The riparian doctrine is one of two main systems of determining water allocation and ownership of water rights. The other main scheme is prior appropriation. This is the subject of a separate blog post.
The riparian doctrine evolved in the green countrysides of England and the eastern United States. Riparian law typically deals with abundant water supplies. In short, rights are based on access to water through ownership of banks and land surrounding a water supply. Users restrict demands based on those that constitute reasonable uses.
The riparian doctrine has been critiqued as really not offering much of a system of water allocation. Instead, it is viewed as a fire fighting device to settle the few disputes that arise over plentiful supplies.
A term that is commonly used in water law is prior appropriation. Prior appropriation embodies the concept of “first in time, first in right.” That means the first individual to divert water to a beneficial use from a particular source of supply had priority over those that later staked claims to the same water source. In this example, the first user would have rights that are senior to the later and more junior users.
The system of priority is quite significant in the event of water shortages. If a governmental agency must reduce allocation from a particular source of supply, then the senior water right holders will be the last to be precluded from pumping water.
The prior appropriation doctrine was developed in the western United States during the gold rush in 1848. The miners faced the dilemma of needing to pipe water substantial distances from streams, along with the problem of allocating water shortages. Thus, the concept of prior appropriation emerged to prevent disputes among miners. The very concept was actually born out of the idea of laying stakes to gold mines.
Soon the prior appropriation doctrine evolved. It was first recognized in the 1855 Court case of Irwin v. Phillips. Farmers discovered the benefits of appropriation law and it expanded into a recognized system to deal with water shortages throughout arid western regions.
Eventually, the concept of abandonment was added as a way to extinguish water rights that were not being utilized. This freed water up for other, new users. Thus, the touchstone of prior appropriation is being able to divert water to a beneficial use. There are many types of beneficial uses including, but not limited to, domestic, recreational, industrial, municipal, and irrigation.
Although Kansas has a statutory system of allocating water, many elements of prior appropriation are embedded in Kansas law. Indeed, the Kansas legislature passed the Water Appropriation Act in 1945. As droughts and aquifer depletion continue to impact many parts of Kansas, prior appropriation concepts will continue to evolve under Kansas law.
We recently have been asked by multiple clients if an abandoned water right can be revived pursuant to Kansas law. This does not appear to be an issue that has clear precedent in statute or case law. Thus, the ability to restore a forfeited water right is unclear.
Under Kansas law, a water right can be abandoned after 5 years of nonuse. A Kansas administrative regulation carves out a number of very specific reasons that nonuse may occur. Thus, a first step in considering whether a water right is properly abandoned is to analyze all the valid reasons for nonuse outlined in this regulation.
The Division of Water Resources also must follow specific procedures to properly designate a water right as abandoned. An owner of a water right is generally entitled to proper notice of the intent to deem the water right abandoned. Further, the owner is entitled to a full administrative hearing. If the hearing officer makes a decision adverse to the water right owner, the outcome can be appealed. It is worth noting that water rights abandoned earlier in time were subject to less required procedure.
It remains to be seen whether an aggrieved owner will attempt to revive a water right and pursue it through the court system. If this is attempted, it remains to be seen whether a proper fact pattern can be presented that will cause a court to be sympathetic to this approach.