Summary of Modern Kansas Legal Studies Regarding Water
In the United States individual states control water resources within state borders. There are two types of water rights: rivers and groundwater. Federal rights control rivers and streams.
When Kansas became a state in 1961 they immediately adopted common law for water resources--Riparian Doctrine for rivers and Absolute Ownership Doctrine for groundwater. The landowner was the absolute owner of all the water underground. This changed in 1944 making the Chief Engineer of the Division of Water Resources and any person seeking the right to use water need a permit. Rights of people already using water were recognized as “vested rights”. From 1957 to present Kansas has recognized water rights are real property rights, which is not the same as land, but the right to use the water. Finally, in 1972 the Kansas legislature acknowledged there is an over-usage problem and began to create groundwater management districts.
The last comprehensive legal study of Kansas water issues was in 1957. The Kansas Water Appropriation Act (KWAA) contains most of the legislation upon which water law depends. This law, affirmed by the Supreme Court in Kansas, enables the state to compile comprehensive regulations for water usage. In the recommendations of the Governor’s Task Force in 1957 it addresses local stakeholder participation, reservoir-based water supply management, and 39 other recommendations.Dr. Burke Griggs (2017) raises three problems in his evaluation of the water law. First the conditions have changed dramatically as groundwater now dominates surface water. Permanent depletion of water resources raises questions in property law about water rights and the loss of perennial streams and groundwater dependent ecosystems. There is an unpredictability in both regulatory and legal actions which frustrate property owners. Second, it the creation of legislative “spot zoning”. Influential stakeholders and the State itself (the KWAA) wastes time and creates confusion and cost-ineffective litigation. Finally, the ambitious policy recommendations in the Kansas Water Vision report (2015) raise legal issues about the durability and enforceability of its action items. Dr. Griggs urges the State to ensure that they are legally permissible, and the study would help the legislature determine whether legislation is necessary.
Dr. Peck describes the groundwater mining problem as: Had Kansas Legislature in 1945 adopted the appropriation system, but insisted that safe yield would be maintained, we would not have the groundwater mining today. On the other hand we would not have the strong irrigation-based economy in Western Kansas today. Dr Peck says “The Kansas experience teaches that having property rights in place does not insure against the possibility of experiencing eventual over-pumping problems. In the 60s the State should have denied new permit applications. However Western Kansas would have remained an area devoted mostly to dry-land farming.”
Hopefully this summary of two legal experts provides some background for our discussion of the water consensus study questions on March 15th.