Changing Water Right Usage

Overview

Monday’s post featured commentary by Prof. Burke Griggs at Washburn University School of Law concerning a battle over the application of the prior appropriation doctrine in central Kansas.  Another matter involving water usage in Kansas concerns a couple of west-central Kansas towns that need water and agricultural (and other interests) in another county that don’t want to give it up.  This battle concerns the change of an existing water right.  Again, I have asked Prof. Griggs to provide the bulk of today’s commentary.

Changing the use of an existing water right – it’s the topic of today’s post.

Water Right Usage – What’s the Issue?

Monday’s post explained the prior appropriation method – the first-in-time, first-in-right system for allocating water rights.  The system allows the holder of a water right to change the place of use of the water associated with the right; change the type of water use; and also change the point of diversion of the water.  The ability of a water right holder to do these things is important.  In Kansas, for example, some parts of the state do not have any water available for allocation under newly issued permits.  In those areas, the ability to acquire a water right (say, for example, by purchasing the tract the water right is associated with) and changing the point of diversion, place of use or type of usage is critical.  While possible, those changes can only be made by filing an application with the Division of Water Resources (DWR) and paying a filing fee. 

The Hays/Russell Water Quandary

Prof. Griggs provides the following commentary on a water issue in Kansas involving the cities of Hays and Russell in west-central Kansas:

The City of Hays is a great location for railroads, as the Kansas Pacific Railroad realized in the late 1860’s. The City of Russell lies above a great location for oil and gas production.  Russell County is the home of the first fracked oil and gas well. But both cities are running short on water.  In 1995, Hays purchased the R9 Ranch (Ranch) in southwestern Edwards County along with its 30 irrigation water rights, which total approximately 7,726 acre-feet of annual use.  An acre-foot is the volume of water needed to cover an acre of land to the depth of one-foot.  

In 2015, the Cities of Hays and Russell (Cities) together applied to change these water rights to municipal use. Under typical circumstances, the DWR would evaluate the change applications by its standard statutory and regulatory procedure, accounting for the usual changes in consumptive uses and making provisions to protect existing water rights from the effects of the proposed changes.  Kan. Stat. Ann. 82a-708b; Kan. Admin. Regs. 5-5-1 et seq.  However, because the water rights under review exceed 2,000 acre-feet and are to be moved more than 35 miles, the change also engaged the Kansas Water Transfer Act (KWTA), which places an additional layer of review upon the change applications. Kan. Stat. Ann. 82a-1501 et seq.   Thus, in early 2016, the Cities also submitted an application to transfer water from the Ranch to the Cities pursuant to the KWTA.

The Cities’ application attracted opposition by irrigation interests in Edwards County, including Groundwater Management District 5 (GMD5), which is concerned by the export of groundwater out of the area. On March 28, 2019, the DWR contingently approved the change applications to municipal use for 6,757 acre-feet, a reduction based on the higher level of consumptive use for municipal rights.  See, e.g., In the Matter of the City of Hays’ and City of Russell’s Applications, Master Order, March 28, 2019, at 8-10, 43-45available at https://agriculture.ks.gov/docs/default-source/dwr-water-appropriation-documents/haysr9_master-order_final_complete.pdf?sfvrsn=7e168ac1_4.  The order also allows for the quantification of water usage on a ten-year rolling average of 48,000 acre-feet, more than the reduction required by the consumptive use determination. Id. At 17-18, 43-45.  The order is one of “contingent approval” because the change will not be final until the Cities fulfill the requirements of the KWTA.

Opponents of the change filed petitions for administrative review, alleging, among other things, that the approvals were unreasonable by allowing too much water to leave Edwards County, and that the Cities’ operation of the changed rights would impair existing irrigation rights.  See requests for administrative review available at https://agriculture.ks.gov/divisions-programs/dwr/water-appropriation/change-applications/hays-change-and-water-transfer.  In Kansas, the Secretary of Agriculture has the authority to review decisions by the chief engineer regarding changes in water rights.  Kan. Stat. Ann. 82a-1901(a).  Kansas is the only state in the union in which the water rights agency is statutorily subservient to the department of agriculture.  The Secretary of Agriculture did not exercise administrative review (due to past associations with the irrigators filing the petitions for review), instead deferring to the procedure set forth in the KWTA.  Having exhausted its administrative remedies, the largest private irrigation group in the area, Water PACK, filed a petition for judicial review to contest the changes.  Water Protection Association of Central Kansas v. Barfield, No. 2019-CV-5 (Edwards Co., Kansas), filed May 29, 2019, available at https://agriculture.ks.gov/docs/default-source/dwr-water-appropriation-documents/2019-05-29_waterpack_v_barfield_petition_63291.pdf?sfvrsn=b7d18bc1_0.  The Cities moved to intervene in June, and the matter is currently pending before the Edwards County District Court.

If Water PACK’s suit against the DWR does not succeed in overturning the DWR’s approvals of the water rights changes pursuant to the KWTA, then the Cities will proceed to hearings to satisfy the requirements of the KWTA. Briefly summarized here, the KWTA requires the applicant to demonstrate, before a three-person panel (the chief engineer of the DWR, the director of the Kansas Water Office, and the secretary of the Kansas Department of Health and Environment) that the benefits of approving the transfer outweigh the benefits of not approving the transfer. Kan. Stat. Ann. 82a-1501a, 1502(a).   Assuming the changes in the Cities’ water rights survive judicial review, the KWTA proceeding should not present significant obstacles to the Cities.

Conclusion

As noted in Monday’s post, the prior appropriation system has some economic shortcomings.  However, the provisions in Kansas law allowing for changing a diversion point, type of use or place of use is an attempt to address those economic issues.  The present matter involving Hays and Russell, Kansas, also points out that state and local politics can become entangled in water disputes.  The “water wars” rage on.