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An Overview of Kansas Water Law
Burke W. Griggs
Washburn University School of Law
[email protected]
Testimony before the House Committee on Water
January 26, 2021
I have prepared this overview of Kansas water law in outline form at the request of the House
Committee on Water. As legislative testimony it is long; as a legal treatise it is incomplete. I
hope that it can serve as a useful reference. I will limit my oral testimony to the most important
elements of this written testimony, so that I can answer the questions of the committee.
I. Introduction: Some Basic Legal Facts.
a. Most water law is state water law, because state law governs most property law, and
water rights are property rights. With very few exceptions, most water rights in
Kansas are based on state law.
b. However, because federal law is supreme under the United States Constitution (art.
V, cl. 3), where federal law speaks to a particular issue, it pre-empts contrary state
law. Thus, there are certain situations where Kansas water law, like any state’s water
law, must yield to federal water law. The water rights of Native American Tribes such
as the Kickapoo Tribe are a good example of federal water rights. Likewise, federal
environmental law can impose limitations on the use of state law water rights.
c. Unlike states such as Colorado or New Mexico, which have many cases construing
the meaning of state water law codes, Kansas has relatively few cases construing its
water statutes. This is a mixed blessing. Although the statutory law of Kansas water
rights is for the most part clear and carefully drafted, the meaning of many of its
provisions have yet to be explained on a situation-by-situation basis through case law.
d. Advocates disgruntled by the application of Kansas water law have often succeeded
in convincing the legislature to amend bits and parts of the Kansas water code to suit
their client’s or constituent’s particular interests. (My use of the singular possessive is
intentional: it really can be that provincial.) This legislative spot-zoning has done far
more harm than good. Any amendment of the Kansas water code, even in one
apparently small, narrow area, will almost always have larger and unanticipated
consequences elsewhere in the code. Depend on it.
II. Historical Background: Kansas Water Law before 1945
a. Kansas Water Law before 1945 was a hybrid of two distinct legal doctrines.
i. Riparianism, according to the common law, starting in 1861. Under this
doctrine, owners of riparian lands (lands abutting streams, rivers, and lakes)
had legal rights to use water as a component of their ownership of land.
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ii. Prior Appropriation for surface waters in western Kansas, starting in 1886.
West of the 98
th
Meridian, Kansas followed this doctrine, by which water
rights are distinct and separate from the ownership of land. This doctrine
enabled the development of the large irrigation canals in the Arkansas River
Basin in Finney, Kearney, and Hamilton Counties.
b. But by the 1940’s, basic problems with this hybrid water law had become clear.
i. The Kansas Supreme Court held in 1944 that Kansas water law was
ineffectual to regulate groundwater pumping. State ex rel. Peterson v. Board
of Agriculture, 149 P.2d 604 (Kan. 1944).
ii. The Supreme Court of the United States effectively held that Kansas water
law was incapable of quantifying how much water Kansas and its water users
had lost due to over-use upstream in the Arkansas River Basin of Colorado.
1. Colorado v. Kansas, 320 U.S. 383 (1943): Kansas cannot defend what
it cannot quantify.
iii. Interstate Compact negotiations on the Republican and Arkansas Rivers
(1940’s) revealed similar weaknesses. Kansas leaders recognized the
imperative need to quantify all actual and potential water rights in Kansas’s
interstate basins, including rights to groundwater supplies—so Kansas could
maximize its claims, including those to receive federal reservoir storage.
1. Republican River Compact (1943)
2. Arkansas River Compact (1949)
c. In response to these legal problems, Governor Schoeppel formed a committee to
recommend reforms to Kansas water law. That committee produced two remarkable
documents in record time (1944-45):
i. GEORGE S. KNAPP ET AL., THE APPROPRIATION OF WATER FOR BENEFICIAL
PURPOSES: A REPORT TO THE GOVERNOR ON THE HISTORIC, PHYSICAL, AND
LEGAL ASPECTS OF THE PROBLEM IN KANSAS (1944).
ii. A full draft of what became, with minor modifications, the 1945 Kansas
Water Appropriation Act (“KWAA”).
III. The Kansas Water Appropriation Act: a skeletal summary.
a. Dedication of the waters of the state to the public.
i. K.S.A. § 82a-702. “All water within the state of Kansas is hereby dedicated to
the use of the people of the state, subject to the control and regulation of the
state in the manner herein prescribed.” (emphasis added).
