Water Primer: Part 5 Water Law

Introduction Kansas water law was initially based on common law that featured two broad classes of application: one for surface water and the other for groundwater. Surface water common law was the riparian doctrine.

The Latin roots of riparian mean “pertain- original source. Application of common ing to or situated on the bank of a river.” law principles proved to be inadequate as The general principle of the riparian doc- populations grew, and demands for water trine is that the individuals who own the increased, especially in more arid regions. land immediately adjacent to or land that Kansas began to incorporate the water is crossed by a stream have the right to the appropriation concepts into water law with water flowing in the stream. Therefore, the the 1917 legislation that created the State only surface water right holders were those Water Commission and the 1919 appoint- who owned riparian land. ment of the State Irrigation Commissioner. The common law principle with regard The legislature called for development of to groundwater was that groundwater watersheds. While the legislature did not belonged to the landowner. The landowner shift from the common law principles, it did could use as much groundwater as desired introduce appropriation concepts. without regard for needs of neighboring In 1927, the old legislation was replaced owners or fear of legal action. This policy with the creation of the Division of Water is often referred to as the doctrine of Resources (DWR) as part of the State absolute ownership. Board of Agriculture and created the posi- tion of Chief Engineer (head of DWR) Important dates for Kansas water poli- in 1933. However, a 1944 court decision cies are shown in Table 1. The common on the Equus Beds area of Kansas dem- law statutes were established in Kansas onstrated the need for an improved water in 1868 by the Kansas legislature. Many policy for the state. This resulted in the gov- eastern U.S. states still use common law ernor forming a committee to study Kansas principles. However, in western U.S. states, water law and make legislative recommen- water law has shifted to some form of the dations. The process culminated in the 1945 appropriation doctrine of water use instead Kansas Water Appropriation Act (KWAA). of common law principles of riparian and The KWAA is referred to as the prior absolute ownership. The common law prin- appropriation doctrine; this method of ciple (riparian doctrine) works reasonably governing water use sets priorities following well in surface water rich areas, such as the the principle of “first in time, first in right.” eastern United States, particularly in light Kansas Water Appropriation Act of the type of water use occurring during the developmental period of the United The concept of prior appropriation devel- States. During this period, flowing water oped in the water-short areas of the western in streams and rivers was used as a power United States. The basic concept is that the source to turn water wheels. So while water individual who establishes a beneficial use was diverted from a stream or river, for the first, has the priority right. Important fea- most part, it was eventually returned to the tures of the KWAA are shown in Table 2. All the water in the state is owned by the Table 1: Significant Events for Kansas Water Agencies people of the state, but it can only be and Kansas Water Law used by individuals who follow the Year Event process to put the water to beneficial 1861 Statehood use, except for private domestic use. Adopted Common Law Principles: Non-private water use must be 1868 Surface water — Riparian Doctrine permitted for use by the rules of the Groundwater — Absolute Ownership water appropriation act. New appro- priations are junior to those preced- 1917 Formed State Water Commission (SWC) ing (called senior) and appropria- Created the Division of Water Resources (DWR) and 1927 tions may continue until the resource abolished the SWC is fully allocated. The right to use 1945 Kansas Water Appropriation Act (KWAA) passed water is a property right that may be bought and sold. Major legislative First court challenge to KWAA. 1949 changes made to the KWWA are Upheld by Kansas Supreme Court noted in Table 3. Significant water 1955 Established Kansas Water Resources Board legislation was passed in 2012, as KWAA amendments including definitions of “water shown in Table 4. 1957 Kansas Groundwater rights” Management District Act 1972 Groundwater Management District Act KWAA amended to require water rights for all non- In Kansas, the Division of Water 1978 Resources within the Department of domestic uses Agriculture issues and administers GMD Act amended, Intensive Groundwater Use Control 1978 water rights. However, by the late Area (IGUCA) provision added 1960s, areas of the Ogallala Aquifer KWRB changed to Kansas Water Authority and Kansas 1981 were in decline. The concern about Water Office over-development resulted in the 1983 Water Transfer Act enacted enactment of the Groundwater Management District (GMD) Act. 1984 Minimum desirable streamflows established While GMDs still must operate Water use reporting improved via penalties for failure within the basic water law doctrine 1989 to report of the state, their formation was to allow local water users more input 2001 Water Banking Act enacted into determining the policies for 2012 Significant new water legislation (see Table 4) water use in their areas.

