A Simulation of Kansas Water Rights

Background Information
Kansas Water Rights

With inconsistent precipitation and surface water seemingly scarce in the western part of the state, where do farmers get the ample supplies of water to grow the crops that they do? From groundwater. Part of the Ogallala aquifer underlies this area.

Whether surface or groundwater, to whom does the water in Kansas belong, and who has the right to use it? Water falls under the concept of commonality like other elements of nature such as air and wild animals These resources are not owned by private individuals. Instead, they are held in common by alt. Prior to 1945, the "Riparian System" was applied to water rights. Those who owned land adjacent to water bodies were entitled to the use of the water. Those with upstream "Riparian Rights" had a right to appropriate some of the water flowing past their property as long as it was for a reasonable use. The rest of the flow continued as a common resource. Those with down stream riparian rights were entitled to an undiminished streamflow.

The concept of commonality was not initially applied to groundwater, however. Instead, groundwater fell under a doctrine whereby landowners possessed everything in a direct line between the surface of their land and the centers of the Earth and the Sun. In other words, the owner of land also had rights to the water beneath the land. Once hydrologists better understood the flow properties of groundwater, however, the courts applied the "common interest" concept to groundwater and imposed "reasonable use" restrictions to it as well.

Recognizing the similarities between surface water and groundwater and the interaction between the two, the state of Kansas has determined that all water should be governed by one set of rules. with the adoption of the Kansas Water Appropriation Act, it was declared that all water in the state of Kansas was dedicated to the use of the people of the state and that all waters within the state could be appropriated for beneficial use.

The Water Appropriation Act made it illegal for individuals in Kansas to use water for nondomestic uses without holding a vested water right or applying for and receiving a permit to appropriate water from the Division of Water Resources. This prior appropriation system followed a "first in time, first in right" principle. That means that during times of shortage, the earliest right holders or permit holders have first right to use the water. The most junior appropriator (the one with the most recent priority date) would be the first to lose the right to use the water during a time of shortage. All others with senior rights would be entitled to take their allocations first. The appropriator with the next most recent priority date would be the next to lose his allotment, and so on.

Water rights applied for on or before June 28, 1945, were grandfathered in under this system as vested rights. It is the date of the right that determines whose rights are senior rights and whose rights are junior rights in relationship to one another.

The administration of this appropriation system allows the fair apportionment of water within our state. It .simultaneously protects the people's right to use Kansas water and protects the state's supplies of ground and surface water for the future. The Kansas Water Appropriation Act is administered by the Kansas Department of Agriculture's Division of Water Resources, who has the responsibility of issuing permits to appropriate water, regulating water usage, and keeping records of all water rights in the state.

The Kansas Water Appropriation Act is a part of Kansas law, and as such, carries penalties for the violation of it. Violation of this law can result in a maximum of six months in jail and a fine of $500.

While farmers using irrigation to grow crops are required to obtain a permit and make yearly reports of their water usage, city-dwellers using water for domestic purposes do not. Water usage for domestic purposes refers to water primarily used for the household, watering up to two acres of lawn and gardens, watering livestock on pasture, or a pond smaller than 15 acre-feet. Such water usage is covered by the water right or rights held by the city municipality.

The obtainment of a water right is an eight-step process. First, an application to appropriate water for beneficial use must be filed. The application must be accompanied by a filing fee which is determined by the amount of water to be appropriated. The application form can be obtained from the Division of Water Resources, 901 S. Kansas Avenue, 2nd Floor, Topeka, KS 66612-1283. Personnel from the Division of Water Resources can assist with the completion of the application.
The second step of the process is the receipt of a. permit. Considerations for permit approval include the availability of water at the desired location, a lack of interference with other area water rights, minimum desirable stream flow, whether diversion would be in the public interest, and the meeting of all other division requirements.

Once a permit has been received, the permit holder has the go-ahead for the completion of diversion works such as the drilling and completion of a well or pumpsite or the building of a dam. Water meters which measure water flow and usage must be installed at this time. Completion of the diversion project then needs to be reported to the Division of Water Resources. A form requesting a field inspection of the works needs to be completed and filed along with a $200 field inspection fee.

Once this has been completed, the applicant is given four to five years to "perfect" the water right applied for, meaning that the applicant has that period of time to develop the use of the amount of water applied for.

Once the right has been perfected, a field inspection is completed by the Division of Water Resources. The purpose of the inspection is to determine the rate at which water is being diverted, where the water has been used, and how it has been used. Details of the water right perfection and water use information are also collected at this time. Such information is helpful in determining the maximum and normal rates of water diversion in order to establish actual allocated amounts.

A draft certificate outlining the proposed water appropriation will then be drawn up. The water right holder will have 30 days in which to comment on the proposed certificate. The actual certificate will be awarded after that time. Once it has been received by the water right holder, it needs to be filed with the Register of Deeds in the county or counties where the authorized points of water diversion are located.

Once water use has begun, as authorized on the water permit, the permit holder is required to complete and file yearly water usage reports. The forms, which are mailed out in January, are due back on March 1 of each year. Late reporting results in fines, and the deliberate falsification of data on a report is considered a Class C misdemeanor. Reports must be filed even if authorized amounts of water have not been used during the previous year. In this event, the reasons for nonuse need to be explained in order to prove that the right has not been abandoned.

A water right is considered abandoned after three successive years of nonuse without acceptable cause. Examples of acceptable cause for nonuse include the unavailability of water from the source of supply; a reduced need to irrigate crops due to adequate rainfall; or the temporary pollution of the water supply.

An application for change in water fight must be filed with the Division of Water Resources in the event that the water right holder wants to change such aspects as the place of water use, the type of water use, or the point of diversion.

While the aforementioned process is for long-term water usage, temporary permits for water use lasting less than six months and involving less than a million gallons of water to be used for nondomestic purposes can also be obtained. These are typically issued for such purposes as oil well drilling or small construction projects.

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e-mail: pphillip@fhsu.edu

irc staff 11/28/97 (updated judi 06/17/99) judi 04/19/00 Disclaimer