1. “All” means both surface and groundwater. Some states, like
Nebraska, put surface water under one jurisdiction and groundwater
under another. Kansas does not do that. Thank goodness. Water laws
enacted in defiance of hydrology rarely succeed.
2. “use”: under the KWAA, the focus is on beneficial use of water.
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3. “control and regulation”: police power of the State of Kansas, acting
through the chief engineer.
4. “manner”: doctrine and procedure for granting, administering, and
protecting water rights.
ii. What does this “dedication to the people” mean? Does it really mean that the
people of the state of Kansas are the title owners of the waters of Kansas?
1. No. Don’t panic. Kansas has not “communized” the water resources of
the state. State “ownership” of water resources = State power to
control and regulate according to the state’s police power.
a. The concept of state ownership of its water resources is a legal
fiction, a surrogate for state control. Sporhase v. Nebraska ex
rel. Douglas, 458 U.S. 941 (1982).
2. However, unlike other resources such as oil and gas, water is a
fundamentally public resource, and so its allocation and use raise
public interest and public trust issues that do not arise with other
resources. The police power of the state is very great; it is an
underlying aspect of every private property right in the state. When
exerted in the realm of rights to water—a public resource—the police
power is especially strong.
b. Jurisdiction and Power: the chief engineer of the division of water resources (“DWR”) is
the statutory officer in charge of administering the laws relating to the beneficial use of
water. K.S.A. § 82a-706.
i. Has jurisdiction over both groundwater and surface water. Id.
ii. All water rights other than domestic rights require permission from the chief
engineer. K.S.A. §§ 82a-705, 82a-728. (Domestic rights—those held for
household purposes—do not require a permit, but they must be used for
domestic purposes.)
iii. The chief engineer has the power to impose penalties on those who use water
without a permit or in violation of the terms of their permit. K.S.A. § 82a-728.
These include civil penalties (fines) and reductions in allowable water usage.
iv. The chief engineer is the lead water officer in charge of administering
Kansas’s four interstate compacts. He or she holds that power under federal
and state law, because interstate compacts are both federal and state statutes.
c. But wait: if the chief engineer of DWR has all of this power, why is DWR a subordinate
division within the Department of Agriculture?
i. That is a really, really good question. Thank you for asking it.
ii. The answer has to do with historical accident but also political intention.
DWR is the only water rights agency in the United States that is
subordinate to a department of agriculture.
iii. But wait. It gets worse. The Secretary of Agriculture has administrative
authority over the chief engineer in regards to certain important water rights
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decisions, including the granting of new water rights, changes to existing
water rights, and civil penalties for water overuse. K.S.A. § 82a-1901.
iv. The subordination of DWR and the chief engineer, a classified officer vested
with the duty to grant, protect, and administer water rights, to a political
appointee dedicated to the promotion of agricultural interests raises all sorts of
conflicts of interest problems, not to mention legal problems.
v. When the chief engineer and DWR are subject to political interference from
within their own agency, then the property rights secured under the KWAA
are affected and threatened by that interference.
vi. Jurisdictionally, this is the single greatest flaw in Kansas water law. The
legislature that enacted the KWAA in 1945 never intended that subordination.
d. Water Law Doctrine: the chief engineer shall “control, conserve, regulate, allot and aid in
the distribution of the water resources of the state for the benefits and beneficial uses of
all of its inhabitants in accordance with the rights of priority of appropriation.”
K.S.A. § 82a-706. As codified, the Kansas prior appropriation doctrine has the following
characteristics.
i. Abolition of water rights held under the riparian doctrine. Those with pre-
1945 uses had until 1980 to “prove up” their water use to the chief engineer
and have such rights recognized as “vested rights” integrated within the prior
appropriation system. K.S.A. §§ 82a-703, 82a-704a. Most did so.
ii. Between persons with water rights, “the first in time is the first in right.”
K.S.A. § 82a-707(c).
1. Priority of the water right, and not its type of beneficial use, governs
its protections. While the KWAA appears to contain a hierarchy of
uses (at K.S.A. § 82a-707(b)), that hierarchy defers to priority (as
stated at K.S.A. §§ 82a-707(b) and 82a-707(c)).
