Who Owns the Water?
Beth Denney
Manhattan High School
Manhattan, Kansas

Overview:

The legal process determines how water is allocated among competing users in Kansas. By exploring landmark cases in Kansas water law students will become aware of the interests of these various users and the prevailing laws governing water rights. This lesson utilizes the case study method of instruction which develops students skills in logic, critical thinking, analysis and decision making.

Grade Levels: 7-12

Time: 1-2 class periods

Geographic Theme:

Movement


Kansas Social Studies Standard for Benchmark, Grade Levels 12-K:

The student will understand the roles of government and civic ideals and practices in the local school and community, Kansas and its surrounding states, the United States and its region, and the world

 

The student will understand the roles of individuals, groups, and institutions throughout time in the local school and community, Kansas and its surrounding states, the United States and its region, and the world.


National Geography Standard, Grades 9-12:


#13	The geographically informed person knows and understands how the forces of cooperation and conflict among people influence the division and control of Earth's surface.

 

Outcome:

Students will know key legal principles in Kansas water law.


Performance Objectives:

Students will he able to:

1. Identify principal water disputes in Kansas.
2. Evaluate the arguments of both parties in disputes.
3. Apply precedent decisions to current controversies.


Materials:

Student copies of Governing Acts and Key Legal Principles
Student copies of Maps and Cases


Procedures:

1. Review governing acts and key principles used in determining water rights in Kansas.
2. Distribute case materials. Have students read the facts of the cases and study accompanying maps carefully.
3. Divide the class into small groups. Each group will prepare arguments for each side of the cases and develop a decision in each case.
4. Share results from the group discussions and decisions. Use Teacher's Guide to share the actual decision of the Court.
5. Apply the Court's findings in these cases to a currently undecided case: The Edwards County Commission case or others.

 

Assessment:

Observe students' participation in discussions, evaluate case study summaries.

Grade case study summaries for logic.

 

Resources:

• Division of Water Resources, Kansas Department of Agriculture, (1996). Kansas Handbook of Water Rights, Topeka, Kansas.
• Duncan, M. L. (1987). High Noon On The Ogallala Aquifer: Agriculture Does not Not Live by Farmland Preservation Alone. Washburn Law Journal. 27.16, 78, 80.
• Kansas Geological Survey. (1996) Kansas Ground Water: An Introduction to the State's Water Quantity. Quality and Management Issues. Lawrence, KS: author
• Topeka Capital-Journal, Special Edition, Parting the Waters, October 10, 1993.


Teacher's Guide to Cases:

Stone and Sons: The Kansas Supreme Court ruled against Stone and Sons and ruled that landowners do not own the water under their land although they have rights to the use of this water. The Court upheld the authority of the Ground water Management District in appropriating water.  

Wet Walnut Creek Irrigators: The Court created an IGUCA and limited pumping on existing wells because the water rights of Wildlife and Parks "Cheyenne Bottoms" were senior to the junior rights of the irrigators. Cheyenne Bottoms was "first in time, first in rights," hence this was not a case of ducks vs. Farms. The Court also ruled that farmers can average their water usage over a five year period to make up for dry years. This case was a historical recognition of the relationship between streamflow and ground water.  

Kansas V. Colorado: The U.S. Supreme Court rules for Kansas that Colorado had allowed post-Compact well pumping in Colorado against their Compact agreement. The Court said that upstream users must abide by compact regulating the flow of water. Damages are yet to be determined.  

F. Arthur Stone & Sons V. Gibson
Facts of the case: Stone & Sons applied for a water permit to drill two wells on their land from the Division of Water Resources. The amount of water they wanted to pump exceeded the limit allowed by Ground water Management District #3. Their application for a permit was denied. Stone & Sons sank two wells anyway, claiming that as landowners they had absolute rights to the water under their land.

 

Legal Issue: Can the State (through the WAA and GMA) require a landowner to comply with its regulations concerning water under privately held land?

 

Arguments For Landowner:

 

Arguments for State:

Your Decision:

Wet Walnut Irrigators v. Cheyenne Bottoms Wildlife Area

Facts of the Case: In 1992, Cheyenne Bottoms was completely dry with no water for migratory birds. Kansas Wildlife and Parks Department, which maintains Cheyenne Bottoms, said that farmers in the area were using more than their entitled share of water for irrigation. Wildlife and Parks wanted a 100 mile stretch of Wet Walnut Creek designated an Intensive Ground water Use Control Area in Barton, Rush and Ness Counties Water rights were issued to Cheyenne Bottoms in 1948 and to irrigators after 1965.

 

Legal Issue: Can farmers exceed their irrigation limits in dry years because of their role in feeding the world?

 

 

Arguments for Cheyenne Bottoms:

Arguments for Irrigating Farmers:

Your Decision:

Kansas V. Colorado

Facts of the Case: The 1949 Arkansas River Compact between Kansas and Colorado was intended to protect the flow of river water into Kansas. It requires Colorado to give Kansas 40% of the water in John Martin Reservoir located in Colorado and built to store water for both Kansas and Colorado. Kansas claimed that Colorado built over 1600 wells to divert water from the Arkansas River and that Colorado used over 60% of the reservoir water. The average annual volume of water at the Kansas-Colorado line from 1949 to 1973 was 121,300 acre feet of water per year. By 1985 the average annual volume was 72,600 acre feet per year. One acre foot equals 325,851 gallons or the amount that covers one acre to a depth of one foot.

 

Legal Issue: Did Colorado use more than its share of the water as allowed by the Arkansas River Compact of 949? and To what extent can upstream users disregard the needs of downstream users?

 

 

Arguments for Kansas:

Arguments for Colorado:

Your Decision:

Edwards County Commission V. State of Kansas

Using the decisions above as precedents, predict how the court will rule in this case:

 

Facts of the Case: In January 1995, the City of Hays paid $4.2 million for the Circle K Ranch in Edwards County with rights to 7000 acre feet of water. Hays sold an 18% interest in Circle K to the City of Russell. The Circle K Ranch gets water from the Upper Arkansas Basin and the Arkansas River. Hays and Russell are in the Smoky Hill-Saline Water Basin. Hays wants to pipeline water Circle K to Hays to meet the city's serious water shortage under the Water Transfer Act. The Edwards County Commission is suing the State alleging that the Water Transfer Act is unconstitutional in allowing an interbasin transfer of water.

 

GOVERNING ACTS AND KEY LEGAL PRINCIPLES

• Kansas Water Appropriations Act (1945) protects water rights in Kansas. It is administered by the Division of Water Resources of the Kansas Department of Agriculture. They issue water permits, regulate water usage and keep records of all water rights in the State.
  
• Ground water Management Act (1972) established Ground water Management Districts to monitor the use of water from the Ogallala Aquifer and other ground water sources within each district. The districts are self-governing by their users.
  
• Intensive Ground water Use Control Act (1972) was an amendment to GMA (above). It authorized the Division of Water Resources to designate a control area when water levels decreased excessively, or when water withdrawals exceeded recharge through precipitation, or when preventable water waste occurred. Ground water Management Districts may also recommend the establishment of an IGUCA.
  
• Water Transfer Act (1983) allows water to be moved from its source to other areas in Kansas. Kansas water basins that neighbor our four surrounding states are in Interstate Compact Agreements that prevent the transfer of water outside the basin agreement areas. As a result the Water Transfer Act applies only to several Kansas Water basins that are not in Interstate Compact Agreements with another State.
  
• Key Legal Principles in Water Law:
  • First in time, first in rights.
  • All water within the State belongs to the people of Kansas subject to the control of and regulation by the State.

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