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.
Water can by classified into many categories including, but certainly not limited to, natural watercourses, artificial waterbodies and groundwater. A number of nonsensical legal approaches deal with various classifications of water.
A decision is now pending from the Chief Engineer of the Division of Water Resources regarding the McPherson Intensive Groundwater Use Control Area (IGUCA). The Chief Engineer held a public hearing on October 4, 2016 and imposed a final deadline for written testimony of December 2, 2016. An IGUCA is designed to serve as a tool to locally manage areas with significant groundwater level declines. The McPherson IGUCA was established in March of 1980 and had two principal conditions: 1) that the designated area was closed to new appropriations, except domestic and temporary permits, and 2) that water flow meters had to be installed on all groundwater wells, except domestic and temporary wells.
At the hearing numerous changes to the IGUCA were on the table including expanding the geographical area and changing allocations of water. The Equus Beds Groundwater Management District No. 2 participated actively in the hearing process. The Board of the District recommended that the Chief Engineer not expand the boundaries of the McPherson IGUCA until proper modeling and local safe yield regulations could be completed. The Board’s recommendations likely should be very instrumental in the ultimate decision. The outcome of the Chief Engineer’s order could have profound consequences for irrigators in the McPherson area.