Interstate Compacts Water Rights vested water rights can be granted in the state. Neither surface water nor ground- There are two types of water rights water respect state boundaries; in the state of Kansas. These are The appropriation water right is by therefore, individual states sharing vested water rights and appropria- far the most common type of water important surface water flow can tion water rights. Vested water rights right in the state. The water right develop agreements on how to share are based on water put to use before has six main attributes, in addition to the water supply. Kansas is involved June 23, 1945, the date of the Water identifying who is putting the water in four interstate river compacts. In Appropriation Act. A vested right to use. These attributes are: 1) prior- addition, Kansas also participates in is senior to any appropriation right. ity date, 2) maximum rate of diver- the Missouri River Basin Association There are not many vested rights and sion, 3) maximum annual quantity, of States and Tribes. The four com- they tend to have been appropriated 4) point of diversion, 5) place of use, pacts are noted in Table 5. small quantities. Since 1980, no new and 6) type of beneficial use. 2 Application Process. Any person Table 2: Significant features of the 1945 KWAA may apply for a permit to appropri- 1. All water in Kansas was dedicated to people of Kansas for use by the ate water. This is the first step in the public but subject to regulation and control by the Chief Engineer. process of establishing a water right. 2. Both surface water and groundwater could be appropriated by use The application for a water permit by obtaining a permit from the Chief Engineer. is filed with the chief engineer of 3. The principle of “first in time, first in right,” or the prior appropriation the Division of Water Resources doctrine, was the guiding principle for deciding disputes between (DWR). Anyone who wishes to use appropriators. water for any purpose other than domestic water supply must file an 4. Existing uses (pre-1945) were riparian or groundwater rights that application that includes information were not being used. describing the proposed attributes of 5. Termination of water rights could occur after three years of non-use. the use and pay a filing fee. The application is reviewed by Table 3: Important Modifications to the 1945 KWAA DWR and a GMD, if the area of Year use is within a district. The applica- 1957 Water right defined as a “real property right appurtenant tion will be approved and a permit to and serviceable from the land on or in connection with to proceed will be issued if it is which the water was used.” determined that water is available for 1957 Potential impairment definition expanded beyond quan- appropriation at the proposed site tity aspects to include quality aspects. that would not interfere with other 1977 Exceptions to the mandatory water permit process were area water rights, minimum desirable made; exceptions included domestic users and salt water stream flow or other public interests, production wells associated with the oil and gas industry. and the application meets all other 1981 It became illegal to appropriate water without a permit DWR requirements. except for 1977 exemptions. The permit holder can now proceed in developing the authorized diver- up to the limits of the original terms is reviewed, the appropriation permit sion works, which is most often a and condition of the application per- holder will receive a draft certificate well but could also be a stream pump mit, will determine the water right. or appropriation for review. Any station or retention dam. Once the The application limits on total comments from the permit holder on diversion works are completed, the the draft certificate must be made to permit holder notifies DWR for a quantity of withdrawal are established DWR within 30 days. site inspection. All inspection fees by the state. For example, although and installation requirements must each county has a specific application Assuming the draft certificate is be completed before the notice and amount limit, in general irrigation accepted, the permit holder receives proof of completion are accepted. applications are limited to no more the actual certificate, which must be The holder usually has one full year than 2 acre-feet/acre in the western filed with the register of deeds in the in addition to the remainder of the one-third of Kansas, 1.5 acre-feet/acre county where the authorized point application acceptance year to com- in central Kansas, and 1.0 acre-foot/ of diversion is located. The per- plete the diversion works. acre in eastern Kansas. Therefore, a mit holder now has completed the permit might request a volume of 320 process for establishing a water right, The appropriation permit holder acre-feet for a quarter section (160 which can be maintained as long as now begins a period to “perfect” the acres) in western Kansas. the terms and conditions of the right water right or put the water to use as authorized by the permit. The per- DWR conducts a field inspection are followed. fection period usually lasts five years, after the perfection period to deter- Maintaining a Water