David Barfield, Kansas Department of Agriculture - Presentation at the 2015 Women Managing the Farm Conference

1. Kansas Water Law/Water
Rights 101 and current issues
Women Managing the Farm 2015 Conference

2. Introductory Matters:
About DWR
Kansas Water Resources

3. 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

4. Kansas Interstate Water Compacts:
1942
1949
1971
1966

5. 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 Kansas
Relies on a mixture of surface and groundwater
• Western Kansas
Primarily relies on the Ogallala-High
Plains aquifer for its water supply

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

9. Water Law 101: The Kansas
Water Appropriation Act

10. 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…

11. 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

12. Fundamental Attributes
of a Kansas Water Right
• Priority Date
• Use made of Water
• Rate and Quantity
• Specific Point of Diversion
• Specific Place of Use

13. 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

14. 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.

15. New applications evaluated based on
sustainability

16. 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.

17. 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.”

18. 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

20. 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

21. 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

24. 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

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

26. 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
NUMBERWITHPRIORITYDATESINYEAR
0
2,000,000
4,000,000
6,000,000
8,000,000
10,000,000
12,000,000
14,000,000
QUANTITY(AF)
ACCUMULATED NUMBER APPROVED ACCUMULATED NET AF AUTHORIZED

27. Significant irrigation use driven by:
• Pump technology improvements
• 1947: Frank Zyback invents the center-pivot
irrigation system

28. Distribution of Water Rights

32. Water Law Adaptations
Year 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

35. 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

36. • 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

37. 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

38. Addressing the Over-Appropriation
of the Ogallala Aquifer

41. Groundwater Management District Act
K.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.

42. Groundwater Management Districts

43. 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

44. 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

45. Groundwater impairment investigations:
complex and time consuming

46. 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

47. 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

49. 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

50. “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%

51. 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

52. Sheridan County LEMA implemented,
working

53. 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

54. Groundwater Management Districts

56. Current Issues:
Quivira
Water Vision/2015 Legislation

57. Quivira National Wildlife Refuge:
Surface water right claiming impairment by
groundwater

58. Quivira National Wildlife Refuge
impairment investigation

59. 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 investigation
initiated.

60. 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

61. KDA/DWR Contact Information
• Website: http://agriculture.ks.gov/dwr

62. Questions or Comments?

63. 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

64. Missouri River Aqueduct
proposed by GMD 3

66. 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.