The Garetson's took a meter reading on Sept. 1 and thought an employee was shutting off the water. The well pumped another six days, according to Letourneau.
"It was pretty obvious it was an honest mistake," Letourneau said.
Letoureanu said trying to resolve issues like this has been tough, as there are potential loopholes if regulations are changed. One concern is landowners could play "a shell game." If the overpumping act follows the landowner, the landowner could sell the right to another family member or trust, thus clearing the water right and allowing the landowner to again overpump without a stiff penalty.
Letourneau said the agency "talked about expiring the notice of noncompliance much like a drivers license," which, after a time, would give irrigators a clean slate.
However, he said, people were coming in asking "'When is my free to year to overpump?' That was disappointing to us. We don't have the authority to say it is OK to overpump."