2. Thus, if Smith’s 1957 water right is pumping groundwater that would
otherwise flow to Jones’s 1955 right, and Jones can show (or DWR
can show) that effect, then Jones is entitled to all of the water to which
she is entitled under that 1955 right before Smith can pump any water.
Under the prior appropriation doctrine, we do not “share the shortage.”
iii. But Jones’s protections for her 1955 water right do not happen automatically.
The chief engineer is fundamentally a reactive officer, responding to
owners’ rights for protections.
1. However, the chief engineer must protect senior water rights that must
be protected under federal law, such as the Endangered Species Act.
That is because federal law pre-empts state law in such a situation.
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iv. The chief engineer fulfills his or her statutory duty according to the prior
appropriation doctrine in three basic ways, balancing the duty to put water to
beneficial use with the duty to protect the public interest.
1. In granting new water rights. K.S.A. §§ 82a-711, 82a-711a.
a. If water supplies are available—that is, if their use does not
“impair” existing water rights—
b. And, their use for a new water right does not unreasonably
affect the public interest, then the chief engineer “shall
approve” the application. K.S.A. § 82a-711.
c. In evaluating whether the application protects the public
interest, the chief engineer must consider minimum desirable
streamflows, the dynamics of the local water supply, all prior
rights, and any other matters. K.S.A. § 82a-711(b).
d. In the context of new water rights applications, “impair”
means impairment “beyond a reasonable economic limit.”
K.S.A. §§ 82a-711(c), 82a-711a.
e. What does that mean? This qualification and redefinition of
“impair” exists for new water rights applications: to
accommodate the post-1957 development of groundwater
rights to the High Plains-Ogallala Aquifer. Because a strict
definition of “impair” would have effectively prohibited new
water rights across the Ogallala.
2. In reviewing applications to change existing water rights. K.S.A. §
82a-708b.
a. What cannot be changed: the priority of a water right and its
maximum authorized quantities. K.S.A. § 82a-708b(a).
b. What can be changed: its place of use, its point of diversion, or
the type of use made of water. Id.
i. Place of use: where the water is put to beneficial use.
For an irrigation right, this is the farm; for an industrial
right, this is the factory; for a municipal right, this is the
city. And so on.
ii. Point of diversion: the location from which the water is
diverted (most commonly a groundwater well.)
iii. Type of use made of water: e.g., from an irrigation right
to a municipal right.
c. If the applicant demonstrates that the change does not impair
existing rights, then the chief engineer shall approve the
change. Id. Much of the chief engineer’s analysis is performed
pursuant to the “no injury rule.”
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i. A senior water right cannot be changed in such a way
that its use impairs “existing rights,” including any
potentially impaired junior rights. A senior water right
does not carry with it the unilateral right to be
changed according to its owner’s wishes.
ii. In other words, the owner of a junior water right is
entitled to the conditions of the water supply at the time
his or her water right was approved.
iii. This makes sense within the prior appropriation system:
consider the following example. A 2017 change to a
1960 (senior) water right must not impair any senior
and junior (1960-2017) water rights, because that
proposed change is itself junior to those senior and
junior rights.
iv. The chief engineer typically requires a reduction in the
authorized quantities of the water right to be changed,
to protect all existing rights affected by the change.
1. Changes in point of diversion: if an applicant
seeks to move her well closer to another’s well,
and thus exert a greater impact on that existing
well than previously, then DWR may require, as
a condition of granting the change, a reduction
in the authorized quantity of her right.
2. Changes in place of use: because most existing
water rights in the area depend to some extent
on return flows to the water system, then DWR
may require, as a condition of granting the
change, a reduction in the authorized quantity if
the proposed place of use is more distant from
the recharge area.
3. Changes in consumptive use. Some uses are
more consumptive than others. Thus, a change
to a more consumptive use (e.g., from irrigation
to municipal use) will require a commensurate
reduction in the authorized quantity as a
condition for granting the change.
d. In the context of applications to change existing rights,
“impair” means “impair.” There is no qualification (as there is
with new water rights applications) of “impair” to mean
impairment “within a reasonable economic limit.” Id.
e. Because most areas of Kansas are “over-appropriated”—that is,
there are more water rights than there is water to satisfy
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them—there is more activity in changing existing water rights
than in applying for new water rights. (For the problem of
over-appropriation, see IV.g below.)
i. Combining existing rights to a common place of use.
ii. “Chasing water” by moving the well to a better area of
water supply.