Right. One although the period can be extended mine and verify the major attributes of the major conditions of main- if requested before expiration of the of the proposed water right. Once taining a water right is filing the original period. During this time, the inspection is complete and perti- annual water use report. This report the largest amount of beneficial use, nent information relative to the site is required during the perfection 3 Table 4: 2012 Kansas Water Legislation Summary Bill Number Title Description HB 2516 Amendment of the Kansas A water bank establishes procedures to allow short-term water Water Banking Act leases between willing buyers and sellers. The bill adds more permanence to the banking program and modifications that may aid increase in banking activity. HB 2517 Amendment of the Water WTAP is a voluntary, incentive-based water right retirement Right Transition Assistance program. It establishes the procedure to allow the permanent Program (WTAP) dismissal of irrigation water rights and is focused on reducing consumptive groundwater use in over-appropriated areas. The bill made improvements in WTAP and extends the program to the year 2022. HB 2451 Amendment of the Kansas HB 2451 amends the KWAA and applies to areas closed to new Water Appropriation Act water right appropriations. Its intent is to eliminate any “use it with regard to water right or lose it” water policy attributes in Kansas water policy. abandonment SB 148 Water right division agree- SB 148 makes clear the authority of a water right owner to ments divide that water right into two or more distinct water rights without losing priority. SB 272 Amendment of the Multi- The MYFA program allows an irrigator to switch from an annual Year Flex Account Pro- allocation of water to a five-year water allocation (term per- gram (MYFA) mit) period. It expands the irrigators’ capabilities and options to manage their crop water but without increasing long-term water use under the original water right. SB310 Amendment of Ground- The LEMA concept developed from the IGUCA (see Table 2, water Management Act 1978). LEMA establishes a process that allows local communi- to allow Local Enhanced ties of producers to collectively decide their future by initiating Management Areas the implementation of conservation plans that meet their local (LEMA) goals within their groundwater management district. period. The report is required even in a “use it or lose it” attitude. During not carry over into the next use year. years of no water use and the reason the perfection period, the permit Many individuals feel that this is lost for non-use should be explained. A holder knows that a certificate will water, especially in a groundwater water right is considered abandoned only be issued for the maximum system where the “unused” water after three years of non-use without amount of water used. Although an remains available and does not flow due and sufficient cause for non-use. extension of the perfection period away as in a surface water supply. Due and sufficient causes for non- can be requested, if very low water Transferring a Water Right. There use include water being unavailable use occurs during the perfection are currently more than 30,000 from the source (no stream flow period, the permit holder interprets a active water rights in the state of or stored water), adequate natural certificate that is issued for less than Kansas. With water resources devel- rainfall, crop rotation to dryland the maximum allowable amount oped to their maximum or beyond crop or an enrollment in conserva- as “lost” water. Another factor that in many areas of the state, it might tion reserve program, or pollution of perpetrated this concept is the be expected that individuals may existing source. annual allocation of the quantity of want to change type of use, place One criticism of the water right water. Each year the total amount of of use, or location of use as their development and maintenance the water right is available for use, operations change or as current process with regard to water conser- any amount of the annual allocation right holders sell their water right vation is that many feel it promotes that is not used during the year does to other interests. Kansas law does 4 allow changes in the water right as Table 5: Kansas Interstate Compact Agreements long as specific change procedures Year Compact States Included are followed. The change procedure 1943 Republican River Colorado, Nebraska, Kansas is subject to approval by the chief (KSA 82a-518) engineer (DWR) who reviews the 1949 Arkansas River Colorado, Kansas proposal to determine if the pro- (KSA 82a-520) posed change is still for a beneficial 1965 Arkansas River Kansas, Oklahoma use and has a reasonable allocation (KSA 82a-528) for the proposed use. The proposed 1971 Big Blue Nebraska, Kansas change cannot impair an existing (KSA 82a-529) water right and cannot prejudi- cially affect public interest. Another expressly grant condemnation power. the power “to regulate commerce important criterion is that it will Condemnation is the process by with foreign nations, among the not increase consumptive use. which a government, usually state several