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. 

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