Connie OwenChair, Kansas Water Authority

Presentation to State Association of Kansas Watersheds

Annual Meeting, Topeka, KSJanuary 22, 2020

Connie Owen

B.S. Emporia State UniversityJ.D. Univ. of Kansas School of Law

Kansas Court of Appeals, Kansas Supreme Court

Legal Counsel, Division of Water Resources, KS. Dept. of AgricultureRepresented DWR and Chief Engineer in all water rights issues arising within the state.

Hearing Officer, on contract with KS Division of Water Resources, KDAPresiding over administrative hearings related to water rights, including initial hearingsfor the two Local Enhanced Management Areas that have been established.

Practicing Kansas water law for 28 years.

The Kansas Water Authority*Established by statute in 1981 within and as part of the Kansas Water Office.

*Provides the leadership to ensure that water policies and programs address the needs of all Kansans.

*13 voting members who are appointed by the Governor or Legislative leadership.

*Other members are non-voting, representing approximately a dozen state agencies and entities.

*Responsible for advising the Governor, Legislature and Director of the Kansas Water Office on water policy issues and for approving the Kansas Water Plan, federal contracts, administration regulations and legislation proposed by the KWO.

Kansas Water Rights 101

Why?

What?

How?

What happened?

What now?

Why?

Eastern Kansas is more like Eastern US – more rivers and rain. Western Kansas is more like Western US – more likely that water shortages will occur.

Until 1945, Kansas water law was based on riparian water law, used in Eastern US. Fundamental rule: Reasonable useShortages are not so much the issue; the key is how to share the stream.

In 1945, Kansas adopted the Kansas Water Appropriation Act, K.S.A. 82a-701, et seq.Fundamental rule: Prior Appropriation. First in time is first in right.Assumes shortages will occur.Groundwater & surface water; all uses except domestic.

What?

In Kansas, a water right not ownership of the water. It is a right to use the water. The water itself is dedicated to the people of Kansas.

A water right, once developed, is a real property right that attaches to the land on which it used.

Two kinds of Kansas water rights: Vested: On-going use before the Water Appropriation Act passed in 1945.

Acknowledged by the state (DWR). Highest priority water rights.

Appropriation right: All except uses domestic must use the permit system. Each application’s date and time of filing set its priority. Apply to DWR.

Six basic parameters of each water right: Priority Annual Maximum QuantityAnnual Maximum Rate Place of UseType of Beneficial Use (irrigation, municipal, etc.) Point of Diversion

How? Appropriation water rights.

1. File an application with Division of Water Resources, KDA (DWR).2. If approved, you get a permit. Not a water right yet.3. Permit lists all parameters & conditions, including at least these:

*priority date/type of use/place of use/max annual quantity/max rate*deadline for constructing & beginning your project.*deadline for perfecting your water right.

4. “Perfecting” means the actual use of water as authorized by your permit. The authorized use of water (quantity, rate, acres if irrigation, etc.) by the perfection date creates the water right.

5. DWR will inspect and issue a certificate that documents the full water right.

Vested Water Rights. Impossible to get a new one. Possible to acquire an existing one.

What happened?

Many areas of Kansas are over-appropriated. Not enough water to support all the permits and water rights. Some areas closed to new permits; some economically dry. Reasons are many & complex.

Water Appropriation Act has 2 fundamental criteria for approval of applications (K.S.A. 82a-711):1. Not impair a use under an existing water right, and2. Not prejudicially affects the public interest. Includes: if there is not enough water to supply existing uses and the new use, the new use must

be denied.

Major example of over-appropriation: High Plains Aquifer (Ogallala, Great Bend Prairie and Equus Beds)

Some data points:Overall, 85% of consumptive water use in Kansas is agricultural. (DWR website.)Center pivot irrigation technology began on large scale in 1970’s. New applications for permits soared in 1970’s.

Kansas Water Appropriation Applications by Decade

0

2000

4000

6000

8000

10000

12000

14000

16000

18000

1940's 1950's 1960's 1970's 1980's 1990's 2000's 2010's

What now?

Involuntary Solutions include:

Intensive Groundwater Control Area (IGUCA)The Chief Engineer of DWR can issue order reducing use.

Administration of Water request by senior water right holdersChief Engineer required by law to investigate impairment complaint, and if

impairment is found and senior right holder files a request to secure water, DWR must act to provide water for the senior water right.

Judicial resolutionLawsuits between water right holders, orChallenges to Chief Engineer’s decisions (ex., IGUCA, LEMA,

Administration).

What now?Dilemma:

Water supply is diminishing; less use is essential for future use;Existing water rights are real property rights

Cooperative/Voluntary/Incentive-Based StrategiesLocal Enhanced Management Areas (LEMAs)Water Conservation Areas (WCAs)Individual voluntary conservation/reductionImproved agricultural/municipal/industrial/etc. water use technologiesUpdated agricultural practicesWater right conservation incentive programs

LEMA at a glanceK.S.A. 82a-1041

• Water right holders in a GMD propose plan to GMD Board.

• Board submits plan to CE/DWR• CE reviews for necessary provisions• Public Hearing #1

• Statutory conditions for need exist• Public interest requires corrective controls• Geographic boundaries reasonable

• Public Hearing #2: CE accept or reject plan

Water Conservation AreasK.S.A. 82a-745

April 2015

Goal: less gw pumping

Water rt. owners’ idea

Provisions required

Enforcement by DWR

Not just in GMD

Water rt. owners submit directly to CE

Owner agreement; no public hearings

Similar to LEMAs

Different from LEMAs