Barfield

Kansas Water Law/Water

Rights 101 and current issues

Women Managing the Farm 2015 Conference

Introductory Matters: About DWR

Kansas Water Resources

About DWR• Part of Kansas Department of Agriculture

• Three Programs

• Water Appropriation (water rights)

• Water Structures (dam safety, stream permits, floodplain regulation)

• Water Management Services (interstate compacts, more)

• Moved to Manhattan, summer 2014

• Approx. 50 Headquarters Staff/ 30 Field Office Staff

Kansas Interstate Water Compacts:

1942

1949

1971

1966

Water in Kansas• Kansas: variability in hydrologic conditions

across the state

• Eastern Kansas Primarily relies on surface water supplies; prone to

occasional persistent drought• Central KansasRelies on a mixture of surface and groundwater

• Western KansasPrimarily relies on the Ogallala-High

Plains aquifer for its water supply

Precipitation is highly variable in Kansas,averaging 16” (west) to 46” (east) per year

Water Law 101: The Kansas Water Appropriation Act

Kansas Water Appropriation Act (1945)

• 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.

• 82a – 703 Except as provided in K.S.A. 82a-703a and subject to vested rights, all waters within the state may be appropriated for beneficial use as herein provided…

Kansas Water Appropriation Act

• Right to use water is based on Prior Appropriation or “First in time, First in Right”

• Protects investments, commerce, property rights and the resource

• Charges Chief Engineer to oversee:

– Allocation of water supply, allowing for orderly development of the state’s water resources

– Regulation of in times of shortage.

• Protects investments, commerce, property rights and the resource

Fundamental Attributes of a Kansas Water Right

• Priority Date

• Use made of Water

• Rate and Quantity

• Specific Point of Diversion

• Specific Place of Use

General Steps to Developing a Water Right in Kansas

• Application– Priority based on application filing date

• DWR determines whether application can be approved, based in part on well spacing and safe yield

• If approved, applicant must complete diversion works and put water to authorized beneficial use

• Applicant must file annual water use reports

• DWR conducts field inspection, certifies the water right based on actual water use during perfection period

• A water right is a real property right

New Appropriation

• Water is appropriated where available based on safe-yield

• New appropriations cannot impair existing water rights

• Water rights can be administered if impairment does occur

• Most of the western 2/3 KS is closed to new appropriations; “open” areas limited by safe yield, significantly conditioned.

New applications evaluated based on sustainability

Water for New Uses in Fully Appropriated / Closed Areas

• In areas closed to new appropriations, water for population growth or new uses accommodated through purchase / conversion of existing water rights.

• KWAA allows changes in use made of water, point of diversion, and place of use

– Changes must pertain the same local source of supply

– Must not impair existing water rights

– Changes from irrigation to another use such as stock or municipal cannot increase net consumptive use

• We no longer have to worry about “Use It Or Lose It” in closed areas of Kansas.

Water Right Administration under the Kansas Water Appropriation Act

• K.S.A. 82a-706b – “It shall be unlawful for any

person to prevent, by diversion or otherwise, any

waters of this state from moving to a person having

a prior right to use the same…”

• K.S.A. 82a-707 – “As between persons with

appropriation rights, the first in time is the first in

right. The priority of the appropriation right to use

water for any beneficial purpose except domestic

purposes shall date from the time of the filing of the

application in the office of the Chief Engineer.”

Water Regulation When Water Short

• Thus, during periods of shortage, junior

water rights may be curtailed to satisfy

senior rights and minimum desirable stream

flow

• Releases from storage may be protected

Impairment process

1) Complaint must be submitted in writing

2) DWR Investigation

3) DWR Report of Findings

4) If impairment is found and action desired, complainant must file a request to secure water

5) Action by the Chief Engineer as long as required

Done regularly in surface systems; increasing impairment complaints in groundwater systems

Over-Pumping and Meter Violations

• K.S.A. 82a-728: Unlawful Acts and Penalties, illegal water use is a Class C Misdemeanor.

