The Politics of Prior Appropriation – Is a Senior Right Really Senior?

Overview

Water is of critical importance to agriculture.  It’s vitally necessary to grow crops and raise livestock.  Of course, too much water can be a problem.  That was the case in parts of the Midwest and Plains throughout 2019.  But, most often water issues center around a water shortage and how the law in a particular state appropriates water in times of scarcity. 

Sometimes the manner in which state law allocates water to holders of water rights for agricultural purposes conflicts with other federal laws and public policy goals involving environmental and wildlife concerns.  One such conflict has been going on in Kansas for some time.  The conflict illustrates the policy concerns over the strict application of state water law. 

The prior appropriation doctrine and associated water rights and concerns – it’s the topic of today’s blog post.

Prior Appropriation System

One way that the legal system allocates water is with the prior appropriation system.  The prior appropriation system is based on a recognition that water is more scarce, and establishes rights to water based on when water is first put to a beneficial use.  The doctrine grants to the individual first placing available water to a beneficial use, the right to continue to use the water against subsequent claimants.  Thus, the doctrine is referred to as a “first in time, first in right” system of water allocation. The oldest water right on a stream is supplied with the available water to the point at which its state-granted right is met, and then the next oldest right is supplied with the available water and so on until the available supply is exhausted.  For a particular landowner to determine whether such person has a prior right as against another person, it is necessary to trace back to the date at which a landowner's predecessor in interest first put water to a beneficial use.  The senior appropriator, in the event of dry conditions, has the right to use as much water as desired up to the established right of the claimant to the exclusion of all junior appropriators.  This is the key feature of the prior appropriation system.

Water rights in a majority of the prior appropriation states are acquired and evidenced by a permit system that largely confirms the original doctrine of prior appropriation.  The right to divert and make consumptive use of water from a watercourse under the prior appropriation system is typically acquired by making a claim, under applicable procedure, and by diverting the water to beneficial use.  The “beneficial use” concept is basic; a non-useful appropriation is of no effect.  What constitutes a beneficial use depends upon the facts of each particular case.

Sometimes the right of a senior appropriator under a prior appropriation system to shut junior appropriators off in time of shortage conflicts with other policy interests.  Some of the so-called “Western water wars” have centered around this issue.  One such battle is occurring in Kansas at the present time and involves impairment of the Quivira National Wildlife Refuge (Refuge) near Great Bend, Kansas.    I have asked my colleague at the law school (and water law expert), Prof. Burke Griggs, for his commentary on the matter.  He has advised the National Audubon Society and Audubon of Kansas regarding the impairment of the Refuge.

Here is Prof. Griggs’ explanation of the Kansas conflict and thoughts on the matter:

The Kansas Issue – Quivira National Wildlife Refuge Priority Right

The Refuge, a wetland of international importance for whooping cranes and other endangered species, is located near Great Bend in the Arkansas River Basin.  The Refuge holds a water right obtained under the Kansas Water Appropriation Act (KWAA) with a 1957 priority, enabling the Refuge to divert about 14,500 acre-feet annually from Rattlesnake Creek (a small tributary of the Arkansas River) to supply salt marshes and other wetlands on the Refuge. The advent of large-scale groundwater pumping (related to agricultural and oil and gas production) in the 1960’s and 1970’s did not immediately affect the Refuge, but by the late 1980’s it had become clear that pumping was reducing the groundwater baseflows upon which Rattlesnake Creek and the Refuge depend. For decades the U.S. Fish & Wildlife Service (Service), which holds the Refuge’s senior water right, sought to compromise with junior irrigators. After three decades of little progress, the Service in 2013 filed a water right impairment complaint with the chief engineer of the Kansas Division of Water Resources (DWR)—the first formal step in requesting the “administration,” or curtailment, of junior rights in the Rattlesnake Creek sub-basin. In 2016, DWR issued its impairment report, which found that junior rights within the Big Bend Groundwater Management District No. 5 (GMD5) were impairing the Service’s water right. The scale of the impairment is substantial: pumping causes between 40,000 to 50,000 acre-feet of stream depletions annually from junior groundwater pumping, reducing between 3,000 and 5,000 acre-feet of stream flows to the Refuge, even as much as 9,000 acre-feet. Wildlife groups have been complaining of the Refuge’s water shortages for years.

Since the DWR’s finding of impairment in 2016, the DWR and GMD5 have been engaged in unsuccessful negotiations about how to resolve it. To avoid the clear but draconian remedy of administering junior groundwater rights in the Rattlesnake Creek sub-basin according to their priorities (i.e., in accordance with state law), GMD5 has proposed several versions of a Local Enhanced Management Area (LEMA) since 2017 in accordance with Kan. Stat. Ann. 82a-1041. These proposals have offered to repurpose irrigation wells as “augmentation” wells pumping local groundwater supplies into Rattlesnake Creek just upstream of the Refuge, and to remove end-guns from center-pivot irrigation systems. But according to its impairment report, the DWR found that it will be necessary to reduce pumping by 15 percent, or approximately 24,000 acre-feet, in the 135,000 acres closest to the Refuge, together with augmentation wells; or, without such wells, a 30 percent reduction in pumping.  

