(See DWR links below for additional information)
Kansas is a "prior appropriation state" in regard to water rights. This means that all the water is owned by the state and dedicated to the use of the citizens subject to the conditions and caveats spelled out in the state's water appropriation act (KSA 82a-701). This act operates under the general principal of "first in time-first in right", which means in times of shortage, the last people to obtain water rights are the first to be affected by whatever remedy(s) is prescribed. However, statutory amendments now provide powers to the DWR to establish special management areas including Intensive Groundwater Use Control Areas (IGUCAs) and Local Enhanced Management Areas (LEMAs) where additional tools besides the strict response of reverse order of priority can be utilized.
Although the state is obviously the lead entity in water rights, there are other entities also involved. Local groundwater management districts (GMDs) have also been authorized in special areas of the state to develop regulations for the management of local groundwater supplies - so long as they are not inconsistent with the water appropriation act (KSA 82a-1020). There are 5 GMDs that have formed to date. Within a GMD, the local board may develop specific regulations which when properly adopted, become the regulations of the DWR for that local district.
There are also other state agencies which have water responsibilities. The Kansas Department of Health and Environment (KDHE) deals with water quality (pollution, etc.) and the effects on health and the environment. The Kansas Water Office (KWO) is the planning agency in the state and is responsible for the State Water Plan. The Kansas Geological Survey has data collection and research responsibilities.
Why A Water Right?
The Kansas Water Appropriation Act is the principal law under which water in Kansas is administered. This law is designed to protect both the people's right to use Kansas water and the state's supplies of water for the future. The law is administered by the Division of Water Resources (DWR) within the Kansas Department of Agriculture. Under this law, it is illegal for individuals in Kansas to use water for other than domestic purposes without holding a water right from the DWR. Domestic use is defined as the use of water by any family unit for household purposes, watering farm and domestic animals, and watering lawns, orchards or gardens not exceeding 2 acres in size. In other words, regardless of amount used, it is illegal to use any water in Kansas without a valid water right unless it is for domestic use only. Notwithstanding the legal requirement, the fact that Kansas is a "first in time-first in right" state means that the ownership of a water right protects your use against all users who developed a right after you. In times of shortage a water right may mean the ability to continue pumping. Finally, the requirement protects the state's resources from abuse today, so that tomorrow's citizens can be supplied as well.
Step by Step Guide To Obtaining a Water Right
- File an Application:
Contact the Division of Water Resources for an application to appropriate water for beneficial use. Applications and assistance in completing them can also be obtained from any local GMD. Anyone who wishes to use water for any purpose other than domestic use must file an application accompanied by a filing fee which is determined by the amount of water to be appropriated. Obtain a form from the Division of Water Resources, 901 S. Kansas Avenue, Second Floor, Topeka, Kansas, 66612-1283. Applications filed within a groundwater management district are reviewed by the district, and recommendations are made to the chief engineer based on the policies, and rules and regulations of that district.
- Receive Permit:
If it is determined that: (1) water is available at the desired location; (2) its appropriation will not interfere with other area water rights, minimum desirable streamflow, or the public interest; and (3) it meets all other Division (and if applicable, GMD) requirements, the application may be approved.
- Complete Diversion Works:
After the permit is issued by the Division of Water Resources, its holder is free to complete the authorized diversion works by drilling and completing a well, pumpsite or building a dam within the time allowed. Check valves also are required for safety in chemigation use. The permit holder then must notify the Division of Water Resources of the completion of the diversion works and submit a $200 field inspection fee. A form for this purpose usually accompanies the permit. Installation of any required water meter(s) must be completed before notice and proof is accepted. (Dams impounding more than 30 acre-feet of water require an additional permit from the Divisions's Water Structures Section.)
- Develop the Water Right:
At this point the applicant has a specific period of time, usually five years, to "perfect" - or to develop the water right by actually using water as authorized by the permit. If more time is needed, an extension of time must be requested in writing before expiration of this period. This is where the annual water use reports become so important - don't fail to accurately file these reports. A water right holder still perfecting his or her right should also pay close attention to the specific period of time they have to perfect the right. This is the best way to know if an extension of time to perfect the right is needed.
