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.