KLA Environmental Services provides agricultural producers, landowners, business organizations, municipalities, and other natural resource users with hands-on, personalized assistance to help with complex issues concerning soil, water, and the increasing number of environmental regulations. KLA Environmental Services routinely provides consulting related to new water right permits, transfers of water, new pond applications, term permits, and new well applications.
We thought it would be useful to provide a "primer" on basic Kansas water rights, drawing from our experiences serving Kansas water users. It is by no means comprehensive, and is intended only as an introduction to our experiences with surface and groundwater rights in Kansas. We caution that with water rights, all situations are unique and must be analyzed with reference to the facts and conditions.
Water rights are considered to be a form of property right in Kansas. They are granted by the State of Kansas and for the most part are tied to real property. Specific attributes are associated with each Kansas water right:
Water Right File No. – a unique number is used to designate and identify each water right. The file numbers represent the priority assigned to water right applications when they are received by the Division of Water Resources and deemed a complete application.
Priority Date – this date typically corresponds with the date on which a complete application was received by the Division of Water Resources. It is important in situations where the water supply is insufficient to satisfy the legal use of water right holders. In such cases the Chief Engineer of the Kansas Department of Agriculture - Division of Water Resources may commence administrative proceedings where junior (i.e. more recent) water rights are suspended in order to satisfy the needs of senior water right holders. This doctrine is known as “first in time, first in right.”
Beneficial Use – a specific use recognized by state law is assigned to each water right. Water associated with the water right can only be used for the specified use. In some cases, a water right can be structured to have multiple uses. The most common beneficial uses are irrigation, municipal, industrial, and livestock.
Water Source – for practical purposes, this is either surface water or groundwater.
Point of Diversion – this is the physical means by which waters of the State of Kansas are diverted or obtained for use by the water right holder. Surface water is usually diverted by means of a dam, canal, or pump. Groundwater is usually diverted by means of a well and pump. A description and geographic location is assigned to every point of diversion.
Authorized Rate – this is the maximum rate at which water may be conveyed from the source through the point of diversion. Rate is usually expressed in gallons per minute (gpm) or cubic feet per second (cfs).
Authorized Quantity – this is the maximum amount of water that may be used in a calendar year. Quantity may be expressed in acre-feet per year or million gallons per year.
Authorized Place of Use – this is the geographic location where the water can be put to the designated beneficial use. For agricultural purposes, the place of use is described by legal description. Other uses may require additional details.
The attributes of each water right are summarized in a legal document known as a Certificate of Appropriation. This document is similar to the deed for real estate. There are many other aspects of water right laws and regulations that impact specific situations. Hundreds of pages of statutes and regulations apply to water rights, including procedures for changing the attributes of water rights.
Purchase of a water right implies the acquisition of each of the attributes. If these attributes are not compatible with the desired use after purchase, then changes will be required. Such changes are subject to the limitations of regulations and must be approved by the Division of Water Resources. Therefore, purchase agreements should be structured to provide the means needed to implement the desired changes.
Each water right is unique and deserves a reasonable amount of research in order to understand its attributes and limitations. There are some common concepts and principles to consider when structuring a purchase agreement to obtain water rights. Some of these are summarized in the following points.
All history of noncompliance, penalties and limitations imposed, and pending actions by the Division of Water Resources should be disclosed. The consequences of past or pending actions should be considered and addressed in the purchase agreement.
Purchase should result in ownership of the point of diversion and place of use associated with the water right or should provide binding agreements or easements for the use of these physical features.
Purchase should provide for sufficient access to the point of diversion, place of use, and water transmission and application system such as pumps, pipelines, valves, and sprinklers) for operation and maintenance as intended by the purchaser.
Water rights may have common or overlapping attributes. The most typical situations are:
o Common points of diversion where the same well supplies multiple water rights,
o Overlapping place of use,
o Quantity and/or rate limitations on overlapping water rights.
It is advisable for purchase agreements to include provisions for severing overlaps and distributing limited quantities between buyer and seller. Applications to make changes in water rights require the signatures of all parties that have an interest in the water right. This includes all parties or owners that have interests through overlapping attributes. The Kansas Division of Water Resources will not approve change applications that do not have signatures or equivalent approvals of all interested parties. In cases where the former owner refuses to cooperate with the new owner regarding water right changes, resolution may be obtained by judicial action. Judicial decisions resulting in division or distribution of overlapping attributes may or may not be that requested by the new owner. Obviously, resolution may also be obtained by agreement for additional compensation.
Limitations imposed by other agency actions or entities should also be considered. Groundwater Management Districts (GMD) have specific regulations that apply to water rights within their boundaries. These regulations include procedures pertaining to changes in water rights. Some areas of the state are subject to the provisions and limitations of Intensive Groundwater Use Control Areas (IGUCA). The limitations imposed by GMDs and IGUCAs may have a substantial impact on the outcome of water right changes.
We have technical staff trained and experienced in the following functions related to Kansas water rights:
Water right permit applications and change applications.
Research of water rights for prospective real estate purchases and pending water right filings, and the documentation of water right priority.
Monitoring, recording, and filing annual water use reports.
Documentation and confirmation of approved water right permits.
Evaluation of water rights for future development, re-allocation (transfers), and client transfers to other real estate. We evaluate, document, and assist clients in the selling or legal transfer of rights to other entities.
Evaluation of water systems, usage, water reserves, storage, and market values.
KLA Environmental Services also has experienced staff to assist with Water Conservation Area (WCA) management plan development and implementation. A Water Conservation Area is a designated area with an approved management plan developed by a water right owner or group of water right owners with the consent of the Chief Engineer to reduce water withdrawals while maintaining economic value via water right flexibility. They can offer flexibilities in water use by creating multi-year allocations, moving allocations between water rights, and allowing new uses of water. WCAs were signed into law in April 2015 primarily to provide a tool to water right owners to extend the usable lifetime of the Ogallala-High Plains Aquifer.
A key part of our Proactive Compliance Program includes assisting clients with compliance related to their water rights. Through our program of services, our client’s limit their regulatory liability by proactively identifying regulatory concerns, preventing unintended errors, and actively engaging third-party experts. Our recordkeeping system is web-based and can be accessible from any location, plus it is user friendly! We develop individualized programs to monitor, record, and file annual water use reports. If you need assistance with water right issues, or other complex issues concerning soil, water, and the increasing number of environmental regulations, feel free to contact us at KLA Environmental Services.