- Field Inspection:
After the water right has been perfected, the Division of Water Resources conducts a field inspection to determine such things as rates of diversion of water, where and how the water has been used, as well as other numerous details of the actual operation in relation to the perfection of development of the water right. These tests will determine the maximum and normal rate of water diversion. Water use reports and other information also will be analyzed to determine the quantity of water diverted and acres irrigated each year within the limits of the permit.
- Comment on Draft Certificate:
After completion of field testing, the water right holder will receive a draft certificate of appropriation from the Division of Water Resources. He or she has 30 days to comment on the proposed certificate of appropriation. This is a very important review step for the applicant. If any problems with the proposed certificate are not corrected here, they become non-correctable once the certificate is issued.
- Certificate Issued:
When the water right holder receives the actual certificate, he or she must file it with the Register of Deeds in each county where the authorized point or points of diversion are located. The entire certificate should be read carefully, noting all specified terms, conditions and limitations.
- Water Use Reported Yearly:
After the application to appropriate water is approved, the permit holder is required to complete and return a yearly report of water use not later than March 1 of each year - or December 31 of the current year within the Republican River Basin in Kansas. The forms, which are mailed in January (mailed in November for the Republican River Basin), are for the previous year's usage. The Kansas legislature has made the report of water use mandatory and authorized fines for late reporting. Deliberate falsification of data on a report is a class C misdemeanor. Water use reports are used to perfect the water right and prove it has not been abandoned. Reports must be submitted even if water was not used in the previous year, and the reason for nonuse explained.
- Abandonment of a Water Right:
Normally a water right is considered abandoned after five successive years of non-use without due and sufficient cause. In 2012 the Legislature amended Kansas laws such that in areas closed to new appropriations the abandonment approach is no longer applicable. While water right owners in closed areas must still file water use reports, they can report no use without fear that the state will abondon their rights due to non-use. Examples of due and sufficient cause for non-use include such reasons as water not being available from the source of supply; adequate moisture is provided by natural precipitation for production of crops normally requiring irrigation; or temporary pollution of the water supply. There are others and the Chief Engineer has fairly broad discretion to consider other reasons sufficient for non-use. As such, it is important to keep in contact with either a GMD (if your water use is within a GMD boundary) or the Division of Water Resources iIf there are doubts or questions. The overriding issue in what constitutes due and sufficient cause is: Was I prevented from using water this year due to some reason or circumstance? OR, Did some reason or circumstance make it unnecessary for me to use water I had planned on using for the year?
- Changing a Water Right:
If a water right holder wants to change such things as the place of use, the type of water use, or the point of diversion, he or she is required to file an application for change with the Division of Water Resources, and to pay the appropriate filing fee. Some parts of Kansas have no water available for new permits. In those areas, acquisition of an existing water right and obtaining approval to change one of the features may be the only way to meet such a change request. If you are within a GMD, there are likely to be additional local regulations regarding changes.
- Temporary Permits:
Temporary permits are available for water use which will last less than six months and consist of generally less than four (4) million gallons of water used for non-domestic purposes (The 2012 Legislature increased the limit from 1 million gallons to 4 million gallons). Temporary permits, which often are issued for such purposes as oil well drilling or small construction projects, must be accompanied by a filing fee.
- Multi-year Flex Accounts:
Also in 2012 the Legislature amended the existing Multi-year Flex Account (MYFA) statutes in several ways. Now, any groundwater right can voluntarily convert their annual water right into a 5-year flex account that will allow the right to be pumped any way the owner desires, so long as the total 5-year allocation is not exceeded. The total 5-year allocation for each water right is calculated in two ways and the owner gets to choose the better of the two answers, but this program is not necessarily available to or good for every water right, so look into it before you file a conversion application. In essence, the base water right will be set aside and a term permit will be issued instead. As soon as the term permit expires, the base water right will be reinstated as it was before. This option will be very important for anyone who is faced with overpumping an annual water right - but MUST be applied for before October 1 of the overpump year. NOTE that the calculations result in reductions of the base water right in some cases. The full details of this program are contained within the DWR Website - click here to view.
The above is a cursory overview of water law in Kansas as it relates to water rights. For additional detail, refer to any or all of the following references:
K.S.A. 82a-701 et. seq.
Chief Engineer/Director, Kansas Department of Agriculture, Division of Water Resources, 901 Kansas Ave, Topeka, KS 66612-1283, Tel: (785) 296-3717.