• K.S.A. 82a-737: Civil Enforcement of Act allows monetary fines of $100 to $1000 per violation of KWAA or any provision of a water right

• Each day of violation may be treated as a separate offense

• K.A.R. 5-14-1 through K.A.R. 5-14-11 outline our enforcement procedures

Penalty Changes for Over-Pumping

• First offense: Notice of Non-compliance (NONC)

• Second offense: Monetary fine of $1,000 and a reduction in authorized quantity for the following irrigation season by two times the amount overpumped

• Third offense: Monetary fine of $1000 per day of overpumping (capped at $10,000) and a one-year suspension

• Fourth offense: Water right revocation

• Allows authority for more severe penalties

Water Development and Over-development under the KWAA;Adaptations to our Water Law

NUMBER AND NET AUTHORIZED QUANTITY OF WATER RIGHTS

0

5,000

10,000

15,000

20,000

25,000

30,000

35,000

1945 1950 1955 1960 1965 1970 1975 1980 1985 1990 1995 2000 2005

YEAR

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WIT

H P

RIO

RIT

Y D

AT

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IN

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AR

0

2,000,000

4,000,000

6,000,000

8,000,000

10,000,000

12,000,000

14,000,000

QU

AN

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Y (

AF

)

ACCUMULATED NUMBER APPROVED ACCUMULATED NET AF AUTHORIZED

Significant irrigation use driven by:

• Pump technology improvements

• 1947: Frank Zyback invents the center-pivot irrigation system

Distribution of Water Rights

Water Law AdaptationsYear Updates to Water Laws

1972 Groundwater Management District Act

1978 KWAA amended to require water rights for all

non-domestic uses

1978 GMD Act amended, IGUCA provision added

1980s/early

1990s

Significant new restrictions for new water rights

(closing areas, using safe yield to guide new

development)

1984 Minimum desirable streamflows established

1989 Water use reporting improved via penalties for

failure to report

2000 Significant new KWAA regulations

Ending Abandonment in Closed Area (2012)

• KWAA provides for abandonment of water rights for non-use

• Abandonment allows unused water to be re-allocated to new uses

• Yet, in areas closed to new water rights, this re-allocation does not occur.

• 2012 Legislature ended abandonment in closed areas.

• Allow water rights to be preserved for future use without current use

• Added to KWAA in 2001

• For a 5-year period, suspends base water right and replaces it with a 5-year term permit

• Removes annual authorized quantity limitation

• Term permit quantity was based on: average water use less a 10% conservation factor

• Very few permits issued 2001 to 2011

Multi-Year Flex Accounts, K.S.A. 82a-736

2012 Legislative revisions to MYFAs

• Removed conservation requirement, but seek to prevent increase in long-term use (aquifer neutral)

• Allow more options to determine quantity:1. Average Historic Water Use (2000 to 2009)

2. County Net Irrigation Requirement (NIR) for the maximum acres reported irrigated (2000 to 2009)

• Max Reported Acres x NIR x 110%

3. A system proposed by a Groundwater Management District

Addressing the Over-Appropriation of the Ogallala Aquifer

Groundwater Management District ActK.S.A. 82a-1020 et seq., 1972

• Provides for the establishment of local groundwater management areas (GMDs).

• GMDs charged with developing more specific management plans for those areas.

• GMDs may propose the adoption of more specific rules within their district, subject to the Chief Engineer’s approval.

• GMDs may request proceedings to establish special management areas.

Groundwater Management Districts

Kansas Regulatory Framework for Groundwater Management

• Hybrid of state control/local input

– State control under the Kansas Water Appropriation Act which regulates groundwater and surface water in a single priority system.

– GMDs created to provide local input/leadership

• Slowed/stopped new development

• Require meters/special studies/built models

• Some voluntary, incentive based reductions

– Yet, over-appropriation largely unaddressed

Options for dealing with groundwater conflicts from over-appropriation

• Continue status quo management –Pumping limited by water rights limitations, physical constraints, and individual choice

• Water right administration (first in time, first in right) in areas of demonstrated impairment

• IGUCAs – alternative water right administration in problem areas as determined by the chief engineer via hearing

• LEMAs – alternative water right administration initiated by GMDs

Groundwater impairment investigations: complex and time consuming

Groundwater impairment actions

• Administration has occurred in a few cases where demonstrated impacts on seniors by junior rights.

