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.

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.

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.

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.

When land is sold, can the water right be retained by the seller?

The answer to this question is “yes.”  However, several considerations should be made.  Generally, when land is sold or otherwise deeded, the water right passes with the conveyance of the land. 

However, a water right is a real property right.  Consequently, a water right may be severed from the land from which it is associated.  However, this may present special problems that should be considered.  A water right in Kansas generally must be put to a beneficial use.  Thus, if the water right is retained by the grantor, care should go into determining how the water right will be appropriated.  Other changes to the water right may be necessitated by the transaction.

If one wishes to sever the water right from the land, special care should go into drafting the deed or other instrument of conveyance.  Special language should be added to connote that the water right will be retained by the grantor.

What is Riparian Law?

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.

Can An Abandoned Water Right Be Restored?

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.