states, and with the Indian One common change has been the or local, can take private property Tribes.” This section places all navi- conversion of an irrigation water for public use upon payment of just gable streams under federal control. right to municipal or industrial use. compensation. It has been suggested The federal government also has The consumptive use policy will that one possible interpretation is interests in flood mitigation, and pri- allow no more water to be consumed that a municipality with an inade- vate utilities must be licensed before by the proposed use than what was quate water supply and with a junior dam construction because this could consumed by the irrigation use water right to a nearby irrigation have an effect on navigable streams. plus an irrigation efficiency factor. right, for example, could not take Since most streams and rivers cross Irrigation might apply water to a action to limit the senior irrigation state boundaries, interstate compacts field that could be returned to the right use based on seniority or date are encouraged by the federal gov- source as run-off or deep percola- of permits. However, the city could ernment as the basis of agreements tion and therefore was not consumed use the condemnation process on between states, which must be rati- or removed permanently from the the irrigation right because the city fied by Congress after being nego- source. This is considered as part of has condemnation power. There are tiated by the states. The Supreme the change process. other interpretations as to the poten- Court hears any interstate compact disputes. These agreements can deal Resolving Conflicting Uses. tial application of this section as well. with quantity and/or quality issues. Although time is the chief factor in Federal Water Policy establishing the seniority of a right, Another avenue for federal influence the appropriation act has a section The administration of water rights into state water policy is through that establishes a preference for is primarily a function of individual environmental laws, beginning with conflicting uses of water. It states states. The federal government has the 1965 amendment of the 1948 “where use of water for different a role and had a larger influence in Federal Water Pollution Act, which purposes conflict, such uses shall western states because land in the extended the federal role and jurisdic- conform to the following order of west was at one time largely the tion to include all navigable water and preference: Domestic, municipal, property of the U.S. government, required states to set water quality irrigation, industrial, recreational, which transferred to private owner- standards for interstate waters. In ship by various acts. Although the and power uses.” 1972, the Federal Water Pollution water rights are largely administered Control Act, commonly referred The section establishes these prefer- by the states, the federal government to as the Clean Water Act (CWA), ences for conflicting uses of water, but still has the right to reserve water for was passed to address enforcement the next sentence states that priority specific purposes as long as it com- issues that still remained from previ- of date, not the type of use, establishes plies with state authority. There are ous legislation, as well as continue the preference in time of shortage. several other constitutionally based the federal role of providing financial This section also mentions con- federal authorities such as the com- assistance for the construction of demnation, although it does not merce clause, which gives Congress municipal sewage treatment plants. 5 Another important federal act is the industry, and livestock containment in 1977, 1980, and 1986. This act Safe Drinking Water Act (SDWA) facilities larger than 1,000 head. The requires the EPA to develop national that was passed in 1974 to help pro- CWA established the goal of obtain- drinking water quality standards and tect public health by regulating public ing fishable and swimmable waters to establish requirements for treat- drinking water supplies. The act has and set in place timetables and ment, monitoring, and reporting by been amended several times to require procedures to accomplish this goal. public water systems. Water systems additional efforts to protect drinking The EPA, through authority of the that have 15 connections or serve at water and its sources. CWA, requires the states to monitor least 25 people per day for at least Environmental Laws and report water quality via the bian- 60 days per year must have a public Affecting Water nual 305b report. The CWA requires water supply permit. This includes EPA to monitor the water quality noncommunity systems serving Kansas established laws govern- progress and report the status to schools, churches, and restaurants as ing water use and protection before Congress. The EPA establishes over- well as community systems serving the federal CWA and the SDWA all principle and leaves to the states trailer parks, rural water districts, cit- were established. As new agencies the details and extent of monitoring. ies, and towns. were formed and new technologies Kansas has a long record of excellent The