• On-going groundwater impairment activity

– Stevens County

– US FWS Quivira National Wildlife Refuge claim

– Litigation has happened. Junior rights are shut off and DWR has been ordered by the court to craft a remedy.

• Strict water rights administration is not the preferred method if we can create a softer landing with LEMAs and IGUCAs

Intensive Groundwater Use Control Areas (IGUCA)

• Part of 1978 GMDA Act amendments

• Water management tool that works in conjunction with the Kansas Water Appropriation Act

• Allows for more-flexible solutions taking in to account the area and aquifer

• Provides alternatives to strict administration of water rights by priority

• Formal public hearings are held

• Decision by chief engineer based on hearing record

Local Enhanced Management Areas(LEMAs), 2012

• Like Intensive Groundwater Use Control Areas:– Requires demonstrated problem: groundwater

declines, dropping rates, etc.

– Similar tools : allocations, rotation of use, etc.

– Due process via hearings

• Difference: GMD crafted solutions– Chief Engineer decision: adopt, reject or return plan

to the GMD based on consistency with state law and appropriateness of solution

• Shared solution respecting priority

“Sheridan 6” LEMA

• NW KS GMD 4 identified high priority areas

• Model demonstrated benefits of cuts stay put

• “Sheridan 6” HPA wanted to cut use 20%

Sheridan 6 LEMA Implementation

• GMD initiated proceedings, June 2012

• Public hearings, Sept. and November 2012

• Orders of decision and designation

– Allocation: 55 inches per acre over 5 years (20% reduction over recent use)

– Significant flexibility to move allocations

– 195 wells; 24,803 acres irrigated.

– 5-year pilot; must be renewed

Sheridan County LEMA implemented, working

Other LEMAs?

• Governor and administration actively encouraging GMDs to develop more

• Western Kansas GMD 1 spent considerable time working with producers to develop a district –wide LEMA

– Board decided it wanted a 2/3 vote in favor to move forward. Failed, summer 2014

Groundwater Management Districts

Current Issues:

Quivira Water Vision/2015 Legislation

Quivira National Wildlife Refuge:Surface water right claiming impairment by

groundwater

Quivira National Wildlife Refuge impairment investigation

History related to Quivira concerns

• U.S. Fish and Wildlife Service has been expressing concerns since 1990’s

• Rattlesnake Partnership formed to seek voluntary, incentive based solution.

• Plan developed and approved in 2000

• Limited pumping reductions achieved

• March 2013, US FWS asks chief engineer to take action; impairment investigationinitiated.

Water vision process / 2015 legislation

• The Water Vision process continues; now focused on local goals.

• 2015 Water Legislation– HB 2059 / SB 52 - Allow augmentation as a tool to

remedy impairment

– HB 2069 / SB 36 - Additional Multi-year Flex Account changes:

• allow carryover of unused allocation to subsequent MYFA

• allow small changes in place of use

– Water Conservation Areas

KDA/DWR Contact Information

• Website: http://agriculture.ks.gov/dwr

Questions or Comments?

DWR duties under the KWAA

• Process new applications (400/year). Determine safe yield (e.g. recent Ozark Aquifer, Lower Ark determinations)

• Process change applications (600/year)• Issue certificates (varies 300-500/year)• Water use (14,000 report/year)• Administration of 33,000 water rights, esp. in

times of shortage, protection of storage releases, minimum streamflow administration

• Compliance and enforcement• Work with GMDs on groundwater management

Missouri River Aqueduct proposed by GMD 3

Administration of MDS

• Once streamflow drops below the assigned MDS threshold for a period of 7 consecutive days, the Chief Engineer will issue orders to cease diversion.

• Streamflow must remain above the MDS threshold for at least 14 consecutive days before administration can end.