3. In administering water rights in times of shortage.
a. The chief engineer has considerable latitude in deciding how to
protect senior water rights when a senior right owner “makes a
call” on the water supply and requests that junior owners be
shut down. K.S.A. § 82a-706b.
b. DWR water commissioners typically make these decisions,
which can be complex depending upon the conditions in the
basin and the water rights requesting protection.
c. If the chief engineer decides that reducing junior water rights to
protect a senior right would not actually produce “wet water”
to the senior right’s point of diversion, then such a “call” is
deemed to be “futile,” and the chief engineer will most likely
not “administer” (shut down) some (or all) junior rights in that
situation. This is known as the “futile call” doctrine.
e. The Constitutionality of the KWAA has been repeatedly upheld.
i. Williams v. City of Wichita, 374 P.2d 578 (Kan. 1962).
ii. F. Arthur Stone & Sons v. Gibson, 630 P.2d 1164 (Kan. 1981).
IV. The Kansas Appropriation Water Right and How an Owner Protects it.
a. What a Kansas Appropriation Water Right is.
i. A Kansas water right is any:
1. “vested right” (a pre-1945 water right that has been approved
pursuant to the KWAA, post-1945) or
2. “appropriation right” (rights applied for after the KWAA was
enacted in 1945)
3. “under which a person may lawfully divert and use water.” It is a
usufructuary right. K.S.A. § 82a-701(g).
ii. A water right is not the ownership of water, but the right to use that water.
K.S.A. § 82a-707(a).
iii. It is a “real property right appurtenant to and severable from the land on or
in connection with which the water is used and such water right passes as an
appurtenance with a conveyance of the land . . . .” K.S.A. § 82a-701(g).
iv. Domestic rights are full KWAA rights; they just don’t require a permit from
the chief engineer, provided the use is a domestic use. K.S.A. § 82a-705a.
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b. Attributes of a Kansas Water Right.
i. Priority. This cannot be changed.
ii. Authorized quantities (annual use and rate of diversion). This cannot be
increased, but it can be decreased as condition for granting a change, subject
to the no-injury rule.
iii. Place of use. This can be changed, subject to the no-injury rule.
iv. Point of diversion. This can be changed, subject to the no-injury rule.
v. Type of use made of water. This can be changed, subject to the no-injury rule.
c. Because a Kansas Water Right is a real property right, it is transferable, either wholly or
partially, by conveyance. K.S.A. § 82a-701(g).
i. Therefore, those seeking better (older) water rights and additional water
supply can purchase, lease, or otherwise obtain those rights. Prior
appropriation rights have the advantage of transferability, separate from the
land. Id.
ii. In putting those obtained water rights to a different place of use, or type of
use, the buyers/lessees/renters must obtain permission from the chief engineer
pursuant to K.S.A. § 82a-708b. (See above.)
d. The cities of Hays and Russell provide a recent example of how water rights can be
purchased and then changed. Hays bought the R-9 Ranch in Edwards County. The
Ranch holds large groundwater rights with relatively senior priorities. The cities then
proposed to change the Ranch’s water rights as follows:
i. First, to change the rights’ place of use from the Ranch to the cities. This
means that all of the water that had been pumped from beneath and used on
the Ranch in Edwards County will be pumped and then transported by
pipeline to the cities.
ii. Second, and connected with the first, to change the rights’ type of use from
irrigation use (in Edwards County) and stockwatering to municipal use (in
Hays and Russell).
iii. The chief engineer has tentatively approved this change, but, by applying the
no-injury rule, he has significantly reduced the quantities of water that the
cities can use under these rights as a condition for approving the change. That
reduction is to protect existing water rights holders in the hydrological vicinity
of the Ranch.
iv. Moving water rights from agricultural use in rural areas to municipal use in
urban areas makes economic sense: the water right migrates to a more
economically valuable use. As we like to say in water law, “water flows uphill
to money.” Also, under the prior appropriation doctrine, a central attribute of
the water right is the ability to move that property right.