EPA is charged by the SDWA were developed, laws were modified. monitoring that places it far ahead to set standards and to review and Many of these modified laws remain of most states. This monitoring gives update standards. To date, standards in effect and may be more restric- Kansas a good knowledge of water have been set for 81 contaminants. tive than the federal law. Laws that quality conditions since about 1980. Public water systems in Kansas are regulate water are logically divided The Clean Water Act charges the also required to test for more than into water quantity and water quality. states to identify beneficial uses for 20 unregulated contaminants, some Laws regarding quantity are specifi- stream segments (reaches) and to set of which may be regulated in the cally delegated to the states; there are water quality standards for streams future. Drinking water regulations no national water rights. and lakes for these uses. The CWA are constantly being developed, The CWA and the SDWA are the established the procedure to set total reviewed, and revised. This means two major national laws that form maximum daily loads (TMDLs) for that regulation of contaminants is the basis for water quality regula- stream reaches that do not meet the likely to change in the future as more tions in the United States. States water quality standards for identi- is learned about their health effects work with the EPA to address and fied uses. Kansas and other states are and occurrences. meet the provisions of these laws. in the process of addressing TMDL For the SDWA, the federal gov- States can be more — but cannot be provisions of the CWA. Because ernment sets drinking water less — restrictive than the federal beneficial uses and stream standards standards through the EPA. The law. Kansas also has laws that relate are set by the states, there may be state government, through the to water quality, several predating discrepancies on streams that cross Kansas Department of Health federal law. Although they are less state lines. and Environment, is authorized comprehensive than the federal law, The TMDL process is designed by primacy to implement drinking they are important in protecting to set responsibility and establish water standards in Kansas. Local Kansas water. a procedure to move closer to our water utilities are responsible to Clean Water Act. The landmark national goal to meet surface water build, operate, and maintain local Clean Water Act was passed by quality standards in an orderly man- wastewater systems with state over- congress in 1972 after more than ner. However, as with most changes, sight. They also monitor and report a decade of escalating water qual- setting and implementing TMDLs results to KDHE, and KDHE ity problems, including major fish to improve water quality is time prepares a summary report to EPA. kills in Kansas and a river in Ohio consuming, expensive, and involves The utility also prepares the annual catching fire multiple times. The opportunity for conflict. Consumer Confidence Report to CWA requires permits for all point Safe Drinking Water Act. The inform the consumer of the drink- source discharges, including those Safe Drinking Water Act (SDWA) ing water condition. from wastewater treatment plants, was passed in 1974 and amended 6 A Final Note Reference A clean, reliable supply of water Brownback, Sam and Wadley, has and will remain an important James B. 1989. Kansas Agricultural resource for having a good quality of Law, 2nd ed. Topeka, Kan.: Lone life and economic well-being. Kansas Tree Publishing water law planning procedures and water law have been developed to cope with water resource compe- tition to both protect the public interest and the rights of individual users. The variability of supplies and complexity of the hydrologic interac- tions make water resource manage- ment a difficult task.

7 Authors: Danny H. Rogers, professor, irrigation systems, biological and agricultural engineering G. Morgan Powell, retired professor, biological and agricultural engineering Kerri Ebert, extension assistant, biological and agricultural engineering Brand names appearing in this publication are for product identification purposes only. No endorsement is intended, nor is criticism implied of similar products not mentioned. Publications from Kansas State University are available at: www.ksre.ksu.edu Publications are reviewed or revised annually by appropriate faculty to reflect current research and practice. Date shown is that of publication or last revision. Contents of this publication may be freely reproduced for educational purposes. All other rights reserved. In each case, credit Danny H. Rogers, G. Morgan Powell, and Kerri Ebert, Water Primer, Part 5: Water Law, Kansas State University, January 2013. Kansas State University Agricultural Experiment Station and Cooperative Extension Service MF3024 January 2013 K-State Research and Extension is an equal opportunity provider and employer. Issued in furtherance of Cooperative Extension Work, Acts of May 8 and June 30, 1914, as amended. Kansas State University, County Extension Councils, Extension Districts, and United States Department of Agriculture Cooperating, John D. Floros, Director.