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.

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.

What Happens If a Farm Tenant Overpumps a Water Right?

We frequently have landowners that come to us with the concern of what happens if their farm tenant overpumps a water right.  We acknowledge that this is a very valid fear that we have encountered numerous times. 

A “black mark” can go on a water right when it is overpumped.  For first time instances the Division of Water Resources (“the DWR”) usually just issues a letter and a fine.  However, for repeated and serious violations, a water right can potentially be forfeited.  Thus, it is a very big deal if a water right is consistently overpumped.

We commonly see the problem happen when the landowner lives out-of-state and has less ability to “police” the tenant’s stewardship of the property.  In situations where the landowner is completely innocent and unaware of the tenant’s actions, the DWR has still taken the position that a landowner is responsible for the actions of the landowner’s agent.  Thus, the moral of the story is to pick your tenant very carefully.

Additional precautions can be taken to help guard against the above scenario.  We have drafted language that can be put into a robust farm lease to help ensure that the tenant takes every precaution not to fall out of compliance with the water right.  A good, independent farm manager can also help to monitor the tenant’s actions.  There are several companies that offer this service.  Indeed, the overpumping of a water right is a significant concern that must be properly addressed by the landowner. 

Who Owns Your Water Right?

Owners of water rights are frequently surprised to find that their water rights are partially owned by others. The awareness of this problem most often arises when the obvious owner applies for a change in the right—such as permission from the Division of Water Resources to drill a new well.

It is at this time that they learn the unexpected news: that many years ago the place of use was set up to include land also owned by someone else. Such a situation causes the current owner of the previously unknown “place of use” to have an interest in the right.

To avoid such unpleasant surprises we recommend some of the following steps. If land, including a water right, is being purchased have the right examined for title and ownership purposes. It is preferable to have the examination completed by a competent water law attorney. Title insurance does not include any detailed analysis of a water right. It is not insured under the normal policy.

As to land under common ownership which has been irrigated for many years, the same examination by a competent water law attorney is warranted.

When such extraneous ownership is discovered, or is known, there is great merit in working to clear the records so that such ownership is eliminated. The Division of Water Resources responds affirmatively to (1) agreements among owners and (2) court orders. Agreements are usually much less expensive.  Court orders can be arduous processes to obtain.

Planning up front is thus critical to avoid unexpected expenses and surprises. In this case, an ounce of prevention is worth many acre feet of cure.

What Are the Basic Steps of Acquiring a Water Right

A number of steps go into obtaining a water right.  First, an individual or entity seeking a water right must file an application with the Division of Water Resources (DWR).  The correct application form must be submitted.  DWR will make a variety of determinations regarding whether to approve the application including, but not limited to, a safe yield analysis and whether the water use will interfere with other area water rights, minimum desirable streamflow, or the public interest.

If DWR approves the application, it will issue a permit.  After the permit is issued, the applicant must complete the diversion works.  An example of a diversion works is the drilling of a well.  After the point of diversion is completed, the applicant then has 4 to 5 years to perfect the water right.  An extension of time may be sought during the perfection period.  Perfection essentially means proper diversion of the water and utilization of the water right.

After the perfection period is completed, a field inspection is conducted by DWR.  The field inspector will assess such things as where the water is being used and the rate of diversion, among many other factors.  If the field inspection passes muster, a draft certificate of appropriation is issued.  The applicant then has 30 days to comment on the draft certificate.

After the above process is completed, a certificate of appropriation is issued.  The certificate must then be filed in the Register of Deeds office in the appropriate county to become effective.  The applicant must then file annual reports with DWR to keep the water right active.