v. But moving such water rights can create serious problems for the rural
communities that rely upon irrigation for their own economic productivity,
their tax base (irrigated land is of much higher value than dry land), and thus
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their roads, schools, and other necessities. This is known as the “buy and dry”
problem: when outsiders purchase water rights and move them away, irrigated
land becomes dry land, with all sorts of attendant problems. It is a tough
policy issue. Every state west of the 98
th
Meridian wrestles with it.
vi. Kansas has a special act, the Water Transfer Act, which subjects changes of
more than 2,000 acre-feet of water rights and/or changes in the place of use of
more than 35 miles to a second level of statutory public interest scrutiny. The
Hays/Russell-R9 change is subject to that act.
e. Owners of water rights can protect their rights through the “administrative route” or
through the “judicial route.” The ability to protect a Kansas water right is one of the
most valuable components of the right. Property rights are meaningless if they do not
enable the owner to protect them. These routes are as follows:
i. By asking the chief engineer to administer water rights, according to the
priority of the water rights drawing from the same source of water supply.
(See above at II.c.3). K.S.A. §§ 82a-706, 82a-706b, 82a-707(c); K.A.R. §§ 5-
4-1, 5-4-1a.
ii. By going to court. The KWAA offers multiple protections for the judicial
route. These protections exist because a water right is a real property right,
entitled to full due process protections. K.S.A. §§ 82a-716, 82a-717a, 82a-
719, 82a-721a, 82a-725.
1. The Kansas Supreme Court has recently upheld the efficacy of the
judicial route, upholding an injunction against a junior right that DWR
found was impairing a senior right. See, e.g., Garetson Bros. v.
American Warrior, 347 P.3d 687 (2015), rev. denied (2016).
iii. Under 2017 amendments to the KWAA, (in response mostly to Garetson), the
legislature attempted to integrate these two routes, requiring a water right
holder claiming impairment to exhaust his or her administrative remedies
before seeking relief in court. K.S.A. §§ 82a-716, 82a-717a (2017).
1. The legality of this amendment has yet to be tested in court. It may run
afoul of two areas of legal authority:
a. Separation of powers concerns (between the
executive/administrative branch and the judicial branch); and
b. Other broad statutory authority entitling senior owners to
independent relief through the courts (K.S.A. § 82a-721a).
f. Water rights owners have repeatedly relied upon the clear protections of the KWAA to
protect their rights. This is especially true in surface-water dominant basins, such as the
Neosho River Basin. The prior appropriation doctrine works fairly well in protecting
surface water rights: the administration of junior rights makes water available to senior
rights relatively quickly in a surface-dominated basin.
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g. However, many water rights owners, especially those with groundwater rights to the High
Plains-Ogallala Aquifer, have not protected their rights as the KWAA assumed or
intended that they would. There are hydrological and local reasons for why owners of
Ogallala-based groundwater rights have generally refrained from seeking the protections
afforded senior rights under the KWAA.
i. The problem of groundwater over-appropriation. DWR granted far more water
rights between 1955 and 1970 than the High Plains-Ogallala Aquifer could
provide over the long term.
1. Why? Because the water was available for appropriation;
2. And the chief engineer has the duty to grant water rights and put water
to beneficial use, provided that new rights do not impair existing rights
“beyond a reasonable economic limit.” K.S.A. § 82a-711.
ii. The problem of slow hydrological response to the administration of junior
groundwater rights. It may take years for the pumping of a junior water right
to impair a senior water right; and it will likely take years for that senior water
right to be restored by shutting down the junior right.
iii. The potentially draconian consequences of water rights administration in the
Ogallala context. Protecting a senior right can require shutting down multiple
junior rights. That is not a “ripple effect” that many irrigators desire—
especially since they often own multiple rights, including junior rights.
iv. The concern of local groundwater communities regarding these draconian
consequences.
v. Starting in the 1970’s, Kansas began to take steps to address these
hydrological, political, and cultural obstacles.
V. Addressing Groundwater Depletion and its effects on Property Rights in Water,
1972-Present
a. The Groundwater Management District Act, K.S.A. § 82a-1020 et seq. (“GMD Act”).
i. The Basic Contours of the GMD Act (enacted 1972).
1. Original Purpose: to reward local initiatives to conserve groundwater
supplies at a time when DWR was not pursuing conservation, by
forming local groundwater management districts (“GMDs”).
2. GMD’s have their own assessment and taxing authority, and have
become the most important political force in Kansas water.
