Watershed districts, landowners not happy with recent changes in regulations

By Corene Brisendine

Watershed districts across the state are struggling to comply with recent changes in regulations on how they obtain, build and maintain water-retention structures.

The impact of that effort is particularly noticeable in the Mill Creek Watershed District — encompassing parts of Wabaunsee, Morris, Geary and Riley counties. Duane Hund, a Kansas State University farm analyst in Paxico, said that district has effectively ceased all efforts to make improvements because of the changed regulations.

The changes were imposed in 2008 as part of a comprehensive set of rules and guidelines developed by the U.S. Army Corps of Engineers in conjunction with the Environmental Protection Agency. Those rules and guidelines were designed to “improve and consolidate existing regulations and guidance, to establish equivalent standards for all types of mitigation under the Clean Water Act Section 404 regulatory program.”

But they have become controversial because they appear to strip away the authority of existing watershed districts to control issues that are central to the workings of the waterways, instead empowering other outside interest groups. Watershed board members also express concern about what they perceive to be conflicts between state and federal laws, and about the ability of the districts to pay for improvements the federal regulations may require.

Third party rule

One change required a “third party” to hold the conservation easement where the structure is built.

Mark Frazier, chief of the regulatory branch of the Corps in Kansas City, said it had always been “the intent of the Corps to have third parties hold the easements in perpetuity for conservation permits.”  But the issue involves whether watershed districts count as third parties.

In the 2008 rules, the Corps established third parties to be “entities such as Federal, tribal, state or local resource agencies, non-profit conservation organizations or private land managers.”

Herb Graves, executive director of the State Association of Kansas Watersheds, said historically watershed districts have always been the ones to negotiate the purchase of the land and then build the needed improvements to help with flooding and other negative environmental impacts to the land and cities downstream. But he said the Corps is now requiring someone other than the landowner or watershed district to obtain and hold the

Graves contends that, under Kansas law, a watershed district falls within the Corps’ definition of a disinterested third party even though it is a subdivision of state government.

Frazier has a different opinion. He said the watershed districts are not “disinterested” because they are responsible for building the water retention structures.

Frazier said the Corps had allowed watershed districts to be the easement holders because a list of third parties had not been previously available. He said since creation of that list, the Corps has no longer allowed watershed districts to hold the easements

Now acceptable third parties include the Kansas Alliance for Wetlands and Streams, Midwest Mitigation Oversight Association, Sunflower Land Trust Inc., The Platte Land Trust and Watershed Land Trust.

Frazier said the list is not all-inclusive, but it gives landowners and watershed districts options. The landowner or district can suggest an alternate so long as it fits the rule’s definition of a third party holder.

Hund said many landowners are unwilling to sign over their land to a third party because that entity would be able to do whatever it wanted to the easement and water-retention structure without the knowledge or permission of the landowner.

For example, the third party could remove a dam if it thought that was in the best interest of the Corps or the EPA, which could cause the landowners’ crops to be flooded and leave the landowner without compensation.

On the other hand, third parties also could oversee the building of structures that prevent flooding and soil erosion from storm water runoff, and as a result, some aren’t getting built.

State law asserts that watershed districts should address “serious problems of water management resulting from erosion, floodwater or sediment damages or instability of natural water supplies were arising in the watersheds of the rivers and streams of the state of Kansas.”

Frazier believes the problem with watershed districts holding the easements is that they would have a vested interest in the land, and therefore would not be a reliable party to ensure the regulations were being met.

He said a party with no vested interest in the land is a better choice to ensure compliance with EPA’s standards and guidelines.

Cost and financing

Another problem is funding the third parties’ oversight. Graves said watershed districts do not operate on extensive budgets, and the money they collect through special taxes within the watershed district is not enough to cover the added expense. He said the Corps suggested raising local mill levies, but Graves said the feeling among watershed district boards is that property owners are already taxed enough.

Exactly how much the change would cost is not clear. But as an example, if the Wildcat Creek Watershed District were to be established, it could increase the total mill levy for residents of the city of Manhattan by as much as four mills, adding up to $80.50 to the tax on a $175,000 home.

Beyond that, many watershed districts, including Mill Creek, already levy the maximum four mills. To raise additional money to pay a third party to negotiate and purchase the easement from the landowner would be impossible unless the statutory maximum was raised.

The Kansas Department of Health and Environment assessed the condition of the Mill Creek watershed in 2008. The department found it has “among the finest water quality in Kansas.” Along with praising the long-term monitoring that the watershed has installed along the creek, the department found deficiencies the watershed needed to improve, but none of the deficiencies were severe. The report stated that during flooding, the amount of chemicals from row crop runoff was higher than during other times of the year, and could be reduced to lower levels if farmers would install buffer zones between the fields and the creek bank.

The other deficiency occurred during extremely low water levels. It suggested keeping cattle out of the creek beds during low flow levels because the animals were polluting the water by standing and remaining in the beds for long periods of time, but when flow levels were normal, there was no significant problem with animals using the creeks.

Another area of concern identified by the department was a U-curve on the creek that was shifting in its banks, and that required some stabilization.

The watershed district would consult the landowners of these identified areas, obtain the conservation easement, and execute the necessary improvements to reduce the impact of these deficiencies.

But with the changes of who holds the easement, Graves said that cannot occur.


State vs. federal law

Graves wrote a letter to Attorney General Derek Schmidt asking for an official opinion on the rule change.

Schmidt stated that while the Kansas Watershed District Act allowed watershed districts to “acquire interests in land” in order to protect the water and land from erosion and other problems, the Corps’ rules are under the Clean Water Act, making the issue one of federal rather than state law. Graves said some of the watershed districts also have talked to lawyers or each other on how to challenge the easement ownership changes, and have decided to lobby Kansas legislators in an effort to return to the way Kansas watershed districts used to function as opposed to taking it to court.

“It’s all politics within the government,” he said. “The current leaders think no curtail should be put on these regulations; the courts will be the only way, but it is mighty expensive, and most watershed don’t have the deep pockets like the Corps and EPA .”

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