What Are the Limits of Domestic Water Use?

A domestic water “right” affords many uses of the water that can be made absent a statutory permit.  One such use is for the construction of a pond.  There are requirements, however, including that the pond must be less than half of an acre, be part of the landscaping, and be within 300 feet of a house.  A certain quantity of water can also be added to the pond for firefighting purposes as quantified on an annual basis.

A domestic water use can also be applied to household purposes.  “Household purposes” are also broadly defined by regulation.  This is defined as “cooking, cleaning, washing, bathing, human consumption, rest room facilities, fire protection, and other uses normally associated with the operation of a household.”  As indicated, this allows for an expansive range of possibilities for a domestic use of water.

Kansas law also allows a domestic use to be pumped for the “watering of livestock, poultry, farm and domestic animals used in operating a farm.”  This is indeed an amorphous standard that is subject to interpretation, and thus some flexibility.  One can likely be creative in the use of water for these purposes.

A domestic use can also be diverted for “a total of two acres in area for the growing of gardens, orchards and lawns.”  Thus, one can grow limited specialized crops with only a domestic water right.  Many individuals have utilized this language to grow produce for farmer’s markets or other profitable purposes.

With the above in mind, many uses of water can be made without even acquiring a water right.  Before seeking a water right, one must carefully evaluate if a domestic use of water will be adequate for the desired purposes.

When Must a Manmade Structure Be Removed or When Must It Be Maintained?

A frequent topic we are asked about concerns old dams or structures on streams or rivers.  Sometimes we are asked whether the manmade feature can be removed or whether it must be maintained.  Other times the Division of Water Resources or another agency asks the landowner to involuntarily remove the dam or structure.  Unfortunately, the outcomes of these decisions can have drastic and sometimes expensive consequences for the landowner.

Sometimes a manmade dam or obstruction must be maintained.  There is law in Kansas that indicates that an old manmade feature to a watercourse may become part of the natural watercourse over time.  In that event, the landowner may have a duty not to remove the manmade structure and the landowner is precluded from restoring the stream or river back into its original form.  In this situation, the manmade feature becomes a part of the natural flow of the stream and neighboring landowners can compel its maintenance.

Whether an agency can force a landowner to remove a dam or structure in a stream centers on a number of considerations.  One must consider the nature of the obstruction in the stream and its purpose.  One must consider how long the structure has existed.  For example, if the structure is old enough—and Kansas law focuses on a certain date—the structure may be “grandfathered” in.  

Further, the nature of the watercourse impacts the decision of whether an obstruction must be removed.  Kansas caselaw and Kansas regulations define what constitutes a stream.  In the event it does not qualify as a stream, most Kansas regulations may not apply.  If it is a more major watercourse, federal law may come into play.

Regardless, whether a manmade structure must remain or must be removed can have very important impacts.  A careful understanding of Kansas law in this regard is crucial. 

What Is a Safe Yield Calculation with Respect to Groundwater?

A safe yield calculation is designed to ensure an adequate water supply within an aquifer. When an applicant applies for a new water right, a safe yield calculation is made by the applicable governing body. This may be the Division of Water Resources or the local groundwater management district.

The safe yield calculation takes into account all the wells in the vicinity of the proposed water right, the saturated thickness of the aquifer, and other factors. A mathematical formula may be used to ensure that adequate water exists in a given location. If the water right satisfies the safe yield calculation, then the applicant may proceed with the next steps in obtaining a water right.

If the water right violates a safe yield calculation, the applicant can still seek a waiver from the local governing body. If the waiver is not granted, the applicant likely can proceed with obtaining the water right. If a waiver is allowed, the applicant can pursue next steps in the process.

Safe yield calculations are a more recent requirement in the grand scheme of Kansas water law. Thus, unfortunately, many portions of aquifers in Kansas are highly over-appropriated. Safe yield calculations are thus vital to protecting water resources.

How Does the Division of Water Resources Determine Whether to Grant a New Water Right?