3. GMD’s propose management plans and regulations for their respective
districts, which are developed in consultation with the chief engineer
and approved as state regulations enforced by the chief engineer.
a. GMD’s have taken steps to close areas to new water rights
applications. However, this does fundamentally address the
problem of over-appropriation in western Kansas.
b. Some of these regulations have accelerated the problem of
groundwater depletion.
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4. The GMD Act expressly states that it places no limitation on the chief
engineer’s authority under the KWAA. K.S.A. § 82a-1039.
ii. The most prominent tool for reducing water use across the High Plains-
Ogallala Aquifer: establishing Intensive Groundwater Use Control Areas
(“IGUCAs”), K.S.A. § 82a-1036 to -1038 (1978).
1. The Basic Procedure and Consequences of an IGUCA:
a. The chief engineer, the GMD, or local irrigators (via a petition)
may initiate proceedings to form an IGUCA.
b. The chief engineer then holds hearings to consider three basic
things:
i. Whether conditions merit an IGUCA;
ii. What the boundaries of the IGUCA should be; and
iii. What the “corrective control provisions” (usually
reductions in water rights quantities) should be.
c. IGUCAs are then established by order of the chief engineer.
2. Successes: IGUCAs have restored some degree of balance to
connected surface and groundwater systems across western Kansas. At
this writing, there are eight IGUCAs.
3. Failures: no IGUCAs have been established across the non-renewable
portions of the Ogallala Aquifer. Reasons for that failure:
a. The chief engineer has so far not initiated proceedings to
establish an IGUCA on his own initiative. That is largely out of
political caution and his lack of a clear statutory duty to
conserve the water resources of Kansas independent of
protecting water rights that depend on those resources.
b. Local irrigators fear the unpredictability of the IGUCA
process: they may seek to reduce groundwater pumping and
initiate an IGUCA, only to find that the chief engineer
establishes boundaries or orders pumping reductions that are
different and in excess of what they had planned or feared.
This is a legitimate concern.
iii. A more recent tool to avoid the pitfalls of IGUCA’s: Local Enhanced
Management Areas (“LEMAs”), K.S.A. § 82a-1041 (2012).
1. The Basic Procedure and Consequences, as distinguished from
IGUCA’s:
a. The GMD (acting through its elected board) votes to move
forward with a LEMA, and submits a management plan for the
LEMA to the chief engineer.
b. The chief engineer holds hearings similar to those of an
IGUCA, but with one signal difference: the hearings are
limited to the management plan. The chief engineer cannot
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deviate substantially from the plan; he either approves the
LEMA or rejects it. This difference in procedure is intended
to protect against unintended regulatory consequences,
such as unanticipated borders or increased reductions in
pumping.
2. Successes:
a. GMD4 SD-6 LEMA, 2013-2018, renewed 2018-2022 (2017)
b. GMD4 district-wide LEMA
c. GMD1 LEMA for a portion of the district (2020).
3. Failures:
a. GMD5 has invested heavily in technical expertise and has
proposed multiple LEMA plans to the chief engineer; but it has
so far failed to present a plan that, according to the judgment of
the chief engineer, satisfactorily addresses the impairment of
the water right held by the U.S. Fish & Wildlife Service for the
Quivira National Wildlife Refuge.
b. There are no apparent plans, even on the distant horizon, for a
LEMA in GMD3.
c. These failures raise at least two important questions: Why
have GMD4 and GMD1 achieved successful LEMAs, while
GMD3 has not even attempted one? And what is keeping
GMD5 from submitting a LEMA plan that will pass DWR
muster?
iv. Some prominent legal problems regarding the GMD Act.
1. Are GMD’s achieving their original purpose, or, as Professor John C.
Peck noted, might “the foxes be guarding the chicken house?”
