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Part 5, Water 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.
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