The Chief Engineer of the Kansas Division of Water Resources must constantly balance the public interest with the goal of allowing water to be allocated to a beneficial use. Thus, there is a constant tension between development, on one end of the spectrum, and the preservation of water as a scarce resource, on the other end of the spectrum. 

Consequently, the Chief Engineer must consider a variety of factors in deliberating on whether to grant a new water right. The Chief Engineer should first evaluate if there is water available for appropriation. In many areas, this is done through a safe yield calculation. In a groundwater management district, the manager of the respective district usually helps with this calculation. 

It is critical for the Chief Engineer to develop an understanding of whether granting the new water right will impair existing water rights. Kansas statutes define the tolerance for “impairment” as “beyond a reasonable economic limit.” This standard has been developed because many areas are already highly appropriated, and, in the case of the Ogallala Aquifer, the continued source of supply may be limited.

The Chief Engineer must also consider whether the granting of the new water right is in the public interest. In making this determination, the Chief Engineer will look at factors such as the minimum desirable streamflows, the nature of the local water supply, prior water rights granted, and other relevant factors.   The Chief Engineer can even add water quality into the calculus. For example, in the Equus Beds Aquifer, there is a saltwater plume that the Chief Engineer will likely seek to keep from spreading in determining whether to grant new water rights.

Frankly, it has become increasingly more difficult to obtain a water right. Most places in Kansas are, simply put, over-appropriated. However, if you are fortunate enough to be located in an area where you believe water is available for appropriation, the above discussion should help illuminate whether the Chief Engineer will issue a permit.

What Is the Value of My Water Right?

Clients frequently ask us what their water rights are worth. Numerous factors go into making this determination. This article will only provide a very brief overview of some of the typical considerations that one must consider in answering this question.

First, the priority date of the water right is significant. Certainly, Kansas has a modified version of the “first in time, first in right” appropriation concept. Thus, if you live in Western Kansas or in an area facing water shortages, a low number on the water right is quite significant. In other areas, such as the Equus Beds where recharge occurs much faster, this may be less of a factor.

Second, a practitioner should consider the “guts” of the water right. At a very basic level, we consider the authorized quantity and the authorized rate of diversion. If not enough water can be pumped in a given amount of time, the water right may be worthless for the desired purpose. One must also consider the saturated thickness of the aquifer or the availability of the source water. If water is not readily available for pumping, the water right may be of little value.

Third, we consider the authorized place of use. Sometimes we have encountered situations where plenty of water is available but the water right was only authorized to be used on a small portion of land.

Fourth, we look at the nature of the designated use. A water right designated for industrial or municipal use may have inherently more value than another use in a given situation. It merits noting, however, that the attributes of the water right can be changed—as we discuss in another article. Also, in this vein, one must consider the “market” for the water right. Sometimes a valuable industry may make a water right tremendously valuable. Or, conversely, a water right near poor farming land, for instance, may have little value.

The above points constitute some of the many factors a practitioner must consider in assessing the value of a water right. We generally hire an experienced appraiser to help in analyzing the value and the appraiser will also look into comparable values of surrounding land. Keep in mind, however, that very few appraisers are properly trained in appraising water rights. At any rate, someone experienced in water rights can help with determining value.

Where Is My Water Right?

When a client purchases land we are oftentimes asked the basic, but very important question, of what, if any, water rights accompany the transfer. It is very common in a land transaction to include only very straightforward information in the purchase contract: a description of the land, the purchase price, details regarding closing, associated costs, and perhaps a reference to title insurance. Most deeds also only contain a description of the land as well. In the event water rights are associated with the land, those water rights may be ignored in the transaction and the contract will be silent on that important issue. Thus, clients ask us in this scenario what water rights are inherent in the transfer. This question also comes up frequently in a probate context.

There are a variety of ways to track down water rights. Surprisingly, there are actually several online tools that are quite useful in obtaining the basics on a water right. With these tools, you can actually see water rights associated with a given parcel of land and actually discover the number associated with a water right. Once an assigned number is determined, one can then learn basic attributes of the water right including the priority date, the location of the point of diversion, the authorized rate and quantity, and the associated place of use. This is a vital first step in learning about a water right.