2. Do GMD’s represent the water users in their districts fairly?
3. The relationship between the GMD Act and the KWAA.
a. How to resolve the opening paradox of K.S.A. § 82a-1020:
how can “local water users determine their destiny” while
preserving “basic water use doctrine”—namely, prior
appropriation, when irrigators do not favor prior appropriation
calls as a regulatory tool?
b. Do IGUCA and LEMA orders that impose reductions in
groundwater rights regardless of their respective priorities
violate the prior appropriation doctrine of the KWAA?
c. Can owners of groundwater rights affected by IGUCA and
LEMA orders protect their water rights through the judicial
route?
d. Do IGUCA- and LEMA-ordered reductions in groundwater
rights to both renewable and non-renewable areas of the High
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Plains-Ogallala Aquifer rise to the level of governmental
takings?
e. Or is the collective failure by DWR and the GMD’s to slow the
permanent depletion of non-renewable groundwater supplies in
itself a taking on a regional scale?
b. Groundwater-motivated amendments to the KWAA. These are minor “tweaks” to the
KWAA that have softened some of the harder edges of the prior appropriation doctrine.
i. Multi-Year Flex Accounts. K.S.A. § 82a-736 (esp. 2011, 2012).
1. Enables a groundwater right holder to use its authorized quantities
more flexibly, by extending the compliance period from annually to
five years.
2. Depending on the situation, this can increase or decrease overall water
usage.
ii. Water Conservation Areas. K.S.A. § 82a-745 (2015).
1. Think of WCA’s as voluntary, miniature LEMA’s.
2. Statutorily unnecessary, but enacted to standardize the process and
encourage conservation.
iii. Water Rights Conservation Program, in statute: protection from abandonment.
K.S.A. §§ 82a-741, 82a-718(d) (2011).
1. Placed in statute what had been in regulations; no effective change in
DWR practice.
iv. Abolishing abandonment of water rights in closed areas: K.S.A. § 82a-718(e)
(2012).
1. The apparent good news: no more “use it or lose it.”
2. The bad news: this is a solution in search of a problem. The more
important problem is that of hidden water rights that cannot be
terminated. May promote further speculation.
VI. Other property rights in Kansas Water.
a. Storage Capacity in reservoirs as a Property Interest.
i. The State’s property interest in federal reservoirs: that of a permanent
easement to the storage space within the reservoir.
ii. The KWO purchases permanent storage space in reservoirs, and then acts as a
long-term broker to purchasers of water storage in two ways.
b. First way: State Water Plan Storage Act, K.S.A. §§ 82a-1301 to -1320 (first enacted
1974). Basic Structure:
i. Kansas agrees to pay the United States for conservation storage for municipal
and industrial (“M&I”) purposes.
ii. Under the State Water Marketing Program, the state acquires “water
reservation rights” from the chief engineer for the purpose of diverting and
storing water in the reservoir.
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iii. State enters into long-term contracts with M&I users to sell the water from
storage, drawn from these water reservation rights.
iv. Receipts from the contracts enable the state (it is hoped) to partially repay the
federal government.
v. Interest in the state water marketing program has proved to be less than
anticipated, indicating problems in the distribution of reservoir water supply
benefits during droughts.
c. Second way: Water Assurance Program Act, K.S.A. §§ 82a-1320 to -1328 (1986).
i. Enacted in response to the shortcomings of the State Water Plan Storage Act.
ii. Enables M&I users downstream from federal reservoirs to join together in
Water Assurance Districts (“WADs”), issue bonds, and aid the state in
repaying the United States for adding conservation storage space to federal
reservoirs.
iii. In return, WAD members are promised reservoir releases sufficient to meet
certain prescribed target flows on the river.
VII. Conclusion
a. The KWAA is a fundamentally sound water code, and one of the better western water
law codes. Nonetheless, the state faces a statewide problem of permanent depletion of
its water resources, across water resource categories. These include:
i. The depletion of groundwater across the High Plains-Ogallala Aquifer.
ii. The loss of perennial streamflows across most of western Kansas due to
groundwater over-pumping—flows upon which many surface rights in
eastern Kansas depend. Over-pumping harms property rights.
iii. The depletion of storage capacity in federal reservoirs as a result of siltation
caused by erosion upstream.
b. These are private property problems, because permanent depletion makes property
rights less secure. A real property right predicated upon a disappearing resource is
a pathetic legal fiction.
i. This is also a problem about the public. We are witnessing, by permanent
depletion, the loss of waters dedicated to the public, in violation of the
public interest.
ii. These problems are solvable, largely because of the basic soundness of
Kansas water law. The question is whether the state and its citizens have
the political will to do so.
c. Some concluding questions for the committee to consider:
i. Should Kansas reorganize its balkanized water and natural resources agencies
into a more effective and integrated single agency, a Department of Water
Resources or a Department of Natural Resources? Why is Kansas the only
state in the union that has not done so?