The Service has also been skeptical of GMD5’s LEMA plans for failing to address fundamental problems of water shortage and water quality. After the DWR formally rejected GMD5’s last LEMA proposal, negotiations between the DWR and GMD5 reached a stalemate. During the summer of 2019, GMD5 sought administrative review of the DWR’s decision.  The Kansas Secretary of Agriculture granted the petition in hopes of extending negotiations.  After those negotiations produced no real results, DWR prepared to administer water rights for the 2020 irrigation season. It sent letters to holders of junior groundwater rights that the DWR had previously determined were impairing the Refuge’s right, notifying them that the chief engineer would likely administer those rights during 2020.  For a week or so in October 2019, it appeared that Kansas water law might mean what the KWAA states, that “first in time is first in right.”  See, e.g., K.S.A. §82a-707(c). 

Apparently, following Kansas water law was intolerable.  The fall of 2019 witnessed an extraordinary intervention by groundwater interests, agency heads, and other politicians to prevent the priority administration of water rights that the DWR had planned for 2020. Multiple agribusiness entities wrote the chief engineer, requesting that the administration of rights be delayed, to reach a “collaborative solution” in 2019-20—one that has somehow eluded the parties since the 1980’s.  Representative Roger Marshall (R-KS) repeatedly contacted the KDA-DWR offices seeking the same. In October, Senator Jerry Moran (R-KS) obtained a promise from Ms. Aurelia Skipwith (the nominee to be the Director of the Service and the current Deputy Assistant Secretary for Fish, Wildlife, and Parks at the Department of Interior) that the Service would not file a request to secure water for the 2020 irrigation season, and would cooperate with DWR and GMD5 to achieve a voluntary solution.  In other words, the Service would not protect its own water right for the coming year.  Apparently, the Service has reverted to its pre-2016 position. It looks forward to working with KDA, “the congressional delegation, and all water users to develop concrete milestones and lasting solutions.”  Barring other developments, it seems likely that the largest senior water right in the Rattlesnake Creek sub-basin will suffer continued impairment in 2020, while junior groundwater pumpers continue to irrigate at their full capacity.   That essentially flips the prior appropriation doctrine on it’s head – “First in time, last in right.”

Questions raised.  The “Showdown at Rattlesnake Creek” raises multiple questions—most especially, the extent to which water officials can avoid and abdicate their statutory duties to protect the Refuge under federal law and the Refuge’s water right under both federal and state law. Can the Service avoid the sustainability mandate in the National Wildlife Refuge System Improvement Act?  16 U.S.C. § 668dd(a)(4)(B).   By not filing a request to secure water to protect its state-law water right, might the Service be risking violations of the Migratory Bird Treaty Act and the Endangered Species Act?  See, e.g., 16 U.S.C. §§ 703, 1539.  If the Service does not defend its existing state law appropriation water right, might it be entitled to a federal reserved water right to satisfy the purposes of the Refuge?   See, e.g., Winters v. United States, 207 U.S. 564 (1908); Potlatch Corp. v. United States, 12 P.3d 1256 (2000).

Does an augmentation plan to repurpose irrigation wells and pump groundwater into Rattlesnake Creek require review under the National Environmental Policy Act?  See, e.g., Middle Rio Grande Conservancy Dist. v. Norton, 794 F.3d 1220 (10th Cir. 2002); Industrial Safety Equipment Association v. Environmental Protection Agency, 656 F.Supp. 852, 855 (D.D.C. 1987), aff’d, 837 F.2d 1115 (D.C. Cir. 1988).  Based on its conciliatory actions to GMD5 and its irrigators, the Service does not appear to be interested in these federal questions, preferring to frame the conflict as one of state law only. State officials are similarly reticent, having issued repeated statements that they would not administer water rights in the basin to protect the Refuge—despite the clear priority of its right, its obvious and documented impairment, and the chief engineer’s non-discretionary duties to protect senior water rights. 2020 will prove to be an interesting year at the Refuge, especially if things turn dry.

Conclusion                                                                                                                         

I thank Prof. Griggs for his commentary today.  Is there a solution to the issue at the Refuge?  There hasn’t been one for decades.  It appears to me that government officials have realized what I have been pointing out about the prior appropriation system.  That is, from an economic standpoint, a senior appropriator can be expected to put water to a beneficial use until the marginal return equals the cost of the water. Junior appropriators, or those unable to obtain rights, could have high potential returns but (under the strict application of the prior appropriation doctrine) be prevented from putting water to a beneficial use. As such, the prior appropriation system does not allocate water where the return is highest so long as water rights are not transferable. Unfortunately, in many prior appropriation states, barriers to transfer of water rights are as great as in riparian states. This is the case even though a prior appropriation water right is not as closely linked to land ownership as is a riparian right, and a prior appropriation right may be separately conveyed.

In some states, especially the more arid western states, a water right is a right to use the water and is not a right to own the water. The water right is attached to the land on which the water is used, and can be severed from that land. The prior appropriation system also does not deal with return flow problems caused by differing rates of consumptive use between different appropriators.  For example, agricultural irrigation is approximately an 80 percent non-consumptive use in the wet and tile-drain states of the corn belt from Ohio through Iowa. This means that about 80 percent of water appropriated for irrigation eventually returns to its source. However, in Kansas and the remainder of the High Plains states, the non-consumptive use of water for agricultural irrigation ranges from five to 20 percent.  This is similar to industrial uses of water that are typically more consumptive in nature, although the use of water for cooling typically involves low rates of consumption.

The issue with the Refuge involves water law and economics, agricultural usage and wildlife protection.  Not easy issues to resolve.