However, these online tools are not foolproof and only provide basic information. The online information may not have been recently updated and only reveals a “surface level” picture of the water right. To obtain more information, the next step should be to complete an open records request to track down the complete water right files. Once this information is obtained, the practitioner can examine items such as the original certificate of appropriation and any important changes made to the water right. Oftentimes, there are details about a water right than can only be discovered after conducting a thorough review of the full water right files.

Additionally, there may be information that can be gleaned from an actual title search. It is possible that a previous owner of land sought to sever the water right from the land and only filed something with the office of the local register of deeds. In other words, proof that the water right is no longer intact may not have been properly submitted to the Kansas Division of Water Resources (DWR).

Finally, a diligent practitioner may want to visit with members of various agencies that govern the water rights. For example, if a local groundwater management district is involved, it is very useful to contact an employee of the district about a water right. We have also found the staff of DWR to be quite helpful and knowledgeable.

With these important steps, one can properly learn what water rights are actually associated with a land transfer. However, because this can become very technical in nature, it can be beneficial to contact a qualified professional to help with this analysis.

LEMAs: A Water Management Tool

Local Enhanced Management Areas (LEMAs) are a tool that allow for local management of water resources.  Usually a set period of time—i.e. 5 years—is specified over which reductions in water use must occur.

Local water users can come together to form a LEMA.  They must chart out a detailed plan of how reductions can be completed.  The plan is oftentimes based on expert analysis and data that demonstrate how to reduce declines in water levels. 

Once a plan is formulated, a series of public hearings occur.  The Chief Engineer of the Division of Water Resources will generally oversee those hearings.  The public is given a full opportunity to support or oppose the LEMA and proper process must be followed.

Once a plan is approved, the members of the LEMA must abide by its terms.  The Chief Engineer can enforce the LEMA terms and impose penalties for noncompliance.

LEMAs are becoming an increasingly popular tool to ensure water management in Western Kansas.  The formation of LEMAs has not been met without opposition, however.  At least one LEMA is now the subject of a court case due to objections lodged against the process utilized to form the LEMA and based on the terms of the LEMA itself.

Water Use Assessments in Groundwater Management Districts

A groundwater management district has the ability to assess a water use charge against landowners within a district or authorized users of a water right.  K.S.A. 82a-1030(a) allows the district to impose the charge based on “groundwater withdrawn within the district or allocated by the water right.”  The cap on the amount the district can assess is further defined in the statute.  Otherwise, a district is free to choose the assessment amount and this is often a very political decision.

A groundwater district can even assess a separate charge based simply on land owned within the district.  These special assessments are then treated in a manner similar to a property tax.  A landowner may seek a verified claim to try and seek abatement of the charges under certain circumstances.  These verified claims must be submitted by April 1 and each district may utilize a special form for this request.

Potential Changes Looming for Recharge Credits in Equus Beds

The City of Wichita has filed applications with the Division of Water Resources to change the manner in which the city is granted “recharge credits” arising from the aquifer recharge project in the Equus Beds aquifer. The recharge project takes water from the Little Arkansas river during the times when the river is flowing at a specified rate above normal.  The water is treated to normal drinking water standards and is caused to be either injected or settled into the aquifer. The city’s stated purpose is to provide increased access to Equus Beds water during times of draught. The city already has the most extensive water rights in the Equus Beds aquifer.  The Division will hold public hearings to consider the applications.

A Water Right for Recreational Use

One type of use of a water right is for recreational use.  K.A.R. 5-1-1 defines
“recreational use” as “use of water in accordance with a water right that provides entertainment, enjoyment, relaxation, and fish and wildlife benefits.”

A recreational water right is commonly pursued for hunting and fishing purposes.  For example, one may wish to pump groundwater from a specified diversion point for the purpose of flooding a pond for duck hunting.  The pond would thus be the place of use.

A recreational water right must be developed like any water right.  An applicant must seek a permit.  A separate and distinct face sheet must be completed for a recreational water right.  For someone coming from a perspective of loving the outdoors, a recreational water right is a vital tool.