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ii. Given that Kansas is losing much of its groundwater supplies and the flows of
its streams, should the legislature impose upon DWR and the chief engineer
the explicit affirmative (rather than reactive) duty to restore and to preserve
the water resources of Kansas?
iii. Do the GMDs adequately represent the water interests of Kansas citizens who
live within their respective borders? Do the interests of irrigators within
GMDs trump other local interests and statewide interests?
iv. Given that there are far more water rights than water in western Kansas,
should we adjudicate the rights to the High Plains-Ogallala Aquifer?
v. Should the State reconsider the public and private value of water stored in
federal reservoirs?
vi. These are complex and difficult questions. Given that, should the Kansas
Water Authority commission a study of Kansas water law like the 1944 and
1956 studies? It has been 65 years since the last comprehensive study.
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VIII. Bibliography. Here is a baker’s dozen of titles for those who remain curious.
a. GEORGE S. KNAPP ET AL., THE APPROPRIATION OF WATER FOR BENEFICIAL PURPOSES: A
REPORT TO THE GOVERNOR ON THE HISTORIC, PHYSICAL, AND LEGAL ASPECTS OF THE
PROBLEM IN KANSAS (1944). This remarkable work explains why Kansas had to
comprehensively reform its water law, and explains the basic structure of the original
KWAA. The legislature adopted the report’s statutory plan almost entirely in 1945.
b. KANSAS WATER RESOURCES BOARD, REPORT ON THE LAWS OF KANSAS PERTAINING TO
THE BENEFICIAL USE OF WATER (1956). This work confronted the legal challenge of how
to incorporate the vast supplies of the High Plains-Ogallala Aquifer within the existing
(and necessary) structure of the KWAA. The legislature adopted most of its
recommendations in 1957.
c. John C. Peck, Kansas Groundwater Management Districts, 29 U. KAN. L. REV. 51
(1980). Until his retirement in 2019, Professor Peck was the leading authority on Kansas
water law for over four decades. Everything he writes is worth reading.
d. John C. Peck, The Kansas Water Appropriation Act: A Fifty-Year Perspective, 43 U.
KAN. L. REV. 735 (1995).
e. John C. Peck, Property Rights in Groundwater—Some Lessons from the Kansas
Experience, 12 KAN. J.L. & PUB. POL’Y 493 (2003).
f. John C. Peck, Groundwater Management in Kansas: A Brief History and Assessment, 15
KAN. J.L. & PUB. POL’Y 441 (2006).
g. Michael K. Ramsey, Kansas Groundwater Management Districts: A Lawyer’s
Perspective, 15 KAN. J.L. & PUB. POL’Y 517 (2006). Mr. Ramsey has represented
numerous water clients over the course of his distinguished career, especially in
southwest Kansas.
h. Leland E. Rolfs, Comparing and Contrasting the Roles of the Division of Water
Resources and the Groundwater Management Districts in Groundwater Management
and Regulation, 15 KAN. J.L. & PUB. POL’Y 505 (2006). Mr. Rolfs is the most important
state water lawyer in Kansas history, and drafted most of the regulations underpinning the
KWAA.
i. Burke W. Griggs, Beyond Drought: Water Rights in the Age of Permanent Depletion, 62
KAN. L. REV. 1263 (2014).
j. Burke W. Griggs, General Stream Adjudications as a Property and Regulatory Model for
Addressing the Depletion of the Ogallala Aquifer, 15 WYO. L. REV. 413 (2015).
k. Burke W. Griggs, The Political Cultures of Irrigation and the Proxy Battles of Interstate
Water Litigation, 57 NAT. RESOURCES J. 1 (2017).
l. Reference works:
i. JASON ANTHONY ROBISON & A. DAN TARLOCK, LAW OF WATER RIGHTS AND
RESOURCES (Thomson/Reuters, 2020 ed.). The standard single-volume treatise
on water law.
ii. REED D. BENSON, BURKE W. GRIGGS, & A. DAN TARLOCK, WATER RESOURCE
MANAGEMENT: A CASEBOOK IN LAW AND PUBLIC POLICY, 8
th
ed. (West:
Foundation Press, 2021). A standard water law casebook.